R1 and Anor; Secretary, Department of Family and Community Services

[2005] AATA 827

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 827

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A2005/26

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And R1

Respondent

And          R2

2^ndRespondent

DECISION

Tribunal Mr J.W. Constance, Senior Member

Date26 August 2005

PlaceCanberra

Decision The decision of the Social Security Appeals Tribunal of 24 December 2004, that the Respondents “were not members of a couple from 11 November 2001” is set aside and in substitution it is decided that between 11 November 2001 until March 2005 neither R1 nor R2 was a member of a couple within the meaning of the Social Security Act 1991 (Cth).

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CATCHWORDS

SOCIAL SECURITY – whether respondents members of a couple over specified time period – whether respondents living in a marriage-like relationship between November 2001 and April 2004 – respondents’ married in April 2004 – whether respondents were married and living separately and apart indefinitely from April 2004 to March 2005 – respondents not ‘members of a couple’ between November 2001 and March 2005 – decision of Social Security Appeals Tribunal set aside

Social Security Act 1991 (Cth) – s 4

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

Re Taylor and Secretary to the Department of Family and Community Services [2001] AATA 350

REASONS FOR DECISION

26 August 2005 Mr J.W. Constance, Senior Member

1.      In this application there has been a direction prohibiting the publication of the names of the parties.  The first respondent (female) will be referred to as R1 and the second respondent (male) as R2.

2.      The Secretary of the Department has applied for a review of a decision of the Social Security Appeals Tribunal that from 11 November 2001 until their marriage in April 2004, R1 and R2 were not living in a marriage-like relationship and that after the marriage they had not lived together on a permanent basis.  The determination of these issues can affect the benefits payable to each of the Respondents under the Social Security legislation.

3.      For the reasons set out I have decided that the Respondents were not in a marriage-like relationship from 11 November 2001 until their marriage on 4 April 2004.  I have also decided that they were living separately and apart on an indefinite basis from the time of the marriage until the time they became reconciled in March 2005.

EVIDENCE AND FINDINGS OF FACT

4.      Only R1 gave evidence before me.  In my opinion she was an extremely honest and reliable witness and I accept her as a witness of truth.  I was assisted in this assessment of R1 by the fact that despite being put under pressure by an officer or officers of Centrelink to agree that she was living in a marriage-like relationship she declined to do so.  She was told that if she made a statement to this effect her benefits would be restored.  The cessation of benefits put R1 under severe financial pressure as at the time she was the sole provider for her 6 children.  The Applicant did not call anyone to deny that this had occurred.

5.      R2 was not present when the hearing commenced and I was informed by R1’s representative that R2 was content to rely on the case put forward on behalf of R1. At my request R2 did attend for part of the hearing.  He indicated that he did not wish to call any evidence on his own behalf and that he understood that the outcome of the hearing may directly affect him.  A statement by R2 is in evidence.[1]

[1] Exhibit A, T66.

6.      The following findings are based on the evidence of R1 unless otherwise stated.  I am satisfied as to these facts on the balance of probabilities.

7.      The Respondents commenced to live together as a couple in late 1996.  They shared a home owned by R1 in a regional city in New South Wales.  Also sharing the home were R1’s 2 children of a previous relationship.

8.      At the time the relationship commenced R1 was employed by the Department.  R2 was unemployed and taking part in a drug and alcohol rehabilitation program.  R2 had lost contact with his children of a previous relationship and R1 understood that R2 was very distressed by this.  As a result of this understanding R1 has always been of the view that it is very important for R2 to continue to have contact with their children.

9.      Initially the relationship was very stable.  R2 gained employment.  In 1997 the Respondents’ daughter was born followed by the birth of their son in 1999.  In May 1997 they opened a joint Credit Union account.  This account has remained open and in joint names.[2]

[2] Exhibit A, T61.

10.     In 1999 the family moved to Canberra as R1 had obtained a transfer within the Department.  R1 and R2 both contributed to the relocation costs which were to be reimbursed by the Department.  Shortly after the move R2 obtained employment and some time later the respondents jointly purchased a home in Canberra.  The electricity account for the home was opened, and has remained, in joint names.[3]

[3] Exhibit A , T53.

11. Shortly after starting his new job R2 again began taking illegal drugs. This had a significant negative effect on the relationship as it considerably distressed R1 and caused frequent arguments between them. In June 2001, when their third child was born the relationship was still deteriorating. In August 2001 R2 was injured at work and for sometime was without an income and was not contributing to household expenses. His use of alcohol and drugs increased and he suffered from depression. At the same time R1 was suffering post-natal depression, working full‑time and supporting the family from her income.

