Samachetty and Secretary, Department of Social Services (Social services second review)
[2020] AATA 3730
•19 February 2020
Samachetty and Secretary, Department of Social Services (Social services second review) [2020] AATA 3730 (19 February 2020)
Division:GENERAL DIVISION
File Number: 2018/5984
Re:Annick Samachetty
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member C.J. Furnell
Date:19 February 2020
Place:Melbourne
The Tribunal affirms the decision under review.
......................[sgd]..................................................
Senior Member C.J. Furnell
Catchwords
SOCIAL SECURITY – member of a couple – whether Applicant a member of a couple – whether special reason not to treat Applicant as a member of a couple for purposes of Act – decision affirmed
Legislation
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Social Security Act 1991(Cth)
Social Security (Administration) Act 1999 (Cth)Supreme Court Act 1986 (Vic)
Cases
Albion Insurance v GIO (1969) 121 CLR 342
Aslanidis and Secretary Department of Families Housing Community Services and Indigenous Affairs [2010] AATA 429
Beverley Sybil Anderson and Secretary, Department of Social Security [1993]
AATA 172
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Bozdag and Secretary, Department of Social Services (Social services second review) [2016] AATA 765
Civil Aviation Safety Authority v Allan [2001] FCA 1064
Cloros v Secretary, Dept of Social Services [2014] AATA 300
Commonwealth v Baume (1905) 2 CLR 405
Commonwealth v Horsfall (2010) FCA 443
Davey and Secretary Department of Families Housing Community Services and Indigenous Affairs [2008] AATA 888
Dietman and Repatriation Commission (Veterans' entitlements) [2019] AATA 4428
Dimov and Secretary, Department of Family and Community Services [2005] AATA 912
DlabiI and Secretary, Department of Social Services (Social services second review) [2016] AATA 20
Fletcher v FCT (1988) 19 FCR 442
Francis and Department of Family and Community Services [1999] AATA 243
Hartley and Secretary Department of Education Employment and Workplace Relations [2009] AATA 470
In the Marriage of Todd (No.2) (1976) 9 ALR 401
In the Marriage of Pavey (1976) 25 FLR 450 at 455
Jia and Secretary Department of Social Services [2017] AATA 1593
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Kettlewell and Secretary, Department of Social Services (Social services second review) [2018] AATA 8
Lyons and Secretary, Department of Social Services (Social services second review) [2018] AATA 3644
Melvin v Secretary, Department of Social Security [2016] FCA 375
Micallef and Secretary, Department of Family and Community Services [2004] AATA 485
Milovanovic and Secretary, Department of Employment and Workplace Relations [2006] AATA 930
Mosaui and Secretary, Department of Social Services (Social services second review) [2019] AATA 715
Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5
Pala and Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2010] AATA 1070
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92
Secretary, Department of Employment and Workplace Relations and Gilson [2007] AATA 1361
Secretary, Department of Education, Employment and Workplace Relations and Hitchcock and Anor [2008] AATA 677
Secretary Department of Family and Community Services and Owen [2002] AATA 1202
Staunton-Smith v Secretary, Department of Social Security [1991] 32 FCR 164
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Szoxp v Minister for Immigration and Border Protection [2015] FCAFC 69
Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2010] AATA 284
Utczas and Secretary, Department of Social Security [1989] AATA 756
Vo and Secretary, Department of Social Services (Social services second review) [2019] AATA 2341
William Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077Secondary Materials
Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth)
REASONS FOR DECISION
Senior Member C.J. Furnell
19 February 2020
On 29 November 2017, the Department of Human Services-Centrelink decided to raise and recover from Ms Annick Samachetty certain debts, comprising:
(a)$80,897.96 by way of a parenting payment debt for the period of 24 April 2013 to 25 September 2017;
(b)$8,653.12 by way of a family tax benefit debt for the financial year ending 30 June 2015;
(c)$3,218.98 by way of a family tax benefit debt for the financial year ending 30 June 2016;
(d)$10,075.81 by way of a family tax benefit debt for the financial year ending 30 June 2017.
On 22 February 2018, an authorised review officer (or, in the context of debts raised in respect of the family tax benefit, a decision reviewer) affirmed the decision to raise and recover those debts.
On 9 July 2018, the Tribunal’s Social Services and Child Support Division (SSCSD) made a decision as a result of a review sought by Ms Samachetty (AAT first review decision). It was in the following terms:
The tribunal sets aside the decision under review and, in substitution, decides that Ms Samachetty has a debt for the period of 10 December 2013 to 25 September 2017, that the debt is to be recalculated by the Department of Human Services and new debt amounts are to be raised
On 15 October 2018 Ms Samachetty applied for a review of that decision. Her concern relates to that aspect of the decision as concerns the period in respect of which it was said that she had a debt (10 December 2013 to 25 September 2017). Essentially, it is her submission that she does not have a debt in respect of that period as she and her husband, Mr Claudio Samachetty, were not then a couple.
