QX2006/7 and Secretary, Department of Employment and Workplace Relations
[2006] AATA 600
•6 July 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 600
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2006/80
GENERAL ADMINISTRATIVE DIVISION ) Re QX2006/7 Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr KS Levy, Member Date6 July 2006
PlaceBrisbane
Decision The Tribunal:
(i) sets aside the decision under review; and
(ii) determines that the applicant was not a member of a couple for the relevant period.
(iii) remits the matter to the respondent for reassessment of the applicant’s entitlements for the relevant period.
. ...........[Sgd]...........
KS Levy
Member
CATCHWORDS
SOCIAL SECURITY – parenting payment (single rate) – members of a couple – ex-husband residing at same premises though not in main home – suppression of name under s35 – reasonable apprehension for safety – applicant no member of couple – s4 of Social Security Act – decision set aside.
Social Security Act 1991 s4(2) s4(3)
Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663
Re Mayer and Attorney-General’s Department, CRA Ltd and Mary Kathleen Uranium Ltd (1985) 7 ALN N411
Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Staunton-Smith v Secretary, Department of Family and Community Services (1991) 25 ALD 27REASONS FOR DECISION
6 July 2006 Dr KS Levy, Member Introduction
1. The applicant in this case received a parenting payment (single rate) for the period 18 December 2003 to 23 September 2005, when an assessment of living arrangements was made. At that time, the applicant’s husband moved back to their farm and her husband lived in a shed near the house. He also used the house but only for hygiene needs and contact with his children. Centrelink determined on 12 October 2005 that the applicant and her husband were then living as members of a couple, and that she was not entitled to the parenting payment (single rate) from 23 September 2005 until she moved out of the jointly owned house and farm on 6 February 2006.
2. The applicant appealed to the Social Security Appeals Tribunal on 21 November 2005. That Tribunal upheld the original decision of Centrelink on 4 January 2006.
3. The applicant appealed this decision to the Administrative Appeals Tribunal (AAT) on 25 January 2006. Prior to the hearing before the AAT, the applicant sought a Directions Hearing and orders that her name not be published and that the decision in this matter not be published on the internet. A Directions Hearing was held on 9 June 2006. The applicant said it was a private matter and that she did not want herself or her children publicly humiliated. The respondent argued that the law required that the matter be held in public unless a serious injustice would occur and should be published on the internet unless it would be contrary to the public interest (Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 at 273 per Brennan J.
4. After hearing the applicant and respondent, the Tribunal was not initially of the view that there were grounds for a confidentiality order. The Tribunal informed the applicant that mere embarrassment was not a sufficient reason for making a suppression order (Re Kanina Banner Pty Ltd and Minister for Health and Ageing (2002) 66 ALD 663) and that a party does not represent the public interest (Re Mayer and Attorney-General’s Department, CRA Ltd and Mary Kathleen Uranium Ltd (1985) 7 ALN N411).
5. However, the applicant further submitted that she would need to withdraw if she was not granted the order requested. She informed the Tribunal her husband would emotionally and verbally harass her if he was aware of her appeal. To that end, she stated that she was granted a sum of money by Centrelink at one stage, because of her need to get away from her husband. The respondent informed the Tribunal that an amount was paid to support the applicant at an earlier time, as indicated by the applicant. However, he did not have instructions to provide any further information. In the circumstances, the Tribunal was satisfied that there was some basis to the applicant’s claim and in the absence of contradictory information and to ensure the applicant had the opportunity to be heard, a suppression order was granted as to her identity in any publication of the listing or decision. However, the Tribunal ordered that the decision be published, with the applicant’s identity concealed. The identity of the applicant in this matter is QX2006/7.
6. The applicant was self represented. The respondent was represented by Mr Ben Dube.
Issue
7. The issue to be determined by the Tribunal is whether the applicant and her husband were “members of a couple” during the period 23 September 2005 and 6 February 2006. The respondent contended that they were members of a couple as they were legally married and not living separately and apart on a permanent or indefinite basis.
