Rodriguez and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2011] AATA 884

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 884

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0565

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SILVIA RODRIGUEZ

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date13 December 2011

PlaceHobart

Decision The decision under review is set aside and the matter remitted to the respondent for reassessment.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY – parenting payment – whether member of a couple - decision under review set aside

Social Security Act 1991, ss 4(2), (3), 1068A

Family Assistance Act 1999, s3

Family Assistance (Administration) Act 1999

Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27

Lambe v DGSS (1981) 3 ALD N72,

Tang & DGSS (1981) 3 ALN N83

Waterford & DGSS 1980 3 ALD 63

SDFaCS and Bell (2000) AATA 252

Re Roberts and SDSS (1987) 12 ALD 723

REASONS FOR DECISION

13 December 2011 Ms A F Cunningham (Senior Member)   

1.The applicant, Silvia Rodriguez was paid parenting payment single from the date of her application on 3 February 2004 on the basis that she had separated from her husband on 26 January 2004.  Following an investigation on 13 May 2009 Centrelink decided that Mrs Rodriguez had been a member of a couple since 25 May 2004 and cancelled her parenting payment single (PPS) from 25 May 2004.  Debts were raised against her in the sum of $65,023.30 PPS and $4,889.10 family tax benefit (FTB).

2.Centrelink’s decision was affirmed by an authorised review officer and by the Social Security Appeals Tribunal (SSAT) on 20 January 2010.  Mrs Rodriguez seeks a review of Centrelink’s decision by the AAT.  

3.The central issue for the Tribunal to determine is whether Silvia Rodriguez and her husband, Danilo Rodriguez, were living as members of a couple for the purposes of section 4(2) of the Social Security Act 1991 (the Act) from 25 May 2004. If the Tribunal determines that they were, it must decide whether Mrs Rodriguez should repay the debts raised against her for PPS and FTB.

4.Silvia and Danilo Rodriguez were married on 27 December 1999 and have two children, a daughter born in 2000 and a son born in 2003.   The Tribunal was informed that the respondent accepts that the couple separated in January 2004 but contends they had resumed their marriage relationship from 25 May 2004 from which date Mrs Rodriguez was not entitled to parenting payment as a single person.  The date 25 May 2004, coincides with the date upon which Mr and Mrs Rodriguez jointly applied for a mortgage loan.  Further housing loans were subsequently sought by Mr and Mrs Rodriguez on 30 September 2005, 15 March 2006 and 18 November 2008. 

THE EVIDENCE

5.Oral evidence was given at the hearing by Silvia Rodriguez, her husband Danilo Rodriguez, Mr Rodriguez’s work place counsellor, Benjamin Burrows, Troy Spinks of Tassie Home Loans and Jenny Roberts of RACT Travel World.  The Tribunal also received into evidence a comprehensive set of T Documents, a Centrelink payment summary, various financial statements which related to the home loans, a medical certificate from Mrs Rodriguez’s general practitioner, Dr V Naiker, Dr Naiker’s consultation notes and a mental health assessment completed on 14 May 2009.

THE LEGISLATION

6.The relevant law is found in the Act,  the Family Assistance Act 1999 (the FA Act) and the Family Assistance (Administration) Act 1999 (the Administration Act). With respect to the issue as to member of a couple, the relevant provisions are found in section 4(2) and (3) of the Act.

7.The rate of parenting payment varies according to whether or not a person is found to be a “member of a couple” within the meaning of section 4(2) of the Act. If the person is not a member of a couple, the person is entitled to PP (single) as calculated in accordance with section 1068A at the single rate and the rate is not reduced by the income of the person’s partner. The single rate of parenting payment is higher that the partnered rate and the income test is also more generous.

8.If FTB is received by a member of a couple then pursuant to Clause 3 of the FA Act, the rate of the FTB Part A is dependent on the combined income of the couple.  In addition, payment of FTB Part B may be made to the member of the couple with the lower income depending on that person’s income. 

9.Mrs Rodriguez was paid social security benefits on the basis that she was a single person until Centrelink’s determination made on 13 May 2009 that she had been a member of a couple with her husband since 25 May 2004. 

10.Section 4(2) provides:

“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 another person, whether of the same sex or a different 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 de facto 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”.

11.In this case subsection 4(2)(a) is the applicable provision as Mr and Mrs Rodriguez were married during the relevant period.  The question that thus arises is whether Mr and Mrs Rodriguez were living separately and apart from each other on a permanent or indefinite basis. 

