Ross; Secretary, Department of Social Services, and (Social services second review) - [2021] AATA 4296

Ross; Secretary, Department of Social Services, and (Social services second review) [2021] AATA 4296 (18 November 2021)
Division:GENERAL DIVISION
File Number(s):2020/8426
Re:Secretary, Department of Social Services
APPLICANT

AndDavid Ross
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:18 November 2021
Place:Brisbane

The Tribunal finds that the Respondent is not, and since 26 June 2019, has not been a member of a couple for the purposes of the Social Security Act 1991 (Cth). The decision under review is affirmed.
.........................[SGD]......................................
Member D Mitchell
Catchwords
SOCIAL SECURITY – Disability Support Pension – rate of pension – separated and living under one roof – whether Respondent was a member of a couple – first review found that the Respondent was not a member of a couple – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Burkett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 131
Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792
In Marriage of Todd (No. 2) (1976) 9 ALR 401
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135
RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
VBH and Secretary, Department of Family and Community Services [2006] AATA 1
Zablotsky and Secretary, Department of Social Services [2020] AATA 374
REASONS FOR DECISION
Member D Mitchell
18 November 2021
INTRODUCTION

The decision under review is the decision of the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal dated 20 November 2020.[1] On that date, the SSCSD set aside the decision made on behalf of the Secretary, Department of Social Services (the Applicant) that found that Mr David Ross (the Respondent) was living as a member of a couple and as such was not entitled to be paid his disability support pension at the single rate.[2]
[1] Exhibit 1, T Documents, T2, pages 4-31, Decision of the SSCSD.
[2] Exhibit 1, T Documents, T2, pages 4-31, Decision of the SSCSD.
The SSCSD decided that the Respondent, while living under the same roof as Mrs Ross, was not a member of a couple with her since 26 June 2019. The SSCSD set aside the reviewable decision and in substitution decided that:[3]
a. [The Respondent] is not, and since 26 June 2019, has not been a member of a couple for the purposes of the Social Security Act 1991 (Cth); and
b. [The Respondent’s] rate of disability support pension is to be assessed at the single rate from 26 June 2019.
[3] Exhibit 1, T Documents, T2, page 31, Decision of the SSCSD.
BACKGROUND
The Respondent has been recorded as being married to Mrs Ross since 14 October 2000.[4] They are still married and are living under the same roof.[5]
[4] Exhibit 1, T Documents, T11, page 96, Centrelink Mainframe – Marital Status.
[5] Exhibit 1, T Documents, T11, pages 97 and 102, Centrelink Mainframe – Address History.
The Respondent was granted the disability support pension (DSP) from 24 October 2014 and has been paid at the partnered rate since that date.[6]
[6] Exhibit 1, T Documents, T11, page 87, Centrelink Mainframe – Pensions Status History.
On 26 June 2019, the Respondent and Mrs Ross provided the Applicant with Relationship details – Separated under one roof forms (SS293),[7] stating that they separated on
[7]     Exhibit 1, T Documents, T4, pages 42-64, Relationship Details – Separated Under One Roof forms completed by the Respondent and Mrs Ross.
[8]     Exhibit 1, T Documents, T4, pages 43 and 54, Relationship Details – Separated Under One Roof forms completed by the Respondent and Mrs Ross.
[9]     Exhibit 1, T Documents, T4, pages 43 and 54, Relationship Details – Separated Under One Roof forms completed by the Respondent and Mrs Ross.
15 July 2016.[8] As well as outlining details of their circumstances both the Respondent and Mrs Ross advised that they intended to continue to live at the same address for life as that was their home and they could not afford to move.[9]
On 17 March 2020 and 21 March 2020, the Applicant wrote to the Respondent seeking that he complete and return a Separation details form (MOD S).[10]
[10] Exhibit 1, T Documents, T13, pages 135-136 and 140-141, Centrelink correspondence.
On 20 March 2020, the Respondent returned the completed MOD S form to the Applicant advising that he and Mrs Ross had been separated since June 2016.[11]
[11] Exhibit 1, T Documents, T5, pages 65-69 Separation Details form completed by the Respondent.
On 20 March 2020, the Applicant wrote to the Respondent seeking that he complete and return a further Relationship details – Separated under one roof form (SS293).[12]
[12] Exhibit 1, T Documents, T13, pages 137-139, Centrelink correspondence.
On 12 May 2020, the Applicant decided that the Respondent and Mrs Ross were to be treated as members of a couple. The Applicant advised that as such, Mrs Ross’ income must be taken into account in assessing the Respondent’s rate of DSP.[13]
[13] Exhibit 1, T Documents, T6, pages 70-71, Centrelink Notice: Important Information about your Disability Support Pension.
On 16 June 2020, the Respondent sought review of this decision and provided a submission to the Applicant.[14]
[14] Exhibit 1, T Documents, T7, pages 72-74, Statement of the Respondent.
On 31 August 2020, an Authorised Review Officer (ARO) affirmed the decision made on
[15] Exhibit 1, T Documents, T9, pages 76-84, Decision and Notes of the Authorised Review Officer.
12 May 2020.[15]
The Respondent sought a first-tier review of the Applicant’s decision by the SSCSD of this Tribunal.[16]
[16] Exhibit 1, T Documents, T10, pages 85-86, Request for Statement.
On 20 November 2020, the SSCSD set aside the decision under review and in substitution decided that the Respondent was not, and since 26 June 2019 has not been a member of a couple and subsequently, from that date he should be paid DSP at the single rate.[17]
[17] Exhibit 1, T Documents, T2, pages 2-31, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal by way of an application dated 18 December 2020.[18]
[18] Exhibit 1, T1, pages 1-3, Application for Review of Decision.
A Hearing was held by this Tribunal on 6 August 2021. At the Hearing, the Respondent was self-represented, appeared by telephone and gave evidence under affirmation. Mrs Ross gave evidence by telephone under affirmation.
ISSUES
The issue before the Tribunal is whether the Respondent has been paid the correct rate of DSP from 26 June 2019. To determine that issue, the Tribunal must determine whether the Respondent and Mrs Ross were members of a couple within the meaning of section 4(2)(a) of the Social Security Act 1991 (Cth) from 26 June 2019. If the Tribunal finds that the Respondent was not a member of a couple, then it follows that he should be paid the DSP at the single rate.
THE LAW
The relevant law in relation to these matters is found in the
Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act1999 (Cth) (the Administration Act).
Sections 4(2) and 4(3) of the Act set out the member of a couple test. These sections relevantly provide as follows:
(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; ….
Member of a couple – criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), …, 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 majority 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, or in a de facto relationship with, 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 or a de facto relationship.
The application of this test has been discussed in numerous Tribunal and Federal Court decisions. In Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789, Senior Member McCabe (as he then was) provided the following useful analysis:
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.
[Emphasis added]
In Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, French J noted:
47. The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of 'marriage-like', will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
The factors listed in section 4(3) of the Act are not an exhaustive list and no one factor is determinative, rather, consideration should be given to the total picture of the relationship created by all of the factors.[19]
[19] See Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 169-170; and Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [51].
The concept of separation was considered by Watson J in In Marriage of Todd (No. 2) (1976) 9 ALR 401, who said:
In my view 'separation' means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
[Emphasis added]
In Boskoski and Secretary, Department of Social Services [2014] AATA 915, the Tribunal stated at [63]:
In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.
What is clear is that all circumstances of the relationship that is being considered by the Tribunal are relevant. In Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050, the Tribunal stated at [70]:
…being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
In RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35 the Tribunal considered that a person’s credit is of vital importance when determining whether they are a member of a couple.[20] The Tribunal stated at [35]:
