Rendell and Anor and Secretary, Department of Family and Community Services
[2004] AATA 711
•2 July 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 711
ADMINISTRATIVE APPEALS TRIBUNAL )
)No S2003/579 & S2003/580
GENERAL ADMINISTRATIVE DIVISION ) Re Kym Rendell and Tracey Patrick Applicants
And
Secretary, Department of Family and Community Services
Respondent
DECISION
Tribunal Mr D.J. Trowse (Member) Date2 July 2004
PlaceAdelaide
Decision The Decision under review is set aside and in substitution therefor the Tribunal decides that as from 28 March 2003 the applicants have not been members of a couple and accordingly are qualified to receive their entitlements at the single rate. (signed)
D.J Trowse(Member)
CATCHWORDS
SOCIAL SECURITY - marriage-like relationship - special reason and discretionary power - decisions varied
Social Security Act 1991 ss4(2), 4(3), & 24(2)
Re Secretary, Department of Social Security and "SRJ" (AAT 10970, 29 May 1996)
REASONS FOR DECISION
2 July 2004 Mr D.J. Trowse (Member) 1. Ms T Patrick and Mr K Rendell, the applicants in these references, have made applications for a review of decisions made by the Social Security Appeals Tribunal (the SSAT) on 18 September 2003. In terms of those decisions, the SSAT affirmed decisions made by a Centrelink officer on 28 March 2003 which effectively reduced the rate of their entitlements because they were considered to be in a marriage-like relationship. In arriving at this conclusion, the prior decision makers had due regard to subsections 4(2) and 4(3) of the Social Security Act 1991 (the Act). Also in issue is subsection 24(2) of the Act which bestows upon the Secretary, and thus this Tribunal, a discretion to be exercised where for a special reason a person is not to be treated as a member of a couple.
2. At the hearing, it was accepted that the applications be heard together and that the evidence in each is evidence in the other. The applicants were represented by Ms. M. Lyon of the Welfare Rights Centre (SA) Inc. The Respondent was represented by Mr. R. Prince of Counsel. The documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 together with six exhibits tendered on behalf of the applicants and one by the respondent were received into evidence.
3. Oral evidence was given by both applicants, Ms. A. Sekay, a friend and fellow student of Ms Patrick, and Mr. S. Hassett, a son of the owner of the property being leased and occupied by the applicants. Ms Patrick impressed the Tribunal with the precision and consistency of her evidence. Her evidence is accepted as being a truthful account of her relationship with Mr Rendell. Although the evidence of Mr Rendell was occasionally vague, particularly when asked to recall events from earlier years, the Tribunal on balance sees little reason to doubt its authenticity. Whereas Ms Sekay testified as to her perception of the relationship now in issue, Mr Hassett outlined details of the leasing arrangement entered into by the applicants and his father.
4. Relevant to a determination of whether the applicants are members of a couple is the formation of an opinion under subsection 4(3) of the Act. If, in terms of that subsection, they are found to be in a marriage-like relationship, it follows in the circumstances of this matter that all of the conditions contained in subsection 4(2) have been met. In this situation, the applicants are to be treated as members of a couple with their rates of entitlements being reduced to those applicable to married beneficiaries. Such an outcome would activate the alternative submission that the discretion provided in subsection 24(2) should be exercised because of special reasons pertaining to the applicants. Those reasons have been identified as financial plight and ill health.
5. The subsections referred to state:
Member of a couple—general
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 relationship4(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.
6. It was agreed that conditions (i), (ii), (iv) and (v) of subsection 4(2)(b) have been met and, hence, the only issue to be addressed on the prime submission is whether the relationship between the applicants is of a marriage-like kind.