12. In November 2001 R1 learned that she was again pregnant. On 11 November 2001 the Respondents separated. R1 was unaware of where R2 was living after the separation other than that he was living with friends. R2 made no financial contribution to assist in meeting the needs of the family following the separation.

13. On 16 January 2002 R2 was treated at The Canberra Hospital. He listed R1 as his partner and person to contact. He gave his address as the family home.[4] Similar details were included on an admission form for R2 when he was again treated at the Hospital on 6 June 2003.[5]

[4] Exhibit A, T63.

[5] Exhibit A, T63.

14. In the period from November 2001 to May 2002 R2 visited the home to see the children. This was on an irregular basis. On occasions he accompanied R1 on visits to medical practitioners concerning R1’s pregnancy. The pregnancy was difficult.

15.     In May 2002 the respondents’ fourth child was born.  On The Canberra Hospital admission documents R1 listed R2 as her defacto and gave his address as the family home.[6]

[6] Exhibit A, T63.

16.     During 2002, even though R2 was not providing any financial assistance for the children R1 paid to him his share of the relocation expenses refunded by R1’s employer.  This was paid by R1 in instalments with the intention of limiting the likelihood of R2 spending the money on drugs.  R1 kept a record of the payments made and ceased making the payments as soon as R2’s share had been refunded to him.

17.     R1 frankly admits it was not her intention to remain separated and that she hoped that R2 would seek rehabilitation and that they could reconcile.  Nevertheless there was limited communication between them during 2002 and they were struggling to maintain a friendship.

18.     During the whole of the time R1 and R2 were separated they resumed a sexual relationship only briefly and on only 4 or 5 occasions when R1 thought that there was a chance of a reconciliation.  This is confirmed by the fact that when R1 and R2 attended counselling in 2003 the lack of a sexual relationship was a major issue for R2.

19. In 2003 R1 and R2 had not resumed living in the same house permanently although the pattern of R2’s visits to see the children changed and he would stay at the home overnight more often. R1 had returned to work and the children were in childcare during the day. R2 would assist from time to time with the care of the children and on occasions would take the children to childcare. To arrange for this R1 would telephone R2 or leave a message with R2’s brother. R1 still only knew that R2 was living with friends. On occasions R2 would stay overnight (often 2 nights per week) to facilitate his taking the children to care. A sexual relationship was not resumed and they did not go out together socially.

20. During 2003 and 2004 R2 signed various documents for the childcare authorities as parent of the children.[7]  R1 did not advise the childcare authorities of their separation from R2 as she did not want the authorities to know of R2’s involvement with drugs and alcohol.

[7] Exhibit A, T41, 47 and 57.

21. In July 2003 R1 purchased a motor vehicle.[8] R1 listed R2 as the “other operator” on the registration papers.  R1 said that she did this as R2 would be another driver of the vehicle and that she did the same in relation to the insurance papers.  I accept this evidence.

[8] Exhibit A, T44.

22. In September 2002 and again in October 2003 R1 and R2 refinanced the mortgage on the home.[9]

[9] Exhibit A, T54 and T60.

23.     At the time of the first application for refinance R1 was struggling to meet her commitments and was still not receiving any financial assistance from R2.  She spoke to the finance broker who had arranged their original mortgage with a view to  refinancing to cover all outstanding debts.  She was told that her income was sufficient to meet the requirements on a refinance but that she would need to have R2 sign the necessary documents as he was a joint owner of the property.  R2 told R1 that he did not want anything to do with the refinance but he did agree to sign the documents.  Only the income of R1 was shown on the application for refinance and R2 did not receive any of the funds advanced.

24.     In early 2004, at which time R2 was refusing to attend further counselling, R1 and R2 agreed to try to resolve their difficulties themselves.  They agreed that their goal was to marry and R1 believed that by this time R2 was not using drugs and was making a genuine effort to rehabilitate himself.  By the beginning of March 2004 they had set a wedding date of 4 April 2004.  In the month prior to the marriage R2 stayed at the home 2-3 nights per week and assisted with the preparations for the wedding. They did not resume a sexual relationship.  R2 did not contribute financially to the household.

25.     In giving evidence R1 said that “even at this time I was still not confident it would work out, but there was a glimmer of hope.”  I accept this evidence.

