Sparks; Secretary, Department of Family and Community Services
[2004] AATA 1417
•22 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1417
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/429
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT
OF FAMILY AND
COMMUNITY SERVICESApplicant
And
ALLISON SPARKS
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date22 November 2004
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
..................[Sgd]............................
M J Carstairs
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – parenting payment single – eligibility – whether applicant in a marriage-like relationship – no financial ties or sharing of assets – separate lease and household arrangements – no sexual relationship – weighing up exercise – not satisfied the applicant is in a marriage-like relationship
Social Security Act 1991 s 4
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Secretary, Department of Family and Community Services and McQueeney [2004] AATA 831
WRITTEN REASONS FOR ORAL DECISION
6 January 2005 Ms M J Carstairs, Member 1. This is an application by the Secretary, Department of Family and Community Services (the applicant) for review of a decision made by the Social Security Appeals Tribunal (the SSAT) on 12 May 2004. The SSAT set aside a decision of a delegate of the applicant that Allison Sparks (the respondent) was a member of a couple and therefore was not entitled to receive parenting payment single.
2. At the hearing the applicant was represented by its advocate Ms J Dwyer. The respondent was represented by Mr John Stannard, Principal Solicitor at Welfare Rights Centre Inc.
3. The Tribunal had before it the documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975 as well as exhibits A1 – A6 for the applicant and R1 – R5 for the respondent. After the decision was given orally after the hearing, the respondent requested written reasons, which are now provided.
BACKGROUND
4. The respondent is aged thirty-nine years. She married Mark Sparks in 1994. They are not divorced. The respondent and Mark Sparks have three children, McKenzie aged eleven, Chandler aged nine, and Wesley aged three.
5. The respondent has resided at 68/8 Peninsula Drive, Loganholme (‘the Peninsula Drive residence’) since about 2002. She is employed, earning about $27,000 per year. On 8 January 2004 the respondent claimed parenting payment single. Her claim was refused on the basis that she was legally married to, and not living separately and apart from, Mark Sparks.
6. The respondent and Mr Sparks had previously resided at Gleneagles Avenue, Loganholme (‘the Gleneagles Avenue residence’). They separated about February 2001 and Mr Sparks left the Gleneagles Avenue residence. The respondent continued to live at the Gleneagles Avenue residence until October 2001. About this time she was diagnosed as suffering with post-natal depression. She then left the Gleneagles Avenue residence, moved elsewhere, and Mr Sparks returned to live with the children at the Gleneagles Avenue residence.
7. The children moved to the Peninsula Drive residence towards the end of 2003. Since that time the children have lived at the residence and the respondent and Mark Sparks have told Centrelink that they each share the residence at different times in the week with the children, but never together.
RESPONDENT’S EVIDENCE
8. The respondent gave evidence that she had lived for nine years with Mark Sparks at the Gleneagles Avenue residence until he moved out on 16 February 2001 as they were constantly arguing. She confirmed in her oral evidence that she had moved from the Gleneagles Avenue residence in October 2001 and Mark Sparks moved back to live with the children. The respondent said that she was suffering from post-natal depression after Wesley’s birth and was under the care of a psychiatrist. She said that she only wanted the best for the children and said that this was her reason for adopting the pattern of care that is now in place. She said that she regards the Peninsular Drive residence as the children’s home.
9. The respondent said that after she left the Gleneagles Avenue residence she then lived for about a year at a granny flat at the home of Mrs T and Mr A Robinson. She next moved to the home of her friend, Debbie Barlow, the owner of the Peninsular Drive residence. She said that Debbie Barlow moved in December 2003 to live elsewhere and the respondent entered into what she described as an informal lease agreement with Ms Barlow. At first Debbie’s daughter also remained at the Peninsular Drive residence but the respondent had asked her to leave. The respondent said that she put Mr Sparks’ name on the lease because he had become angry when he discovered a copy without any reference to him on it, when he was staying at the house.
10. The respondent said that she lives at the Peninsular Drive residence with the three children from Monday to Friday each week, then she leaves the house, stays with friends or workmates over the weekend and Mr Sparks takes up occupancy with the children until Monday morning.