Hence, the question in issue in this proceeding is whether she and Mr Samachetty were, in the relevant period, a couple. For the reasons which follow I have decided that they were.
Before elaborating on those reasons I should say something about why the question of whether Ms Samachetty is a member of a couple in the relevant period is of relevance to the jurisdiction now being exercised by the Tribunal and to the existence (and quantum) of any debt she might owe to the Commonwealth.
Tribunal Jurisdiction
In order to understand the jurisdiction currently being exercised by the Tribunal it is first necessary to understand the jurisdiction it exercised in the making of the AAT first review decision.
In making the AAT first review decision the Tribunal was reviewing the original decision of 29 November 2017 to raise and recover debts. This is because, where an authorised review officer (or decision reviewer) affirms an original decision, the decision subject to the Tribunal’s review is taken to be the original decision, as affirmed.[1]
[1] Social Security (Administration) Act 1999, s142(4); A New Tax System (Family Assistance) (Administration) Act 1999, s111(1).
In its terms the AAT first review decision purported to not only set aside the original decision of 29 November 2017 but also to make a decision in substitution for that original decision. It did not, in fact, do the second of those things. No decision was made in substitution for the 29 November 2017 decision.
The making of a substitute decision “involves the Tribunal exercising and exhausting the powers of the primary decision maker”.[2] A decision that Ms Samachetty has a debt in respect of a particular period, that the debt amounts needs to be recalculated and that new debts ought be raised reflecting the recalculated amounts does not operate to exhaust the powers of the primary decision maker. The Tribunal did not recalculate and raise the relevant debts. The Tribunal was not calling on the Respondent to reconsider the matter in any respect but was, rather, directing it to perfect a decision made by the Tribunal. This course is not authorised by the power to make decisions on review which the Tribunal has under its constituent legislation. It reflected an attempt to meld the Tribunal’s separate powers to make a substitute decision and to remit a decision for reconsideration. As in Allan,[3] what the SSCSD did in making the AAT first review decision was to “… make a decision which involved an impermissible melding of the powers conferred by s43(1)(c). It purported to make a decision in substitution for the decision of … [the Department of Human Services] but did not manifest that decision by…” recalculating and raising the relevant debts. [4]
[2] Civil Aviation Safety Authority v Allan [2001] FCA 1064 at [16].
[3] Ibid.
[4] Civil Aviation Safety Authority v Allan [2001] FCA 1064 at [18]; see also Commonwealth v Horsfall (2010) FCA 443 at [103].
If, as I have found, the effect of the AAT first review was to set aside the decision of 29 November 2017 but not to make a substitute decision, where did that leave the matter?
In interlocutory proceedings instituted to consider issues of Tribunal jurisdiction, I concluded that the matter had been remitted by the SSCSD for reconsideration in accordance with a direction. The relevant direction was that the debts be recalculated on the basis that Ms Samachetty and her husband were to be treated as:
(a)Not members of a couple until 10 December 2013;
(b)Members of a couple in the period commencing 10 December 2013 and ending 25 September 2017.
As will be seen later when the relevant legislation is examined, the result of such a direction is a requirement to recalculate the relevant debts based on the period of overpayment commencing on 10 December 2013 rather than 24 April 2013, and ending 25 September 2017. This meant that only the parenting payment debt specified in the 29 November 2017 decision needed to be recalculated, given that the family tax benefit debts only commenced accruing in the financial year ended 30 June 2015.
The reason I have gone to some lengths to define the nature of the AAT first review decision is because it assists in defining the extent of the jurisdiction now being exercised by the Tribunal.
In particular, the jurisdiction now being exercised by the Tribunal entails a review of a deemed decision. That deemed decision is not the entirety of the AAT first review decision. It is, instead, the direction that formed part of the AAT first review decision.[5] In essence the decision currently the subject of review is the direction to recalculate the various debts on the basis that Ms Samachetty and her husband were not a couple up until 10 December 2013 but were a couple in the period commencing 10 December 2013 and ending 25 September 2017.
[5] Social Security (Administration) Act 1999, s179(2)(d); A New Tax System (Family Assistance) (Administration) Act 1999, s128(2).
The provision which operates to confine the decision under review to the direction given as part of the AAT first review decision reflects an intention of the legislature that the jurisdiction of the Tribunal be similarly confined.
I appreciate that this conclusion runs counter to that arrived at in Jia.[6] There the Tribunal accepted a submission from the Respondent (a submission it now resiles from) to the effect that the legislative provision which confines the decision under review simply serves to clarify that decision but does not similarly confine the Tribunal’s jurisdiction.
[6] Jia and Secretary Department of Social Services [2017] AATA 1593 at [23]-[25].