12.The FA Act definition of a couple is the same as for the Social Security Act definition (section 3 FA Act).

13.The criteria to which regard is to be had in forming an opinion about the nature of the parties relationship as set out in section 4(3) is as follows:

(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”.

14.The above criteria are expressed in terms of circumstances which suggest a marriage-like relationship.  Regard should be had to all of the circumstances of the relationship.  The Federal Court in its decision Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27 found that the Tribunal had erred by only making findings with respect of those circumstances which suggested a marital relationship and not those suggesting separateness such as the absence of a sexual and social relationship. The list in section 4(3) is not exhaustive and other relevant factors may be taken into account. The existence or absence of any one factor is not conclusive.

THE FINANCIAL ASPECTS OF THE RELATIONSHIP

15.It was contended by the respondent that there was a significant degree of ongoing financial interdependence between Mr and Mrs Rodriguez during the relevant period.  It is notable that Centrelink’s finding that Mrs Rodriguez was living as a member of a couple dates from 25 May 2004.  This is the date when the couple jointly applied for a home loan with Bendigo Bank for an amount of $97,600.00 with a term of 30 years.  The loan was with respect to their jointly owned property at Canning Drive which had been purchased by Mr and Mrs Rodriguez in 2002 and occupied by Mrs Rodriguez and the children following the parties’ separation. 

16.It was Mrs Rodriguez’s evidence that the property at Canning Drive was purchased by the couple in 2002 for $85,000.00 with a loan obtained from the Bendigo Bank in the sum of $77,000.00 and a government grant of $7,000.00.  Mr Spinks explained that when the couple applied for further finance in May 2004, as the original loan did not allow for any further draws, it was paid out and a new loan taken out for $97,600.00.  The documentation shows that after payment of the original loan with Esanda, loan expenses and legal costs, a balance of $10,140 was stated to be for home improvements.  (T6 page 55)

17.It was Mr Spinks’ evidence that Mr and Mrs Rodriguez attended together to sign a Consumer Credit Application with Bendigo Bank.  Mr Spinks completed part of the application form whilst the couple were present but said that the balance of the form, mainly the details on page 55 relating to the “funds position”, was completed by his administrative assistant.  He did not specifically recall the interview and said that on a busy day he may have five appointments, and spent between one half and three quarters of an hour on average with a customer.  Mr Spinks stated that it was not his practice to read the form with his customers but just work through the personal details providing a brief summary of the information and inviting the customer to read the form if they wished.  He said that he would not have asked Mr and Mrs Rodriguez if they were a married couple but would have assumed this fact and that they resided at the same address.  On page 49 of T6 the residential address for both Mr and Mrs Rodriguez is recorded as Canning Drive and that they had lived there for 18 months. 

18.It was Mrs Rodriguez’s evidence that the money was not used for home improvements and that she did not receive any of the monies.  She was not concerned because Mr Rodriguez assumed responsibility for repayment of the mortgage loan.  She said that he had made all of the mortgage repayments since the couple separated in January 2004. 

19.Mrs Rodriguez maintained that the only benefit that she had received from any of the mortgage loan extensions were the monies used for the purchase of her Astra motor vehicle which was arranged by Mr Rodriguez at a cost of around $20,000.00.  Mrs Rodriguez pointed out that at the time of the parties separation, Mr Rodriguez kept the Kia motor vehicle which left her without transport.  She was forced to rely on public buses and taxis to transport her children and undertake grocery shopping and so forth.  

20.The Consumer Credit Application is contained at T7 and states the loan amount as $39,500.00.  Mrs Rodriguez said that she was unaware of what happened to the balance but assumed that her husband kept these monies.  Two subsequent loans were obtained for $18,400.00 on 29 March 2006 and $10,000.00 on 18 December 2008.  This documentation dated 15 March 2006, states that it was for the purchase of a motor vehicle.  The fourth loan application dated 18 November 2008, was for a $10,000.00 top up.  Mrs Rodriguez stated that she did not believe that Mr Rodriguez had used the monies to purchase a motor vehicle as he had the Kia vehicle.  She was unaware of the purpose of the loan but again was not concerned. She agreed to sign the application as Mr Rodriguez assumed responsibility for repayment of the loan.  She assumed that the second loan was obtained for Mr Rodriguez’s travel expenses overseas.  It was Mr Rodriguez’s evidence that he had initially planned a trip to Thailand.  He believed that he had faxed a copy of this loan application to Mrs Rodriguez for her to sign.  He explained that with respect to the first loan he had forwarded some money to his family in El Salvador.