In matters involving a determination of whether a person is a member of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance. The Tribunal has carefully considered the instances referred to in para 33 of these reasons and the other matters before it and is satisfied that there are a number of telling inconsistencies and contradictions in the applicant’s evidence when compared with the other information available. Overall, the Tribunal is not satisfied that the applicant gave a truthful account of the essential matters pertaining to her relationship with Mr B…
[Emphasis added]
EVIDENCE AND CONTENTIONS
[20] This approach was endorsed by the Tribunal in Zablotsky and Secretary, Department of Social Services [2020] AATA 374 at [89].
Respondent’s evidence
The Respondent provided the following submission to the Applicant dated 16 June 2020:[21]
[21] Exhibit 1, T Documents, T7, pages 72-74, Statement of the Respondent.
My name is David Ross, I am writing this letter to Centrelink as I feel that a mistake has been made in the decision to not accept my “Separated and Living Under the Same Roof” application recently.
11 months ago we first submitted this application, and have had no correspondence, no question, no contact, no emails from Centrelink. The only time correspondence happened was when I would ring the disabilities line and ask the question of what was happening to be told it was still being processed, 11 months. I was told that referee letters had been sent to the names I supplied on the 25 March, now they assured me that these letters had been sent yet the people I supplied the details for still to this day have not received those letters.
I rang the disability office in Centrelink on the 7 April and informed them that these letters had still not been received by either of my referees.
I would just like to tell my side of this story of an unjust decision made by your office.
I got divorced from my first wife 36 years ago and it was a very horrific experience to me. I lost two houses and lots of money, the solicitors actually walked away with more money than I got. I lost contact with my two daughters for over ten years, so this is why I have done this separation to my current wife in a different way.
I am home 24/7 where I live. The only time I actually go out is to doctor’s appointments and grocery shopping which my ex-wife has to drive me as we have only one vehicle and no public transport. The car is in my name for cheaper registration only. The car actually belongs to my ex-wife as she was given it by a friend she works with. She pays the mortgage as I don’t get enough money to pay that, but I pay the electricity, rates and house insurance which is direct debited weekly out of my bank account as this is the only way I can afford to do this as I am on the disability pension and you can check my details as you have them on your system. I get less than jobseeker or newstart as you still pay me according to what my ex-wife declares fortnightly. We have and always have had separate bank accounts. I pay my phone bill as my ex-wife pays her own.
We have not been together in a marriage for a very long time, we haven’t discussed it with our children who are adults, or the family as we are very private people and with elderly parents do not want them knowing about this breakdown. I understand that Centrelink would see my facebook page and yes I do go to family birthdays and Christmas as we only have one car and no public transport where I live and there is no way I could afford taxis or uber on what I receive from my disability pension.
I need to become independent but am unable to do this on being paid a portion of the pension which I pay my own bills and food out of, because I only get paid from what my ex-wife earns and declares fortnightly. What she earns has nothing to do with me, she is her own entity, and we are not together.
It has taken a very long time and a lot of soul searching to come to this decision of separation and to have Centrelink imply that this is not the case has affected me tremendously. I suffer from depression and I am now waking up at 3 am every morning with stress of what can I do, I go over and over in my head the last 11 months and how I have been treated and the lack of thereof by Centrelink. No letters, no phone calls, nothing unless I was the one ringing and asking, 11 months this went on for, to be even confused more by conflicting information from Centrelink staff every time I rang.
You have never once asked the details of the house layout as my room is at one end of the house and my ex-wife has a room at the other end of the house next to her workshop room.
I have no choice now but to send this letter of complaint of how I have been treated and appeal of the decision that has been made. I have been very patient during this whole process.
In the lead up to the Hearing, the Respondent provided the following further documents:[22]
·Relationship details separated under one roof form dated 22 March 2021
·Medicare card with expiry date 01/2022
·Origin electricity bill – in his name only
·Mortgage statement – in his name only
·Telstra bill – in Mrs Ross’ name only
·Compulsory Third Party car insurance letter – in Mrs Ross’ name only
[22] Exhibit 3, Documents submitted by the Respondent.
At Hearing the Respondent told the Tribunal that:
·He and Mrs Ross were married in October 2000.
·They separated in June/July 2016. That is when they first broke up, but their separation was not instant, they thought about it and for a while, tried to sort it out and then it came to an end in 2019 when they came to the realisation that their marriage was definitely finished.
·It was that point in 2019 that they agreed there was no chance of reconciliation that he notified Centrelink of his change in relationship status.
·He intends to stay in the house.
·He had been through a divorce before that was traumatic, he lost his house and children and does not want to experience that again.
·He and Mrs Ross had drifted apart due to their age difference. He is 13 years older than Mrs Ross.
·He lives on acreage, in a home he built. He has been there for over 30 years. The property is just in his name.
·He stays home most of the time, the only time he goes out is for medical appointments and very rarely to go shopping. He has no car and no access to public transport. He relies on Mrs Ross or his father to take him to medical appointments or shopping.
·He has no social life. He goes to his son and daughter’s birthday celebrations and Christmas gatherings.
·He does not own a car. The car is Mrs Ross’, it is in her name, a friend had given it to her. Previously it was registered in his name to get cheaper registration, they did it to save money. However around 18 months ago, it was transferred back into Mrs Ross’ name.
·Mrs Ross does his shopping and sometimes calls him on her way home from work to see if he needs anything. He will either give her cash or his card to pay for his items.
·In the last 4 years, each year Mrs Ross has been on holiday by herself and with their son.
·He has been a diabetic for 25 years and he needs someone to live with him as sometimes he has a low and needs help. Mrs Ross has been there to help when he wakes up in the middle of the night having a low, if she was not there he might have ended up in a coma.
·He had open heart surgery and ended up having many operations and being in hospital for a long time. He has a number of other medical conditions.
·He is reliant on Mrs Ross because of his health.
·The house layout has his bedroom at one end and Mrs Ross has a bedroom and workroom at the other end, separated by the kitchen and lounge room.
·His son wants to build a house on the property so that he can bring his children up there. That is why he wants to keep the property – for the next generation.
·They brought their children up on the property.
·They have always had separate bank accounts.
·Mrs Ross has had cancer and gone through a lot of treatment.
·Before 2016, they went on family holidays.
·Their children moved out of home in around 2011.
·Their son comes around and does electrical work, cleans out the gutters, puts the pump on to pump the water from the river to fill the tanks when they get low, as he physically cannot do it.
·The household goods were acquired during their marriage and are jointly owned.
·Mrs Ross makes lead light panels and has put her work in some of the windows and doors of the house.
·He and Mrs Ross do not have any loans together.
·His only loan is on the house. He does not know if Mrs Ross has any loans.
·When asked whether he sees Mrs Ross paying the mortgage payments as being like her paying rent, that it is about what rent would be and he looked at it as he pays this and she will pay that. He pays the electricity and is responsible for the rates and insurance as the home owner.
·
He only gets between $180 and $200 a week DSP which does not even cover the mortgage payments, he could not pay his other bills so that is why he and