26. Immediately after the marriage ceremony on 4 April 2004 R2 again commenced drinking excessively and using illegal drugs. The day after the wedding R2 left the family home following an argument concerning his alcohol and drug use. Nothing changed in the nature of the relationship.

27. In June 2004 R1 and R2 became aware that the Applicant was investigating their living arrangements.[10]

[10] Exhibit A, T64.

28.     After the marriage R1 and R2 continued to see each other in relation to the children and to discuss the Centrelink investigation.  At some point during the year R2 resumed staying at the home 2-3 nights per week to assist in caring for the children.  He did not contribute financially and there was no sexual relationship.

29.     In a statement made to Centrelink on 22 June 2004[11] R1 stated:

“My husband [R2] has not regularly stayed with me since our separation in 2001.  Since early this year we had been planning to get married & [R2] would occasionally stay over on a Thursday/Friday night when he had been caring for the children while I was at work during the day.  He would sometimes stay over on these occasions but this was not a regular arrangement and he probably stayed over approx. 3 weeks in a row for 2 nights per week leading up to the wedding on 04/04/04.  This has continued sporadically since the wedding but it has never been a regular arrangement and [R2] would often not visit the house for weeks at a time.  I will not allow [R2] to stay over again until he attends counselling re his addictions and our marriage.”

[11] Exhibit A, T69.

I accept this statement as an accurate account.

30. On 11 June 2004 R2 stated to Centrelink that:

“I applied for a disability support pension (over 2 years ago) after an injury I received prevented me from continual employment.  This injury has severely interfered and restricted my ability to obtain employment, my emotional state, my mental health, my relationship with my expartner and children, and my future quality of life in general.  I have still got the injury, (with its restrictions) which I have proven with medical certificates.  I have obtained, (and are using) help from CRS Australia to retrain myself, understanding and accepting my restrictions, trying to obtain employment and also my physical and mental health.  CRS Australia have been helping me with rebuilding my personal relationship with my expartner and kids and helping me cope with the last 2 ½ years of bullshit, stress and harassment I have received from Centrelink.

I have been working on a plan to help me with the reconciliation of my relationship with my expartner and children, this is taking some time to achieve, but it is working.  Part of this plan was to continue with our planned Marriage on the 4^th of April 2004, and to gradually move back into a full time relationship.”

I also accept this being an accurate statement as it is consistent with R1’s statement referred to and with her evidence to the Tribunal.

31. In March 2005 R1 and R2 reconciled and there is no issue that from that time onwards they have been in a marriage like relationship.

32.     Five statements are in evidence[12] from family and friends of R1 and R2 which support some aspects of their evidence as to their living separately.  I accept this evidence and take it into account.

[12] Exhibit A1, T102, T103, T104, T107, T108.

STATUTORY FRAMEWORK

33.     Under the provisions of the Social Security Act 1991 (Cth) the amount of various benefits payable depends in part upon a determination as to whether a person is a “member of a couple.”  In summary, sub-section 4(2) provides that a person who is married is a member of a couple if he or she is not living separately and apart from the other person on a permanent and indefinite basis.  In the case of a person not married there are a number of conditions to be met.  The relevant condition in this application is whether the relationship between the 2 individuals is “a marriage-like” relationship.[13]

[13] Sub-section(4)(2)(b).

34.     Sub-section 4(3) provides:

“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.”

35.     Sub-Section 4(3A) further states that:

“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.”

REASONING

36.     It is clearly stated in sub-section 4(3) of the Act that all the circumstances of the relationship, and not only the specified factors, are to be taken into account in deciding whether there is “a marriage-like relationship.”  The Federal Court stated the principle as follows:

“The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.” [14]

[14] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170.

37.     There is no doubt that R1 and R2 continued a relationship after their ceasing to live together in the family home on 11 November 2001.  This relationship was based on their mutual love of, and care  for, their children.  It was also based in part on R1’s hope, shared by R2 for at least some of the time, that their differences could be reconciled and that they could live together in a marriage or a marriage-like relationship.  Throughout the time in question they held a joint account and were joint proprietors of their home.  However these joint ownerships arose from their relationship prior to November 2001 and the fact that they did not sever these joint ownerships is indicative of their hope to reconcile rather than an existing marriage‑like relationship.  Similarly this accounts for the fact that the property was refinanced jointly and that R1 and R2 continued to hold a joint electricity account.

38.     Other financial aspects of their relationship are not indicative of a marriage‑like relationship.  R2 did not make any financial contribution to the welfare of the children from November 2001 until March 2005 even though R1 did give to him his share of the refund of the relocation expenses.  The acceptance of financial responsibility to meet the material needs of children is a basic component of most marriage‑like relationships which involve dependent children.