7. As previously stated by the Tribunal in other references, an attempt to define a marriage-like relationship is fraught with difficulty. This difficulty evolves from the need to compare a relationship with a very imprecise standard, namely marriage. Notwithstanding that difficulty, the Tribunal is of the view that, generally, a marriage-like relationship will exist where a man and woman commit to an ongoing relationship which involves a sharing of their emotional feelings towards each other and also a sharing of their responsibilities and worldly possessions. The task of the Tribunal is to have due regard to all of the circumstances of the relationship including those specified in subsection 4(3) which, in the opinion of the Tribunal, are linked to one or more of the types of commitments previously mentioned. All of those matters must be taken into account and given weight as fundamental elements in the decision-making process. It is the overall impression gained from this exercise that will be determinative.
8. Soon after the commencement of a relationship between the applicants in 1985, Ms Patrick became pregnant. At that stage Mr Rendell moved into the rented home accommodating Ms Patrick, her father and her brother in Melrose Park. The evidence suggests that Ms Patrick’s refusal of Mr Rendell’s request to terminate the pregnancy caused considerable dissension. Mr Rendell’s alleged reaction to the refusal was that, as Ms Patrick wanted the child, she alone could accept the responsibility for the child’s upkeep. This attitude is borne out by the fact that Mr Rendell has never paid maintenance to Ms Patrick. On 8 March 1986 Ms Patrick gave birth to her son Leigh Patrick. There is no dispute that Mr Rendell is Leigh’s father.
9. The applicants gave evidence that any prior romantic attachment ceased upon the birth of Leigh. From that point on, and despite Mr Rendell’s continuous occupancy of the Melrose Park house, they went their separate ways. Furthermore, it seems that Mr Rendell’s occupancy was intermittent and that, during this period, he engaged in relationships with other members of the opposite gender.
10. Approximately a year after Leigh’s birth, Ms Patrick’s father and brother moved out of the Melrose Park house and into accommodations at Gilles Plains. The move was precipitated by the father’s wish to be closer to his place of employment. Mr Rendell remained in the Melrose Park house and contributed towards the payment of rent.
11. In 1991, Ms Patrick and Leigh left the Melrose Park home to take up accommodation in a housing trust unit located at Gilles Plains. The shift was motivated by Ms Patrick’s desire to be closer to her father and to have a place of her own. Also it appears that the then relationship between the applicants, described by them as being no more than a friendship, was under some tension and that such a strain may have contributed to the move. Mr Rendell continued to reside at the Melrose Park home.
12. Ms Patrick gave birth to a daughter, Kayla Patrick, in May 1991. Mr Rendell is not Kayla’s father. Maintenance payments are being made by the father to Ms Patrick. Ms Patrick is also in receipt of a parenting allowance which, until the Centrelink decision on 28 March 2003, was at the single rate.
13. Mr Rendell, who suffers an acute back condition, commenced receiving disability support pension in 1995. Again the pension was paid at the single rate until 28 March 2003.
14. Unfortunately, the transfer to Gilles Plains did not provide the benefits sought. The main problem related to her inability to meet necessary expenditure from her limited resources. One item of major concern was the arrears of rent owing to the Housing Trust. Evidently, there existed a distinct possibility that the applicant with her two children could be evicted from the premises. Also, the neighbourhood was such that she feared for the safety of herself and her children. Finally, it appears that Leigh was experiencing significant problems at his school and, for that reason, his mother resolved to provide him with a new start at a different school. The worst of those problems climaxed in 1996.
15. According to the applicants, their friendship carried on after Ms Patrick’s departure from Melrose Park. They continued at irregular intervals to contact one another. Indeed, it seems that when Mr Rendell became aware of the possibility that Ms Patrick and the children could be left without “a roof over their heads”, he invited them to share his accommodation at Melrose Park. The invitation was accepted and, in about February/March of 1996, Ms Patrick returned to Melrose Park on the understanding that, inter alia, she contribute towards the rent and utility charges.
16. The Melrose Park leasing arrangement was cancelled in July 1996 when the landlord decided to demolish the house. After examining a number of alternatives, the applicants resolved to jointly lease a property at Mitchell Park, which they still occupy. It was claimed that the financial viability of that transaction was directly dependent upon the applicants sharing the cost of rent, electricity, gas and telephone.