Mrs Ross made an agreement.
·They buy their own food.
·He does more of the housework now than what he did in 2019. He does not do the washing or cut the grass. Mrs Ross maintains the garden.
·Mrs Ross cleans her bedroom and the workshop; he does not go in there.
·He has a TV in his room, so he watches it in there. Mrs Ross watches her shows in the living room.
·They are like boarders, just people who live with each other.
·There is no sexual contact.
·The bathroom and kitchen get cleaned when they need it.
·The bathroom and kitchen are shared as there is only one of each, he is not physically able to build another kitchen or bathroom, if he were to, he may as well split it up and build two units.
·In 2019 he was not doing the housework as his health was not good, however as it gets better, he is hoping as time goes on, he can do a bit more. He has a hiatus hernia which is painful and flairs up often.
·In 2019 they did share some meals however that changed about 18 months ago. He cooks his meals and Mrs Ross gets her own meals.
·Prior to 2016 they went out together. They used to have parties and barbeques. This stopped before 2016, but they would still go out occasionally with friends for dinner.
·They have one mutual friend, Cecilia, who has known them both for 26 years.
·He does not have friends as he does not go anywhere. No one rings him.
·Mrs Ross has told Cecelia and Michelle (another friend), that they have separated, but they have not told his father or their children. There is nobody else to tell.
·He has not told his children because he is embarrassed about the situation and he does not want them to have the stigma. His previous divorce destroyed his children from that marriage and he does not want that to happen again.
·They do their own things at home; he likes to watch the football and Mrs Ross spends 99 percent of her time in her workshop room.
·Mrs Ross is still on his Medicare card, but it has been updated a couple of years ago, the expiry date on his card is 2022.
·When asked who he would ask for help in a financial crisis, he said that he does not think he would have a personal financial crisis as he does not borrow money or have a credit card, he just saves up. However, if he did, he would seek help from his Dad.
·He and Mrs Ross get along ok, they talk to each other, laugh with each other, they are not robots. They talk about their children. They are friends.
·The main kind of support that he and Mrs Ross give to each other relates to their health.
·Mrs Ross is doing much better than him from a health perspective. He is 13 years older and is in the later part of his life and she is still wanting to travel and do things that he cannot, so they just help each other health-wise.
·He needs support from a health perspective and he is glad that Mrs Ross is there to help. They have made that sort of commitment to each other.
·If Mrs Ross was not there to help him with his health he does not know where he would be, he would probably have to sell the property and be in a nursing home or he would have to have someone come and help him, but he could not afford that.
·Mrs Ross does the grocery shopping and he gives her money towards it. He gives her cash, or she takes his card. She makes a list and he might add to it, but most times he gets a shopping trolley of groceries from “the Lighthouse”. The Lighthouse is a discount place where you get a shopping trolley of groceries for $25 which also has fruit and vegetables, you get what they have at the time.
·He does not know what food Mrs Ross buys for herself.
·They might share the milk that is in the fridge.
·They buy meat separately and know that it is not to be used by the other one.
·In June 2019 they did eat at mealtimes together two to three times a week, but that is no longer the case, he eats on his own, he eats his diabetic food.
·In 2019 they sometimes prepared meals for each other, but that no longer occurs.
·Since 2019 they have drifted even further apart.
·He does not have a will or superannuation.
·When he passes away, he will leave the property to his son. He said Mrs Ross may have an interest in the property.
·He did not know that Mrs Ross had stated on the 2019 forms that he was the beneficiary under her superannuation.
·Mrs Ross takes him to the doctor every two months, when he does have appointments, like for his eye or blood. He tries to make appointments on Friday because she does not work on Fridays.
·If he is unable to schedule an appointment on a Friday then sometimes Mrs Ross will take time off work, but he also gets his father to take him when he can, as to not overburden Mrs Ross.
·He had thought about asking Mrs Ross to leave and getting a tenant in her place to pay the rent, but he could not do that because of his health issues, he could not rely on someone else the way he can on his ex-partner.
·Between the middle of 2019 and the date of the Hearing nothing had changed in his relationship with Mrs Ross. His health has changed a bit and so he is able to do more housework.

Relevant details of the Respondent’s Relationship details – Separated under one roof form submitted on 26 July 2019 are set out in the Applicant’s contentions below at paragraphs 32 to 37.
Evidence of Mrs Ross
At Hearing, Mrs Ross told the Tribunal that:
·
She had put on the form that she and the Respondent had separated on