With respect, anything that defines or limits the ambit of the decision under review is relevant to the Tribunal’s jurisdiction. This is because the decision under review delimits the Tribunal’s jurisdiction to exercise powers conferred on the original decision maker. It does so because the Tribunal only has jurisdiction to exercise those of the original decision-maker’s powers as are relevant to the decision.[7] Hence, identifying the decision under review is essential to a determination of the scope of the Tribunal’s jurisdiction to exercise powers of the original decision-maker. Accordingly, a legislative provision cannot both clarify the decision under review and be irrelevant to the Tribunal’s jurisdiction.
[7] Fletcher v FCT (1988) 19 FCR 442 at 451.
Moreover, a construction of the relevant provision which deprives it of any effect on Tribunal jurisdiction is one which deprives it of any effect whatsoever, as the result in Jia[8] makes clear. On the other hand, a construction of the relevant provision which serves to give operative effect to the words used by the legislature is reflective not of a penchant for technicality, as some might have it,[9] but, rather, of a long standing approach to construction that strives to give meaning to the will of the people as expressed in the words employed by their representatives in Parliament.[10]
[8] Jia at [29] where the Tribunal considered itself empowered to conduct a full merits review of the decision of the Tribunal on first review.
[9] Cloros v Secretary, Dept of Social Services [2014] AATA 300 at [21].
[10] Commonwealth v Baume (1905) 2 CLR 405 at 414.
Lastly, the proposition (accepted in Jia) that the relevant provision has no effect on the Tribunal’s jurisdiction is not one adopted in a number of decisions to which I was referred by the Respondent. In essence, in those decisions, it was accepted that the provision operated to limit the Tribunal’s jurisdiction.[11] For instance, in the Davey decision.[12] the Tribunal stated that:
“The present matters fall within s 179(2)(d) of that provision. This means that the only aspect of the SSAT’s decision that may be reviewed are the SSAT’s directions to the respondent. The Tribunal, on the present application by Mr and Mrs Davey, is not able to review the merits of the decisions relating to whether or not overpayments were made to Mr and/or Mrs Davey, whether any debts were properly raised against them and, if so, whether any such debts may be waived.”
[11] Secretary Department of Family and Community Services and Owen [2002] AATA 1202; Re William Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077 Aslanidis and Secretary Department of Families Housing Community Services and Indigenous Affairs [2010] AATA 429 at [28].
[12] Davey and Secretary Department of Families Housing Community Services and Indigenous Affairs [2008] AATA 888 at [4].
Accordingly, I have jurisdiction to review the direction which comprised part of the AAT first review decision. However, I have no power to, and have a duty not to, hear matters that fall outside the Tribunal’s jurisdiction. I do not have “…power to inquire at large into matters that might be of interest, but for which I have no power to review. In fact, the tribunal has a clear duty to decline to hear such matters…”[13]
[13] Re William Pearson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1077 at [14].
As was the case in Davey, the issue of whether or not debts to be raised ought be waived is a matter that falls outside the jurisdiction now being exercised by the Tribunal. It is (as I have previously outlined) not an element of the decision now subject to review, being the direction that comprises part of the AAT first review decision.
Given the Tribunal’s jurisdiction concerns the direction made by the Tribunal as part of the AAT first review decision, and given the nature of that direction and that the Respondent now seeks affirmation of the AAT first review decision, the issue at the heart of this proceeding is (as I previously indicated) whether Ms Samachetty and her husband ought be treated as a couple in the period commencing 10 December 2013 and ending 25 September 2017.[14]
[14] The Respondent seeks affirmation of the AAT first review decision and, hence, does not take issue with that aspect of the decision which has Ms Samachetty not being a member of a couple prior to 10 December 2013
Before moving to address that issue I will first say something about the legislative context.
Legislation
If a person is not a member of a couple, the person’s rate of parenting payment is the pension PP (single) rate.[15] This rate of payment is higher than if a person is a member of a couple (in which case the person’s rate of parenting payment is the benefit PP (partnered) rate).[16] Further, the payment made to a person who is a member of a couple may be affected by the income of the other member of the couple.
[15] Social Security Act 1991 s1068A.
[16] Social Security Act 1991 s1069B - note, under s4(11) a person is partnered if the person is a member of a couple.
While arguably obvious, there are at least two reasons for the single rate being higher than the partnered rate: “First, that there are economies of scale in two people living together. Second, because there has been a pooling of resources, the two people are better-off financially because they pool their joint income and assets…”[17] This suggests that the sharing of living costs is indicative of a “couple” relationship, a point to which I shall return.
[17] Pala and Secretary, Department of Family, Housing, Community Services and Indigenous Affairs [2010] AATA 1070 at [50].
In terms of the family tax benefit, eligibility depends on passing an income test. The income to be taken into account is, if a person is a member of a couple, the income of both members of the couple.[18]
[18] A New Tax System (Family Assistance) Act 1999, Schedule 3, cl3-Adjusted taxable income definition- (1) For the purposes of this Act (other than Part 4 of Schedule 1), if an individual is a member of a couple, the individual’s adjusted taxable income for an income year includes the adjusted taxable income for that year of the individual’s partner.
