TWCZ and Secretary, Department of Social Services (Social services second review)

TWCZ and Secretary, Department of Social Services (Social services second review) [2019] AATA 113 (8 February 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL               )
  )         No: 2018/2686
GENERAL DIVISION  )
Re: TWCZ
Applicant

And: Secretary, Department of Social Services
Respondent
And: ZNVN
Other Party
DIRECTION
TRIBUNAL:  Member C Edwardes
DATE OF CORRIGENDUM:            15 March 2019
PLACE:            Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
The decision under review is set aside and substituted with a new decision that for the period 17 May 2016 to 4 December 2017 the Applicant and Other Party were members of a couple and not in a shared care arrangement. The Applicant was the primary carer of the child for the period 17 May 2016 to 4 December 2017 within the meaning, and for the purposes of s 26 of the A New Tax System (Family Assistance) Act 1999 (Cth).
...................................................................
Member

Division:GENERAL DIVISION
File Number: 2018/2686
Re:TWCZ
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndZNVN
OTHER PARTY

DECISION
Tribunal:Member C Edwardes

Date:8 February 2019
Place:Perth

The decision under review is affirmed.
.........[Sgd].......................................................
Member C Edwardes
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
CATCHWORDS
SOCIAL SECURITY – members of a couple – shared care – FTB child – nature of the household – separation short period - Facebook posts – decision affirmed
LEGISLATION
A New Tax System (Family Assistance) Act 1999 – ss 3, 21(1), 22(2), 22(5), 22(7), 25, 26(1), 58(1),
Administrative Appeals Tribunal Act 1975 – ss 43(1), 43(1)(b)
Social Security (Administration) Act 1999 – s 179
Social Security Act 1991 – ss 4(2), 4(3).
CASES
Drake and Minister for Immigration and Ethnic affairs (No2) [1979] AATA 179
Pelka v Secretary, Department of Social Security (2006) 151 FCR 546
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Staunton – Smith v Secretary, Department of Social Security (1991) 32 FCR 164
VBH and Secretary, Department of family and Community Services [2006] AATA 1Pelka v Secretary, Department of Social Security (2006) 151 FCR 546
SECONDARY MATERIALS
Department of Social Security, Guide to Social Policy Law: Family Assistance Guide (Department of Social Security, Version 1.208, 2 January 2019)
REASONS FOR DECISION
Member C Edwardes
8 February 2019
INTRODUCTION

