Ross and Department of Family and Community Services - [2000] AATA 437

DECISION AND REASONS FOR DECISION [2000] AATA 437

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V99/1252
GENERAL ADMINISTRATIVE DIVISION)
           Re:     KARYN ROSS

Applicant

And: SECRETARY TO THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal: Miss E.A. Shanahan, Member

Date:2 June 2000
Place:Melbourne

Decision: The Tribunal affirms the decision under review. The applicant does not qualify for the sole parent pension/parenting payment single.

(sgd) E.A. Shanahan
Member
SOCIAL SECURITY — sole parent pension — parenting payment single — whether member of a couple — legally married to another person, not living separately and apart from the other person on a permanent or indefinite basis
Social Security Act 1991 ss.4(2), (3), (3A), (5), 500(1)

In the Marriage of L and A Holmes (1988) 12 FamLR 103
Re Todd and Secretary, Department of Social Security (1989) 18 ALD 36
Re A and Director-General of Social Services (1981) 4 ALN N251

REASONS FOR DECISION

2 June 2000 Miss E.A. Shanahan, Member

The applicant, Ms Karyn Ross, seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") dated 28 September 1999. This decision affirmed that of a delegate of the Secretary to the Department of Family and Community Services ("the Department") made on 24 March 1999, subsequently affirmed by an authorised review officer ("ARO") on 10 May 1999. The decision cancelled the payment of a parenting payment single (formerly sole parent pension) under s.500(1) of the Social Security Act 1991 ("the Act") on the grounds that the applicant is a member of a couple.
At the hearing before this Tribunal on 9 March 2000 the applicant was self-represented and the Department was represented by Ms C. McInnis, an advocate from Centrelink. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") and was also provided with the bank statements of Mr D.J. Ross (Ex R1) and Wide Bay Capricorn Building Society mortgage statements (Ex R2), also in the name of Mr D.J. Ross. Mr Ross is the husband of Ms Ross, the applicant.
The applicant applied for the sole parent pension in 1993 and was granted the pension commencing on 21 October 1993. On 8 April 1994 a decision was made to cancel the pension on the basis that the applicant and her husband had reconciled and were living together in Wilson Street, Horsham. The applicant reapplied for the pension on 30 May 1995 stating that she had separated from her husband, and was now living at 23 Forsyth Avenue, Horsham. Pension was regranted on 2 June 1995. Several reviews of payment of pension were conducted in 1995 and 1996, and the applicant advised on 28 March 1996 that she was departing Australia for an extended holiday to the United States of America ("USA") and the United Kingdom, between the dates of 3 April 1996 and 3 February 1997. Following a public tip off on 16 April 1996, which stated that the applicant was joining her husband in the USA, a decision was made to suspend the pension on 18 April 1996. A further public tip off dated 9 July 1996 stated that the applicant had returned to Australia and was living with her husband at 6 Shirley Street, Horsham. The tip off also informed the Department that the applicant was pregnant again. On 25 November 1996 suspension of the pension was lifted and on 26 November 1996 the applicant provided a further claim application, giving her address as 51 Lynott Street, Horsham. She stated that she was separated from her husband. A further public tip off received early December 1996 reported that Karyn and David Ross were living with their children at 15 Hennessey Street, Horsham. Following extensive investigation relating to taxation returns, telephone accounts and power provision, a delegate of the Department determined that the applicant was living with her husband at 6 Shirley Street, Horsham and cancelled the single parent pension in a letter dated 18 March 1997 (T40). This decision to cancel the single parent pension was affirmed by an ARO on 21 March 1997.
The applicant appealed to the SSAT on 8 May 1997. The SSAT set aside the reviewable decision and sent the matter back to the Secretary for reconsideration in accordance with directions that the applicant was not a member of a couple. This decision was dated 23 June 1997. The administrative law section of the Department decided not to appeal the SSAT decision. The applicant continued to be paid the sole parent pension. In 1998 the Department received three public notifications that the applicant was living as a member of a couple. In August 1998 the applicant moved from Horsham to 7 Doolan Street, Bacchus Marsh. The latter property is owned by Mr Ross, who also occupies the house. The applicant maintained that she was renting this property from Mr Ross, paying him $120 per week in rent and that, whilst they were living under the same roof, they were not living as a couple. On 18 March 1999 the Department determined that the applicant and Mr Ross were not residing separately and apart under the one roof and affirmed the original decision to treat them as a couple. This decision was affirmed by an ARO on 10 May 1999 and the single parenting pension was cancelled.
The applicant appealed this decision to the SSAT and the matter was heard by that Tribunal on 28 September 1999. The SSAT determined that the applicant and her husband should be considered as members of a couple under s.4(2) of the Act and affirmed the decision under review. The applicant appealed this decision to the Administrative Appeals Tribunal, the application being received on 8 November 1999.
The T documents and both SSAT appeals contain detailed information regarding the various residences occupied by the applicant and her husband. It is accepted that, initially, the applicant and Mr Ross lived together in a de facto relationship, commencing before their first child was born and were subsequently married in March 1994, a month before the birth of their second child. They remain married and have not made any attempt to obtain legal separation or divorce, nor do they intend doing so.