21.In a typed Loan Comments Document which was tendered in evidence and completed by Mr Spinks with respect to the Bendigo Bank top-up loan for $18,400.00 in March 2006, it is stated:

“Danilo and Silvia are currently separated but it is hoped that this is only temporary.  For this reason the living expenses have been calculated for two single adults and two children.  Danilo is residing with his brother’s family board/rent free.  Whilst the Rodriguez’s are separated Silvia is eligible to receive parenting payment and family tax benefit (Part A and B).  This has been facted in when assessing the application.  And Danilo’s child support commitment has also been included as a monthly expense”.

22.When asked why he stated that it was hoped that the separation would only be temporary, Mr Spinks responded that it was probably his interpretation rather than anything that the couple had said, although they would have stated that they were separated.

23.On page 103 of the loan application, both Mr and Mrs Rodriguez’s residential addresses are recorded as Canning Drive.  In his witness statement tendered in evidence, Mr Spinks stated that only the loan application dated 20 March 2006 records Mr and Mrs Rodriguez as separated.  With respect to the loan application dated 16 December 2008 Mr Spinks stated that it was recorded as a top-up loan to assist Mrs Rodriguez (but not Mr Rodriguez) and the children to make an overseas trip, his impression was that it was to be a return trip.  It is stated that the Service Ability Form records Mr and Mrs Rodriguez as a couple.

24.In his evidence to the Tribunal however, Mr Spinks explained that his affidavit was prepared from file information and that where it is recorded that the couple were married, this is often an assumption made for the purposes of the serviceability calculations.  He had no specific recollection of his interviews with Mr and Mrs Rodriguez and therefore of his discussions with them.  His evidence regarding this loan is at odds with the evidence of Mr and Mrs Rodriguez with respect to the financial arrangements regarding the overseas trip to El Salvador.  Mrs Rodriguez maintains that she paid for the entirety of the trip.  There was no other evidence that Mr Rodriguez contributed towards the cost of the trip for Mrs Rodriguez and the children and the Tribunal accepts her evidence that she funded the trip entirely from her own resources. 

25.Mr Rodriguez has said during the course of his evidence to the Tribunal that he hoped for a reconciliation with his wife, he also said that in the event of a permanent separation he was concerned that he would lose his interest in the property at Canning Drive and so thought that he would obtain money on account of his interest in the property whilst he was able to do so.  Mr Rodriguez said that initially he had tried to obtain the loan on his own behalf but was advised that because the property was registered in their joint names, his wife was required to sign the relevant documentation, although he insisted that he would be repaying the loan.  Mrs Rodriguez had stated that on occasions Mr Rodriguez had pressured her to sign the loan applications for otherwise he would not help her with the children.  Mr Rodriguez told her that he simply needed the money and generally she did not enquire as to the purpose of the loans.  Following their separation Mrs Rodriguez had asked that her husband transfer the house into her name but he declined to do so. 

26.It was the parties evidence that they did not operate a joint bank account but maintained their own separate accounts.  Mrs Rodriguez stated that she has two part-time jobs and pays for the food for herself and her children, the power, telephone and other outgoings on the property apart from the mortgage.  Mr Rodriguez has maintained Canning Drive as his postal address.  Mrs Rodriguez said that she had asked him to change the address following their separation but he did not do so until very recently. 

27.It was Mrs Rodriguez’s evidence that apart from the mortgage, Mr Rodriguez periodically contributes towards the children’s expenses when they require something in particular. 

28.Mrs Rodriguez was asked about a deposit into her bank account from Danilo Rodriguez in the sum of $1,300.00.  In response to questions by the authorised review officer she was unable to explain the deposit but maintained that it had not been received from her husband.  After viewing the documentation she realised that the deposit was in fact from her father-in-law who has the same name as her husband and was repayment of monies that she had lent him.

29.Mrs Rodriguez was asked about a number of other payments into her bank account.  Whilst she accepted that some of the payments made by “Caterpillar”, her husband’s employer, were monies on account of the children’s expenses, she was unable to explain some of the other significant deposits.   She understood they may have been Centrelink payments but the evidence produced by the respondent indicated that they were not.  There were some other more minor payments ranging from $120.00 to $40.00 and one for $500.00.  Mrs Rodriguez could not recall if they had been received from her husband as they were paid some time ago. 