17. To facilitate the granting of the lease, the applicants collectively made application for a bond from the South Australian Housing Trust. Interestingly, the records of the South Australian Housing Trust show that in their application, the applicants stated that they were not a couple.
18. The agreement with the landlord is an oral one. Currently the rent is $155 per week with the landlord, Mr G Hassett, being responsible for the payment of rates and building insurances. Rent is paid on a rotating basis, i.e., Mr Rendell will pay one week and Ms Patrick the next. Notwithstanding the joint nature of the lease, it seems from the evidence of Mr S Hassett that the landlord tends to regard each of the tenants as having a separate and individual liability for the payment of rent. This is evidenced by the landlord’s attempts to recover outstanding payments owing by Ms Patrick from her alone rather than from her and Mr Rendell.
19. The following eighteen paragraphs reflect findings of fact that have been made on the basis of the oral and written evidence before the Tribunal and which pertain to the circumstances of the relationship as at 28 March 2003.
FINANCIAL ASPECTS OF THE RELATIONSHIP
20. There are no assets jointly owned by the applicants. Each separately own items of household furniture and effects which are uninsured and a motor vehicle. Because of financial difficulties, the car belonging to Mr Rendell was unregistered. The obligation to pay the house rental represents the only joint liability.
21. Expenditure on house rental, electricity, gas and telephone – with one minor exception – was met equally by the applicants. The exception relates to STD calls made by Leigh and paid by him from the Youth Allowance he was receiving. All local calls made by Leigh are on his mobile phone and are his responsibility.
22. There is no legal obligation owed by either applicant in respect of the other applicant.
23. Excluding the shared expenses previously mentioned, and subject to one very minor qualification, Ms Patrick pays all outgoings that relate to her and her two children. Likewise, Mr Rendell pays for his own provisions, notwithstanding that they may on occasions together visit shopping centres. The qualification concerns the odd times when Mr Rendell in doing his own shopping made purchases of food for general use. He took that action because Ms Patrick was not able to afford food for herself or the children.
NATURE OF THE HOUSEHOLD
24. The house at Mitchell Park comprises a main bedroom, two small bedrooms, lounge, kitchen, bathroom, laundry and a small utility room at the rear. Mr Rendell occupies the main bedroom and the children are in the small bedrooms. Ms Patrick sleeps on a mattress located on the floor the lounge. Whereas items of a personal nature are kept by Ms Patrick in the lounge area, her clothing is housed in a portion of a large wardrobe in the main bedroom. Access to the wardrobe by Ms Patrick only takes place when Mr Rendell is absent. Also positioned in the main bedroom is a TV owned by Mr Rendell. An additional TV owned by Ms Patrick is in the lounge.
25. For the most part, Ms Patrick prepared meals for herself and the children and Mr Rendell catered for himself. They dined separately and each attended to the washing of their dishes. However, there were times when they shared meals. About thrice weekly, a cooked main course was prepared by Ms Patrick and, on those occasions, Mr Rendell was invited to partake. Also, Mr Rendell irregularly cooked a meal which was in excess of his requirements. In those circumstances, he shared the meal with Ms Patrick and the children.
26. Each of the residents was responsible for the cleaning of their respective living areas. Although it was agreed that the cleaning of the shared accommodation be on weekly rotation, the back condition suffered by Mr Rendell restricted his participation in those duties. Tasks beyond the ability of Mr Rendell were performed by Ms Patrick. To compensate, Mr Rendell carried out minor repairs and adjustments to Ms Patrick’s motor vehicle, which were within his range of activities.
27. The laundering of bedding and clothing belonging to Ms Patrick and the children was carried out by Ms Patrick. Mr Rendell attended to his own washing and ironing.
