Tania Sharp and Secretary, Department of Social Services
[2015] AATA 127
•6 March 2015
[2015] AATA 127
Division GENERAL ADMINISTRATIVE DIVISION File Number
2015/0034
Re
Tania Sharp
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Regina Perton, Member Date 6 March 2015 Place Melbourne The Tribunal affirms the decision under review.
...........[sgd].............................................................
Regina Perton, Member
SOCIAL SECURITY - parenting payment (single) - whether member of a couple – decision affirmed.
Social Security Act 1991 ss 4(2), 4(3)
Lynam v Director-General of Social Security (1983) 52 ALR 128
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164REASONS FOR DECISION
Regina Perton, Member
6 March 2015
Tania Sharp is a mother of three children. Her eldest child is a young adult. The younger children have the same father, Darren O’Brien, and were born in November 2009 and August 2014 respectively. Ms Sharp and Mr O’Brien are not married and both are adamant that they are not in a de facto relationship. They live in the same property which was purchased in both their names. They have separate bedrooms on different floors in the three storey property.
On 26 May 2014 Centrelink cancelled Ms Sharp’s parenting payment (single) (PPS) on the basis that she and Mr O’Brien were members of a couple. However, for approximately two years prior to that, Centrelink accepted that they were sharing premises but that they were not a couple.
Ms Sharp sought review of the decision. On 25 September 2014 an authorised review officer (ARO) affirmed the decision as did the Social Security Appeals Tribunal (SSAT) on 25 November 2014. On 5 January 2015 Ms Sharp lodged an application for review with this Tribunal.
The issue before the Tribunal is whether Ms Sharp was a member of a couple on 26 May 2014 when her PPS was cancelled
WAS MS SHARP A MEMBER OF A COUPLE ON THE RELEVANT DATE?
Section 4 of the Social Security Act 1991 (the Act) sets out the criteria for deciding whether a person is a member of a couple:
4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)…
(aa) …
(b) all of the following conditions are met:
(i) the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner );
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph … (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, or in a de facto relationship with, 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 or a de facto relationship.
In determining whether two people are living in a marriage-like relationship under the Act, O’Loughlin J, in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170, referred to the list of circumstances in s 4(3) of the Act:
It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
French J, in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, dealt with ss 4(2) and 4(3) of the Act in the context of an application for a carer payment. He referred to the decision in Staunton-Smith and to the decision of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128. He stated that in determining whether a marriage-like relationship exists under the Act, the nature of the exercise is much the same as that required under the statutory formula used in Lynam and Staunton-Smith. In Lynam, Fitzgerald J said, at 131:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
The Full Federal Court, in Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92 (Pelka No. 2) (which followed a rehearing by a differently constituted Tribunal following the 2006 Pelka decision by French J) stated (at paragraph 24):
There is nothing in s 4(3) that requires the relevant decision maker to make a finding of fact as to any of the matters specified in that provision. Rather, the decision maker is required to have regard to all the circumstances of the relationship, including the specified matters, in forming an opinion about the relationship between two people. Having regard to a matter does not require making a finding of fact about that matter…
At paragraph 30 of Pelka No. 2, the Court stated:
The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person…
HISTORY OF THE RELATIONSHIP
Ms Sharp and Mr O’Brien met in 2004 in a pub. They had grown up in the same outer Melbourne suburb and have many friends and acquaintances in common. They had an intermittent relationship for several years. The relationship became strained when Ms Sharp fell pregnant with their first child. Ms Sharp indicated that they broke up in mid-2009 when she was five months pregnant.
Mr O’Brien was not present at their son’s birth and initially would not sign the birth certificate. The Tribunal notes that the child has his mother’s surname. Mr O’Brien’s parents wanted to see their grandchild which led to Mr O’Brien and Ms Sharp reopening communication channels when the child was a few months old.
When her son was about two years old, Ms Sharp and the child moved into a unit owned by Mr O’Brien. Ms Sharp had previously been living with her mother in a small caretaker’s cottage in a rural area and it was difficult for them all to share the premises due to a lack of space.
Then and now, Mr O’Brien had a skilled job that frequently required him to work interstate five days a week. When he returned for weekends, Ms Sharp either went to her mother’s home or slept in the second bedroom.
