Smith and Secretary, Department of Family and Community Services
[2003] AATA 1024
•10 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1024
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/145 and 146
GENERAL ADMINISTRATIVE DIVISION ) Re STEPHEN SMITH and MARIYA DAVIES-SMITH
Applicants
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Associate/Professor B W Davis AM., (Part-time Member) Date10 October 2003
PlaceHobart
Decision The decision under review is affirmed.
[Sgd B W Davis]
Part-Time Member
CATCHWORDS
Social Security - marriage-like relationship - partner - member of a couple - residing under one roof - aspects of relationship - parenting payment - disability support pension - review SSAT.
Legislation
Social Security Act 1991 – s4
Social Security (Administration) Act 1999
Guide to Social Security Law
Authorities
Re Anderson and Secretary, Department of Social Security (1993) AATA 8261A
In the Marriage of Todd (No 2) (1976) 25 FLR 260
Re Tang and Director-General of Social Security (1981) 2 SSR 15
Re Roberts and Secretary, Department of Social Security (1987) 12 ALD 723
Re Holmes and Secretary, Department of Social Security (1987) AATA 4049
Re Staunton-Smith and Secretary, Department of Social Security (1991) 25 ALD 27 and 32 FCR 164
REASONS FOR DECISION
10 October 2003 Associate/Professor B W Davis AM., (Part-time Member) Decision Under Review
1. The decision of the Social Security Appeals Tribunal (SSAT) dated 6 August 2002 that Mr Stephen Smith and Ms Mariya Davies-Smith be treated as living in a marriage-like relationship.
The Issue
2. Were the applicants Stephen Smith and Mariya Davies-Smith living separately and apart from one another on a permanent basis since August 2000.
Standard of Proof
3. The Tribunal must determine the matter to its reasonable satisfaction, using criteria specified in s4(3) of the Social Security Act 1991 (“the Act”).
Background
4. The applicants were married on 30 November 1996, but separated in August 1999. Ms Davies-Smith moved to Latrobe to live with her mother while she coped with the dissolution of her marriage. Mr Stephen Smith began a new relationship with another partner. Both parties appear to have regarded their marriage as ended from August 1999 and seem to have no belief they will be reconciled.
5. From August 1999 until April 2002, Ms Davies-Smith received Parenting Payment Single and Mr Stephen Smith received Disability Support Pension at the single rate.
6. On 16 April 2002 Centrelink determined that the applicants were continuing to live as members of a couple and reduced Ms Davies-Smith payments to Parenting Payment Partnered and Mr Smith’s Disability Support Pension to the partnered rate.
7. Following a request for review by Mariya Davies-Smith, the matter was referred to the original decision-maker, who affirmed it on 19 April 2002. Following a further request for review it was referred to an Authorised Review (ARO), who considered the matter anew, but affirmed the decision on 15 May 2002.
8. On 19 June 2002, Mr Smith requested a review of the decision by the Social Security Appeals Tribunal (SSAT). On 6 August 2002 the SSAT affirmed the decision to consider the applicants as members of a couple. On 11 September 2002 the applicants requested that the decision be reviewed by the Administrative Appeals Tribunal (AAT).
Legislation
9. Section 4 of the Act provides two distinct tests by which a person may be considered to be a member of a couple. In relation to people who are legally married, subsection 4(2) of the Act is relevant:
“4(1) In this Act, unless the contrary intention appears:
…
member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A).
…
Member of a couple—general
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”
10. The criteria set out in subsection 4(3) are specified as the basis for the formulation of the Secretary’s opinion about the relationship:
“Member of a couple—criteria for forming opinion about relationship
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship.”
The SSAT Hearing
11. The SSAT hearing was conducted in Hobart on 6 August 2002. The applicants attended and spoke to the Tribunal.
12. Mr Smith stated the couple had initially separated in February 1999, they then reconciled and separated for the second time in August 1999. They reconciled again around Christmas 1999 and finally separated in August 2000.
13. Mrs Davies-Smith stated she had notified Centrelink when she reconciled with Mr Smith at Christmas 1999. The officer she spoke to, told her to leave it for a few weeks and see how things went before changing her payments. She did not speak to Centrelink again until August 2000, when she again informed them she was separated.
14. Mr Smith said there was too much stress in the relationship for it to survive, as both parties were suffering health problems at the time.