If a person receives more by way of a parenting payment or family tax benefit than the person is entitled to, the excess is a debt due to the Commonwealth.[19]
[19] Social Security Act 1991, s1223 as to parenting payment. A New Tax System (Family Assistance) (Administration) Act 1999, s71, as to family tax benefit.
In the circumstances, and as Ms Samachetty and Mr Samachetty are legally married to each other, they will constitute a couple unless, in the Tribunal’s opinion, they are living separately and apart from each other on a permanent or indefinite basis[20] or if the Tribunal were to be satisfied that Ms Samachetty ought not be treated as a member of a couple for a special reason in the particular case.[21]
[20] Social Security Act 1991, s4(2)-This definition of “couple” also applies in the context of the family tax benefit provisions under A New Tax System (Family Assistance) Act 1999-see s3 of that Act.
[21] Social Security Act 1991, ss4(6) and 24(1).
I address later the question of whether there is a special reason not to treat Ms Samachetty as a member of a couple.
As for the first exclusion to married persons being members of a couple, it depends very much on the separately and apart concept. There are a number of aspects to that concept.
First, both Ms Samachetty and Mr Samachetty were of the opinion that in the relevant period they were not a couple. I have no doubt that their opinion in this regard was honestly held. The applicability or otherwise of the separately and apart concept to a particular situation is not, however, determined solely by the subjective views of the persons concerned. While those subjective views are of importance,[22] they need to be considered in the light of objective indicators as to the nature of the relevant persons’ relationship.[23]
[22] Boskoski and Secretary, Department of Social Services [2014] AATA 915 at [63].
[23] Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5 at [27].
Second, a couple of propositions are of lesser and greater assistance in identifying when the concept applies. One proposition is that persons are unlikely to be considered to be living separately and apart from each other on a permanent or indefinite basis if they maintain a marriage-like relationship.[24] This proposition might be said, however, to do little to advance the cause of analysis. This is because the concept of a marriage-like relationship is ephemeral; what it is composed of varies from couple to couple.[25] Of more assistance is a second proposition to the effect that two persons are more likely to be a couple if the relationship they share differs from that which they have with anyone else.[26]
[24]Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [46].
[25] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 175-see Re Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 at [70] where Senior Member Isenberg acknowledged the difficulty is ascertaining whether a particular relationship was marriage-like.
[26] Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92 at [30]-But see Dietman and Repatriation Commission (Veterans' entitlements) [2019] AATA 4428 where what would appear to be a unique relationship between persons living under one roof was nevertheless not such as to constitute them as a couple.
This second point leads on to a third. The nature of a person’s relationship with another is not determined by physical aspects of the relationship. The subsistence of a marriage-like relationship is not a function of ongoing physical proximity.[27] “What must be considered is not only whether the parties live separately, in physical terms, albeit under one roof, but also whether their de facto relationship (the consortium vitae) has broken down.”[28] In an oft cited[29] decision of Watson J, His Honour stated that “…“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.”[30]
[27] Utczas and Secretary, Department of Social Security [1989] AATA 756 at [11]; Dimov and Secretary, Department of Family and Community Services [2005] AATA 912 at [31].
[28] Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5 at [64].
[29] See Kettlewell and Secretary, Department of Social Services (Social services second review) [2018] AATA 8 at [18] and Mosaui and Secretary, Department of Social Services (Social services second review) [2019] AATA 715 at [38].
[30] In the Marriage of Todd (No.2) (1976) 9 ALR 401 at 403.
More succinctly, the living separately and apart concept denotes both a physical and a mental element, with the mental element being independent of the physical one.[31] Hence, the maintenance of separate physical residences does not preclude a finding that the persons concerned are a couple. [32]
[31] Szoxp v Minister for Immigration and Border Protection [2015] FCAFC 69 at [55-56]; Melvin v Secretary, Department of Social Security [2016] FCA 375 at [83].
[32] Dimov and Secretary, Department of Family and Community Services [2005] AATA 912 at [31]; Szoxp v Minister for Immigration and Border Protection [2015] FCAFC 69 at [55-57].
Four, the Tribunal’s opinion as to whether persons are living separately and apart is one required to be formed having regard to certain specific considerations, albeit considerations which are not exhaustive. [33] “[A]ll the circumstances of the relationship” must be considered, having regard to the persons’ concerned “interpersonal relationship as a whole””.[34]
[33] Social Security Act 1991, s4(3).
[34] Melvin v Secretary, Department of Social Security [2016] FCA 375 [19] citing Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at [46].
The specific considerations to which I must have regard are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the issue of any sexual relationship and the nature of Ms Samachetty’s and Mr Samachetty’s commitment to each other.[35] I address each of these in turn.
[35] Social Security Act 1991, s4(3).
