ROSYLYN JAYNE ROBINSON and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 947
•9 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 947
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/1022
GENERAL ADMINISTRATIVE DIVISION ) Re ROSYLYN JAYNE ROBINSON Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Regina Perton, Member Date9 December 2009
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) Regina Perton
Member
SOCIAL SECURITY – disability support pension ‑ whether member of a couple ‑ decision affirmed.
Social Security Act 1991 ss 4(2), 4(3)
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Lynam v Director-General of Social Security (1983) 52 ALR 128
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
9 December 2009 Regina Perton, Member 1. Roslyn Robinson suffers from serious medical conditions that prevent her from working. On 23 July 2008 Mrs Robinson applied for a disability support pension (DSP). In the claim form she indicated that she and her estranged husband, Brett Robinson, live on the same property. On 19 September 2008 Centrelink, which administers DSP on behalf of the respondent, decided that Mrs Robinson should be treated as a member of a couple in relation to DSP. Centrelink informed Mrs Robinson that it had assessed her for DSP at the partnered rate. The partnered rate takes into account Mr Robinson’s income.
2. Mrs Robinson unsuccessfully sought a review of Centrelink’s decision by an authorised review officer (ARO). She then sought a review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). Once again, she was unsuccessful. She applied to this Tribunal on 10 March 2009 for review of the SSAT decision.
3. The issue before the Tribunal is whether Mrs Robinson is a member of a couple for the purposes of her DSP claim.
4. Section 4 of the Social Security Act 1991 (the Act) sets out the criteria for deciding whether a person is 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)…, 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…
5. In determining whether a marriage‑like relationship exists under the Act, O’Loughlin J, in Staunton‑Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170, referred to the list of circumstances in s 4(3) of the Act:
…
It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
6. French J in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 dealt with ss 4(2) and 4(3) of the Act in the context of an application for a carer payment. He referred to Staunton‑Smith and Lynam v Director‑General of Social Security (1983) 52 ALR 128. French J stated that, in determining whether a marriage‑like relationship exists under the Act, the nature of the exercise is much the same as that required under the statutory formula used in Lynam and Staunton‑Smith. In Lynam, Fitzgerald J said, at 131:
…Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
7. The Full Federal Court, in Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92 (Pelka No. 2) (which followed a rehearing by a differently constituted Tribunal following the 2006 Pelka decision by French J) stated (at paragraph 24):
There is nothing in s 4(3) that requires the relevant decision maker to make a finding of fact as to any of the matters specified in that provision. Rather, the decision maker is required to have regard to all the circumstances of the relationship, including the specified matters, in forming an opinion about the relationship between two people. Having regard to a matter does not require making a finding of fact about that matter…
8. At paragraph 30 of the 2008 Pelka decision, the Full Court stated:
The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person…
9. The Tribunal heard evidence from Mrs Robinson and her daughter, Gemma Robinson. Mrs Robinson stated that while she still lives in the same house as her husband, they have separate bedrooms and lead separate lives.
10. In her claim form for DSP, Mrs Robinson stated that she and her husband had separated on 1 January 2008. She told the Tribunal that she had only given that date due to the prompt question on the form. She said that it was something that had happened over many years and that it was not possible to give a precise date. However, she has considered herself as separated under the one roof for more than a year, at least.
Financial aspects of the relationship
11. Mrs Robinson and her husband are joint owners of the property where they both live. The property is no longer mortgaged. Mr Robinson, who is employed, pays the insurance, rates and energy charges. He also pays for the running costs of Mrs Robinson’s car.
12. Mrs Robinson and her husband do not have a joint bank account. Mrs Robinson has a passbook account and a cash management account. Mrs Robinson said that her funds, which were the result of a compensation award for a leg injury some years ago, have been set aside for her funeral expenses and the like. She has a credit card in her husband’s name but stated that she only uses it occasionally to buy medication or the like. Mr Robinson gives Mrs Robinson housekeeping money regularly.
13. Mrs Robinson is the nominated beneficiary of Mr Robinson’s superannuation, will and life insurance.
The nature of the household
14. Mrs Robinson has two children. Her son, David, has moved out of home. Her daughter, Gemma, lives at home. Gemma is 19 years old and in the workforce.