15. During the periods of separation Ms Davies-Smith moved back to Latrobe to live with her mother, however she would travel to Hobart frequently to enable Mr Smith to have contact with his son. Mr Smith has a back condition which means he cannot care for small children on his own, and so she would stay with him to assist with care of their son and later their daughter born in June 2001.
16. Mr Smith said that Ms Davies-Smith spent about two-thirds of the year at Latrobe. Ms Davies-Smith said she travelled down frequently and usually stayed about a fortnight, then would go back to Latrobe for a month or two. She sometimes stayed elsewhere, including with Mr Smith’s partner at Kingston. Mr Smith explained they did not tell many of his friends they were separated, but some were aware of his relationship with another person.
17. In relation to their financial situation, Mr Smith explained that he and Mariya had opened a joint bank account just prior to their separation. The reason was so he could pay bills for Ms Davies-smith and help her pay her share of household expenses at his home when she was staying there. He took over her finances because she was not very good at handling money and found it stressful. He explained he would send her cash out of the joint bank account each week after paying any bills. Although he managed the money, it was kept separate, with Ms Davies-Smith’s payments going into the joint account and his own payments going into a different personal account. Since June 2002 there were two accounts, with the joint account no longer used.
18. Ms Davies-Smith said she did not contribute towards the rent of Mr Smith’s home; he confirmed he paid the rent alone. She had earlier advised Centrelink the house would be purchased in joint names, but this did not eventuate. Ms Smith said she made a contribution to household expenses at Latrobe, including the purchase of groceries, but did not pay any board at the Latrobe residence.
19. Both parties denied any regular or ongoing sexual relationship since separation in August 2000, nonetheless they did have one contact which resulted in the birth of a daughter in 2001.
20. In relation to engagement with the community Ms Davies-Smith stated she had participated in a parenting course at the Rokeby Community Centre and her son’s kinder gym while in Hobart, but did not consider the need for community activities at Latrobe, because of the close bond with her mother.
21. Circumstances have changed again and at the time of the SSAT hearing she was living full-time at Mr Stephen Smith’s home at Benboyd Circle, Rokeby, because her mother had recently suffered a stroke and it no longer convenient to live with her. Ms Davies-Smith explained she had applied for housing in the Rokeby area and would only stay with Mr Smith until accommodation because available.
22. Having noted all available evidence and documentation, as well as relevant legislation, the SSAT proceeded to analyse the situation, proceeding serially through various aspects of the relationship.
23. In relation to the date of separation the Tribunal noted there had been several separations and reconciliations up to August 2000, but the last date recorded by Centrelink appeared to be separation in August 1999 and it was from this date single rate benefits had been paid.
24. The SSAT then considered principal place of residence. It is clear Mr Smith resides at Rokeby, Hobart, but the evidence about Ms Davies-Smith is more ambiguous. She has consistently used Mr Smith’s address on forms that she has had to complete for a number of organisations over time. Ms Davies-Smith’s mother did not give evidence to the AAT, but a Centrelink note dated 8 November 2001 indicates that she stated her daughter was living at Rokeby with Mr Smith and this had been the situation for at least three months. On balance the Tribunal believed Ms Davies-Smith had used Mr Smith’s address as her primary place of residence since August 2000. There was no evidence of permanent connections at Latrobe.
25. In relation to financial aspects of the household, it was fairly clear that Mr Smith had handled Ms Davies-Smith’s financial affairs since separation. The evidence was that there was no pooling of finance, but it appeared Mr Smith provided a car for Ms Davies-Smith and also paid car registration out of his own funds. The financial relationship was obviously strong, although it has changed somewhat in recent times. The Tribunal accepted that the evidence given did reflect their living arrangements.
26. They did not make it widely known they had separated and despite claiming they did not socialise together, in practice had done so on some occasions. Although they claimed sexual separation, one contact had resulted in the berth of a daughter born 22 June 2001.
27. Overall the Tribunal considered them to have a longstanding relationship, which has been through a number of separations and reconciliations, but involving a strong connection on a number of fronts through time. There has also been some holding out as a couple, at least until the Centrelink review occurred.
28. The Tribunal found on balance of probabilities, Mr Smith and Ms Davies-Smith have continued to be members of a couple since August 1999 and the decision by Centrelink to reduce their respective rates of social security payments should be affirmed.
29. The applicants rejected this decision and applied on 11 September 2002 for review by the Administrative Appeals Tribunal.
Facts and Contentions
30. Both parties filed statements of facts and contentions prior to the AAT hearing, repeating claims made at the SSAT hearing.