28. Prior to March 2003, there had been occasions when Mr Rendell was confined to his bed for comparatively short periods of time. Those instances followed surgery on his back and related problems. During those periods, Ms Patrick attended to the provision of meals for Mr Rendell and also to the laundering of his bedding. Additionally, she ran messages on his behalf.
29. The provision of care and support of the children, both of whom have the surname Patrick, is and was the prime responsibility of Ms Patrick. It is she who predominantly ministered to their needs and requirements. Mr Rendell’s involvement with the children over a period of some years had been limited. According to the evidence before the Tribunal and which is accepted, those involvements were restricted to:
(a) one attendance at Leigh’s school to complain about pornography appearing on the school’s internet site;
(b) once taking Leigh, who had an ongoing commitment to football and athletics, to training. Also there was one instance when he took Leigh to his game of football. Those contributions resulted from Ms Patrick’s need to be elsewhere in taking her daughter to netball;
(c) the purchase of Christmas and birthday presents, and also, on odd occasions, the giving of small amounts of cash to the children for the buying of a drink or a similar treat;
(d) the infrequent disciplining of the children when “they invaded his space” and which was usually expressed in colloquial terms. There were other times when Mr Rendell took the opportunity to relate to Leigh some of his life experiences in the hope that those disclosures may benefit his son; and
(e) since Ms Patrick’s enrolment at Hamilton College to study various subjects aimed at enhancing her employment prospects, Mr Rendell has agreed to convey Kayla to and from her school when her mother was unavailable because of class commitments. On average this occurred three mornings and two afternoons per week. Prior to the non registration of his car, Mr Rendell used that vehicle for this purpose on the understanding that the cost of petrol be reimbursed. Subsequently, Ms Patrick walked to and from Hamilton College so that her vehicle could be used in the transportation of her daughter. It is convenient to note, that Mr Rendell sometimes used Ms Patrick’s car for private purposes and that, in those instances, he was required to replenish the fuel consumed.
30. Both children refer to Mr Rendell as ‘Dad’. Despite Mr Rendell’s protestations, Kayla’s infant habit of calling him Dad persists.
31. Of an evening, there were times when the applicants and the children as a group watched television in the lounge. If the selected programme was not to his liking, Mr Rendell moved his viewing to the TV set in his bedroom.
SOCIAL ASPECTS OF THE RELATIONSHIP
32. Because the applicants find themselves in dire financial circumstances, their social activities are severely restricted. They have mutual friends at Morphett Vale whom they visit every few months. Those same friends reciprocate those visits from time to time. Also Ms Patrick is friendly with Mr Rendell’s mother who resides in close proximity. There are occasions when the applicants visit Mrs Rendell, sometimes jointly and sometimes individually.
33. A friendship has developed between Ms Patrick and Ms Sekay who also attends Hamilton College. Ms Sekay has visited the home of the applicants on several occasions and, in that manner, has noted Ms Patrick’s sleeping arrangements. The Tribunal also accepts Ms Sekay’s observation that, during those visits, Mr Rendell “kept to himself”. In the assessment of Ms Sekay, the applicants were not living as a married couple. That assessment was based on her observations and on information gained from conversations with Ms Patrick.
34. The applicants do not hold themselves out as married to each other. Indeed, they have advised their friends, their landlord and the South Australian Housing Trust that they were not living as a married couple.
SEXUAL RELATIONSHIP
35. There has been no sexual relationship between the applicants since 1986. From that time onwards, Mr Rendell has had intimate relationships with other women.
THE NATURE OF THE RELATIONSHIP
36. The relationship has persisted over a prolonged period of nineteen years and, yet, there exists acceptable evidence that Mr Rendell has registered for single accommodation with the South Australian Housing Trust and that Ms Patrick will follow suit once her finances are in better order. The applicants do not consider that the relationship is likely to continue indefinitely.