30.There was documentary evidence that Mr Rodriguez had authorised Mrs Rodriguez to operate his bank account.  It was Mr Rodriguez’s explanation that he wanted to ensure that his wife had access to funds for the children whilst she was overseas.  The evidence was that Mrs Rodriguez had only accessed the account on one occasion when she was overseas by withdrawing $500.00.  She repaid this sum into Mr Rodriguez’s bank account on her return to Australia. 

31.It was Mr Rodriguez’s evidence that in addition to maintaining the mortgage repayments, he contributed towards the children’s school fees and other expenses from time to time. 

32.There was also evidence from motor vehicle registration records that Mrs Rodriguez is the registered owner of a 2005 model Astra for which Mr Rodriguez is a joint operator and that Mr Rodriguez is the registered owner of a 2006 model Honda station wagon for which Mrs Rodriguez is a joint operator.

33.The provision of financial support can be a significant factor but is not in itself determinative of the issue as to whether a person is a member of a couple (Lambe v DGSS (1981) 3 ALD N72, Tang & DGSS (1981) 3 ALN N83, Waterford & DGSS 1980 3 ALD 63).   An absence of financial dependence is also not determinative in itself (SDFaCS and Bell (2000) AATA 252).

34.In this case there is little evidence of any significant financial support between Mr and Mrs Rodriguez.  Following their separation they made four joint loan applications for additional funds.  The evidence was, which the Tribunal accepts, that only on one occasion did Mrs Rodriguez benefit from the loan funds.  This was for monies used towards the purchase of her Astra motor vehicle.  Mr Rodriguez had retained the family Kia motor vehicle upon the parties separation.  The evidence was that the car was purchased for around $20,000 however the total loan amount was for $39,500.00.  The Tribunal accepts Mrs Rodriguez’s evidence that she did not receive the balance of the funds which were presumably  retained by Mr Rodriguez.

35.Although the couple retained joint ownership of the property at Canning Drive, the Tribunal accepts that Mrs Rodriguez had requested that Mr Rodriguez transfer his interest to her.  The Tribunal also accepts Mrs Rodriguez’s evidence that throughout the period of separation he has desired a reconciliation with his wife and  therefore had not initiated a divorce or property settlement.  Mrs Rodriguez said in evidence that she was not aware that she was able to obtain a divorce in Australia and understood that a divorce could only be obtained in El Salvador where the couple married. 

36.There was no evidence of any sharing of day to day household expenses.  The Tribunal accepts that Mr Rodriguez’s only financial contribution was for meeting the monthly mortgage repayments and periodic contributions towards the children’s expenses including their school fees.  The Tribunal accepts Mrs Rodriguez’s evidence that apart from the mortgage repayments, she met all of the other outgoings on the house including the rates, power and so forth.   The cars which the parties each drive are registered in their sole names although it appears that the other has in interest as a joint operator. 

37.For these reasons the Tribunal does not consider that the current financial aspects of the relationship suggest a marriage-like relationship.  

THE NATURE OF THE HOUSEHOLD

38.It was submitted on behalf of the Secretary that there is little if any evidence that Mr Rodriguez has lived anywhere other than Canning Drive during the relevant period.  Reference was made to a number of documents where his address is recorded as Canning Drive.  Namely the four loan applications with the Bendigo Bank, various pay slips, the Australian Taxation Office records for the financial years 03/04, Motor Registry documentation, Caterpillar Underground Mining employee records, his postal address, the Health Insurance Commission and the Australian Electoral Commission documents and the children’s school.

39.It was not disputed that Mr Rodrigeuz has retained Canning Drive as his postal address and did not change the record of his address with the above organisations following the parties separation.  The Tribunal does not consider this evidence in light of the oral evidence given by the parties at the hearing, as necessarily indicative of his living arrangements. 

40.It was Mrs Rodriguez’s evidence that following the parties separation in January 2004, the parties have lived separately and apart and occupied different residences.  The circumstances of the parties separation were that when Mr Rodriguez admitted his relationship with another woman, Mrs Rodriguez demanded that he leave the matrimonial home.  Mr Rodriguez said that when his wife learnt about the affair, an argument ensued and she threw his clothes out into the driveway and told him to forget about her and the children.  Mrs Rodriguez understood that her husband went to live with his brother.  Mr Rodriguez said that this was not a convivial arrangement as his brother was very upset with him over the affair.  Mr Rodriguez felt constantly under his brother’s control when living with him and after a year he moved to live at the local caravan park.  At the time he was working six days a week and visited the house at Canning Drive three times a week to see the children.  He said that he never stayed overnight although he often stayed to put the children to bed but never shared a meal with the family. 

