Stevens and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 745

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 745

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2349

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		Ronald Stevens

Applicant

And Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

Respondent

DECISION

Tribunal Mr G L McDonald, Deputy President

Date30 September 2010

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and substitutes a decision that the applicant is to be paid the age pension at the single rate from 15 September 2009.

......(Sgd G L McDonald).......

Deputy President

CATCHWORDS

Social Security - Age Pension - Partnered or Single Rate - Whether living separately and apart from spouse on a permanent or indefinite basis - Criteria for determination - A balancing of all the facts – decision set aside

Social Security Act 1991 (Cth), s 4

Social Security (Administration) Act 1999 (Cth), s 39(3)

Re Secretary, Department of Family and Community services and “VBH” and Another (2006) 89 ALD 293

REASONS FOR DECISION

30 September 2010 Mr G L McDonald, Deputy President

1.      The applicant is seeking review of the decision of the respondent, affirmed on review by the Social Security Appeals Tribunal, that he was entitled to be paid the age pension at the partnered rate.  He claims he should be paid at the single rate.

2.      Mr Stevens made an application to be paid the pension at the single rate on 15 September 2009.  The Tribunal is limited to considering his circumstances to the period of 13 weeks from the time he applied.  Events which have occurred subsequently may, however, be relevant to shed light on the circumstances as they existed prior to the expiration of the 13 weeks from 15 September 2009[1].

3.      At the hearing, the applicant presented his own case.  The only evidence he tendered was an aerial photograph of the property where he lives to show that it contains three separate buildings.  Mr B Wee represented the respondent. 

4.      The Social Security Act 1991 (the Act) defines “partner” in s 4(1) as follows:

“partner”, in relation to a person who is a member of a couple, means the other member of the couple;

Section 4(2) of the Act is as follows:

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

…

and s 4(3) of the Act provides:

In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a)… the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a)the financial aspects of the relationship, including:

(i)any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)any significant pooling of financial resources especially in relation to major financial commitments; and

(iii)any legal obligations owed by one person in respect of the other person; and

(iv)the basis of any sharing of day-to-day household expenses;

(b)the nature of the household, including:

(i)any joint responsibility for providing care or support of children; and

(ii)the living arrangements of the people; and

(iii)the basis on which responsibility for housework is distributed;

(c)the social aspects of the relationship, including:

(i)whether the people hold themselves out as married to … each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d)any sexual relationship between the people;

(e)the nature of the people’s commitment to each other, including:

(i)the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see their relationship as a marriage-like relationship…..

5.      There is no dispute about the facts, which the Tribunal is satisfied are as follows:

(a)The applicant married his wife, Wendy, on 18 June 1994 at which time they had been in a relationship for approximately 12 years.  Each had been married before.  Mr Stevens had four children from his previous marriage and his wife three from her previous marriage;

(b)Mr Stevens is currently aged 73 years and Mrs Stevens is 60 years;

(c)Mr and Mrs Stevens jointly own a property at 98 Boldrewood Parade Reservoir (the property).  Mr Stevens told the Tribunal, and the Tribunal accepts, that their wills provide that upon the death of one of them the other has the right to remain living on the property, but upon the death of the survivor the property is to be sold and the proceeds split equally between their seven children;

(d)The property contains three independent living quarters built on it: the house, which is occupied by Mrs Stevens and from where she operates a childcare business; a granny flat occupied by Mrs Stevens’ mother, until she passed away in December 2009; and a studio, being converted from a double garage, where Mr Stevens lives and has a workshop - plus, the studio has its own entrance;

(e)In late 2005, one of Mrs Stevens’ daughters and her three young children came from New Zealand to live in the house, which until that time was occupied by Mr and Mrs Stevens.  Mr Stevens found the larger family too stressful to live with and removed himself to the studio, which he was then in the process of converting;

(f)In early 2006, Mrs Stevens, her daughter and the three children returned to New Zealand to undertake custody proceedings in respect of the children.  It was anticipated that Mrs Stevens would be away for a few weeks, but she in fact returned in August 2006.  The relationship between Mr and Mrs Stevens came under strain as the result of her longer than anticipated absence;