37. There is within the relationship a degree of companionship and support. It is reflected in the following ways:
·The applicants’ discussions with each other regarding their problems;
·The provision by Ms Patrick of care for Mr Rendell when he is not well;
·Mr Rendell’s reliance upon Ms Patrick to do certain household chores that are beyond his physical capabilities;
·The transporting of Kayla to and from school by Mr Rendell when Ms Patrick is not available; and
·The occasional disciplining of the children by Mr Rendell
38. After a consideration of all the evidence before it, the Tribunal is of the view that financial necessity is the cornerstone of the relationship. It is the sharing of their resources that enables the applicants to survive monetarily. In the opinion of the Tribunal an arrangement based on mutual affordability of housing and material welfare does not of itself correspond to a marriage-like relationship. More is required.
39. Although the submissions made on behalf of the respondent were far reaching, the Tribunal considers it appropriate to comment on several factors that were given particular emphasis. In doing so, the Tribunal does not lose sight of the requirement that it must have regard to all the circumstances in the formation of the final decision.
40. The first relates to the longevity of the relationship. While acknowledging that 19 years is an appreciable time, the fact remains that, during the whole of that period, the financial difficulties encountered by the applicants persisted. Furthermore, it is accepted that an offer of suitable accommodation by the South Australian Housing Trust to either applicant would have resulted in the termination of the sharing arrangement. Support for that acceptance is contained in Ms Patrick’s statement that she looks forward to a house, a bedroom and the pleasure of sleeping in a standard bed.
41. Next, there is the contention that Mr Rendell renders financial support to Ms Patrick and the children. It was claimed that such support was evidenced by – though being a quarter of the household, he paid one half of the bills for gas, electricity and telephone – the rare occasions when he purchased food for general consumption – and the infrequent giving of money to the children for small treats. The Tribunal is of the view that a claim of this kind overlooks the practical aspects of the existing arrangement. To be successful, an arrangement of this nature must have its checks and balances. Indeed, it is possible that the flexibility of the arrangement explains its longevity.
42. Then follows the highlighting of the assistance provided by Ms Patrick to Mr Rendell during the periods of his rehabilitation. According to Ms Patrick, she was helping a “friend in need”. Hopefully, this action is a characteristic of all true friendships and is not restricted to people in a marriage-like relationship.
43. Finally, the respondent referred to the extent of support and companionship resulting from the relationship. In particular, he pointed to the support offered by Mr Rendell in taking Kayla to and from school and, also, Mr Rendell’s relationship with Leigh. With regards to the school run, it is observed that Mr Rendell had ample time to perform the service and was not inconvenienced in carrying out that chore. The Tribunal accepts that Mr Rendell took little interest in the activities of Leigh and that the bond between them is not a strong one. Even so, it has been held that a continuing role by a biological parent in the lives of his child is not indicative of a marriage relationship: Re Secretary, Department of Social Security and “SRJ” (AAT 10970 29 May 1996).
44. There is no doubt that the applicants share a commitment to each other and, yet, on balance, the Tribunal concludes that the quality of the commitment is consistent with that found in a friendship of long standing.
45. Having carefully considered all of the submissions and evidence available as to the circumstances of the relationship, the Tribunal finds no reason to conclude that the relationship goes beyond one formed and conducted for economic purposes. There were other advantages but these were merely coincidental. In the balancing process, the Tribunal finds that the applicants were not in a marriage-like relationship as at 28 March 2003 and, as such, they were not members of a couple. In view of this finding, a decision in terms of subsection 24(2) is not required.
46. The Tribunal sets aside the decision under review and in substitution therefor decides that as from 28 March 2003 the applicants have not been members of a couple and accordingly are qualified to receive their entitlements at the single rate.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D.J. Trowse (Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 18 & 19 May 2004
Date of Decision 2 July 2004
Counsel for the Applicant Ms M. Lyon
Solicitor for the Applicant Welfare Rights Centre (SA) Inc
Counsel for the Respondent Mr R. Prince
Solicitor for the Respondent Service Recovery Team Centrelink
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