41.It was Mrs Rodriguez’s evidence that Mr Rodriguez visited approximately once a week when he had the time and would telephone her beforehand. He did not have a key to the property and never stayed overnight.

42.Mr Sparkes pointed to some discrepancies in the evidence as to the length of time that Mr Rodriguez lived with his brother.  Mrs Rodriguez was not aware of the precise nature of Mr Rodriguez’s living arrangements but understood that following their separation in January 2004, he went to live with his brother and also spent some time living at the caravan park. 

43.Despite the discrepancies and the documentary evidence referred to in which Mr Rodriguez’s address was recorded as Canning Drive after the parties separation in January 2004, the Tribunal accepts that Mr Rodriguez did not reside with his wife at Canning Drive during the relevant period.  The evidence of both Mr and Mrs Rodriguez was persuasive and credible in this regard and the Tribunal accepts Mr Rodriguez’s explanation for not having taken steps to notify of his change of address.  He did not regard his residence at his brother’s place as permanent nor was his period of residence at the caravan park a permanent place of abode.  It was convenient for him to continue to have his mail delivered to Canning Drive where he regularly attended for the purpose of seeing his children.  He retained a joint interest in the property and was meeting all of the mortgage commitments. 

44.It was submitted by Mr Sparkes that the Tribunal did not have sufficient independent corroborative evidence for it to substantiate the applicant’s claims.  The Tribunal however found Mrs Rodriguez to be a credible and plausible witness.  She gave her evidence in a straight forward manner and did not attempt to embellish or exaggerate the detail.  Where she was unsure of the answer she said so and the Tribunal found her explanations for previous inconsistencies credible and acceptable.

45.Whilst Mr Rodriguez expressed a desire to continue to be involved in the children’s lives, the evidence was that that his only involvement occurred during periods of contact with them which included weekends away from Canning Drive.  In all other respects Mrs Rodriguez assumed responsibility for the care and support of the children and attended to all of the household responsibilities.

THE SOCIAL ASPECTS OF THE RELATIONSHIP

46.It was Mrs Rodriguez’s evidence that she informed very few people of her separation.  She explained that in El Salvador it is somewhat shameful to separate from ones husband.  It was her evidence that she had only spoken to a few close relatives about the separation. 

47.Mrs Rodriguez did however seek advice from her general practitioner, Dr Naiker, who certified in a letter dated 29 March 2010 that Mrs Rodriguez had been separated from her husband since 2004.  Dr Naiker was not called to give evidence but the medical records tendered in evidence indicate that Mrs Rodriguez consulted Dr Naiker on 16 February 2004, shortly following her separation. Although the consultation notes do not refer to a separation, they state “some marital discord as a result of her mood”.  The consultation notes of 30 April 2009 refer to depression following ongoing problems with the marriage and that her partner had followed her to El Salvador to make sure she was bringing the children back.  He wanted to reconcile then took up with someone else there, she is unsure where she stands.  The problem with Centrelink is noted “as estranged husband gave her address as his address, PH depression, was on Zoloft … will see counsellor via Sisters of Charity”. 

48.On 6 March 2007 the consultation notes report “separated from Danilo three months ago, so been stressed”.  Mrs Rodriguez said that she may not have initially informed her general practitioner of the separation but the consultation notes dating from February 2004 record periodic prescriptions for Zoloft, anxiety and depression issues.  The Tribunal accepts that either Mrs Rodriguez did not inform her doctor of the precise date of separation or alternatively, the reference to three months should have read three years.  The Tribunal does not consider that there is anything in the consultation notes to conflict with a finding that Mrs Rodriguez had separated from her husband in February 2004 and has remained separated.  

49.There was also evidence that Mr Rodriguez had sought advice from his workplace counsellor, Mr Benjamin Burrows and continues to attend counselling.  It was Mr Burrows’ evidence that it was approximately six years ago that Mr Rodriguez informed him that he had separated from his wife and has continued consulting him sometimes on a weekly basis.  Mr Rodriguez had spoken of his living arrangements at the caravan park and that he had lived with his brother and then moved back to the caravan park.  The evidence was that one of the reasons for consulting Mr Burrows was that he retains strong feelings for his wife and is still hopeful of a reconciliation.  Mr Burrows said that Mr Rodriguez would have advised him if he had reconciled with his wife at any time since the separation.  He considers that he has an honest relationship with Mr Rodriguez who confides in him. 

