Teresa Tsangaris and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 185
•30 March 2012
[2012] AATA 185
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5077
Re
Teresa Tsangaris
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC
Date 30 March 2012 Place Brisbane (heard in Darwin) The decision is affirmed.
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Deputy President P E Hack SC
Catchwords
SOCIAL SECURITY – Benefits and Entitlements – rate of payment – member of a couple – partner in gaol – specified rate in statute – special discretion not exercisable – decision affirmed
Legislation
Social Security Act 1991 (Cth) ss 4(1), 4(3), 4(3A), 24(2), 1068B(1), 1068B – C(2)
Cases
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546
Re Secretary, Department of Social Security and Porter [1997] AATA 137REASONS FOR DECISION
Deputy President P E Hack SC
30 March 2012
The applicant, Ms Teresa Tsangaris, is the mother of three children under the age of six years. Ms Tsangaris has been in a long term relationship since January 2006 with the father of the children, Mr Simon Goss.
In December 2010 Mr Goss was sentenced to a term of imprisonment. His earliest release date is not until June 2013. When he was sentenced Ms Tsangaris made application to Centrelink for parenting payment. The claim was accepted and Ms Tsangaris has been receiving parenting payment with effect from 13 December 2010.
The issue in this case is the rate of payment. To date, Ms Tsangaris has been paid a rate described as “partnered (partner in gaol)”, presently a basic amount of $347.80. Ms Tsangaris contends in these proceedings that she should be paid as if she was not partnered. She would then receive a higher rate.
Section 1068B(1) of the Social Security Act 1991 (Cth) provides that, if a person is a “member of a couple”, the rate of parenting payment is the “benefit PP (partnered) rate”, worked out in accordance with a rate calculation at the end of s 1068B of the Act. Section 1068B – C(2) of the Act is also relevant. It provides:
If a person is not a CDEP Scheme participant in respect of the whole or part of the period for which the rate of payment is being worked out, the person's maximum basic rate is worked out using Table C. Work out the person's family situation. The maximum basic rate is the corresponding amount in Column 3.
Table C--Maximum basic rates
Column 1
Item
Column 2
Person's family situationColumn 3
Rate
1
Person not covered by item 2, 3 or 4
$290.10
2
Member of illness separated couple
$347.80
3
Member of respite care couple
$347.80
4
Partnered (partner in gaol)
$347.80
Thus the first question is whether Ms Tsangaris was and is a member of a couple whilst her partner is in gaol. A person is a member of a couple if, relevantly,
(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.
The matters that inform the opinion are set out in s 4(3) of the Act in these terms,
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, 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.
It is relevant to note, as well, s 4(3A) of the Act which prevents the Secretary, and this the Tribunal, from forming an opinion that a relationship is a de facto relationship “if the person is living separately and apart from the partner of a permanent or indefinite basis”.
Finally, s 24(2) of the Act needs to be considered. It provides,
Where:
(a)a person has a relationship with another person, whether of the same sex or a different sex (the partner ); and
(b)the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a de facto relationship; and
(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
Ms Eden, the solicitor for Ms Tsangaris, submitted that if, contrary to her primary contention, it was found that Ms Tsangaris was in a de facto relationship with Mr Goss, then the discretion in s 24 of the Act ought be exercised favourably to Ms Tsangaris.
There is no doubt that, except for Mr Goss being in gaol, he and Ms Tsangaris would be regarded as being in a de facto relationship. The question is whether the fact of him being in gaol to June 2013 at least leads to a different conclusion. In my view it does not. The task, as French J (as His Honour then was) said in Pelka v Secretary, Department of Family and Community Services[1], is to have regard to the interpersonal relationship as a whole, not limited by the five factors listed in paragraphs (a) to (e) of s 4(3) of the Act. It is artificial to consider each of those factors seriatim given that the enforced separation has an effect on many of them. But what remains a constant, even with the separation, is the mutual commitment; the parties regard themselves as being in a de facto relationship and do not intend the present separation to sever the relationship. The expectation is that it will continue unabated after Mr Goss is released.
[1] [2006] FCA 735; (2006) 151 FCR 546.
I conclude then that Ms Tsangaris is, and was at all material times, a member of a couple.
That being so, it is necessary to consider whether the discretion in s 24(2) of the Act can, and should, be exercised favourably to Ms Tsangaris, that is, whether she should “for a special reason”, not be treated as a member of a couple.
In my view, and contrary to the view apparently expressed by the Tribunal in Re Secretary, Department of Social Security and Porter[2], it is not open to exercise the s 24(2) discretion when the family situation answers the statutory description of “partnered (partner in gaol)”. That expression is explained by s 4(1) of the Act such that a person is “partnered (partner in gaol) if the person is a member of a couple and the person’s partner is in gaol”.
[2] [1997] AATA 137.
Section 24(2) does not specify the matters to be take into account in considering the exercise of the discretion beyond the requirement that there be a special reason for doing so. Thus the matters to be considered (or not considered) must be determined by implication from the subject matter, scope and purpose of the statute[3]. Here the statute makes express provision for a rate of parenting payment where the recipient’s partner is in gaol. The rate is higher than that for a member of a couple not in gaol (or separated by illness or respite care) but less than that payable to a person not a member of a couple.
[3] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40.
There is, I consider, an implication that the legislature, having made an express provision for persons in Ms Tsangaris’s position, did not intend that that position be regarded as a special reason. I note that a contrary conclusion was reached in Porter. There the Tribunal concluded, in relation to an illness separation couple, that to read s 24(2) of the Act in such a way would discriminate against an illness separated couple. So much may be accepted however I consider that Parliament has chosen to discriminate in this way and that it is not open to circumvent Parliament’s intention that such couples be paid at a particular rate by reference to the general discretion in s 24(2) of the Act.
In these circumstances I consider that the discretion in s 25(2) of the Act is not able to be exercised merely because one of the members of the couple is in gaol. No other matter was suggested as amounting to special reason.
The decision under review will be affirmed.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC.
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Associate
Dated 30 March 2012
Date(s) of hearing 1 March 2012 Solicitors for the Applicant: Darwin Community Legal Services
Advocate for the Respondent: Legal Services Division, Department of Human Services
Solicitors for the Respondent: Ms M Brazier
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