Tobin and Secretary, Department of Employment and Workplace Relations
[2005] AATA 1275
•21 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1275
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/1703
GENERAL ADMINISTRATIVE DIVISION ) Re BRENDA TOBIN Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Senior Member Robin Hunt Date21 December 2005
PlaceSydney
Decision The Tribunal sets aside the decision under review and in substitution decides that Mrs Tobin has not ceased to live separately and apart from her husband on a permanent or indefinite basis since her separation in 2000.
..............................................
Ms R Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Applicant living at same address as husband – Living separately and apart – Not member of couple – Decision under review set aside.
LEGISLATION
Social Security Act 1991 ss 4 and 110
CASES
Rendell and Secretary, Department of Family and Community Services (2004) 83 ALD 381
Re Sinanaj and Department of Social Security (1997) 2 SSR 162Re Staunton-Smith v Department of Social Security (1991) 32 FCR 164
Marriage of Pavey (1976) 10 ALR 259
Re Secretary, Department of Social Security and Begum (1998) 51 ALD 187
REASONS FOR DECISION
21 December 2005 Senior Member Robin Hunt SUMMARY
1. Mrs Tobin sought review of a decision that she was a member of a couple for the purposes of calculation of her disability support pension (DSP). Centrelink considered she was not living separately and apart from her husband on a permanent or indefinite basis and, on 6 August 2004, commenced to pay her DSP at the lower partnered rate. The tribunal has decided that Mrs Tobin has not ceased to live separately and apart from her husband since they separated in 2000. This means that Mrs Tobin has been successful.
ISSUE
2. The issue for the tribunal was whether Mrs Tobin was living separately and apart from her legal husband on a permanent or indefinite basis. This is the main feature that distinguishes a married person who is entitled to a pension at the single rate from a member of a couple receiving a pension at the partnered rate.
BACKGROUND
3. Mr and Mrs Tobin married in 1972 and have remained married. They have taken no steps to divorce. Mrs Tobin told the tribunal at a hearing that she did not intend to divorce her husband out of respect for his religious beliefs and for the sake of their children. Centrelink previously treated the couple as living separately and apart from early 2000 until 6 August 2004. This was from the time Mrs Tobin took up residence in a granny flat at the rear of the former matrimonial home. However, in 2001, Mr and Mrs Tobin sold that property and bought a new home together as joint tenants. They have both occupied the new house since 3 December 2001.
ANALYSIS OF EVIDENCE
4. Mr and Mrs Tobin both recently received compensation payments. Mrs Tobin told the tribunal that, when she received her lump sum compensation, she put the whole amount into the mortgage of the matrimonial home, on the understanding that her husband would continue to make payments to reduce the debt without further contribution from her. Then, she was devastated when he announced that he was going to sell the house and move to Lake Cathie. As she could not afford a place of her own, he offered to share a house at Lake Cathie with her. She agreed to her husband’s plan because she could think of no other way of having her own place and loved Lake Cathie. Although they already jointly owned a property at Lake Cathie, she had agreed to its sale as well. This was because she had not been able to persuade her husband to transfer his share in the property to her. As a result of sharing the house in Lake Cathie, they did not need to take out a mortgage to buy it after selling their other properties.
5. Mrs Tobin gave evidence there had been no change in her relationship with her husband. They had looked for a house with a granny flat at Lake Cathie but there was none available. They could not afford to buy two units. The money they received on sale was not enough to meet the cost of two units at Lake Cathie. The house they finally bought and shared was suitable because it was a long open plan design with separate living quarters at each end. She was at one end and her husband and son were at the other. She had a bedroom with an ensuite and a door opening onto her own veranda. They shared the central open area which included the kitchen and laundry. They had drawn up a roster for the kitchen, cleaning and use of the lounge and laundry. The roster was laminated and put on the wall. This system had worked well.
6. Mrs Tobin said that she and her husband both had some money left out of the sale of the houses. With her share, she bought furniture, a bed, a small fridge and a computer. She had bought the fridge about 12 months ago because although she had her own shelves, her husband and son had taken her food when they shared the fridge. She now keeps her fridge in the laundry. She has her own cupboards in the kitchen. They share cutlery and saucepans. They also brought some furniture from the old house and all use it. They share the stove, microwave and dishwasher. Mrs Tobin claimed that she and her husband were not often at home at the same time. Their son, Scott, also spends some time at home and some time going out with his father. He looks after the outside of the property and does maintenance and vacuuming. He helped them both. Mrs Tobin further said that she had notified Centrelink of the change in circumstances when the household moved. She filled out a form around Christmas saying she and her husband still were separated. The form before the tribunal, dated 14 January 2002, says the household moved on 3 December 2001.