50.Mr Burrows said that Mr Rodriguez had spoken about his wife’s planned trip to El Salvador with the children and that he was concerned that she may not return.  He talked to Mr Burrows about a woman that he himself had met in El Salvador, Mr Burrows understood that Mr and Mrs Rodriguez had travelled separately to El Salvador and that it was not a family holiday that they had planned together. 

51.The Tribunal accepts Mr Burrows’ evidence regarding his consultations with Mr Rodriguez.  At the time of their meetings, Mr Rodriguez had no reason to believe that the circumstances of his separation would be publically relayed to a Court or Tribunal.  Given the nature of the relationship between Mr Rodriguez and Mr Burrows, the Tribunal accepts Mr Burrows’ evidence that Mr Rodriguez would have informed him if there had been a resumption of cohabitation between Mr Rodriguez and his wife.  The evidence was, which the Tribunal accepts, that there had not been a resumption in cohabitation or any significant change in the nature of the parties relationship since they separated in January 2004.  Despite Mr Rodriguez’s desire for a reconciliation, there is no evidence that this has occurred or that Mrs Rodriguez has given any indication that it will happen in the near future.

52.The Tribunal accepts the evidence of Mr and Mrs Rodriguez that the only social contact between them occurred in relation to the children’s activities which included children’s sporting and school events.   There was no evidence however that they arranged or did attend these events together. 

ANY SEXUAL RELATIONSHIP BETWEEN THE COUPLE

53.The Tribunal accepts the evidence of both Mr and Mrs Rodriguez that they have not maintained any kind of sexual relationship since their separation in 2004.  Mrs Rodriguez was very distressed about Mr Rodriguez’s affair during their marriage and to date has not given any indication that she is prepared to resume the marriage.

NATURE OF THE COMMITMENT TO EACH OTHER

54.The evidence was that Mrs Rodriguez and Mr Rodriguez do not consider themselves to be partnered or members of a couple.  They claim that they have retained an amicable arrangement for the benefit of and in the children’s best interests.  The parties subjective perception of their relationship however, is not the determining factor and the actual objective circumstances must be considered.  (See Re Roberts and SDSS (1987) 12 ALD 723).

55.On an objective basis and taking account of all of the objective circumstances of their relationship, the Tribunal finds that the reason for their ongoing relationship was for the benefit of the children.  Although Mr Rodriguez may have and continues to desire a resumption of the marital relationship, the Tribunal is satisfied that this has not occurred and certainly had not taken place within the period under consideration.  There is evidence that both parties have had other relationships during the period of their separation.  Mr Rodriguez’s relationship with other women was the basis for the separation.

56.The Tribunal has found that their joint applications for housing loans are not indicative of a marriage-like relationship.  Mr Rodriguez sought further funds on a number of occasions by way of increasing the mortgage loan which apart from the purchase of Mrs Rodriguez’s Astra motor vehicle, was solely used for his benefit.  Mr Rodriguez assumed total responsibility for repayment of the loans. 

57.The Tribunal is satisfied that there are no other objective indicators that the parties provide each other with companionship or emotional support.  The evidence was, which the Tribunal accepts, that they did not arrange or take their holiday to El  Salvador together and that Mr Rodriguez’s reason for the trip was to ensure that Mrs Rodriguez returned with the children to Australia. 

58.Mrs Rodriguez’s explanation for not having obtained a divorce is that she had initially understood that it could only be obtained from El Salvador where she was married.  Her evidence was that she has recently made enquiries with her solicitor about obtaining a divorce in Australia. 

59.For all of these reasons the Tribunal is satisfied that Mr and Rodriguez separated in February 2004 and have continued to live separately and apart.  Further, that there is no persuasive evidence that they have lived as a member of a couple since their separation.  The Tribunal accordingly sets aside the decision under review and remits the matter to the respondent for reassessment in accordance with the Tribunal’s findings. 

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:   R Hunt - Associate

Date/s of Hearing  10, 11 and 12 October 2011 
Date of Decision  13 December 2011
Counsel for the Applicant         Ms S Eder
Solicitor for the Applicant          Launceston Community Legal Centre
Counsel for the Respondent     Mr B Sparkes
Solicitor for the Respondent     Centrelink - Program Litigation and Review Branch