15 July 2016 because she could not remember the exact date but she knew it was in July 2016, it was the lead up from many things from prior years.
·They had not notified Centrelink of their separation until 2019 because they tried to deal with it on their own, they do not like asking for help.
·She intends to live at the same address as the Respondent for life as it is her home and she pays for it. She understands that the Respondent owns the home, but she considers paying the mortgage to be the same as paying rent.
·When asked if she considers that there is some pooling of financial resources for them both to be able to afford to live, she pays what she has to pay and the Respondent pays what he has to pay. There is not really any pooling, if she cannot afford to get something then she does not get it.
·She puts what money she can away for holidays.
·They have separate bank accounts. They come from the old era of when they first got married and got together, she was not working. The Respondent would either get money out of the bank for her or he would go shopping with her, this was in the days before the tap card or EFTPOS. The Respondent would pay for everything because back in the day, it was his account because she did not earn anything. Once she started work, she had her own bank account, her own identity and finances.
·She went back to work in 1999 and had her own bank account since then.
·In 2019 she had said that they ate together twice a week and prepared meals for each other twice a week for convenience, but that has not happened for a while.
·Since COVID she has been a recluse in her own room because they have at times been stuck in the house together. She would get her meals and they would try not to cross over too much, so that they would not get antsy with each other as it was hard enough being stuck in the same property for so long.
·They do not really share the milk in the fridge.
·For drinking water their son comes over and pumps the water from the river to the tanks and they each buy 9 bottles of water.
·When asked to explain how they shared the cost of food and housekeeping items, that she is a fussy person, so she picks things up on the way home to cook or gets Subway or something like that. She goes to the Lighthouse for the Respondent because it is cheap enough for him. Sometimes she might pick herself up a few items from there. If the trolley she gets for the Respondent has things in it he will not eat but she will, she will contribute $10 towards it and he only pays $15.
·The Respondent sometimes give her money and sometimes gives her his card to get his groceries. She can then tap his card; she does not know his pin number.
·In 2019 they were occasionally sharing the cost of food, but that has changed.
·She is the one with the car and the job and is out of the house for five days a week, so she is the one that is at the shops, the Respondent is not. He cannot drive, not just because of his eyes but because of his mobility issues. Sometimes she might call him on the way home and asks him if he wants something picked up and if he does not give her the money straight away, she will get the money back when she goes to pay for something with his card.
·She does all the washing as the Respondent is not able to because of his mobility issues.
·She has maintained the 5 acres because the Respondent cannot physically do it. The Respondent has got physical mobility problems, eyesight and hearing problems, he cannot grip things with his hands, he cannot even nail in a nail which is detrimental to an ex-builder.
·The Respondent has started to do things around the house like wiping down the benches and vacuuming but “god knows how long that takes him to do because I’m not here, I’m at work”.
·When asked if she agrees that her and the Respondent are friends and that they talk and laugh together, that “if he has a joke to tell me, yes. Yes, we will have a chat, mainly about our children”.
·She is not going anywhere, she refuses. Her son wants to bring up his children on the property, so that is another reason why she is not leaving the property.
·When asked why she stated in the form that relatives, friends and regular associates consider her and the Respondent to be partners she said it is because she keeps her busines and dilemmas private, it is easy to do because the Respondent had never been one for being social with her girlfriends. He always let her just go and be with her friends, so nothing is new for them, she has always turned up on her own. As far as personal things go, they have always known her as being a bit of a closed book, she does not let people know things unless she wants them to know.
·When asked if there was a difference between the Respondent being social with her friends from when they were in a relationship and when she says that relationship ended, the Respondent used to be very social, up until his health and then her health issues. The Respondent had his “heart thing” in 2011, then he had more “heart things” in 2012. She then had her knee operation, then he had his sleep apnoea at the end of 2012, then in 2013 she had cancer and all of the associated surgery and treatment up until 2014.
·They decided in 2016 that was it for their marriage. It has been more of a carer thing, it is more of a friendship thing, they support each other. It was then that socialising and having parties as a couple stopped.
·When asked if in her mind the mutual support for each other’s health and wellbeing was going to continue indefinitely, “well, living in the same house, yes, I suppose. He’s my friend. I’m not going to see him suffer. God, I’m not that cruel”.
·They share social and leisure activities twice a year with the Respondent’s father and their children.
·She has nothing to do with most of her family. The one brother she keeps in touch with does not know about the details of her life and she does not know about the details of his life.
·At Christmas they go to the Respondent’s fathers place, he is 86 and he lost his wife not long ago.
·The Respondent’s father is not aware of their separation as he is very prim and proper.
·She does not think their son and daughter are aware that they are separated.
·When asked if when their son comes over to help with general maintenance at the property or otherwise visits, why was he not aware that they say they are living separately and apart:
No, because I’m usually – the maintenance that he does – majority of it is outside where I can’t do some things. But I’m normally out there helping him do it because I need the help to do it. As far as coming inside, you have to understand that my son is 30 and he has got his own life, he has got his own house, he has got his own family, and he works six days a week, so he is only here for an hour or two tops. Maybe once every six weeks or so he might come over when I ask him to come over or if his father asks him to come over. But otherwise, that is pretty much it.
·When asked about where she stated on the form that the Respondent was nominated as a beneficiary of her superannuation, she thought he was as she had a Queensland Government job and had QSuper, and that was in 2001 to 2006 and at time he was her beneficiary, but she has since checked that and she does not have a beneficiary.
·Her contact for work is her son, her emergency contact with her doctor is her son. She has her own Medicare card.
·She has her own car; she is fortunate to have been given a car and at one stage she did have the registration in the Respondent’s name because it was cheaper at a time when she was strapped for money. Since then, the car has been in her name and she pays the registration. It has been like that for 18 months or two years.
·She does not have a will.
·When asked if from July 2016 she saw her relationship with the Respondent as something that they would not be able to fix and that it was fully over or whether that occurred sometime closer to 2019, it was closer to 2019.
·She agreed that in 2016 things were not good and they started to have the conversation about not being able to make their relationship work. Over the next couple of years, they came to terms with that, tried to work on things, but by 2019 she had the realisation that they were not going to be able to get back together.
·When asked if it was not for wanting to stay in the house that has been her home for the last 30 years whether she would be living separately from the Respondent, if she could afford to, yes.
·She ordinarily spends her time in her own space, of a night-time especially and throughout the day she is in her workshop or outside where she knows that the Respondent cannot go.
·The Respondent is pretty much dormant in his room and watches TV, she hears him venture out sometimes to the kitchen and he will go for a wander through the house and then round the lounge, it is not a very big house. He then goes back to his bedroom. Otherwise, she is in her work room and her bedroom is right next door, so she mainly goes out the backdoor to outside, because that is where her orchard house is. So she just goes out there and potters around and tries to fix the garden up.
·She supposes she would describe her relationship or living arrangements with the Respondent as more like boarders, sharing a house.
·She has been undertaking a carer role with the Respondent.
·She has her own Medicare card, she organised this when she had to go to Centrelink because of Jobseeker and Job Keeper.
·She agreed that prior to 2016 they socialised a bit together and this stopped in the lead up to 2016, around when the Respondent got sick and then when she got sick.
·Cecilia is the one mutual friends she has with the Respondent. She talks to some of their other mutual friends however they are no longer friends with the Respondent.
·The Respondent has his own friends he talks to on Facebook.
·Her relationship with the Respondent has not really changed much since 2019, other than in the previous 18 months they have not shared as many meals. They have become even more independent.