11. Household duties are undertaken by whoever is in the home and any required shopping is done on the same basis. The respondent said that she and Mark Sparks have no joint bank accounts. The respondent said that she pays child care fees as that particular expense is incurred during the time when she has the children, that is, Monday to Friday.
12. The respondent said that she does not sleep in the master bedroom which is occupied by Mark Sparks when he stays at the house. She said that she moved from the master bedroom to Wesley’s bedroom as that room has an air-conditioner which she needs to use. She said also she did not want to sleep in a bed that Mark Sparks had slept in.
13. The respondent gave evidence that she and Mark Sparks do not take part in any social engagements together except those that occur in relation to the children. On the children’s birthdays she said they take the children out for a meal at a restaurant of the child’s choice, but she and Mark Sparks arrive in different cars, the children travelling with whichever parent is in residence at the Peninsular Drive residence at the time when the birthday occurs. On Christmas Day, depending on when it falls, the other parent will come and go from the house in order to spend time with the children. The respondent said that Mark Sparks sees the children each week day for about an hour or more and he supervises homework, but he does not stay for meals. This had occurred in the past but no longer does so.
14. The respondent said that she had told Centrelink that she had established a relationship with another person, when she was questioned in regard to her claim for parenting payment single. She said that the relationship has now ceased.
15. The following are the financial arrangements for the respondent and Mr Sparks:
§ Mr Sparks pays the telephone bills.
§ Insurance is automatically debited from Mr Sparks’ account and this was based on joint insurance at the Gleneagles Avenue residence. The respondent re-credits him with the cost of the insurance. The respondent said that she has contacted RACQ to change this to directly billing her.
§ The household goods were purchased together for the Gleneagles Avenue residence. The respondent regards them as belonging with the children.
§ The respondent spends more on food than Mr Sparks does.
16. The respondent stated that members of her family are aware that the marriage has broken down.
17. The respondent says that she believes she has outgrown the present arrangement in place at the Peninsula Drive residence as she now believes she and Mr Sparks would be better suited by having separate homes. She finds it difficult to impose on others for weekend accommodation. However, she said that twelve months ago it was the only way that Mr Sparks would let her once again be part of the children’s lives.
18. Mrs T Robinson prepared a statement dated 9 November 2004 (exhibit A5) that her understanding of the respondent’s and Mark Sparks’ relationship was that they have been separated for two to three years. She stated that the respondent had lived at her and her husband’s granny flat until about twelve to eighteen months ago; that Mark Sparks was a workmate of her husband’s; and that now Mark Sparks occasionally stays at their granny flat, once or twice a week, and she believed that he sometimes stays with his girlfriend.
19. Mark Sparks gave oral evidence that he and the respondent had separated in 2001. He said that he then moved out from the Gleneagles Avenue residence. He said that when his wife had post-natal depression he took over the care of the three children. He said that after the respondent left the Gleneagles Avenue residence she lived with Debbie Barlow, the owner of the Peninsula Drive residence.
20. Mr Sparks said that before the present arrangements at the Peninsula Drive residence he lived with a friend at Springwood. He paid $100 per week rent, but said that he considered this was a waste of money, when he preferred to spend money on the children. For this reason, when he is not caring for the children at the Peninsula Drive residence he sleeps in his vehicle, parking it at a truck-stop, or at partially completed units where he was working as a construction worker. He prefers to tell others, including Mr A Robinson, that he is staying at his girlfriend’s place as Mr Robinson would be upset to think that he was living the way he is. He also said that if others knew he slept at the construction site he would have lost his job.
21. Mr Sparks said that he had requested his name be placed on the lease agreement at the Peninsula Drive residence because he was concerned that if the respondent called the police for any reason he would have no legal right to be there. He said he did not contribute to the rent because the respondent did not require him to do so; she was there for more time than he was; and she was satisfied if he looked after the children.
22. Mr Sparks said that he regards the respondent as a friend, but that apart from their mutual interest in the children, their relationship was at an end. He said he had completed divorce papers and had passed these to the respondent, as she deals with such matters because he is functionally illiterate. He said he and the respondent fight. He has thought about buying a separate house. He said however that the advantage of the present arrangement to him is that he can see the children as frequently as he wants. In regard to superannuation, he said that he and the respondent each name the other as beneficiary so that financial support for the children is ensured.