Ms Sharp and Mr O’Brien made private arrangements for child support whereby he paid for some household expenses in lieu of formal child support arrangements. Such arrangements continue with Ms Sharp reimbursing Mr O’Brien for mortgage and utility payments.
In 2012, Ms Sharp and Mr O’Brien bought a three storey, four bedroom home together so that their son had a better environment. This also enabled Mr O’Brien to spend time with his son when he was home. The ground floor has two bedrooms, a living area and bathroom, the middle level comprises the kitchen and living areas and the top level has two bedrooms and bathroom. Ms Sharp and the children sleep on the top level and Mr O’Brien on the ground level. Mr O’Brien provided the deposit for the property.
In January 2014, Ms Sharp announced on Facebook that she was pregnant and that Mr O’Brien was the father. The respondent’s solicitor provided the Tribunal with copies of the publicly available Facebook post made at that time. Ms Sharp posted the following announcement on 29 January 2014:
To all of our family and friends
The time has come to tell you some exciting news.
We are expecting a little girl in August J fingers crossed all goes well xxx – with Darren O’Brien
Congratulatory comments were posted from friends and family throughout the evening and the next day. Ms Sharp responded to most of those promptly with comments including:
Thanks … it’s been a long road
…
… we had two miscarriages last year so this is the best news for us…
…
…Thanks… we are over the moon!!
Ms Sharp told the Tribunal that the two pregnancies which ended in miscarriages were not the outcome of an ongoing sexual relationship with Mr O’Brien. They were the result of brief sexual encounters with other persons. She said that as she and Mr O’Brien were not in a relationship, each was free to mix with others. Their agreement was that neither would bring another person home so as not to affect their son.
The Tribunal took evidence from Mr O’Brien by telephone at the request of the respondent. Mr O’Brien stated that their daughter had been conceived as the result of a one-off sexual encounter. He had not been a party to the earlier pregnancies that resulted in the miscarriages.
Ms Sharp and Mr O’Brien indicated that they share a home to enable their son to see both parents without having to constantly move between homes for each of them to have time with him. They independently said that their living and financial arrangements were developed just for the sake of the child. As Mr O'Brien is away from home during the week, he is able to see his son on weekends. This allows for toys, clothes and the like not having to be duplicated and for the child to sleep in his own room.
Mr O’Brien was adamant that if Ms Sharp was not receiving assistance from Centrelink or working, he would not provide financial or other support to Ms Sharp. Both said that they would have to sell the house which needs quite some work if Ms Sharp’s payments were not restored. The house has defects of which they were not aware when they bought the property.
Financial aspects of the relationship
On 26 May 2014 Ms Sharp lived in a property purchased in both Mr O’Brien’s and her name. The Tribunal was provided with a copy of a title search which showed that Ms Sharp and Mr O’Brien had become joint proprietors of the property on 26 October 2012. There is a mortgage on the property. Both Ms Sharp and Ms O’Brien did not appear to be fully aware of the consequences of being joint proprietors in terms of what would happen if one of them died. They both appeared to believe that they could bequeath their half share of the property to their children.
Ms Sharp pays half of the mortgage to Mr O’Brien who arranges payment. He pays the rates and utility bills with Ms Sharp reimbursing him for her half. Ms Sharp and Mr O’Brien hold separate bank accounts. Ms Sharp prefers to make payments in cash and withdraws her social security benefits from her bank account and pay Mr O’Brien. They each bear half of the cost of utilities with some accounts being in Mr O’Brien’s name and some in Ms Sharp’s.
Payment of child support is not through the Child Support Agency. Rather, Mr O’Brien gives regular amounts to Ms Sharp to pay for groceries and the like.
Ms Sharp does not have a will. Mr O’Brien in his oral evidence stated that Ms Sharp is not a beneficiary of his will. One of his friends is the executor and trustee of the children’s inheritance if they are not adults upon his death.
Mr O’Brien is very private about his financial circumstances. Ms Sharp said that she does not know what his income is. He will not provide details of his earnings to Centrelink to enable Ms Sharp to find out if she qualifies for any payments on the basis of being partnered. Mr O’Brien maintains that he does not need to provide information as he is not in an ongoing relationship with Ms Sharp.