31. The applicants claimed they were living separately and apart, even when under the same roof at times. They contended there was no intention 12 Benboyd Circle should be viewed as Ms Davies-Smith’s primary address, they were on good terms with each other primarily for the benefit of the children. Both viewed their marriage as over since August 2000.
32. The respondent accepted that a married couple could live separately and apart, despite residing under one roof, but a number of factors existed indicating the couple had continued to conduct a marriage-like relationship. There was little independent support for Ms Davies-Smith’s claim she spent most of her time at Latrobe, but considerable evidence she had spent more time at 12 Benboyd Circle, Rokeby, since August 2000. Overall there was little to show the situation was substantially different from that which existed prior to the alleged separation. The respondent claimed that when tested against the criteria in s4(3) of the Act, they were more like members of a couple, hence the decision under review should be affirmed.
The AAT Hearing
33. The AAT hearing was conducted in Hobart 3 September 2003. The applicants were represented by Mr Hamish Locke and the respondent by Mr Brian Sparkes.
34. Ms Mariya Davies-Smith was sworn and gave evidence similar to that presented at the SSAT hearing. She stressed she had repeatedly hoped for reconciliation, but had recognised that by August 2000 the relationship was over. She had maintained a close personal friendship with Stephen Smith, primarily for the sake of the children and had used the Benboyd Circle address as a matter of financial convenience, given her post-natal depression and reliance upon him to handle household matters. She did not disclose the separation except to a few friends and even her mother did not discover the situation until October 2002.
35. Ms Davies-Smith claimed to have spent considerable periods at Latrobe with her mother since late 1999, but could not remember dates and admitted that affidavits supplied by friends were general statements with no specific detail. She could not explain why her mother had not been called to give evidence and admitted that her personal signature on various commercial documents implied a marriage-like relationship. She claimed to have been “railroaded” by Centrelink into signing statements, but could not explain why she had failed to keep Centrelink fully informed about matters, including the rental situation.
36. Mr Stephen Smith was then sworn and gave evidence. He had recognised the relationship was over earlier than Mariya, having been previously married three times and because he knew how to handle relationships, including financial arrangements. He had withdrawn money from their joint financial account as her needs arose, but would retain approximately $50 per fortnight in the account so that a postal note could be sent to her at Latrobe from time to time. Counsel for the respondent queried this claim, showing that the joint account was in zero balance most of the time.
37. When questioned about the proportion of time Ms Davies-Smith spent in Hobart and Latrobe, he claimed she spent approximately two thirds of the year in Latrobe, but periodically visited Hobart for up to a fortnight at a time. He was unable to provide evidence of dates and times, but counsel for the respondent was able to produce evidence demonstrating that Ms Davies-Smith spent considerable periods in Hobart. Stephen Smith claimed they lived apart in the same house, but admitted that although there was no ongoing sexual relationship, a daughter had been born in June 2001 as the result of their liaison.
38. Ms Tina Bellette, a one-time partner of Stephen Smith was called as witness indicating that Ms Davies-Smith had stayed with her in Hobart on occasions, but could not remember dates or details.
39. In closing submissions, counsel for the applicants argued that although the individuals involved had spent considerable time together, the relationship between them had clearly ended by August 2000 and the arrangements were primarily to benefit their children. Even if living under the same roof, they had lived separately and apart, with Mariya Davies-Smith also spending time at Latrobe. Financial arrangements were intended to overcome Mariya’s recognised disability in that area, by having a common address for all accounts. They did not hold themselves out as being married, but did not openly disclose separation, regarding this as a private matter. Ms Davies-Smith needed time to come to terms with the separation and both parties had adopted what seemed to them an appropriate approach to bridging that period, which explains decisions about a joint account, phone and rental payments and the like. It was not a marriage-like relationship, but a necessary accommodation to circumstances.
40. Counsel for the respondent argued that the issue was not whether a marriage-like relationship had existed, but whether there had been an identifiable separation, convincingly demonstrating they were living separately and apart from the other person on a permanent or indefinite basis, as specified in the Act. A whole set of factors are involved in sub-section 4(3) of the Act, but as a number of case authorities indicate, this is not an exclusive list and given the considerable diversity of “marriage-like” situations, each case must be considered on its merits.