23. Mr Sparks said that when he stays at the house he sleeps in the master bedroom. He said that the respondent sleeps in another bedroom with Wesley when she is at the house, which is a room with air-conditioning. He said in regard to the arrangement that the advantage of the children always remaining at the Peninsula Drive residence is that they do not have the disruption of moving from one house to another for periods of shared care.
24. Mr Sparks said that he was in a relationship with another woman until about 18 months ago when his eldest daughter found out and did not approve. He now only has casual relationships, including with a woman who left in July 2004 to travel to Perth.
25. Mrs D Green prepared a written statement (exhibit R2). In oral evidence she said that the respondent stays at her home at weekends. She said that she came to know the respondent after she and Mr Sparks had separated. She said that she and the respondent spend a lot of time together over the weekend and the respondent would only return to her home in that time if her husband had to go to work. Mrs Green said that she believed the respondent was in another relationship but said the respondent is a private person and she did not discuss this with her.
26. In a statement dated 16 November 2004 (exhibit R3) Ms Kylie Ashman stated that she had met the respondent when they both worked at Locheal Nursing Home some nine years previously. She stated that she understood that the marriage between the respondent and her husband was at an end and she was aware that the respondent had left her children with Mr Sparks while dealing with her depression. Ms Ashman stated:
“I am aware that she has been living in with the children during the week and away at weekends. Some weekends she has stayed with me. She doesn’t like to impose and has stayed some 4 to six weekends this year.
I also provide the ATTACHED undated statement for Centrelink to contact me about Allison Sparks staying with me. So far nobody has.”
CONSIDERATION OF THE ISSUES
27. The respondent and Mr Sparks both gave evidence. The evidence of each was broadly consistent with that of the other. Their evidence concerning the living arrangements at the house was supported by the evidence of others who were in a position to know about a key aspect, that is, that at times when one of the parents is living at the house with the children, the other is not.
28. The Tribunal concluded that the respondent and Mr Sparks gave an honest account of the present arrangements at the Peninsula Drive residence and the history of their relationship in recent years. The Tribunal accepts that they are truthful in their account and their evidence can be relied upon in order to take into account those matters to be addressed under s4(3) of the Act.
29. In Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, the Federal Court discussed the approach to making this overall assessment:
“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 makes 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.
It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a check list and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based. (at 32 FCR 170)
In Re Peck and SDSS (1992), a case decided under the 1991 Act, the Tribunal cited Staunton-Smith as authority for the proposition that ‘s4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a ‘marriage-like relationship’ exists…and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship (transcript at p 7).”
30. The legislation provides that a person will be considered to be a member of a couple if the requirements of s4 of the Act are met. Under consideration here is paragraph 2(a). Section 4(2)(a) of the Act provides as follows:
“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; or”
31. Section 4(3) of the Act sets out the matters to be considered when forming an opinion about the nature of a relationship. That section provides as follows:
“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.”
32. The Tribunal makes the following findings of fact based upon the oral and written evidence:
(i)Mr Sparks and the respondent were married on 30 April 1994 and are not divorced.
(ii)They do not own property jointly, have no significant assets and no joint bank accounts.
(iii)They share the use of the Peninsula Drive residence where the respondent stays overnight from Monday to Thursday and Mr Sparks stays overnight from Friday to Monday and where the children live at all times.
(iv)The accommodation is a three bedroom unit and Mr Sparks and the respondent use different bedrooms even though they are not there at the same time.
(v)Household duties are kept separate.
(vi)The respondent pays all of the rent, electricity and child care expenses. Mr Sparks pays for telephone and food when he is at the house and for the children’s clothing and schooling expenses.
(vii)Mr Sparks and the respondent share the care of the children.
(viii)They attend school events and children’s birthdays but otherwise their social lives are separate.
(ix)The respondent does not rely on Mr Sparks for emotional support and interactions are focussed on the children.
(x)The respondent and Mr Sparks intend to divorce and the paperwork for this has been completed.
33. Ms Dwyer submitted that the decision must be made on the basis that s4(3) does not provide a simple tick-list and all relevant circumstances must be taken into account. She submitted that the SSAT were incorrect to decide the case in the respondent’s favour on the state of the evidence before them, though she acknowledged that based on the evidence before the Tribunal there were no substantial issues of credit. She submitted, however, that nevertheless the balance of evidence pointed to a continuing relationship of man and wife between the respondent and Mark Sparks.