Financial Aspects
In looking to the financial aspects of the relationship between Ms Samachetty and Mr Samachetty consideration needs to be given to:
(i)any joint ownership of real estate or other major assets and any joint liabilities;
(ii)any significant pooling of financial resources especially in relation to major financial commitments;
(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.[36]
[36] Social Security Act 1991, s4(3)(a)(i) – (iv).
Since their alleged separation Ms Samachetty and Mr Samachetty have become registered proprietors, as joint tenants, of three properties, a unit in South Melbourne acquired in December 2013[37] and two adjacent properties in Drouin acquired in August 2015.[38]
[37] T14, 58.
[38] T15,59; T16, 60.
All three of these properties were financed by borrowings jointly undertaken by Mr Samachetty and Ms Samachetty.[39] Both of their income details were provided in support of the relevant loan applications.[40] Mr Samachetty contended that the financing documents reflected the fact that Ms Samachetty undertook those borrowings as a single parent. I did not see that in the documents before the Tribunal and, even if that were in the documents, it would not change the fact that the borrowing was jointly undertaken and gave rise to joint and several liability for the entire debt.
[39] T34, 133; T36,143.
[40] T3,10.
While Ms Samachetty’s evidence before the SSCSD was that Mr Samachetty was then meeting most of the mortgage payments,[41] I infer that she also contributed financially to the acquisition of the properties and the repayment of the financing used to acquire them.
[41] T3,10.
Hence, there has been a “significant pooling of financial resources especially in relation to major financial commitments.” What was involved here plainly involved “…more than financial cooperation or separate contributions to different elements of household expenditure.”[42] Ms Samachetty and Mr Samachetty put resources into a common fund and combined resources for a common benefit.[43] That benefit was said by Ms Samachetty to be for the children of the marriage, for their future. The benefit went beyond that, however, in that the children came to reside at one of the properties (along with Ms Samachetty) and Mr Samachetty came to reside either with them or next door, at another of those properties.
[42] Pelka v Secretary, Dept of Family and Community Services (2006) 151 FCR 546 at [52].
[43] Vo and Secretary, Department of Social Services (Social services second review) [2019] AATA 2341 at [29]
The joint borrowing of funds to purchase the three properties not only gave rise to material, ongoing, joint liabilities but also to significant legal obligations between Ms Samachetty and Mr Samachetty. As joint debtors they would each have a right of contribution exercisable against the other of them,[44] as well as a statutory right of indemnity should one of them satisfy the joint liability.[45]
[44] Albion Insurance v GIO (1969) 121 CLR 342 at 350.
[45] Supreme Court Act 1986 (Vic), s52.
As for the sharing of household expenses, it would seem that Mr Samachetty either paid one half of the expenses or most of them, depending on the financial position of Ms Samachetty. In this regard, at the time they allegedly separated, half the rent on Ms Samachetty’s residential accommodation and half the cost of utilities such as gas and electricity was being met by Mr Samachetty.[46] Food costs were split “if necessary”[47] although at the hearing of this matter Mr Samachetty’s evidence was that costs were shared on a 50/50 basis, while Ms Samachetty’s evidence was that Mr Samachetty met most of those costs.
[46] T7,31, 34.
[47] T7,35.
I find that, overall, the financial aspects of Ms Samachetty’s and Mr Samachetty’s relationship are such as to provide strong support for a conclusion that they were not living separately and apart in relation to the relevant years.
Nature of household
As for the nature of Ms Samachetty’s household, consideration is required to be given to:
(i)any joint responsibility for providing care or support of children;
(ii)the living arrangements of the people; and
(iii)the basis on which responsibility for housework is distributed.[48]
[48] Social Security Act 1991, s4(3)(b)(i) – (iii).
I find that Ms Samachetty and Mr Samachetty accepted joint responsibility for providing care and support of their children.
As I indicated earlier they jointly met costs associated with the immediate needs of their children, such as costs of acquisition of their home, the ongoing operating costs of that home and the cost of essentials such as food.
They have pooled their resources and jointly funded (and jointly assumed significant liabilities associated with) the acquisition of property in an endeavour to secure the financial future of their children.[49]
[49] T3,10.
In addition, Ms Samachetty and Mr Samachetty appear jointly to accept that they each have a discrete role in the provision of care and support for their children. Although Mr Samachetty would look after the children when necessary,[50] the household tasks (such as cleaning and washing) seem to have been left predominantly to Ms Samachetty while Mr Samachetty would look after the gardening and any necessary maintenance. [51] They did, however, jointly decide upon issues concerning the children’s education.[52]
[50] T7, 38.
[51] T7,35.
[52] T7,38.
When providing relationship details on 29 April 2013, Ms Samachetty indicated that she intended to continue to live with Mr Samachetty at least “until we feel that the children are ok.”[53] The use of the “we” in that response is indicative of an acceptance and expectation of a shared parental responsibility.
[53] T7,29.