·She is free to start a new relationship with someone.
Relevant details of Mrs Ross’ Relationship details – Separated under one roof form submitted on 26 July 2019 are set out in the Applicant’s contentions below at paragraphs 32 to 37.
Applicant’s contentions
The Applicant contended that each of the factors outlined in section 4(3) of the Act were met and as such the Respondent was at all material times, a member of a couple with Mrs Ross. The Applicant’s contentions in relation to each factor are set out below.
The financial aspects of the relationship
The Applicant contended that the financial aspects of the relationship weigh in favour of the Respondent and Mrs Ross being members of a couple.[23] The Applicant outlined the following:[24]
35.The Secretary notes that Mr Ross gave evidence to the AAT1 (T2/14-15, 18) that he and Mrs Ross are independent financially; the house is in his name and is subject to a mortgage; he purchased the land before he met Mrs Ross and it was just after he built the house that he met Mrs Ross; Mrs Ross pays the mortgage which is $230 per week and he regards this as her paying rent for the house; he pays all other bills such as rates, electricity and insurance; they have separate bank accounts; Mrs Ross works and has her own money; he does not work and relies on the DSP; they both pay for their own food. The Secretary contends that little weight should be given to Mr Ross’ evidence in the absence of corroborating evidence such as bank statements, mortgage and land title documents, and rates, utilities and insurances notices.
36.The Secretary relies on the following evidence:
a.    In the SS293 completed by Mr Ross, Mr Ross stated that no one else paid for accommodation at his current address (T4/45). He stated there was a jointly owned vehicle which ‘Michell uses for work unless I need it’ and for which Mrs Ross was responsible for the running costs (T4/50). He stated they share the cost of food and housekeeping items. He stated there were jointly owned household goods, namely furniture, with no arrangements in place should either of them move out. He stated that he does not have a Will, Superannuation and Life Insurance (T4/51).
b.    In the SS293 completed by Mrs Ross, Mrs Ross stated that she did not pay rent at the place where she currently lived (T4/56). She stated that she paid board and/or lodgings at her current address, namely $285 per week to ‘Liberty –       Mortgage’. Mrs Ross stated that Mr Ross owned the vehicle and she shared use of the vehicle ‘to go to work or if David needs it he drops me off to work’, with her being responsible for the running costs (T4/61). She stated they share the cost of food and housekeeping items. She stated there were jointly owned household goods, namely ‘lounge, dishes, white goods, dining table, ornaments, household items’, with no arrangements in place should either of them move out. She stated that Mr Ross was nominated as a beneficiary under her Superannuation, and she does not have a Will or Life Insurance (T4/62).
37.Overall, the Secretary contends that there is a significant pooling of financial resources and sharing of expenses for common benefit, in that Mr Ross and Mrs Ross in essence equally share expenses in relation to the property (with Mrs Ross paying the mortgage and Mr Ross paying for utilities), they share the use of a vehicle, and they jointly own all household goods with no arrangements in place should either move out and Mr Ross is nominated as Mrs Ross’ beneficiary for her superannuation.
[23]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 6, paragraph 30.
[24]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 6-7, paragraphs 35-37.
The nature of the household
The Applicant contended that the nature of the household weighs in favour of the Respondent and Mrs Ross being members of a couple.[25] The Applicant outlined the following:[26]
[25]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 7, paragraph 38
[26]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-8, paragraphs 39-42.
39.The Secretary relies on the following evidence:
a.    Mr Ross and Mrs Ross have both been recorded by the Agency as residing at [their current address], since 1995 (T11/97, 102).
b.    In the SS293 completed by Mr Ross, Mr Ross stated that they eat together ‘2 to 3 times’, sometimes prepare meals for each other, share kitchen, laundry and bathroom facilities, and use separate bedrooms (T4/46). He stated that they share the costs of food and housekeeping items and both do the shopping (T4/50). He stated that Mrs Ross does the cleaning, washing, gardening and general maintenance.
c.    In the SS293 completed by Mrs Ross, Mrs Ross stated that that they eat together and prepare meals for each other twice a week, they share a laundry and she does the washing as Mr Ross cannot physically hang out clothes, they share a bathroom which she cleans, and they have separate bedrooms (T4/57). She stated that they share the costs of food and housekeeping items and both do the shopping (T4/61). She does the cleaning, washing, gardening and general maintenance.
40.The Secretary notes that Mr Ross gave evidence to the AAT1 (T2/18) that their two children have grown up and no longer live at home; they have separate bedrooms at different ends of the house; they share a bathroom and kitchen; Mr Ross has a television in his bedroom; Mr Ross stated he prepares his own meals however he also went on to state that ‘it seems silly to always cook separate meals, but [we] do not always eat together’; Mr Ross does the vacuuming and some of the cleaning because Mrs Ross works but he does not go into Mrs Ross’ room.
41.The Secretary contends that the fact that Mr Ross and Mrs Ross were living together, sharing all areas of the house with the exception of the bedrooms and Mrs Ross’ hobby room, and preparing and eating some meals together, is indicative of them being members of a couple. It is also noteworthy that Mr Ross has a willingness to take on more household responsibilities when Mrs Ross is unavailable to do them.
42.The Secretary contends that separate living arrangements, such as separate bedrooms and eating some meals separately, does not necessarily result in two persons not being in a member of a couple relationship. So much was found by the Tribunal in Anderson and Secretary, Department of Social Services (1993) 31 ALD 155, where it stated at [55]:
Though the living arrangements of the parties emphasised the fact that they had no close or personal relationship, especially the use of separate bedrooms and refrigerators, there was nevertheless a sense that the house provided a facility for keeping the four persons in some kind of family relationship. It is apparent though the applicant and Mr Anderson in many respects maintained independent existences, such as eating at different times and places, this was to some extent the result of convenience (such as Mr Anderson eating at his place of work) and also their different working times….
The social aspects of the relationship
The Applicant contended that the social aspects of the relationship weighs in favour of the Respondent and Mrs Ross being members of a couple.[27] The Applicant outlined the following:[28]
44.The Secretary relies on the following evidence:
a.    In the SS293 completed by Mr Ross, Mr Ross stated that since separating, they have claimed to be members of a couple ‘because it’s private and my relatives don’t need to know’ (T4/44). He stated that relatives, friends and regular associates consider them to be partnered because they have ‘been together for a long time and keep it private from families’ (T4/47). They do not go on holidays together and are not invited out as a couple, however they do share family activities.
b.    In the SS293 completed by Mrs Ross, Mrs Ross stated that since separating, they have claimed to be members of a couple because ‘just been easier to say we are so we don’t have to fill out forms like this and afford to live’ (T4/55). She stated that relatives, friends and regular associates consider them to be partnered because ‘we keep our business and dilemmas private (T4/58). They do not go on holidays together and are not invited out as a couple, however they do share ‘the very rare family occasions like birthdays’.
c.    In a statement received on 16 June 2020, Mr Ross stated (T7/73): ‘We have not been together in a marriage for a very long time, we haven’t discussed it with our children who are adults, or the family as we are very private people and with elderly parents do not want them knowing about this breakdown. I understand that centrelink would see my facebook page and yes I do go to family birthdays and Christmas as we only have one car and no public transport where I live and there is no way I could afford taxis or uber on what I receive from my disability pension.’
d.    Mr Ross gave evidence to the AAT1 that they both attend birthdays of their children and grandchildren, and when they are with their children and grandchildren they act as if they are a couple (T2/21).
45. The Secretary acknowledges that Mr Ross and Mrs Ross have separate social lives and Mrs Ross holidays separately. The Secretary also acknowledges that Mrs Ross’ colleague Ms Michelle Hogan and friend Ms Cecelia Van Veliet are aware of a separation (T9/82). However, the Secretary contends that no written statements have been provided confirming this, and therefore Ms Hogan and Ms Van Veliet’s uncorroborated evidence should be given little weight. Moreover, the weight of evidence is that Mr Ross and Mrs Ross hold themselves out as married to each other, their children and grandchildren consider them to remain members of a couple, and they attend social activities together including birthdays and Christmas.
[27]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraph 43.
[28]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 8-9, paragraphs 44-45.
Any sexual relationship between the people