(g)During Mrs Stevens absence, Mr Stevens applied and was granted payment of the age pension at the single rate;

(h)By the time Mrs Stevens returned home, accompanied by her daughter and the three children, Mr Stevens had finished the renovation of the studio which was, except for a laundry facility, self contained;

(i)Mr and Mrs Stevens have not, in the period following at least from 15 September 2009, shopped, cooked meals for each other or dined together;

(j)It was agreed between Mr and Mrs Stevens that he would undertake the household maintenance in exchange for Mrs Stevens doing his washing.  Mr Stevens also voluntarily continued to assist his wife in her childcare business by driving children to and from their homes and schools.  Mr Stevens remained a certified co-carer until that classification was abandoned by the Federal Government in 2010;

(k)While Mr and Mrs Stevens maintained separate bank accounts, they shared a cheque account.  Mr Stevens described the cheque account as being one of convenience, whereby either of them would deposit money for purposes of enabling a cheque to be issued to pay a specific account that either had incurred.  Mr Stevens said that the account was closed in early 2010;

(l)Mrs Stevens pays for the landline telephone and Mr Stevens for the internet account.  Both of them enjoy the use of both facilities, although Mr Stevens said he only answers the landline when he knows Mrs Stevens is not at the property and that her use of the internet is, because of the plan he pays for, cost neutral to him, regardless of how much it is used;

(m)Mr and Mrs Stevens do not have, and have not had, a sexual relationship for some time prior to 15 September 2009;

(n)Mr and Mrs Stevens do not socialise together, except for visiting the still young children of two families for whom Mrs Stevens used to provide childcare and for the occasional visits to Mrs Stevens’ two other children;

(o)Household utility bills are still issued in joint names.  Mrs Stevens commenced paying the house power bills prior to September 2009.  The power to the studio is separately routed through the premises previously occupied by Mrs Stevens’ mother.  Mr Stevens contributed to the payment by Mrs Stevens’ mother when she was alive and, since her death, has paid the bills for the cottage and the studio.  Subsequent attempts by Mr Stevens in 2010 to have the utility bills transferred in the names of each responsible for the payments, including his arranging a different supplier have proved administratively problematic;

(p)Both Mr and Mrs Stevens have a car.  Mr Stevens said he stopped paying for the maintenance and the fuel costs for Mrs Stevens’ car in 2008, except for one maintenance payment in 2009;

(q)Mrs Stevens’ daughter and her three children moved into their own rented accommodation at the end of 2009.  The accommodation is located near to the Stevens’ property.  Mr Stevens, while disagreeing with the extent of the support his wife gives to her daughter and the daughter’s three children, still occasionally drives the children to and from school;

(r)Mr and Mrs Stevens enjoy a civil, but perhaps cold, relationship, each appreciating the need for them both to remain living at the property for financial reasons.  However, Mr Stevens said that if he or his wife became ill he anticipated the other would provide support, as would or might be expected from a good neighbour; and

(s)Mr Stevens, in August 2010, instructed his solicitors to commence divorce proceedings, and he expressed the desire to the Tribunal that the property be subdivided with him having the rear section (consisting of the self contained flat and the studio) in his name and the balance being vested in Mrs Stevens’ name. 

6.      Mr Stevens told the Tribunal, and the Tribunal accepts, that he and his wife have not divulged their separation to others.  This was for several reasons, namely that:

(i)it was not the business of others to know what state their relationship was in, and that Mr Stevens valued his privacy on this issue, and

(ii)it may have been damaging to Mrs Stevens’ childcare business (particularly when he was still assisting her in driving children), and

(iii)it may be detrimental for the young grandchildren (of whom there are 14 between their families).

However, Mr Stevens did say that the owners of the franchise of the childcare business had been informed in September 2009, and that all but one of his four children (that being the eldest child with whom he has little contact) and Mrs Stevens’ children all knew.