As for their living arrangements, Mr Samachetty’s evidence was that he did not eat meals with Ms Samachetty and their children.[54] This was not, however, because they did not live under the same roof. In advising Centrelink of the change in her relationship status in 2013, Ms Samachetty stated that she and Mr Samachetty shared the same home[55] and, as mentioned, intended to continue to do so until “the children are ok”. That sharing applied to all facilities and rooms in their house albeit that they each used the kitchen and laundry at different times.[56] The bedroom was not, however, shared.[57]
[54] T8,43.
[55] T6,23.
[56] T7,31.
[57] T3,10.
Before the SSCSD Ms Samachetty gave evidence consistent with her earlier statements that she and Mr Samachetty lived at the same address. At the hearing of this proceeding, however, it became clear that this apparently only entailed Mr Samachetty living in the same house as Ms Samachetty during the period in question (10 December 2013 to 25 September 2017) around two to four nights a week. Mr Samachetty gave evidence that he often stayed at his parents’ and brother’s house, evidence corroborated by his brother and father.
I find, nevertheless, that Mr Samachetty’s home at the relevant time was still the house he shared with Ms Samachetty and the children. Difficulties in his relationship with Ms Samachetty may well have been a partial explanation for his absences from Ms Samachetty’s home, as Mr Samachetty’s brother and father suspected at the time might have been the case. Mr Samachetty’s evidence suggests, however, that his need to be closer to his work (and so limit travel time and cost) was a significant, if not the primary, motivator for him being so absent several times a week. This was, at least, the explanation for those absences which Mr Samachetty offered to his brother at the time. In this regard, in the period in question, Mr Samachetty was said by Ms Samachetty to be always working, apparently working shift work, doing two jobs,[58] sometimes seven days a week,[59] and occasionally sleeping in his car between jobs.
[58] T3,11.
[59] T7,38.
Ms Samachetty and Mr Samachetty had one car between them, used primarily by Mr Samachetty but, to an extent, also by Ms Samachetty.[60]
[60] T7,36; T8,48.
I find that, overall, the circumstances concerning the nature of the household maintained by Ms Samachetty during the relevant period were such as to support a conclusion that they were not then living separately and apart.
Social aspects
In looking to the social aspects of Ms Samachetty’s and Mr Samachetty’s relationship, consideration needs to be given to:
(i)whether they hold themselves out as married to, or in a de facto relationship with, each other;
(ii)the assessment of their friends and regular associates about the nature of their relationship; and
(iii)the basis on which they make plans for, or engage in, joint social activities.[61]
[61] Social Security Act 1991, s4(3)(c)(i) – (iii).
As for how Ms Samachetty represented her relationship with Mr Samachetty, while she might not have expressly represented that she and Mr Samachetty were still a couple in the relevant period,[62] it would appear that she implicitly did so. She did not tell her relatives and friends about the separation and continued to attend events involving the family with Mr Samachetty (albeit that her relatives might now be aware of her marital difficulties). According to Mr Samachetty, people would have believed that he and Ms Samachetty were still together. This approach was consistent with his desire to keep the separation discreet[63] and the fact that neither of his parents were told he and Ms Samachetty had separated.
[62] T7,30.
[63] T8,42.
The non-disclosure or limited disclosure of their marital difficulties does not, however, necessarily weigh against a conclusion that Ms Samachetty and Mr Samachetty were living separately and apart given the anguish they each felt in discussing those difficulties in the presence of their relatives, as evident at the hearing of this matter.[64]
[64] Cf Francis and Department of Family and Community Services [1999] AATA 243 at [63] which addressed a cultural context in which marital difficulties engendered shame.
Ms Samachetty, Mr Samachetty and their children occasionally holidayed together, visiting relatives in NSW every second year or so.[65]
[65] T7,32; T8, 44.
With the exception of these holidays, and apart from family gatherings and occasions, however, Ms Samachetty and Mr Samachetty would not do anything together as a couple, on their own.[66] It is not clear, however, whether this represents a departure from the situation that existed before the alleged separation. While Ms Samachetty said that she and Mr Samachetty did not do things as a couple “as we did in the past,”[67] Mr Samachetty said that there had been no change in their relationship since separation.[68]
[66] T3,11.
[67] T7,29.
[68] T8,41.
I find that, overall, the circumstances concerning the social aspects of the relationship during the relevant period were such as to offer some, but not significant, support for the conclusion that Ms Samachetty and Mr Samachetty were not then living separately and apart.
Sex
There is no sexual aspect to the relationship between Ms Samachetty and Mr Samachetty and, as such, this aspect of their relationship is such as to support a conclusion that they were living separately and apart in the relevant period.
Nature of commitment
In looking to the nature of Ms Samachetty’s and Mr Samachetty’s commitment to each other, consideration needs to be given to:
(i)the length of the relationship;
(ii)the nature of any companionship and emotional support that they provide to each other;
(iii)whether they 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.[69]
[69] Social Security Act 1991, s4(3)(e)(i) – (iv).