The nature of the household
Ms Sharp and Mr O’Brien lived in the same property on the relevant date. They had separate bedrooms on different levels of the home. They both said that they had bought the home together primarily to ensure security and a stable environment for their son. Their son was their priority with both parents taking responsibility for the child. Ms Sharp generally cared for him during the week with Mr O’Brien taking or sharing care on weekends. On the relevant date Ms Sharp was pregnant with their second child.
In terms of housework, Ms Sharp generally does the cleaning of the shared areas and her level of the house. Mr O’Brien tends to do the heavier work outside when he is home. They each do their own washing. Ms Sharp cooks for herself and her son. If Mr O’Brien is at home, he may sometimes eat with them or heat leftovers. He told the Tribunal that Ms Sharp’s tastes and his do not necessarily match and he arranges his own meals much of the time. Ms Sharp usually does the grocery shopping using the money Mr O’Brien gives her. Mr O’Brien is away during the week and she has to go to the supermarket in any case so she buys all the cleaning products and the like.
The social aspects of the relationship
Ms Sharp told the Tribunal that she and Mr O’Brien do not hold themselves out as a couple. She said that neighbours could think that they were a couple but that relatives and close friends know that they are not a couple, merely parents who care about their children and share a house for pragmatic reasons.
Ms Sharp’s mother, Julie Sharp provided a statement which was presented to the Tribunal at the hearing. She addressed some of the issues that were raised in the SSAT’s decision:
I am writing on behalf of my daughter Tania Sharp who resides at … with her ex partner and the father of her two youngest children Mr O’Brien. Tania lives there through the week while Mr O’Brien works away interstate and when he returns on weekends she comes here to stay while he has his turn with the children and she can have some time on her own to socialize there making a home for the children without being in a relationship
They separated in 2009 while Tania was 5 months pregnant …
Some points that she wanted clarified are
1. Christmas day – every year is different as we all take turns at having lunch, Tania has two brothers and last year was at her younger brothers house this year coming will be at her older brothers house and the year of 2013 was at her place we all left around 2pm also having other places to go and as Mr O’Brien (Darren) had his family coming over for dinner having our left overs
2. Mr O’Brien lives on the lower level of her 3 storey home which has its own bathroom, kitchenette and bedroom downstairs also consists of the kids toy room which is the only area downstairs that Tania cleans
3. Tania resided with me until 2011 when she was offered use of Mr O’Briens unit while he travelled for work whilst she was here she slept on my couch and her son …slept with me making the conditions tight and undesirable for all I am not sure how we will all cope if she has to move back in as a there is now an extra child and space is limited
4. Tania and the kids come here on a Sunday nights for dinner as does her younger brother for a family roast (Mr O’Brien does not attend) …
5. I have been the birthing partner for Tania for all 3 of her children the first as she was so young and the other two as she had no one else Mr O’Brien was not present at …[his son’s] birth but was for…[his daughter’s] staying out of the way until the baby was born, Tania had two miscarriages in 2014 and to my knowledge neither were Mr O’Brien’s…
The Tribunal spoke by telephone with Julie Sharp who was caring for Ms Sharp’s children while Ms Sharp attended the hearing. She maintained that Ms Sharp and Mr O’Brien are only together for the sake of the children. Both children suffer from medical conditions.
Cindy Dale of the local Maternal and Child Health centre provided a statement dated 17 February 2015 in which she stated that Ms Sharp and her daughter had attended the centre regularly since the baby’s birth in August 2014. She went on to state:
…On several occasions during consultations Tania has discussed with me her living conditions. Tania has disclosed that she is estranged from …[her daughter’s] father Darren O’Brien. Tania has told me that although she and Darren are estranged they live in the same house but lead totally separate lives emotionally, financially and physically.
Ms Sharp told the Tribunal that she and Mr O’Brien are sometimes invited to the same function as they mix in the same circles. She said that they are invited separately.
Ms Sharp and Mr O’Brien regularly holiday in a camping ground near a lake. They started doing so when they were together but holidays at the location have continued despite the change in their relationship. They stayed there as from Boxing Day 2013 (Facebook entry). Ms Sharp said that they had use of other people’s vans and had stayed in a two bedroom van on some occasions and, more recently, in separate caravans. Ms Sharp has become friendly with many people at the camping ground and she vacations there even when Mr O’Brien may not be doing so. One of the people she met there is now Ms Sharp’s hairdresser.
