Re Cullinane and Secretary, Department of Family and Community Services

[2004] AATA 789

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 789

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/218

GENERAL ADMINISTRATIVE  DIVISION		)
Re		CHARLES CULLINANE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member McCabe

Date28 July 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

.................[Sgd]...................

Senior Member

CATCHWORDS

SOCIAL WELFARE – pensions and benefits – whether applicant is a member of a couple within the meaning of the Social Security Act 1991 – decision affirmed

Social Security Act 1991

REASONS FOR DECISION

28 July 2004 Senior Member McCabe    

Introduction

1.      Mr Charles Cullinane is the applicant in these proceedings. He has asked the Tribunal to review a decision of the Secretary to raise a debt. The Secretary says the applicant failed to report his wife’s earnings in the period 1991-2003 while the applicant was in receipt of social security assistance. The applicant said his failure to disclose Mrs Cullinane’s earnings is irrelevant because they are not a couple. He says his living circumstances are such that he should have been treated as a single person. If that is right, the debt should not have been raised against him.

2.      The dispute in this case revolves around the definition of the expression member of a couple in s 4 of the Social Security Act 1991 (the Act). If the applicant and Mrs Cullinane are members of a couple, her earnings are relevant and should have been reported and counted to determine the applicant’s entitlement. The respondent maintains the applicant is a member of a couple. The Social Security Appeals Tribunal (the SSAT) affirmed that decision.

3.      Mr Cullinane represented himself at the hearing. He gave evidence, as did his wife. Mrs Cullinane was called by the respondent. The applicant did not ask her any questions. He said he was very angry at the way in which he has been treated by various officers from Centrelink and at one point during the hearing declined to answer any further questions. He was particularly angry that no one from Centrelink would come to his home so they could see his living arrangements for themselves. At the conclusion of the hearing, I decided to take up his offer and I travelled with him and Ms Wallis-Dunn and my associate to the Cullinane residence for a view.

4.      After reviewing all the evidence (including what I saw in my unanticipated inspection of the applicant’s home) I am satisfied the applicant is a member of a couple within the meaning of the Act. I will explain my reasons.

The material before the tribunal

5. The respondent tendered the documents provided pursuant to s 37 of the Administrative Appeals Tribunal Act 1975. I was also provided with a copy of Mr Cullinane’s original application for Disability Support Pension, and a summary of benefits. Mr Cullinane showed me a newspaper cutting recounting the story of a woman who had been convicted of defrauding the Commonwealth who had her indebtedness waived by the SSAT.

6.      As I have already indicated, I also travelled to the applicant’s home at his request to view his living arrangements.

The factual background

7.      Mr Cullinane is an alcoholic. He cannot work, and has not done so for many years. He receives the disability support pension. He was previously receiving Newstart allowance. His wife has been working as a cleaner more or less continuously since around 1991. Mrs Cullinane currently works five days a week on a part-time basis. She also receives a carer’s pension.

8.      Mr and Mrs Cullinane have been married since 1979. They have four grown children. Their son was living with them for much of the period in question.  He has recently moved out, and their pregnant daughter has moved in. Mr and Mrs Cullinane reside with their daughter in a three bedroom house at 13 Lyndel Drive, Woree. They rent. They have no substantial assets. Mrs Cullinane owns most of the furniture and household effects. The applicant owns a few tools, a few items of furniture and some pets. Mrs Cullinane also owns a car, although Mr Cullinane has a set of keys and occasionally uses it to drive his wife or one of the children to work or to go shopping.

9.      The applicant and his wife do not share bank accounts. Mr Cullinane does most of the chores around the house and, over time, has done at least some of the cooking. He does the washing and ironing. He does the shopping, although it appears Mrs Cullinane paid for at least part of the weekly grocery bill. Mr Cullinane did not make any contribution to the rent.

10.     Mr Cullinane said the members of the household did not typically eat together. He tended to sit outside on an enclosed verandah area with his own television and fan. He had a refrigerator outside, although it was accessible to the other members of the household. 

11.     Mr and Mrs Cullinane share a bedroom, although they have separate beds. They do not have a sexual relationship. Neither of them sees anyone else. Their daughter currently occupies the two other bedrooms. One of them is set up as a nursery. During the relevant period, their son occupied one of the rooms and the other was kept for their daughter, who returned home occasionally. Mr Cullinane said he and his wife shared a room because there was simply no choice. He said it was inappropriate to share with his son when he lived at home. He noted that when they lived in a four bedroom house prior to 1995, the couple did have separate rooms. But that changed when they moved to the current address.