Ms Samachetty and Mr Samachetty have had a long term, enduring relationship. They were married in 2003,[70] after having met when Ms Samachetty was 14 years old.
[70] T3,10.
During the period in question neither of them intended to divorce.[71] Both Ms and Mr Samachetty indicated that this was for financial reasons although evidence to the SSCSD was that Ms Samachetty was not interested in another physical relationship[72] and Mr Samachetty did not want another relationship due to a concern that it might interfere with the one he had with his children.[73]
[71] T7,30.
[72] T3,11.
[73] T3,12.
In any event, as previously mentioned, Ms Samachetty’s intention was to continue to share a household with Mr Samachetty at least until “we feel that the children are ok.”[74]
[74] T7,29.
Ms Samachetty clearly saw that the (or, at least, a) relationship with Mr Samachetty would continue indefinitely. At the time of the hearing before the SSCSD they were intending on building a residence on each of the adjoining blocks of the Drouin land they had purchased together, one for Ms Samachetty and the children and the other for Mr Samachetty and his father in law
On the last day of the hearing of this matter Mr Samachetty indicated an intention to live overseas. This intention reflected a comment he had just made to the effect that his relationship with Ms Samachetty had worsened. The material before the Tribunal is not, however, such as to suggest that this was Mr Samachetty’s intention at any time in the period in question.
In terms of companionship and emotional support, this is, according to Ms Samachetty, lacking in her relationship with Mr Samachetty.[75] In 2013 her position was that she and Mr Samachetty had no emotional feelings towards each other, had no common interests and did not work together as a team to achieve results, all aspects of what she believed to be a marital relationship.[76]
[75] T3,12.
[76] T7,29.
I find, however, that Ms Samachetty’s position in this regard underestimated the content of her relationship with Mr Samachetty. Clearly, they had at least one interest in common, an interest in their children. Indeed, they appear to have strived and worked together “as a team” in an endeavour to achieve a result in relation to that common interest, a result directed to the emotional and financial wellbeing of their children.
That this is so is evident from, in particular, the financial aspects of their relationship and the nature of their household, both of which I described earlier. Rather than taking steps to disentangle their respective lives after the alleged separation,[77] Ms Samachetty and Mr Samachetty not only maintained their integrated existence but took steps to entrench and expand upon that integration. In the relevant period, they continued to share living arrangements and, jointly, borrowed significant funds, purchased properties and planned residential construction projects.
[77] Cf Hartley and Secretary Department of Education Employment and Workplace Relations [2009] AATA 470 at [46] where reference is made to the absence of steps to arrange separate financial affairs.
The integration of their lives is reflected in their joint ownership of what would appear to be their largest assets. Rather than dissolve property holdings after allegedly separating, Ms Samachetty and Mr Samachetty acquired three properties as joint tenants. Of significance is that Ms Samachetty was aware that Mr Samachetty would acquire her interest in the three co-owned properties should she predecease him as a result of the properties being held in their joint names.[78]
[78] Vo and Secretary, Department of Social Services (Social services second review) [2019] AATA 2341 at [24].
The fact that this integration was motivated by a desire to benefit their children might be considered suggestive of a marriage-like relationship.[79] In the Marriage of Pavey[80] it was said that:
[t]he nurture and support of the children of the marriage [w]as a constituent element of the marital relationship." In Milovanovic[81] Senior Member Professor Shearer stated that “[w]hile one would not want to lay down a rule that joint care of a child automatically disqualifies a person from being regarded as anything other than a couple for the purposes of the Act, there was evidence in the present case that there was a significant degree of dependence by Mrs Milovanovic on the continued existence of the relationship, and especially its financial aspects, in caring for their son.
[79] In Beverley Sybil Anderson and Secretary, Department of Social Security [1993] AATA 172 persons were considered to comprise a couple where they set aside their interpersonal difficulties in order to maintain “some kind of family relationship” (at [55]) “in the interests of the children” (at [59]).
[80] (1976) 25 FLR 450 at 455-cited and adopted in Micallef and Secretary, Department of Family and Community Services [2004] AATA 485 at [27].
[81] Milovanovic and Secretary, Department of Employment and Workplace Relations [2006] AATA 930 at [32].
I recognise, however, that a relationship between parents founded on a desire to care for their children might simply be characterised as one reflective of a commitment to the children as opposed to a commitment to each other.[82] Here, however, the commitment to the children was given effect to by, at least in part, a commitment to maintenance of the family unit.
[82] Secretary, Department of Education, Employment and Workplace Relations and Hitchcock and Anor [2008] AATA 677; Secretary, Department of Employment and Workplace Relations and Gilson [2007] AATA 1361 at [54-55]; Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2010] AATA 284.
Family was said by both Ms Samachetty and Mr Samachetty to be very important given their shared cultural background.[83] The importance they placed on the family in the period in question is evident from the way they each conducted themselves. For instance, and as previously mentioned, neither Ms Samachetty nor Mr Samachetty have re-partnered, property was acquired so that Mr Samachetty could live with or next door to Ms Samachetty and the children, Ms Samachetty and Mr Samachetty each contributed to the costs of the family household and Ms Samachetty and Mr Samachetty shared the use of a single car.