Any sexual relationship between the people
Mr O’Brien is the father of Ms Sharp’s two younger children. On 24 May 2014 Ms Sharp was almost seven months pregnant with their daughter. Ms Sharp and Mr O’Brien stated that they had a sexual encounter one night due to Ms Sharp’s emotional state which led to the conception of their daughter. They both stated that apart from the one occasion in late 2013, they have not had a sexual relationship since before their son was born in 2009. The Tribunal is not in the position to query the evidence given about the sexual relationship between Ms Sharp and Mr O’Brien beyond finding that there had been a resumption of that relationship on at least one occasion during late 2013.
The nature of the people’s commitment to each other
Ms Sharp and Mr O’Brien met in 2004. They have an ongoing commitment to each other due to their responsibilities for the children. They both stated that they intended to maintain their living arrangements for an indefinite period.
Both Ms Sharp and Mr O’Brien have stated that they do not see themselves as being in a de facto relationship.
Mr O’Brien still owns the unit where Ms Sharp resided in 2011. It is rented out to Ms Sharp’s adult son who pays rent directly to Mr O’Brien. Mr O’Brien said that he is charging a market rental price as there are no agent’s fees when it is a direct payment. Mr O’Brien said, and Ms Sharp confirmed, that Mr O’Brien does not want Ms Sharp’s elder son to live under the same roof as the two younger children and him. Mr O’Brien stated that he does not approve of the elder son’s language or general behaviour.
Conclusions
Ms Sharp’s and Mr O’Brien’s decision to live in the same property owned jointly by them is not a factor that of itself leads to a finding that they are living as members of a couple. However, on 24 May 2014 there was more to their relationship than living in the same property.
The Tribunal is satisfied that Ms Sharp did not deliberately set out to create a false impression of being single. The Tribunal accepts that she may well have genuinely believed her circumstances could be described as those of a single parent for social security purposes. She and Mr O’Brien both told the Tribunal that Centrelink had confirmed that it was okay to purchase a house together and to share it and were told it was.
On 26 May 2014, Ms Sharp was pregnant with Mr O’Brien’s child. When announcing the pregnancy on Facebook, her use of the word we, the exciting news, the long road and the congratulations sent to her and Mr O’Brien all seem to point to a desired baby that both her parents-to-be were excited about. Unlike the birth of Mr O’Brien’s first child, this time he attended the birth, albeit allowing Julie Sharp to have the prominent role in supporting Ms Sharp.
In terms of their sexual relationship, there had been, at the very least, a brief resumption of their sexual relationship more than four years after their separation in mid-2009. That resumption resulted in the pregnancy. The Tribunal accepts that there may not have been a sexual relationship between them for some time before the brief resumption in late 2013. The Tribunal is not in a position to make further definitive findings about the sexual aspects of the relationship.
In financial matters, notwithstanding Ms Sharp’s comments that she receives no financial assistance from Mr O’Brien, it is actually not quite as black and white as Ms Sharp’s perceptions. Ms Sharp would not have been living in that property had Mr O’Brien not paid the deposit. She was not in the situation to purchase a house without Mr O’Brien’s support. While she stated that she reimbursed him for mortgage payments, rates and utility bills, which can unfortunately not be verified due to the payments being in cash, it was Mr O’Brien who initially made the payments and ensured that they were on time. The purchase of the property as joint tenants, meaning that if one of them died, the other would be entitled to the property is also an objective indicator of the way a couple would purchase the property. As indicated above, it seems that both purchasers were not aware of the consequences of buying as joint tenants rather than tenants in common but the current proprietorship objectively indicates a pooling of financial resources.
Taking into account all the required criteria as a whole, the Tribunal finds that Ms Sharp was a member of a couple on 26 May 2014.
If the Tribunal were determining if they are members of a couple as at the date of this decision rather than as at 26 May 2014, the conclusion may not necessarily have been the same as the one reached here. However, the current state of the relationship between Ms Sharp and Mr O’Brien is not something the Tribunal has been called on to determine.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 46 (forty -six) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member .......[sgd].................................................................
Associate
Dated 6 March 2015
Date of hearing 18 February 2015 Applicant In person Solicitors for the Respondent Ms Kellie Latta, Sparke Helmore
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