41. Counsel further contended that the SSAT had reached an appropriate conclusion that the applicants were not living separately and apart since August 2000; there were many inconsistencies in their statements to that Tribunal, relative to documentary evidence in the form of commercial agreements, phone and house rental arrangements, bank statements and the like, as well as Centrelink records. While financial arrangements were substantially operated by Mr Smith, it is clear that mutual consent and support were involved, as well as ongoing physical presence in the same household. Claims about periods at Latrobe were unsupported by specific evidence and even if partially correct, on the balance of probabilities the evidence suggested the applicants were not living separately and apart on a permanent or indefinite basis, during the relevant period. The decision of Centrelink and the SSAT should therefore be affirmed.
Analysis
42. The Tribunal is required to stand in the shoes of the original decision-maker, considering all evidence anew, while noting relevant statutory provisions and appropriate case authorities.
43. As previously noted, criteria for formulating an opinion about the relationship between members of couple are set out in s4(3) of the Act. But in Staunton-Smith and Secretary, Department of Social Security (1991) 25 ALD 27, the Federal Court recast factors set out in Re Tang and Director-General Social Security (1981) 3 ALN N83, to pose the following questions as to whether two members of a legally married couple are living separately and apart:
(1)What are the living, eating and sleeping arrangements in the household between the applicant and the other party?
(2)Do the applicant and the other party have a sexual relationship?
(3)Do the applicant and the other party have a social relationship?
(4)What third parties (particularly children) are residing in the house and what is the relationship between each third party and the applicant and the other party?
(5)What are the financial arrangements between the applicant and the other party? For example, are resources within the household pooled and household expenses shared?
(6)Do the applicant and the other party have a genuine belief they are living separately and apart?
(7)Do the applicant and other party have a genuine belief they are living separately and apart?
(8)Does the existing relationship give rise to any moral, social or legal rights between the applicant and the other party?
(9)Finally, what is the relationship between the applicant and the other party and does it contain any degree of permanence?
44. In posing these questions the Federal Court suggested the list was not exhaustive and not all the questions might need to be considered in every case. 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 made its determination as to whether a particular man or woman are or are not living separately and apart only after assessing the totality of the evidence and any other material that is before it.
45. There are numerous case authorities dealing with the issue of what is meant by “living separately and apart”. Following Staunton-Smith and Secretary, Department of Social Security (1991) 25 ALD 27 and Re Holmes and Secretary, Department of Social Security (1987) AATA 4049, it is recognised that separation means more than physical separation; it involves the destruction of the marital relationship (the consortium vitae). On the other hand it is accepted that a married couple may live separately and apart under the one roof.
46. Having considered the criteria specified in s4(3) of the Act and all available evidence before it, the Tribunal has reached the following conclusions about the relationship between Mariya Davies-Smith and Stephen Smith:
(a)the couple separated and reconciled on a number of occasions between August 1999 and August 2000, but claim to have finally separated in August 2000.
(b)notwithstanding this they maintained a close personal relationship, allegedly to benefit their children and conducted a joint financial account to deal with household expenses. The account was primarily handled by Stephen Smith, because of Mariya’s mental depression and lack of skills in managing money.
(c)it is claimed that Ms Davies-smith spent up to two-thirds of the year with her mother at Latobe, but there is no firm evidence supporting this claim, instead there is clear evidence of considerable periods in Hobart, residing at Benboyd Circle, Rokeby, with Mr Smith. On balance the Tribunal believes Ms Davies-Smith viewed Mr Smith’s residence as her primary address from August 2000 onwards.
(d)they did not make it widely known they had separated and socialised together on some occasions. Although they claim no ongoing sexual relationship existed, a daughter was born in June 2001.
(e)although they advised Centrelink in August 1999 they had separated, they failed to inform the agency of subsequent changes in their relationship and household circumstances, until review occurred in April 2002.
47. Taken overall the couple have had a longstanding relationship and strong connection on a number of fronts, including residing under the same roof, maintaining joint responsibility for care and support of their children, as well as joint financial arrangements for household expenses. While not holding themselves out as a married couple, they have socialised together and have not readily claimed or disclosed separation.
48. The Tribunal finds, on the balance of probabilities that Stephen Smith and Mariya Davies-Smith have continued to be members of a couple since August 1999. The decision by Centrelink to reduce their respective rates of payment is therefore affirmed.
Decision
49. The decision under review is affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Associate/Professor B W Davis AM., (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 3 September 2003
Date of Decision 10 October 2003
Counsel for the Applicant Mr Hamish Locke
Solicitor for the Applicant Hobart Community Legal Service
Counsel for the Respondent Mr Brian Sparkes
Solicitor for the Respondent Centrelink
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