The applicant gave oral evidence to the Tribunal, most of which confirmed the evidence contained in the SSAT hearing of 1999. She detailed the household set-up wherein the four bedrooms in the house are occupied solely by herself and the three children. Mr Ross, when at home, sleeps on a couch in the living room and keeps his clothing in a wardrobe in the youngest child's bedroom. He does his own laundry and keeps his food supplies on a separate shelf of the cupboard for his use alone. He rarely, if ever, cooks himself a meal. He usually has counter meals at the local hotel and whilst at home eats only snacks or chips. The applicant and Mr Ross frequently do the shopping together and would usually share the cost of the shopping basket. There is no sexual relationship between the two. Whilst the applicant is uncertain of Mr Ross's current occupation, she was aware that he had spent most of his working life as a truck driver but had done other things, such as bricklaying and working as a storeman. She did not know of his current employment but stated that he was home more often and would frequently pick up the three children from child care in the afternoons. She was unaware that he had on, at least one occasion paid the child-care fees. The household utility bills are generally shared. The applicant currently pays her husband $150 per week in rent and pays this in cash which she leaves on a bench in the kitchen. When she originally moved into the house in Bacchus Marsh in August 1998 she was paying $120 per week, but this has risen on an annual basis on 1 January each year. Until December 1999, the applicant was working each Saturday night in a Coles supermarket and whilst she was absent at work the children were baby-sat by Mr Ross. The applicant agreed when questioned by Ms McInnis that she and Mr Ross and the three children had spent Christmas together and occasionally gone on outings together. She also agreed that she would occasionally perform the task of banking for Mr Ross.
Mr Ross does not pay child support to the applicant. By agreement with the applicant, he purchased a car in September 1998 which is in his name, but is used entirely by the applicant and the children. He initially paid a sum of approximately $354 per month as car loan payments and this has now been increased to $650 per month. When the car loan is paid out it is intended that the registration will be transferred to the applicant. The applicant trusts Mr Ross to uphold their verbal agreement that she will become the registered owner of the vehicle on completion of the loan payments.
The applicant's major reason for shifting into the house owned by her husband, in Bacchus Marsh, was financial convenience. In addition, however, she stated that she felt the children (two of which are the children of Mr Ross) should have access to both parents in a family setting.
The applicant was questioned by Ms McInnis regarding the household arrangements whilst the applicant was living in Horsham. During most of that period, Mr Ross was working as a truck driver, based in Melbourne and returning to Horsham on Friday nights. He would see the children on Friday night and Saturday morning and would then drive to his relative's home in Dimboola for the rest of the weekend. He would return on Sunday to see the children once more before going back to work in Melbourne.
In December 1999, following the cancellation of her sole parenting payment, the applicant commenced work and is currently working for a group of debt collectors, Receivable Management Group, in King Street, Melbourne. The applicant works a five-day week, starting at 8:30 a.m. and finishing at 5:00 p.m. She takes her children to child care at 7:00 a.m. and the child-care staff take the older two children to school and pick them up from school at 3:15 p.m. The children remain at the child-care centre until 6:30 p.m., although more recently they have been picked up at an earlier time by Mr Ross. The applicant said that she has written to the Melton Centrelink office, informing them of her income and that she is working full time. She also continues to work at the Coles supermarket on Saturday nights. She expressed her joy at having a full-time job and her contentment with the current arrangements in the household. The applicant regards Mr Ross as her friend not as a husband. The current arrangements are financially convenient for both she and Mr Ross and beneficial for the children. She was unaware until this hearing that the rental she is paying equates with approximately half the mortgage repayments and that Mr Ross does not declare the rental as income. Ms McInnis pointed out that, if these contributions are in fact going directly towards the mortgage repayments, then the applicant has an equitable interest in the property.
Legislation
The relevant legislation provides as follows:
500.(1)            A person is qualified for parenting payment if:
(a)       . . .
(b)       . . .
(c)       . . .
(d)       at least one of the following conditions is satisfied:
(i)        the person is not a member of a couple
. . .
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;
. . .
4.(3)                 In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day-to-day household expenses;
(b)the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii)the living arrangements of the people; and
(iii)the basis on which responsibility for housework is distributed;
(c)the social aspects of the relationship; including:
(i)whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d)any sexual relationship between the people;
(e)the nature of the people's commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship.
4.(3A)              The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
4.(5)                If:
(a)a person claims, or is receiving, parenting payment; and
(b)a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c)the claimant or recipient and the other person are legally married to one another; and
(i)are living separately and apart on a permanent or indefinite basis; or
(ii)claim to be living separately and apart on a permanent or indefinite basis;
the Secretary must not form the opinion that the claimant or recipient is living separately and apart from the other person on a permanent or indefinite basis unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is living separately and apart from the other person on a permanent or indefinite basis.