The Applicant submitted that it concedes that there is no evidence of a sexual relationship between the Respondent and Mrs Ross. However, the Applicant contended that:[29]
46. ……. Nevertheless, the absence of a sexual relationship is not a conclusive indicator of a complete breakdown of the relationship, and is just one factor that must be considered in determining whether the parties are living separately and apart on a permanent or indefinite basis: see 2.2.5.30 of the Guide and Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792 at [34].
[29] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraph 46.
The nature of the people’s commitment to each other
The Applicant contended that the nature of the Respondent’s and Mrs Ross’ commitment to each other weighs in favour of them being members of a couple.[30] The Applicant outlined the following:[31]
48.The Full Federal Court in Pelka v Secretary, Department of Families, Community Services and Indigenous Affairs (2008) FCAFC 92 at [30] stated that the nature of the commitment has to be qualitatively different from the commitment that either party to the relationship has to any other person. Mutuality of the commitment is essential: Pelka at [46] and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404 at [61].
49.The Secretary relies on the following evidence:
a.    Mr Ross and Mrs Ross have been recorded as being married since 14 October 2000 (T11/96).
b.    In the SS293 completed by Mr Ross, Mr Ross stated that he intended to live at the same address as Mrs Ross for life (T4/43). He stated that he has not applied to legally terminate their relationship ‘because it’s our home for 30 years and want to leave to children (T4/44)’. He stated that they provide care or practical support/help to each other in circumstances of illness (doctor appointments)(T4/47).
c.    In the SS293 completed by Mrs Ross, Mrs Ross stated that she intended to live at the same address as Mr Ross for life (T4/54). She stated that she has not applied to legally terminate their relationship because ‘I have no interest in moving on. I like being by myself and this works.’ (T4/55). She stated that they provide care or practical support/help to each other in circumstances of illness (doctor appointments) (T4/58). She stated, ‘David has disability so I have to do a lot of home duties myself. I help him when he needs it. We live in the same house but co-exist. We keep our private lives private as family and friends go.’ (T4/63).
d. Mr Ross gave evidence to the AAT1 that he and Mrs Ross do show some companionship and emotional support to one another out of respect for one another because they are not complete strangers and are not hostile to one another (T2/28). He gave evidence that he has thought of asking Mrs Ross to leave and getting a tenant in her place to pay rent, but he would prefer not to share his house with someone that he does not know.
50. The Secretary contends that the fact that Mr Ross and Mrs Ross have been married for over 20 years and have no intention of legally separating, intend to live together for life, provide some degree of companionship and support to each other, is indicative of a couple-like commitment, and one which is qualitatively different to a relationship they have with any other person. It also indicates a mutuality of commitment between Mr Ross and Mrs Ross. Even if Mr Ross and Mrs Ross regard themselves as being separated, and even if Mr Ross has valid reasons for being cautious in formalising the separation given the circumstances of his previous relationship breakdown, this is not sufficient to indicate that the nature of their commitment to one another is not actually one of a couple.
[30]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraph 47.
[31]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 9-10, paragraphs 48-50.
CONSIDERATION
In considering the issues before it, the Tribunal has had regard to the evidence and submissions placed before it in writing and made at Hearing. It is noted that this Tribunal has had the benefit of having Mrs Ross provide evidence, which allowed it to ask questions of Mrs Ross and for the Applicant to cross-examine her. This evidence was not previously available to the preceding decision-makers.
The Tribunal notes that the evidence of the Respondent and Mrs Ross was consistent with the documentary information and any clarification provided was reasonable. Further, both the Respondent and Mrs Ross’ evidence was consistent with each other’s. Subjectively their opinion and view of their circumstances were jointly held. The Tribunal considered both the Respondent and Mrs Ross to be credible witnesses, who despite needing to share a significant amount of sensitive personal information with the Tribunal, did so openly and honestly. As such, while noting there is not a substantial amount of independent documentary evidence before the Tribunal corroborating the evidence of the Respondent and Mrs Ross, the Tribunal does not consider the absence of large amounts of such evidence to be a matter on which the final decision turns.
It is not disputed that the Respondent and Mrs Ross are married and intend to stay so. There are many people who for a vast array of reasons remain married, despite having separated and no longer living as a couple, be that in the same house, separate houses, in separate cities, states or countries. This point on its own is not determinative of the question before the Tribunal.
The Tribunal considers it necessary to work through each of the section 4(3) of the Act factors taking into consider the contentions made by the Applicant and evidence advanced by the Respondent, as set out above. Of which at the conclusion, the Tribunal having considered the matter objectively as a whole will reach a conclusion to the fundamental issue in contention, being whether or not the Respondent was a member of a couple with Mrs Ross on 26 June 2019.
Financial aspect of the relationship
It is not disputed that the Respondent solely owns the family home and is personally responsible for the attached mortgage. The evidence before the Tribunal is that the Respondent and Mrs Ross do not have any loans or legal obligations in joint names. The Respondent gave evidence that he does not have a credit card or any debts other than the home loan and that he did not know what Mrs Ross’ financial position was. Mrs Ross gave evidence that if she cannot afford something she waits until she can.
In relation to pooling of financial resources and sharing of household expenditure both the Respondent and Mrs Ross gave evidence that in filling out the initial form advising that they had separated they did not tick that Mrs Ross was paying rent however that was how they saw the arrangement whereby she pays $230 a week (or $285 a week, it is not clear which amount is the correct amount, nor is it a pivotal fact on which this matter will turn). The Respondent has provided a copy of a mortgage statement and electricity bill that confirms that he is the sole holder of both accounts. The monthly mortgage repayment is listed as being $880.48 a month.
The evidence in relation to the motor vehicle provided on the initial Relationship details – Separated under one roof form was that it was owned by the Respondent and shared with Mrs Ross. Technically, at the time of completing the forms that was correct as the car was registered in the Respondent’s name. When providing further information regarding the vehicle, the Respondent has consistently said that it is owned by Mrs Ross, having been given to her by a friend, however at one time was registered in his name to allow Mrs Ross to take advantage of the lower registration costs. Both the Respondent and Mrs Ross gave evidence that the Respondent, whilst holding his driver’s licence, has not always been in a fit state to drive. The Respondent gave evidence that he intends to save up to get his own vehicle. The Respondent provided a letter of insurance that reflects that the insurance policy on the vehicle is held only in Mrs Ross’ name.
The Respondent and Mrs Ross both gave evidence that their household items were those jointly owned prior to their separation and indicated that neither of them had any intention of moving. As such the Tribunal notes there is no plan in place for a distribution of those items. Keeping in mind that household items depreciate very quickly with age, the Tribunal notes that their present value outside of what replacement value would be, is very low.
With regards to purchasing food and household products, the evidence before the Tribunal clearly shows that Mrs Ross is the person who does the shopping, this is due to the Respondent’s lack of mobility and access to a motor vehicle. Evidence was provided by both the Respondent and Mrs Ross that they purchase their own food. The Tribunal notes that there was a practical element to the arrangements whereby the use of the Lighthouse food bank meant that items from a particular package of food is distributed between them, however the cost remains separate. Mrs Ross gave evidence that the Respondent always reimburses her for any item she purchases on his behalf. While the Tribunal notes that in the initial Relationship details – Separated under one roof forms both the Respondent and Mrs Ross indicated that they share the cost of food and housekeeping items, upon being asked to further explain the situation, it appears that the sharing of such cost is limited to paying for what each of them individually needs or wants. There is no evidence that this is a situation where one grocery shop has been done and that the costs are shared for joint consumption.
The Tribunal notes that the Applicant contended that the Respondent’s financial circumstances weigh in favour of him and Mrs Ross being members of a couple. The Applicant drew the Tribunal’s attention to Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135 at [33] where the Tribunal noted:
The fact that members of a couple maintain financial independence does not mean they do not gain some benefit of pooling of resources, because sharing rent and household expenses is a form of pooling of resources. The fact that Mr Phillip and Ms Price do not share income and assets does not mean that he has nothing to pool, or that he obtains no benefit from Ms Price pooling her resources with him to the extent that she does. Nor is he left without any means of supporting himself.
The Applicant further drew the Tribunal’s attention to Burkett and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 131 at [33] where the Tribunal noted:
As can be seen, the financial arrangements between Ms Burkett and Mr Lavender are not entirely separate; there is some pooling of resources and income, most notably in respect of the joint household and arrangements in which they share, and from which they and their respective children benefit. Arrangements of this kind are not unusual, uncommon or out of the ordinary course.
The Tribunal is mindful that each matter turns on its own facts.
The Tribunal notes that relevantly the Respondent indicated that his main source of support from Mrs Ross is in relation to health. While the Respondent did state that without having Mrs Ross pay the mortgage of which he equated to being like a rent arrangement, he would not be able to make the payments as his present DSP was less than the repayments. In such situations the Respondent would not be able to pay his mortgage and meet his expenses in relation to the property or his health and nourishment needs. However, the Respondent in such a situation may seek to rent the space to someone else. Therefore, the Tribunal accepts that the primary assistance that Mrs Ross provides to the Respondent is that of a physical and practical nature.
Both the Respondent and Mrs Ross gave evidence that their situation was akin to boarders sharing a house, however where she also provides a carer like function. The Respondent told the Tribunal that if he was in financial difficulty (although unlikely as he does not have a credit card and saves up for what he wants or needs) he would seek support from his father.
Having considered the evidence before it as a whole, while the Tribunal acknowledges to some extent it could be said there was pooling of funds, however overall, it finds that this factor weighs against the Respondent and Mrs Ross being members of a couple. It is clear to the Tribunal that their finances are separate and unlike the circumstances in Burkett, there are no children benefiting from their arrangements, nor in truth is the Respondent benefiting financially. The Respondent is only just able meet his costs of which he keeps very low by not going anywhere, seeking help from the Lighthouse and the PBS system. He is not in a position to live an extravagant or even comfortable lifestyle.
It is not uncommon for housemate or boarder like arrangements to see a property owner have someone move into the home with them and then apply the rent/board collected as they see fit and in return provide lodgings and utilities. In situations such as this, where the relationship between the parties has substantially changed after they have separated, (as compared to when they were married) the Tribunal does not consider that the fact they continue to be legally married should mean that their relationship cannot be considered to be that of a housemate/boarder relationship, rather than being members of a couple.
The nature of the household
There is presently no care or support of children being provided by the Respondent and Mrs Ross as their children are adults who live separately with their own families.
The evidence provided by the Respondent and Mrs Ross is that while they share a kitchen and bathroom, they largely live in separate areas of the home and have done so since 2016. The Respondent has his own bedroom at one end of the house, with Mrs Ross having a bedroom and workshop room at the other end of the house. The evidence provided to the Tribunal indicated a situation where, whilst not hostile toward each other, they rarely interact.
The distribution of the responsibility of the housework in June 2019 when submitting the Relationship details – Separated under one roof forms was that it was primarily undertaken by Mrs Ross due to the Respondent’s medical related functional impairments. At that time, they did prepare meals for each other between 2 and 3 times a week as a matter of convenience. Both the Respondent and Mrs Ross gave evidence to the Tribunal that this arrangement in relation to meals ceased some 18 months prior to the Hearing. The Respondent told the Tribunal that he has also been undertaking more of the housework as his health has improved.
The Applicant has contended that the Respondent’s willingness to take on more household responsibilities when Mrs Ross is at work is noteworthy. The Tribunal disagrees, having heard from the Respondent, it is clear that from both a physical and mental health perspective he is trying to be as independent as possible and not unnecessarily burden