The Applicant seeks review of a decision made by the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) on 29 March 2018 (T2, 6):
The decision under review is set aside and substituted with a new decision that for the period 17 May 2016 to 4 December 2017 [Applicant and Other Party] were members of a couple and not in a shared care arrangement. For this reason, there is no basis to make a new determination of care from that what was in place as of 16 May 2017.
The Applicant applied on 16 May 2018 to the General Division of the Administrative Appeals Tribunal (the Tribunal) for the review (T1).
The Applicant gave the following reasons for the current application for review (T1, 2):
The decision outcome with the new evidence should not leave myself with a debt to Centrelink. I feel the evidence dated the 30th May 2016 which is on Centrelink records should be seen and heard to show that verbal confirmation from [Other Party] to transfer the Family Tax Benefit to myself is suffient [sic] for an appeal also this information was not given to myself within the first documents and is vital to the disolution [sic] of the Centrelink debt that has been placed on myself. The first outcome stated that [Other Party] and myself were married and living as a couple during the timeframe. As a family it is within centrelinks own words that it does not matter what party of the couple should receive the Family Tax Benefit. I have been informed that even as a married couple they decided after the first appeal that [Other Party] was 100% carer therefor [sic] I receive a debt. I feel the evidence that is dated 30^th May 2016 would clear any doubt and I feel that this needs to be considered for the 2^nd appeal and is vital to my appeal.
The Applicant attended the hearing in person and the Other Party did not attend on 6 November 2018. The Respondent was represented by Ms Moore.
The Respondent takes a neutral position in this matter, and provided a Statement of Facts, Issues and Contentions (SOFIC) to assist the Tribunal to reach the correct and preferable decision and to set out the relevant law.
The Tribunal thanks all parties for the assistance they provided.
BACKGROUND
The Applicant and Other Party were married and are the parents of 2 children, [Child 1] and [Child 2].
Centrelink recorded for Family Tax Benefit (FTB), that the Other Party had 100% care of the child.
The Other Party left the Applicant on 17 May 2016, leaving the care of the child with the Applicant.
Centrelink on 26 July 2016 determined that the Applicant had sole care of the child after being advised by the Applicant.
The Other Party sought a review of that decision.
The Other Party returned to the matrimonial home on 9 June 2016. She left again with the child on 10 June 2016 and returned on 14 June 2016 resuming living with the Applicant until 5 December 2017 when she left the Applicant with the child (T2, 9).
A review of the care pattern by an Authorised Review Officer (ARO) on 24 January 2018 determined that from 17 May 2016 to 4 December 2017 both parents were sharing the care of [Child 2]. It found the Applicant had 47% and the Other Party had 53% (T11, 109).
ISSUES
The Tribunal needs to determine for FTB purposes whether the Applicant and Other Party were members of a couple from 17 May 2016 to 4 December 2017 and if not what were the percentage care arrangements for the child.
LEGISLATION AND RELEVANT POLICY
The relevant legislation and policy is laid out in T-Documents T3 and T4, at pages 17-91.
The relevant legislation is contained in the A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act), Social Security Act 1991 (Cth) and Social Security (Administration) Act 1999 (Cth). Reference may also be made to the Guide to Social Security Law (the Guide).
Section 58(1) of the Family Assistance Act provides for FTB to be assessed according to Schedule 1.
A shared care percentage is utilised where there is more than one adult caring for the child.
Section 21(1) of the Family Assistance Act states:
(1)An individual is eligible for family tax benefit if:
(a)the individual:
(i) has at least one FTB child; …
Section 22(1) of the Family Assistance Act details when an individual is an FTB child of another individual. Section 22(5) outlines the legal responsibility for the care of the individual.
Sections 22(2) and 22(5) of the Family Assistance Act state:
(2)An individual is an FTB child of the adult if:
(a)the individual is aged under 16; and
(b)the individual is in the adult’s care; and
(c)… and
(d)the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5)(a), (b) or (c).
…
(5)The circumstances surrounding legal responsibility for the care of the individual are:
(a)the adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or
(b)under a family law order, registered parenting plan or parenting plan in force in relation to the individual, the adult is someone with whom the individual is supposed to live or spend time; or
(c)…
Section 22(7) of the Family Assistance Act requires that the percentage of care of a child must be at least 35% for the child to be considered an FTB child of the individual.
Section 26(1) of the Family Assistance Act details that where individuals are members of a couple and are eligible at the same time for FTB for the purpose of a FTB child, only one member is entitled to be the recipient of the entitlement.
Section 179 of the Social Security (Administration) Act 1999 (Cth) provides the Tribunal with the jurisdiction to hear this matter.
Section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) provides the Tribunal with its decision making powers.
The Tribunal is assisted by the Family Assistance Guide 1999 (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
EVIDENCE
The Tribunal had before it the following evidence:
·Applicant’s submission received 17 January 2019 (Exhibit A1)
·Applicant’s submission received 17 August 2018 (Exhibit A2)
·Statement of KL received 18 January 2019 (Exhibit A3)