39.     In considering the financial aspects I also have regard to the fact that the parties did not acquire any new joint property.  R1 did purchase a motor vehicle in respect of which she designated R2 as another operator but she retained possession of that vehicle and I have accepted her explanation that she intended that R2 would drive the vehicle whilst assisting in caring for the children.

40.     When one turns to consider the nature of the household it is apparent that the times when R2 stayed in the family home were occasioned by the shared parenting of the children rather than any particular relationship between R1 and R2.  There is no evidence before me to suggest that there was any sharing of household tasks. The fact that for much of the time R2 lived at various addresses in Canberra rather than at the family home is another factor which indicates to me that a marriage‑like relationship did not exist.

41.     At times R1 and R2 did hold themselves out as living together.  This occurred when both R1 and R2 were in hospital and it is of significance that each nominated the other as a partner and contact person.  However I have accepted R1’s evidence that in fact R2 was not permanently residing in the home.  It is understandable that R1 and R2 did not consider it necessary to advise everyone of the true state of their relationship if it was not necessary to do so.  I do not consider that their nomination of each other as a contact person outweighs the other factors I have referred to.

42.     I also take into account that relatives and friends have made statements which support the evidence of R1 that she and R2 were living apart during the time under consideration.

43.     There is no evidence that R1 and R2 engaged in the normal social activities one would expect in a marriage-like relationship, other than the sharing of children’s birthdays.  The absence of other social activities is a factor I take into account in reaching my conclusion

44.     Of considerable importance in reaching a decision in this case is that from November 2001 until March 2005, being a substantial time, R2 did not provide to R1 the commitment, the companionship and the emotional support generally regarded as being a keystone of a marriage‑like relationship.  In Taylor and Secretary to the Department of Family and Community Services[15] the Tribunal was not satisfied as to the existence of a marriage like relationship as it had “not formed the opinion that there was trust, commitment and sharing, nor obligations of one to the other in this relationship which would make it marriage-like.”[16]  Here R2’s recurrent drug and alcohol problems, which were a major factor in the initial separation, showed a lack of commitment by him to R1.  At the same time, despite her hope for a reconciliation, R1 was not prepared to again commit to the relationship without a change in R2’s situation and clearly for over 3 years she did not have the necessary trust that he would successfully rehabilitate himself.  As I have already taken into account R1 and R2 were not sharing the responsibilities of family life nor was there a sense of obligation one to the other.

[15] [2001] AATA 350.

[16] At para 14.

45.     The evidence as to the sexual relationship between R1 and R2 indicates a lack of a marriage-like relationship.  To the extent that it existed in the relevant time it was intermittent and only existed at times when R1 was hopeful of a reconciliation.  It was not indicative of a renewed relationship between 2 people who had previously shared a stable relationship over 5 years.  This is further confirmation of the lack of commitment, particularly on the part of R1.

46.     The marriage of 2 people who had been living together for some years and who had separated would normally be a very significant indicator of a reconciliation having taken place.  However I have accepted the evidence of R1 that this had not occurred in this case.  R1 was living apart from R2 with almost all of the responsibility of caring for the children and endeavouring to remain in full-time employment in the Department.  In these circumstances it is understandable that R1 was prepared to enter the marriage as a means of, rather than as a consequence of, reconciliation.  R1 had always hoped for a reconciliation after the separation in November 2001.

47. Taking into account all the circumstances of the relationship I am satisfied that R1 and R2 were not in a marriage-like relationship between the time R2 left the family home in November 2001 and their marriage on 4 April 2004. On the basis that the nature of their relationship did not change after the marriage (other than the fact that they were now legally married) I am satisfied that from 4 April 2004 until March 2005 R1 and R2 were living separately and apart on an indefinite basis.

DECISION

48.     The decision of the Social Security Appeals Tribunal of 24 December 2004, that the Respondents “were not members of a couple from 11 November 2001” is set aside and in substitution it is decided that between 11 November 2001 until March 2005 neither R1 nor R2 was a member of a couple within the meaning of the Social Security Act 1991 (Cth).

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J.W. Constance, Senior Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  4-5 July 2005
Date of Decision  26 August 2005
Solicitor for the Applicant  Service Recovery Team
Counsel for the Respondent  Mr S. Whybrow
Solicitor for the Respondent  Welfare Rights and Legal Centre
Representative for the 2^nd Respondent     Self