Mrs Ross in this regard. The Tribunal considers this another example of how the relationship dynamic between the Respondent and Mrs Ross has changed since their separation, to one primarily where Mrs Ross has been a carer rather than a partner to the Respondent.
There is no evidence before the Tribunal to indicate that the living arrangements outlined above have been the norm throughout the Respondent and Mrs Ross’ marriage. In fact, the Respondent talks about the rooms Mrs Ross now resides in as being their son and daughter’s rooms and that they had previously hosted parties together. The Tribunal considers what is evident is that there has been a decline and fluctuation in the Respondent’s health and functional capacity to undertake household duties.
The Applicant has additionally contended that the sharing of common areas (such as the laundry, kitchen and bathroom) in the house should be considered a factor which weighs in favour of the Respondent being a member of a couple. The Tribunal notes the Respondent’s submission in this regard, that there is only one kitchen, bathroom, and laundry in the house and therefore, they have no option except to share these spaces. The Tribunal accepts the Respondent’s submissions that the sharing of these spaces is a matter of practicality and an acknowledgement of the physical reality of their house.
In considering the evidence before it as a whole, the Tribunal considers that the living arrangements of the Respondent and Mrs Ross are separate and that in relation to meals and housework they have done what they have had to do, with Mrs Ross picking up the slack where Mr Ross is unable to do his share due to his medical restrictions. The Tribunal accepts the Respondent and Mrs Ross’ evidence that the arrangement is more akin to that of housemates or where Mrs Ross is a live-in carer for the Respondent. The Tribunal notes there is nothing which precludes housemates or boarders from assuming more than their fair share of household responsibilities should the circumstances of the household and agreement in place require it.
The social aspect of the relationship
The evidence provided by the Respondent and Mrs Ross indicates that prior to their initial separation in 2016 they socialised together and had mutual friends of whom they regularly had over to their home. Understandably, Mrs Ross told the Tribunal that the changes to the frequency of their socialising prior to that time was a result of both the Respondent’s and her health concerns and intensive medical treatment.
Mrs Ross told the Tribunal that the Respondent had never really socialised with her girlfriends and as such nothing had changed in that regard.
The evidence before the Tribunal is that the Respondent and Mrs Ross have not told many people and definitely not the world at large that they have separated. While continuing to hold yourself out to be married often leads to this factor weighing in favour of being considered members of a couple, the factual circumstances must be considered as a whole.
In this matter the Respondent’s evidence which was corroborated by Mrs Ross is that he presently has a limited friendship group and outside of his father and children, he mostly keeps to himself.
Evidence before the Tribunal indicates that Mrs Ross has told two people of their separation, one of whom is a mutual friend of them both.
The Respondent and Mrs Ross both gave evidence that they have not told the Respondent’s father or their children they have separated. They are unsure whether their son is aware. The Respondent and Mrs Ross both provided that this is a private matter of which they do not see the need to share with everyone.
The evidence provided by the Respondent and Mrs Ross is that their only social engagements together is at Christmas time and for their children and grandchildren’s birthdays. Otherwise, they live separate lives. The Tribunal considers that such engagements are not unreasonable interactions as it is common for separated or divorced people to attend the same family functions. Being separated or divorced does not necessarily wipe one person from being part of the other’s family, especially where the relationship was a of substantial length and children are involved.
Having considered the evidence before it as a whole, while the Tribunal acknowledges that the Respondent and Mrs Ross can be seen to an extent to hold themselves out as being married to each other, which while true (they are married), does not necessarily in this case, mean they are living as a married couple. There is limited information before the Tribunal in relation to the assessment of friends and regular associates of the Respondent and Mrs Ross. It is however clear that they do not make plans for or engage in joint social activities outside of those that could be said to go with family obligations.
Any sexual relationship between the people