Evidence
8. The only documentary evidence admitted was the T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. These documents were marked as Exhibit 1.
9. The applicant gave evidence on her own behalf (witness 1) and called two supporting witnesses – her mother (witness 2) and her sister (witness 3).
The Applicant
10. The applicant confirmed evidence in Exhibit 1. She stated that her husband had worked away from their property for a period of time until September 2003. From September 2003 to December 2003, the applicant’s husband returned to their jointly owned farmlet. During that period, the applicant and her children moved and stayed at her mother’s place. From December 2003 to February 2004, her husband got a job which was away from their property so she then moved back to the house until September 2005. Her husband returned in September 2005 but was homeless and sleeping in his car.
11. In view of her husband’s circumstances and the desire of some of her children to allow her husband to stay at the family home, the applicant rang Centrelink and queried whether her benefit, which was then a parenting payment (single rate), would be affected if she allowed her husband to stay on the property and live in a shed close to the house. She was told that most of the time it does not affect the payment. She interpreted this as being an indication that she could maintain the single rate of parenting payment and allow her husband to sleep in the shed. He then would access the house to use the shower and toilet and also to have communication with his children. The applicant’s husband moved into the shed and he had cooking and other facilities. He was therefore relatively self-contained in his accommodation, other than the need for shower and toilet facilities.
12. The applicant informed the Tribunal that she was persuaded to adopt this course as, despite the fact that he husband was verbally abusive, her 20 year old son and 18 year old daughter wanted their father to move back to the property. She also had three younger children aged 12, 9 and 5 years of age. They spent time with their father in the evening when he came to the house to shower. While living at the farm, his children would sometimes go over to the shed and spend time there with him.
13. The applicant stated that when she was not there, she did not know what her husband did. He did not work. He was often verbally abusive and as a result, she asked him to move out. When he refused to leave, she moved out with her children in February 2006.
14. The applicant also stated that their property is now on the market and Legal Aid act for her in respect of her family law issues. There is a contract to sell the property, however, her husband will not sign the contract which is prejudicial to settlement. She asserted that their marriage is over and they effectively split up in December 2003. Until recently, he had not worked for three years and survived on the dole and just “mucked around with his cows”. Since she moved out in February 2006, he has now had to get a job. She described her living arrangements when she co-habited with her husband as being focused on his life style only and that he was a very heavy smoker. She indicated that there were times when there was no money for food as any money he had he spent on tobacco. She did, at times, have to go to her mother and borrow money for food, otherwise her children and herself would not have been able to survive.
15. In cross-examination by the respondent’s advocate, he referred her to folios 39, 40, 48, 50, 51 and 52 of Exhibit 1. In the period January to June 2004, an amount of $376.00 per fortnight was paid off the home loan. It appears that the husband had paid all of the mortgage. However, the applicant stated that her husband did not pay any maintenance money. It was also noted that, with her husband’s consent, there was a bank loan so that the applicant could buy a new car in mid 2004 and this amount was added to the home loan and the repayments were adjusted accordingly so that the applicant paid correspondingly more of the mortgage payments. The applicant received a monthly amount of $667.25 in child support income. The applicant’s husband did not pay any rent living in their jointly owned property despite the fact that she paid rent to house herself and her three children. It appears that the applicant’s husband now pays $552.00 per week into an account which is 50% of his salary. Again, this amount is used to offset mortgage payments, but the applicant argued that it does not include any amount for maintenance or rent on their jointly owned property which he now occupies solely.
16. In relation to the applicant’s query to Centrelink about the entitlement to parenting payment at the single rate, the records of that enquiry from the Centrelink records shows that her enquiry refers to her husband as her “ex-partner” and that he was unemployed and homeless (and sleeping in his car at that time). It is clear that the question related to whether the allowance would be affected if she allowed her husband to sleep in the back shed. The record also states that she was “…hesitant to do this due to possible impact of CLK payments, but feels a sense of obligation and also pressure from children to help ex ptnr until his financial situation improves”. (T-documents; folio 56)
Witness 2
17. This witness was the applicant’s mother. She corroborated the applicant’s evidence and stated that the applicant’s husband was an “abusive man” and “self centred”. She described him as putting his need for cigarettes above any needs of the applicant and her husband’s children particularly for basic items such as food. She also mentioned that he had not worked for a considerable period.