12.     The applicant and his wife denied their relationship was like a marriage, although Mrs Cullinane appeared to hold that view because of the absence of a sexual relationship. Both of them said they anticipated the situation would last indefinitely; it was convenient and economical to continue with the arrangements. Both of them acknowledged other people would regard them as being married, although both said they had no social life.  The applicant in particular was concerned about appearances: he said he would not want his children and grandchildren or the world at large to know what he said was the truth about their relationship.

13.     With one exception, the applicant consistently told the respondent that he was living with his wife and that nothing in his circumstances had changed. (He also told the respondent his wife was not working. He said he knew this was untrue, but he lied anyway because of the alcohol.) In one form he completed in 1995 he said he was separated. He did so after he said he talked to one of the respondent’s officers. He dropped the claim shortly afterwards and said he was reconciled.

14.     Mr Cullinane faces criminal charges arising out of the events discussed in this appeal. He was given the opportunity to adjourn these proceedings until the criminal case was resolved, but he insisted on going ahead. I formally warned him of his right not to answer questions at the outset of the hearing. I note he has spent time in gaol on two previous occasions for defrauding the Commonwealth. On each of those occasions, he was charged after failing to advise the respondent of his wife’s earnings.  His wife accepted him home after serving each sentence.

Application of the law

15. Section 4 of the Act defines the expression member of a couple. Section 4(2) says (relevantly) a person is a member of a couple if he or she is legally married and does not live separately and apart from the other person. Section 4(3) sets out a list of factors that must be taken into account when the decision-maker is considering whether the couple live separately and apart. Those matters are:

(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.

16. Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.

17.     (1) Financial aspects of the relationship: There are no substantial assets or loans. Mrs Cullinane owns most of the furniture and household effects. Mr Cullinane owns a few items of furniture, some tools and his pets. There is no evidence the parties take a proprietary approach to their respective assets: Mr Cullinane uses the CD player, for example, and his wife’s dog apparently sleeps on his bed some of the time. They share the expenses of the household, but Mrs Cullinane pays the rent. Most of the other expenses are met by Mrs Cullinane.

18.     (2) The nature of the household: The children of the marriage are grown, although their daughter has recently moved back into the house and occupies two bedrooms. (The second bedroom is available to her in anticipation of the birth of her child. It was set up as a nursery.) They share the living areas although Mr Cullinane spends his time on the verandah. They continue to share a bedroom, but not the same bed.

19.     (3) Social aspects of the relationship:  The parties do not appear to have a social life outside their home. They do not go out, except to shop once a week. But the applicant made it clear that one reason why he did not wish to move out or get a divorce was because he wanted people to think he was still married to his wife. He said his parents and grandparents had lived separately under the one roof but understood it was important to maintain appearances. He did not want his children or grandchildren to have to explain to anyone that he and Mrs Cullinane were no longer together. It was their business, he said.

20.     (4) Any sexual relationship: The applicant and Mrs Cullinane confirmed there was no sexual relationship between them, and neither of them was seeing anyone else.

21.     (5) The nature of their commitment to each other:  The applicant and Mrs Cullinane have been married since 1979. They both say the relationship is likely to persist indefinitely; they see no need for a divorce. Mr Cullinane says the relationship suits them both. Mrs Cullinane says she did not think it was a marriage but did not appear to take any steps to prevent Mr Cullinane returning to the matrimonial home after each of his stays in gaol. I was left with the impression that the applicant and his wife took their commitment to each other seriously, albeit that their relationship has changed substantially over the years. 

Conclusion

22.     There are aspects of this relationship that are certainly unusual if one thinks of marriage in a narrow way. The legislation does not do that: it is important not to approach the definition with a fixed view of what constitutes a marriage. When I consider all of the indicia, particularly after having visited their home, I think the parties are not living separately and apart. It follows they are members of a couple.

23.     I note the applicant did not refer to this issue until after he had been investigated by Centrelink and the debt was raised. I also note he went to gaol on two previous occasions because he failed to report his wife’s earnings – something he would not ordinarily have been required to do if they were in fact living separately and apart. Raising this argument so late in the day naturally invites scepticism. In fairness to the applicant, I do not think it was unreasonable for him in all the circumstances. Although his claim has not been successful, the living arrangements I witnessed in his home made my decision relatively difficult.

24.     The decision under review is affirmed.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:      Thomas Ritchie

Associate: 

Date of Hearing:  19 July 2004
Date of Decision: 28 July 2004
The applicant represented himself.
The respondent was represented by Ms Wallis-Dunn, a departmental advocate.