7.      After applying to the Tribunal, Mr Stevens said that he was advised, since the circumstances existing between he and his wife had become more apparent as 2010 had progressed, that he should consider lodging a new application with the respondent.  He told the Tribunal that he has attempted to do that, but he was discouraged by officers of the respondent.  No new application has been lodged by the applicant.

8.      In deciding whether a person is a member of couple, a decision maker is required to have regard to “all of the circumstances”[2].  The ”particular” matters set out in s 4(3) of the Act are there to inform a decision, but they are not either individually or collectively determinative.  The Tribunal agrees that largely the decision is to be based on an objective assessment of the facts as distinct from the subjective view of either or both members of the couple[3].  It is not, however, necessarily easy to decide the time at which a married relationship has permanently ended. 

9.      The Tribunal found this a difficult case to decide.  It concerns a relationship which has slowly deteriorated over a number of years since 2006.  There is no doubt that Mr Steven’s giving instructions to his solicitors to commence divorce proceedings is a definitive circumstance.  This, however, occurred eight or nine months after the period relevant to the Tribunal’s decision.  There is no such defining event apparent in the 13 weeks following Mr Stevens’ application to be paid at the single rate.  That, however, is not in itself determinative.

10.     The Tribunal accepts that Mr Stevens disagreed with his wife over the degree of support she was providing to her daughter and the three children, which he regarded as excessive, and that this was the major divisive factor between them.  Initially, Mr Stevens participated in providing financial support with airfares to New Zealand, but he found that he could not afford to continue doing so.  The unanticipated length of time Mrs Stevens spent in New Zealand led to a further deterioration of the relationship of Mr and Mrs Stevens.  Mr Stevens told the Tribunal that as of March 2006, there was no way he and his wife could reconcile.  It is fair to find, and the Tribunal finds, that by the close of 2006 the relationship between Mr and Mrs Stevens was strained and that thereafter their relationship slowly worsened, rather than improved.

11.     Counsel for the respondent, in his closing submission, stated that the resolution of this issue depended on balancing those facts that supported and those that detracted from the applicant’s claim.  He argued that, on balance, the fact that Mr and Mrs Stevens presented as a couple and that there was a residual financial commitment (in terms of their wills and the joint tenancy of the home) indicated that they were not living separately and apart.  However, the Tribunal does not attach the same weight to these facts.  By early December 2009, while there was some mutual support given by each to the other, the circumstances were such that, despite the desire for the separation of an account and the names in which utility accounts were sent (as distinct from who assumed responsibility for the payment of those accounts) and attending some family and close friends’ functions, the relationship as a couple had effectively ended.  The Tribunal is satisfied that action taken in 2010 to formalise the separation is indicative of their relationship having ended, rather than indicative of a continuing relationship in the process of finishing.

12.     Total conflict between former married couples is not a necessary hallmark that their relationship as a couple has ended.  Both Mr and Mrs Stevens were living separate lives while each provided, and continues to provide, some support for the other.  Such support does not arise as the result of any existing relationship, but as the result either of mutual financial necessity or out of consideration for a past, and permanently, finished relationship.

13.     For the above reasons, the Tribunal is satisfied that as at the close of the 13 week period following 15 September 2009, Mr and Mrs Stevens were living separately and apart, not living as a couple.  It follows that Mr Stevens is entitled to be paid the age pension at the single rate from 15 September 2009.  The Tribunal, therefore, sets aside the decision under review and substitutes a decision that the applicant is to be paid the age pension at the single rate from 15 September 2009.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr G L McDonald, Deputy President

Signed:         ...........(Sgd D De Andrade)..........
  D De Andrade, Personal Assistant

Date of Hearing  23 September 2010
Date of Decision  30 September 2010
For the Applicant  self represented
Solicitor for the Respondent     Mr B Wee, DLA Phillips Fox

[1] Section 39(3) of the Social Security (Administration) Act 1999 (Cth).

[2] Section 4(3) of the Act.

[3] Re Secretary, Department of Family and Community services and “VBH” and Another (2006) 89 ALD 293 at 310.