18. This witness also confirmed that the applicant and her children lived with her on a number of occasions and that the applicant used to drive to Gympie each day to look for a house for them to rent. She stated that the applicant’s husband, at one stage when he gave up work, wanted the applicant and her children to live on the street and he would occupy the house. She described the applicant’s situation in trying to pay half the mortgage as well as renting a house for her children and herself as a difficult one. She stated that her daughter had been mentally abused by the applicant’s husband over a long period of time.
Witness 3
19. This witness is the applicant’s sister. In describing the applicant’s husband, she stated that he “…treats her like a mongrel dog”. She said that the applicant’s husband did not treat their children well but that he had also stayed at this witness’ house on a number of occasions. She described him as abusive and foul tempered and this was a situation which the applicant had endured for many years.
Findings of Fact
20. The Tribunal makes the following findings of fact:
(a)The applicant and her husband were legally married during the relevant period and currently remain so. The applicant is currently seeking divorce and Legal Aid is acting for her in that respect.
(b)The applicant and her husband jointly own a farm property, which is currently under a contract of sale.
(c)The applicant resided on the property with her husband during the relevant period. He now lives there and the applicant and her three children live in rented accommodation.
(d)The applicant and her husband have lived separate and independent lives at least since December 2003.
(e)The applicant has lived in a difficult relationship with her husband and acquiesced to the desires of their children to see their father, during the period where the applicant’s husband lived in the shed on the farm during the period 23 September 2005 to 6 February 2006.
(f)The applicant’s husband has been verbally and emotionally abusive to her over a long period of time.
(g)The applicant and her husband have not had a sexual relationship for all of the period in question and since that time up to the present.
(h)The applicant has sought Legal Aid to pursue severance of her legal and financial relationship with her husband, but this has been delayed by his lack of co-operation.
Consideration
21. The Tribunal has taken account all of the oral and written evidence including the statutory and case law.
22. The relevant legal requirements are contained in the Social Security Act 1991 as follows:
“4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b) all of the following conditions are met:
(i)the person has a relationship with a person of the opposite sex (in this paragraph called the partner );
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a marriage‑like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 .
Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
· an ancestor of the person; or
· a descendant of the person; or
· a brother or sister of the person (whether of the whole blood or the part‑blood).
Member of a couple—criteria for forming opinion about relationship
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship.
4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage‑like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”
23. In assessing the applicant’s evidence, her veracity and the weight to be given to her two witnesses, her mother and her sister, the Tribunal accepted that the applicant was a witness of truth.
24. She provided convincing evidence of her husband being self-serving and that she had endeavoured to support her husband, her children and herself during the period in question when her husband was unemployed and did not seek work. He chose to live in the shed at the farm and had little other needs in his situation at that time.
25. The applicant sought advice from Centrelink on 23 September 2005 as to whether her benefits would be affected if she agreed to her husband’s staying in the shed (T-documents; folio 56). The record shows at that time that she regarded him as her “ex-partner” and that due to his unfortunate circumstances as well as pressure from her children, she was well motivated but clearly did not want to adversely affect her financial entitlements from Centrelink.
26. Her evidence was that she was informed by the Centrelink officer that the proposed arrangements would not affect her entitlement. The respondent submitted, and the applicant conceded in cross-examination when two different hypothetical scenarios were put to her, that the evidence of the Centrelink officer was that “most of the time” the benefits would not be affected in the circumstances described by the applicant. But she conceded that the Centrelink officer did not positively say that her benefits would not be so affected if her husband did stay on the property.