7. As to other aspects of the arrangements, Mrs Tobin said that she had a telephone in her bedroom and paid the phone bills. There was another phone in the kitchen but it was locked and could only receive incoming calls. She also gave evidence about her post office box. She told the tribunal she had organised a post office mailbox for herself in town but had since cancelled it. When the respondent’s advocate pointed out that Centrelink used the same post office box address for her husband, she said this was not as she had arranged things. When she found mail addressed to her husband or son in the box, she had just brought it home and left it in the kitchen for them. However, it was not their box. Centrelink records before the tribunal showed that Centrelink had a number of addresses noted over time and that the last address for Mrs Tobin and her husband was the post office box. Mrs Tobin said this was no longer her correct address but all the mail now came to the house anyway even though Centrelink addressed it to the mailbox. Mrs Tobin later presented a copy of the Australia Post form for the opening of a post office box in her own name at Lake Cathie on 1 July 2003 and a receipt from Australia Post showing that she closed the post office box on 26 May 2005.
8. Concerning household bills, Mrs Tobin told the tribunal that rates and insurance were in both names and so was the electricity. She and her husband split these bills 50/50. She sometimes gave him half the money and he sometimes gave money to her depending on who made the actual payment. She had her own car and no one else used it. Her husband had his own car too.
9. When Mrs Tobin was asked why she and her husband had bought the house as joint tenants, she said she did not know about tenancy in common at the time. When Centrelink drew her attention to the title, she saw a solicitor and had it changed to tenancy in common. Her solicitor had suggested that she make a will at the same time and she had done this, leaving her share to her sons. Mrs Tobin also had not known that she and her husband still had a joint bank account until Centrelink told her. It had been attached to the house payments in Blacktown and she had thought it had closed once the house was sold. She had left this to her husband and thought probably he had not closed it because he was illiterate and did not like to deal with paperwork. When Mrs Tobin learned it had not been closed she asked that it be closed and this had now been done. As to her superannuation, Mrs Tobin told the tribunal that Mr Tobin had been named as beneficiary in the past but she had cashed in her entitlement. She had to get a letter from Centrelink to be permitted to do this and had to take the funds in two instalments because of the amount involved.
10. As to holidays, Mrs Tobin said she and her husband never holidayed together. They took holidays and visited family at different times. They never visited their children together except for one occasion when one of the grandchildren had an operation. She gave her husband a lift and he paid half the cost of petrol. She confirmed the statement she had written on the Centrelink record at T77 that “only the children know how we live”. She did not know a lot of people and did not discuss her marriage with anyone. If the children came to the house there was some co-ordination of activities. Her husband usually took them fishing. She and her husband used to walk their dogs together as her dog was reassured by the presence of the other dog, but since this had been noticed and reported to Centrelink, she did not walk the dog with him anymore. She had tried to order everything in her life “to please Centrelink”. She could not think of anything else to do and was stuck. She gave evidence that she could not get a loan to buy a place of her own and was not entitled to rent assistance or a Housing Commission house because she was a part owner of the Lake Cathie property.
11. Mrs Tobin told the tribunal that both she and her husband had received a compensation payout. Her payout was in October 2000. Mr Tobin received his compensation later. As a result, she had received a letter from Centrelink claiming she owed them money. Centrelink was no longer claiming this but she had been forced to take action at the time to reinstate her separate status. Mrs Tobin said she did not care for her husband. She would not look after her husband if he were ill and would only assist him if it was an emergency. She would help anyone in an emergency. If either of them needed help they would ring Mr Tobin’s brother for assistance.
12. Mr Tobin’s brother, Ronald James Tobin, gave evidence to the tribunal at the hearing. He had made a written statement and told the tribunal he was aware his brother and Mrs Tobin were separated. He had visited them both from time to time and was well acquainted with the changes that had occurred between them over the years. They visited him sometimes but never together. He said that, from the time that Mrs Tobin moved out of the matrimonial home, she did no household tasks for her husband and sons. They did their own cooking, washing, ironing and cleaning. Since they had moved to the house at Lake Cathie, they had continued as they had been in Sydney. Mrs Tobin had her own room with a small balcony and had exclusive use of these areas. He had seen rosters posted around the house at Lake Cathie. He said he was aware, from conversations, of the sharing of the costs of electricity, rates and the like and that the phone was Mrs Tobin’s. If he wanted to contact his brother, he contacted Scott Tobin on his mobile number. When he visits his brother, he knocks on Mrs Tobin’s door to say hello as she does not come out to see who is visiting otherwise. He was glad they decided to share the house as he knew other separated couples who could not afford to buy anything and were forced to rent, thus depleting their savings. He detailed other ways he had observed in which Mr and Mrs Tobin led separate lives. He also mentioned that he was separated but not divorced from his own wife.
13. The son who lives with his parents at Lake Cathie, Scott Tobin, also made a written statement confirming his parents’ continuing separation but did not attend the hearing. Also before the tribunal were letters from 3 persons who said they were aware of the separation. A letter from CGU Workers Compensation Limited dated 17 June 2004 confirmed that Mr Tobin was receiving compensation at the single rate. Mrs Tobin gave evidence that she received no financial help from her husband. She expressed resentment that trivial matters such as walking the dogs together could affect her pension. She said that she now realised that buying a house together had been a mistake.