[83] T3,11.
A commitment to maintenance of a family unit is something more than merely a commitment to children. While it lasts, a commitment to maintenance of a family unit necessarily entails a commitment to remain as a part of a group that includes the other members of the group. As such, while it lasts, it is a commitment to remain associated with others in the group. Hence, for so long as Ms Samachetty and Mr Samachetty remained committed to maintaining the family unit, they were each committed to maintaining an association with each other.
What is clear from the maintenance of such an association, at least in the case of Ms Samachetty and Mr Samachetty, is that it gave rise to a relationship in the period in question which was unlike the relationship either of them shared with anyone else. “It is clearly relevant…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.”[84]
[84] Re Pelka v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92 at [30].
That Ms Samachetty and Mr Samachetty shared a unique relationship is reflected in the fact that, in this proceeding, Ms Samachetty chose Mr Samachetty to represent her.
I find that, overall, the nature of Ms Samachetty and Mr Samachetty’s commitment to each other in the period in question is such as to support a conclusion that they were not then living separately and apart.
Conclusion as to living separately and apart
Despite not all the considerations to which I am required to have regard pointing in the same direction,[85] on balance and in all the circumstances, I find that Ms Samachetty and Mr Samachetty were not living separately and apart on a permanent or indefinite basis in the period in question.
[85] Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 where at [70] it was said: “As observed in Cullinane (where there was found to be a marriage-like relationship) 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.”
As with the situation considered in Bozdag,[86] in that period, the marriage of Ms Samachetty and Mr Samachetty “… albeit perhaps not a ‘happy’ marriage, …[was] still a marriage, with many of the indicia of a marriage.”
[86] Bozdag and Secretary, Department of Social Services (Social services second review) [2016] AATA 765 at [46].
Special reason not to treat as a couple?
As indicated previously, despite finding that Ms Samachetty and Mr Samachetty did not live separately and apart in the period in question, I could still determine not to treat Ms Samachetty as a member of a couple if I were to be satisfied that she ought not be so treated for a special reason in the particular case.[87]
[87] Social Security Act 1991, ss 4(6) and 24(1).
It has not been contended, however, and it does not appear to me, that there is any such special reason in Ms Samachetty’s case.[88]
[88] It has been suggested that it is incumbent on the person seeking to take the benefit of the special reason provision to provide evidence to satisfy the Tribunal that a determination under s24 ought be made- Mosaui and Secretary, Department of Social Services (Social services second review) [2019] AATA 715 at [57].
The capacity to determine not to treat a person as a member of a couple if there is a special reason in the particular case has been said to be one that ought only be exercised as a last resort.[89] It is a discretionary power which “is not lightly to be enlivened.”[90]
[89] Mosaui and Secretary, Department of Social Services (Social services second review) [2019] AATA 715 at [50].
[90] Boscolo v Secretary, Department of Social Security [1999] FCA 106 at [18].
The justification for a single person receiving more by way of benefits than a member of a couple “…is based on the premise that the unpartnered person does not enjoy the economies of shared living costs as does the member of a couple…”[91] From this justification it may be inferred that a special reason might be considered to exist if a person is unable to benefit from the sharing of living costs, that is, if the members of the putative couple are unable to pool their resources.[92]
[91] Explanatory Memorandum to the Social Security Legislation Amendment Bill (No 4) 1991 (Cth), at 17.
[92] Lyons and Secretary, Department of Social Services (Social services second review) [2018] AATA 3644 at [73]-see also DlabiI and Secretary, Department of Social Services (Social services second review) [2016] AATA 20 at [58] .
Here, no legal or other practical reason has been identified as to why Ms Samachetty cannot be treated as sharing living costs with Mr Samachetty.[93] Rather than there being any inability to pool resources, it is clear that there has, in fact, been a pooling of resources, in the period in question (and in this regard I refer, in particular, to my comments concerning the financial aspects of the relationship Ms Samachetty has with Mr Samachetty).
[93] See Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084 at [42].
Conclusion
In the period 10 December 2013 to 25 September 2017 Ms Samachetty was a member of a couple, the other member of which was Mr Samachetty.
Given this conclusion the Tribunal decides to affirm the direction which is deemed to constitute the AAT first review decision, being a direction that Ms Samachetty and her husband were not to be treated as members of a couple until 10 December 2013 but were to be treated as members of a couple in the period commencing 10 December 2013 and ending 25 September 2017.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for the decision herein of Chris Furnell ...................[sgd]....................................
Associate
Dated: 19 February 2020
Dates of hearing:
25 July 2019, 4 February 2020
Advocate for the Applicant Claudio Samachetty
Solicitors for the Respondent: Sparke Helmore
Advocate for the Respondent: Nam Nguyen
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