27. Whether she was a “member of a couple” depends on whether the elements of section 4(3) can be satisfied:
§ Financial Aspects of the Relationship
28. This is one of the major criteria in this case which may show that the applicant was living in a marriage-like relationship. The respondent examined the witness with respect to the amount paid by her husband and the purposes of the accounts which were set up for payment of the mortgage. The applicant’s evidence was that maintenance payable should have been $599.00 per month. The applicant’s husband apparently claimed to her that he only had to pay $21.00 in maintenance while he was unemployed.
29. It was clear that the applicant got $667.25 per month for child support payment (T-documents; folio 45). She paid $376.00 per fortnight for the mortgage between January and June 2004 (T-documents; folio 39-40). On 30 June 2004, the applicant bought a new car and the house loan was refinanced. Repayments went up to $517.00 per fortnight. Her contribution to the mortgage payment increased and this was due to the amount of the loan for the new car which the applicant used. Her husband agreed to this purchase and to the re-financing arrangements.
30. Nevertheless, between April and June 2004 the applicant’s husband paid $552.00 per fortnight into her account. It was half the salary of her husband (see folios 50-53). The applicant said he was in fact, paying the mortgage during that period but did not pay any maintenance. The Tribunal accepts that the amount paid by the applicant’s husband is considerably less than he should have paid if he was meeting half the mortgage payments as well as maintenance. In addition, the applicant stated that her husband did not pay rent while currently living on their jointly owned farm property, although she had to pay rent separately for accommodation for herself and her children. This evidence of the financial aspects of the relationship between the applicant and her husband showed they were not members of a couple.
31. In relation to the nature of the household, it is clear that the husband lived in the shed and used the farm house and had contact with their children. This was largely due to the applicant’s forbearance and her wish to appease her children.
32. In relation to the social aspects of the relationship, there is only an apparent social interaction between the applicant and her husband. While they did not hold themselves out as being in a normal married relationship, nor was it denied. Her desire for confidentiality for herself and her children is noted. The Tribunal accepts that this was partly because of her concern over the verbal abuse from her husband, the demands or desires of her older children and the evidence of her enquiry with Centrelink which corroborates the fact that the social aspects of the marriage were at a very low level.
33. There is no dispute that there was no sexual relationship. Equally, the nature of their commitment to each other is not one of a genuine personal concern or commitment, but rather the applicant’s desire to maintain harmony with her husband and her children. The evidence of his commitment to her or the children is also accepted as not being of a genuine nature.
§ Can there be said to be a marriage-like relationship?
34. This is to be assessed by the Tribunal taking account of the evidence and all the factors in section 4(3) as a whole (Staunton-Smith v Secretary, Department of Family and Community Services (1991) 25 ALD 27.
35. The nature of the household, the social aspects of the relationship and the sexual relationship would not be regarded as having any real semblance of marriage-like relationship. The financial aspects are indicative of each party caring for their own needs (and in the applicant’s case, the needs of her children). The nature of the commitment to each other is not one of a genuine commitment, at least not based on the evidence, since December 2003, but a situation where the applicant maintained an appearance of normalcy as a couple, for harmony at home and at the desire of her children, as well to avoid the likelihood of attracting abuse from her husband.
36. Considering the circumstances taken as a whole, the Tribunal determines that the applicant and her husband were not “members of a couple” from at least 23 September 2005 and that this continued to be the case throughout the whole of the period in question (ie until 26 February 2006), and that this situation is currently extant. The applicant was therefore entitled to be paid social security benefits at the single rate for the period 23 September 2005 to 6 February 2006.
37. The Tribunal therefore sets aside the decision under review in the terms that the applicant was not a member of a couple for the relevant period. The matter should be remitted to the Respondent for re-assessment of the applicant’s entitlement for the relevant period.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: ..Jeff Mills
Legal Research Officer
Date/s of Hearing 15 June 2006
Date of Decision 6 July 2006
The Applicant was self represented
For the Respondent Mr B Dube, Departmental Advocate
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