34. Mr Stannard submitted the decision must be made by weighing up all the evidence. His comprehensive Statement of Facts and Contentions was exhibit R1.
35. The respondent’s honesty has not been questioned and the Tribunal considered that she could be relied upon as giving an accurate and truthful account of how the household between herself and Mark Sparks had operated and about the other matters that have to be taken into account under the Act, as set out in s4(3). The Tribunal notes also that the evidence in regard to factual matters has changed very little over the course of the review process, though the Tribunal agrees that the evidence now is more comprehensive and is supported by independent sources. The Tribunal finds as follows on the statutory considerations which, amongst others, are relevantly to be taken into account.
(a) Financial Aspects of the Relationship
36. The respondent and Mr Sparks have continued some financial interactions, including those for insurance, from the time of their marriage and previous residence at the Gleneagles Avenue residence. However, the respondent reimburses Mr Sparks for amounts paid for insurance and has now taken steps to alter the arrangement. Other aspects of the financial pattern reflect their clearly separate occupancies of the house. It must be remembered that each has responsibility for the wellbeing of the three children of the marriage and the pattern of their spending is a mixture of careful separation according to the periods of time that each is at the Peninsula Drive residence, and other patterns that reflect convenience and are explained without pointing to a continuance of the marriage. There are no joint bank accounts and no substantial assets. There was nothing on the evidence before the Tribunal on financial matters that points to Mr Sparks supporting the respondent, rather than fulfilling his obligations as a parent to the children of the marriage.
(b) Nature of the Household
37. The nurture and support of children is a feature of marriage and can point to continuity of a married relationship. However, obligations for the upbringing and care of children continue after a marriage breaks down and the Tribunal was here satisfied that the sole focus of each parent is upon the stability of a home for the children and there is no aspect of continuity of the married relationship that they once had with each other. There is no interaction in the household on a day-to-day basis that involves the presence of the respondent and Mr Sparks at the same time, apart from Mr Sparks spending time with the children for homework. The Tribunal notes the evidence of both Mr and Mrs Sparks that they will frequently pass each other in the cars going to and from the estate in which the Peninsula Drive residence is located. The fact that each is welcome to see the children at times when the other is in residence with the children does not point to the marriage continuing, given the unusual circumstances of the case.
(c) Social Aspects of the Relationship
38. The Tribunal accepts the evidence that neither party holds themselves out as married, and this is corroborated by Ms D Green and Ms T Robinson. The families of each know of the situation and the breakdown of the marriage. The Tribunal accepts that the only social interaction involves the children and notes that on those occasions the respondent and Mr Sparks travel separately to attend the function.
39. The Tribunal was satisfied on the evidence of both that the marriage irretrievably broke down in February 2001 and that the pattern of interaction and the way that decisions have been made about care and where the children would live since that time has been affected by the respondent developing post natal depression after Wesley’s birth.
(c) Sexual Relationship
40. The Tribunal was satisfied that there is no sexual relationship and accepts the evidence of Ms Green and Mrs Robinson that to their knowledge both Mr Sparks and the respondent have been in other relationships since the marriage broke down.
(d) Commitment
41. The Tribunal was satisfied that the only commitment is to children. The parties to the marriage have plans to divorce and the Tribunal accepts their evidence that the delay has been inadvertent and should not be taken as pointing to continuity of the marriage.
42. The Tribunal was referred to the Tribunal decision in Secretary, Department of Family and Community Services and McQueeney [2004] AATA 831 and agrees that as in that case the parties here have developed, for the sake of the children, a workable relationship based on the care of the children and in this case influenced by the respondent’s very real health issues with post natal depression.
43. Having regard to the totality of the evidence the Tribunal was satisfied that the respondent and Mr Sparks were living separately and apart and not members of a couple at the time of the claim, or at any time since.
DECISION
44. For reasons given orally the Tribunal affirms the decision under review.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Denise Burton
Administrative AssistantDate/s of Hearing 19 November 2004
Date of Oral Decision 22 November 2004
Date of Written Reasons 6 January 2005
For the Applicant Ms J Dwyer, Departmental Advocate
For the Respondent Mr J Stannard, Welfare Rights Centre
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