15. Mrs Robinson and Mr Robinson have separate bedrooms in their three bedroom house. Mrs Robinson said that for several years before David moved out, Mr Robinson would either sleep in his car or on the floor or couch in the living room. They shared the living area, kitchen bathroom etc. until recently. Following the building of an extension to their house, a process that Mrs Robinson’s brother managed, they now have separate living areas. They continue to share the kitchen and other rooms. Mr Robinson has a television set in his bedroom and tends to stay in there to watch it.
16. Mrs Robinson does as much of the housework as her health will allow. Her responsibilities have been cleaning inside the house. Mr Robinson takes care of the outside of the property. Generally, Mrs Robinson and Mr Robinson prepare separate meals; although if one has cooked, the other may eat what has been prepared. Because of her health problems, Mrs Robinson often grazes rather than sit down to set meals. Mr Robinson sometimes shops and does other housework for Mrs Robinson when her health is not good enough to go shopping.
17. Mrs Robinson is keen on animals and has a number of cats that she cares for. She said that when she was ill, Mr Robinson fed the cats but he does not have the affinity for them that she does.
The social aspects of the relationship
18. Mrs Robinson said that she and her husband do not consider themselves a couple. She said that their neighbours and friends do not perceive them as a couple.
19. Mrs Robinson said that she and her estranged husband do not go out as a couple and have not done so for many years. They both participate in family celebrations such as birthdays or when family come to visit. They have not been on a holiday together since a holiday with the children in Tasmania at least a decade ago.
20. Mrs Robinson shares a Medicare card with her husband and daughter.
21. Gemma Robinson confirmed that the relationship between her parents had been one of conflict for a long time. She said that things have been more peaceful since her father got his own bedroom. Either Gemma or her father will sometimes do some shopping for Mrs Robinson when she is unwell. Gemma said that since she obtained her driver’s licence, she drives her mother to the doctor or other places she needs to go.
Any sexual relationship between the people
22. Mrs Robinson stated that she has not had a sexual relationship with her husband for several years.
The nature of the people’s commitment to each other
23. Mr Robinson and Mrs Robinson were married in 1989. Mrs Robinson has not sought a divorce. Mrs Robinson said that she would not want to marry again and cannot see any reason to get divorced. She also cited the cost of initiating proceedings. Mr Robinson and Mrs Robinson have lived in the house they own together for about 17 years. Mrs Robinson said that both physically and financially, she is not in the position to move to a home of her own. It is not practical for her to move in with her parents or her son. There is also the need to accommodate her pets. Moreover, she said that neither she nor Mr Robinson intends to move out of what each of them sees as their house.
24. Mrs Robinson said that when she undergoes medical treatment and is incapable of doing housework or shopping, her husband steps in to help. She described him as a good father to the children despite the breakdown in her relationship with him.
25. Mrs Robinson and Mr Robinson’s decision to continue to live on the same property they jointly own does not of itself lead to a finding that they are not living separately and apart on a permanent or indefinite basis. Their choice not to divorce does not, of itself, lead to a finding of an ongoing marriage-like relationship. The Tribunal accepts that there is no sexual relationship between Mrs Robinson and Mr Robinson. The Tribunal finds that Mrs Robinson is financially dependent on Mr Robinson. The Tribunal notes Mrs Robinson’s submission that if she was receiving DSP as a single person, she would not be as financially dependent on Mr Robinson as she currently is. However, in making its assessment as to whether Mrs Robinson is a member of a couple, the Tribunal must examine the situation as it is rather than how Mrs Robinson would like it to be.
26. The Tribunal finds that Mrs Robinson is legally married to Mr Robinson and that she is not living separately and apart from him on a permanent or indefinite basis. The Tribunal therefore finds that Mrs Robinson is a member of a couple for the purposes of her claim for DSP.
DECISION
27. The Tribunal affirms the decision under review.
I certify that the twenty seven [27] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
(sgd) Olympia Sarrinikolaou
Clerk
Dates of hearing: 21 September 2009
Date of decision: 9 December 2009
Advocate for applicant: Self-represented
Advocate for respondent: Mr Andrew Carson, Centrelink Legal Services
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