FINDINGS
14. Section 4 of the Social Security Act 1991 (the Act) provides when a person is a member of a couple for the purposes of social security law. Subsection 4(2) sets out that a person is a member of a couple if certain conditions are met. The main test for a married person is whether he or she and the married partner are living separately and apart on a permanent or indefinite basis. The main question for the tribunal, therefore, is whether Mrs Tobin and the person to whom she is legally married are living separately and apart according to subsection 4(2)(a) of the Act as follows:
(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;…
15. Further provisions in subsection 4(3) deal with matters to be taken into account in forming an opinion about the relationship between two people. These include financial aspects such as joint ownership of real estate and pooling of financial resources, the nature of the household, social aspects of the relationship, any sexual relationship between the people and the nature of their commitment to each other. Commitment is illustrated by matters listed such as the length of the relationship and how the people see their relationship.
16. In addition, subsection 24(2) of the Act allows for Mrs Tobin to not be treated as a member of a couple if a special reason exists. The provision for a married person reads:
24(1) Where:
(a) a person is legally married to another person; and
(b) the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c) 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.
17. The tests in subsection 4(3) are matters that the tribunal has considered in forming an opinion about the status of Mrs Tobin. I am mindful in this matter that Mrs Tobin had been married since she was a young woman and has adult children. I recognise that with such a marital history, the unwinding of arrangements made during that period of marriage will depend to a degree on the financial resources available. In assessing Mrs Tobin’s circumstances I am mindful that a decision that a person is or is not living separately and apart on a permanent or indefinite basis from another person to whom they are married is fundamentally different to the nature of an inquiry in which the decision involves a determination that a marriage-like relationship does or does not exist: see Re Staunton-Smith v Department of Social Security (1991) 32 FCR 164. I have looked at the totality before reaching my conclusion, noting that in Staunton-Smith, the Federal Court observed the factors in subsection 4(3) are not exhaustive and only indicators and stated:
“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”.
18. In addition, in the Marriage of Pavey (1976) 10 ALR 259, the Full Court of the Family Court ruled that paries must show why they continue to live under the same roof and be able to point to the factors, either gradual or sudden, that show a change in their relationship, leading to a separation. Therefore, I have considered the statutory factors as well as the whole of the circumstances of the relationship. Some of the main factors I have taken into account are discussed under the headings below.
Financial Aspects
19. Mr and Mrs Tobin purchased a new house as joint tenants and moved into it together with one of their sons, Scott Tobin, in December 2001. Mr and Mrs Tobin used the proceeds of sale of their former matrimonial home and chose the property together. They later changed the title to tenancy in common when advised that this was an option. Mrs Tobin has also made a will cutting out her husband and has no provision for him in her superannuation since she cashed it in. As she is no longer working, she is unable to obtain a loan to buy another residence. I accept the evidence about this position and that it is awkward to manage bills unless they continue to mingle their finances to a degree after they separated. In addition, I note that, in the case of Rendell and Secretary, Department of Family and Community Services (2004) 83 ALD 381, Member Trowse held that an arrangement based on mutual affordability of housing and material welfare did not of itself correspond to a marriage-like relationship. A similar situation exists in the present case although involving long term separation within the marriage.
Nature of the household
20. Mr and Mrs Tobin have children. One of their adult sons lives with them and helps them both. Some bills are shared due to the difficulty of separating them. Mrs Tobin has her own phone and tried to make separate arrangements for her mail.
Social aspects of the relationship
21. Very few people outside the family are aware of the separation but Mrs Tobin did notify Centrelink of her change in circumstances while still saying she was separated. Walking the dog and being seen together created a perception in other people that Mrs Tobin and her husband were not separated but is not a determining factor without more information as to the whole of the circumstances.
Sexual relationship
22. Mrs Tobin told the tribunal that her and her husband no longer had a sexual relationship and this is accepted by the respondent. I note this is only one aspect of the tests of whether persons are a couple and is not conclusive on its own.
Nature of commitment to each other
23. Mrs Tobin stated that she did what any person would do in circumstances where someone was injured. Otherwise, she would not care for her husband and would call his brother if either of them needed help.
CONCLUSION
24. Taking all of the subsection 4(3) factors discussed above into account, as well as Mrs Tobin’s evidence and that of her brother-in-law, on balance, I find that Mrs Tobin does live separately and apart from her husband. Even if I am wrong in my overall assessment, I note that section 24(c) gives me discretion and Mrs Tobin’s lack of resources and options is a sufficient reason to warrant the exercise of the discretion in her favour.
DECISION
25. The Tribunal sets aside the decision under review and in substitution decides that Mrs Tobin has not ceased to live separately and apart from her husband on a permanent or indefinite basis since her separation in 2000.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: .....................................................................................
Zoe McDonald
AssociateDate of Hearing: 2 November 2005
Date of Decision: 21 December 2005
Counsel for the Applicant: Mr M Vincent
Solicitor for the Applicant: GWM Lawyers
Counsel for the Respondent: Mr J Kenny
Solicitor for the Respondent: Centrelink Legal Services Branch
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