Application of the legislation to the evidence before the tribunal

The applicant, Ms Karyn Ross, is legally married to Mr David Ross. They both reside at 7 Doolan Street, Bacchus Marsh, a property owned by Mr Ross. The house is occupied by Ms Ross, Mr Ross and three children, two of whom are the children of Mr David Ross. The paternity of the third child is unknown. Ms Ross has declared that she does not intend to seek a legal separation or divorce and Mr Ross made similar statements before the SSAT hearing in September 1999. The presumption is therefore raised that they are living as a couple. The applicant, Ms Ross, sees their relationship as one of landlord and tenant, regards Mr Ross as her friend and denies any sexual relationship with her husband. Section 4(2) of the Act provides that a person is a member of a couple for the purposes of the 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.
. . .

Section 4(3) delineates the circumstances of the relationship to which the Secretary must give consideration before forming an opinion. Considering these requirements separately, s.4(3)(a) is addressed to the financial aspects of the relationship. There is no evidence of joint ownership of real estate or other major assets or liabilities however, the fact that Ms Ross' monthly rental payments are not declared as income by her husband Mr Ross and appear to match 50% of the monthly mortgage payments on the house, suggests that she does have an equitable interest in the property. No evidence was advanced to support any significant pooling of financial resources in relation to major financial commitments. Mr Ross in lieu of child maintenance payments is paying off a car, registered in his name, but used solely by Ms Ross. The evidence before the Tribunal is that Ms Ross and her husband Mr David Ross do share day-to-day household expenses. (Section 4(3)(a)(iv)).

Mr and Mrs Ross both provide care and support of the children with Mr Ross having paid for child-care, and of recent times being active in picking the children up from school. The living arrangements of the applicant and her husband indicates that they occupy separate rooms and have no sexual relationship but do provide a family setting for the benefit of the children, with Mr Ross babysitting in Ms Ross' absence, and presumably during those periods providing food and nourishment for the children.
The evidence before the Tribunal
The responsibility for housework is divided on quite distinct lines with Ms Ross caring for herself and the children and Mr Ross responsible for his own living requirements. (Section 4(3)(b)(iii))
Ms Ross and her husband Mr David Ross hold themselves out as married to each other but living separately under the same roof. Evidence was received from two friends of Ms Ross in support of Ms Ross' claims. However there are an extraordinary number of public information reports (dob ins) suggesting that Ms Ross and her husband Mr David Ross do live as a couple. Ms Ross admits to joint social activities with her husband and children although these are few and far between. The evidence indicates that Mr Ross who works predominantly as an interstate truck driver is rarely home as a result of the demands of his work. (Section 4(3)(c)(iii)).
Ms Ross denies any sexual relationships between herself and her husband. The Tribunal accepts this evidence although there is no supporting independent evidence to this effect. (Section 4(3)(d)).
Ms Ross and Mr David Ross have been married since 1994 and while the relationship has been stormy and unsettled, they have since August 1998 lived together at Mr Ross' home in Bacchus Marsh and appear to have developed a stable workable relationship providing emotional support for their children if not for each other. Ms Ross expressed her desire that the relationship continue as it is in the long term. She does not see their relationship as a marriage-like relationship but previously stated, one of landlord and tenant and regards her husband as a friend. Whether this is a marriage-like relationship or not is debatable. (Section 4(3)(e)(i)(ii)(iv)).
Section 4(3A) and 4(5) are particularly relevant in this application. Section 4(3A) directs 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 and in accordance with s.4(5) :
If
. . .
(b)a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c) the claimant or recipient and the other person are legally married to one another; and
. . .
(i)are living separately and apart on a permanent or indefinite basis; or
(ii)claim to be living separately and apart on a permanent or indefinite basis
. . .

Under these circumstances:

the Secretary must not form the opinion that the claimant or recipient is living separately and apart from the other person on a permanent or indefinite basis unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is living separately and apart from the other person on a permanent or indefinite basis.

Whilst not all of the requirements of s.4(3) are met by the evidence before this Tribunal the majority are. In particular the stability of the relationship since August 1998 leads this Tribunal to the conclusion that the requirements of s.4(3) are materially met.
On this basis the Tribunal finds that the weight of evidence before it substantiates the Secretary's claim that Ms Ross and her husband Mr David Ross are living as a couple and Ms Ross, the applicant, is therefore not qualified for the sole parent pension/parenting payment single.
I certify that the twenty-one [21] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
signed:        Catherine Thomas
                   Personal Assistant
Date of Hearing  09.03.2000
Date of Decision  02.06.2000
Solicitor for the Applicant            IN PERSON
Solicitor for the Respondent        Ms C. McInnis, Advocate of Centrelink