The evidence of the Respondent and Mrs Ross is that there is no sexual or intimate relationship between them. The Tribunal accepts this evidence.
The nature of the people’s commitment to each other
It is not disputed that the Respondent and Mrs Ross are recorded as having been residing in the family home since 1995 and that they have been married for 21 years.
Both the Respondent and Mrs Ross made it abundantly clear that they have no intention of leaving the family home, both having strong ties to the property and a desire for it to be passed onto their son. They also told the Tribunal that in July 2016 when they first discussed separation that they took time to process what that meant and to see if there was any hope left in saving their relationship. Their evidence was that by June 2019, there was the realisation that their marriage was definitely finished and there was no chance of reconciliation.
While both the Respondent and Mrs Ross have the intention to continue to live together indefinitely, their intention is not to do so as a couple. The Respondent gave evidence that he relies on Mrs Ross in relation to his health, shopping and maintenance of the property and that without that support he would need to seek support elsewhere. Mrs Ross gave evidence in relation to the Respondent’s health and the assistance she provides. From

Mrs Ross’ evidence the Tribunal deduced that the support she provides to the Respondent is of a clinical nature rather than from a nurturing perspective.
The evidence before the Tribunal indicates that there is very little companionship and emotional support provided by the Respondent and Mrs Ross to each other. They both gave evidence that they do talk about their children, shopping and medical appointments however overall, they keep to themselves. It was indicated that they are not robots and as such are courteous and would not want to see the other suffer unnecessarily. This was consistent with the evidence that the Respondent gave to the SSCSD that:[32]
[They] do show some companionship and emotional support to one another because they are not complete strangers and are not hostile to one another. He thinks that it is good to be like that because they are still humans.
[32] Exhibit 1, T Documents, T2, page 28, paragraph 56, Decision of the SSCSD.
The Tribunal considers that both the Respondent and Mrs Ross in giving evidence spoke with genuine respect and care for each other of a type accustom to friends or of a carer arrangement. The Tribunal accepts that they live in the same house but co-exist. Should Mrs Ross decide not to continue to assist the Respondent in the manner she has been, then it is likely that the carer and support person role that has been and is presently borne by her would shift to the government through the need to provide publicly funded support. The Respondent’s need for assistance in relation to his medical condition would continue and more than likely worsen in such circumstances.
Conclusion
The Tribunal finds, that on balance, based on the totality of the evidence before it, that the Respondent for the purposes of section 4 of the Act was not a member of a couple with

Mrs Ross at all material times from 26 June 2019 when he first submitted his Relationship details – Separated under one roof form. As such, the Tribunal finds that the Respondent’s correct rate of DSP was the single rate.
The Tribunal in reaching this conclusion, has done so by making an objective assessment of the situation as a whole, keeping in mind the following as provided in VBH and Secretary, Department of Family and Community Services [2006] AATA 1 at [94]:
The s4(3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship viewed objectively.
The Tribunal notes the contentions made by the Applicant and acknowledges that on the documentary evidence alone, a different decision in relation to the Respondent and

Mrs Ross’ relationship and living arrangements may be made. In this matter it was the benefit of having evidence provided in person (albeit by telephone) to the Tribunal by both the Respondent and Mrs Ross and the opportunity to seek further information on their circumstances that allowed this Tribunal to look at the circumstances of the relationship as a whole and view them objectively.
The Tribunal accepts the evidence provided by the Respondent and Mrs Ross in relation to the circumstances of their relationship. The Tribunal considers they both gave open and honest answers. It was clear that given their individual backgrounds, previous experiences prior to their marriage, their connection to the property, resistance to having to seek outside help or help from the government, their children and familiarity with each other, that while their marriage has ended, they remain on good terms, with Mrs Ross undertaking a substantial carer role for the Respondent in return for what could be considered cheap accommodation.
In this instance the Tribunal accepts that the circumstances of the Respondent and

Mrs Ross’ relationship changed from 2016 and perhaps even more substantially from 2019. The Tribunal finds that this is not a case where the assertion of changes in the relationship of the Respondent and Mrs Ross have been made to procure a higher rate of social security benefits. The Tribunal finds this is a genuine case where the Respondent and Mrs Ross’ marriage has broken down and despite their best efforts, could not be repaired.
As such, taking a common-sense approach the Tribunal finds that it would be unreasonable on the evidence at hand to find that because they continue to be friends, co-habitat and Mrs Ross provides carer like support (for which as far as the Tribunal is aware, she has not sought payment from Centrelink for) to the Respondent that their relationship be seen as them being members of a couple.
DECISION
For the reasons set out above, the Tribunal finds that the Respondent is not, and since
26 June 2019, has not been a member of a couple with Mrs Ross pursuant to section 4 of the Act.
Consequently, the Tribunal finds that the Respondent’s correct rate of DSP from
26 June 2019 is the single rate.
The Tribunal affirms the decision under review.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...............................[SGD].......................................
Associate
Dated: 18 November 2021

Date of hearing: 6 August 2021

Applicant: By Telephone

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Gillian Gehrke

Sparke Helmore Lawyers