·Statement of MJ undated (Exhibit A4)
·Letter of Marko B (Child Protection Worker) dated 5 June 2018 (Exhibit A5)
·Copies of Bank Statements from Applicant (Exhibit A6)
·ZNVN’s Facebook photos (Exhibit A7)
·Redacted copy of separation form completed by ZNVN dated 6 December 2016 (Exhibit A8)
·Application for Protection Order and affidavit by CL dated 2 July 2018 (Exhibit A9)
·Report to Court dated 22 June 2018 (Exhibit A10)
·Discharge summary of ZNVN from Rockingham Hospital dated 22 October 2017 (Exhibit A11)
·Restraining Order for ZNVN dated 4 October 2018 (Exhibit A12)
·Hearing Certificate dated 10 August 2018 (Exhibit A13)
·Redacted Statement of Facts, Issues and Contentions (SOFIC) dated 4 October 2018 (Exhibit R1)
·Statement of Facts, Issues and Contentions (SOFIC) dated 4 October 2018 (Exhibit R2)
·Respondent’s Hearing Certificate (Exhibit R3)
·T documents (T1-T33, 1-214) received 8 October 2018 (Exhibit R4)
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that the parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the tribunal will be analysed and referred to below.
RESPONDENT’S ANALYSIS
The Respondent states (R2):
Member of a couple
17.In determining this matter, the Tribunal must consider whether [Applicant] and [Other Party] were members of a couple for the period 17 May 2016 to 4 December 2017, for the purposes of FTB.
18.Subsection 26(1) of the Act provides that for any period when two individuals are members of a couple and would otherwise be eligible at the same time for family tax benefit, in respect to an FTB child, only one member is eligible.
19.Section 3 of the Act provides that member of a couple has the same meaning as in the Social Security Act.
20.Subsection 4(2) of the Social Security Act provides:
(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.
21.Subsection 4(3) of the Social Security Act sets out the criteria to be considered when forming an opinion about a relationship for the purposes of paragraph 4(2)(a):
(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.
22.The Federal Court in Staunton–Smith v Secretary, Department of Social Security stated:
20. 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.
23.In Sperring and Secretary, Department of Employment and Workplace Relations, the Tribunal stated:
70. …being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
24.The Federal Court in Pelka v Secretary, Department of Social Security stated:
46. Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1.      Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2.      Must have regard to each of:
(a)   the financial aspects of the relationship;
(b)   the nature of the household;
(c)   the social aspects of the relationship;
(d)   any sexual relationship between the people;
(e)   the nature of the people’s commitment to each other.
3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4.Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5.Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.
25.In VBH and Secretary, Department of Family and Community Services, the Tribunal stated:
94. The s 4 (3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively
26.Regarding the nature of the household, [Applicant] told the Tribunal at first review that he and the other party were not in a shared care situation, stating that they were a “normal married couple”. [Applicant] stated that they resumed their relationship following [Other Party’s] time in NSW between 10 June 2016 and 14 June 2016 (T2/9).
27.In her brief discussion with the Tribunal at the first review hearing, [Other Party] stated that she did not wish to have anything to do with [Applicant] due to domestic violence, and had moved to a refuge, and she did not consider that they were members of a couple over the relevant period, rather they were separated and living under the one roof (T2/9).
28.Regarding the nature of the people’s commitment, [Applicant] provided a statutory declaration dated 9 June 2016, stating that the parties had separated and that he had 100% care of the child (T5/92). [Applicant] applied for a child support assessment on 16 August 2016 (T7/94; T21/153).
29.In his application for AAT1 review, the Applicant stated that “my wife and I have been together as a married normal husband and wife up until the 18th October 2018” (T2/11).
30.There is contradictory third party evidence provided regarding the nature of the household and the nature of the people’s commitment. [Other Partys’] father, [Name], provided a statement (T10/108; T30/193), dated 28 November 2017, that [Other Party] left for NSW with the child on 10 June 2016 and returned to WA on 14 June 2016, due to a domestic violence situation. [Name] states that [Other Party] has been the child’s primary care-giver for the child’s whole life.
31.In response to this letter, family friend [Name] provided a statement, which provided that [Applicant] has provided physical support and stability for the child, [Other Party] suffers from mental health issues, and that the only domestic violence in the relationship had been against [Applicant] (T2/13).
32.The Full Federal Court in Pelka and Secretary, Department of Families, Community Services and Indigenous Affairs stated that the nature of the commitment has to be qualitatively different from the commitment that either party to the relationship had to any other person. Mutuality of the commitment has been considered essential.
33.Facebook posts from [Other Party] dated 5 August, 13 August and 6 October 2017 suggest ongoing romantic relations between the parties (T2/14-16), however, [Other Party] was granted a Restraining Order against [Applicant] dated 7 November 2017 (T9/107).
34.[Applicant] stated during the AAT1 hearing that he and [Other Party] were acknowledged in their community, family and social circle as a couple (T2/9).
35.There is no further information available regarding financial, social or sexual aspects of the relationship, other than a statement of [Other Party] to the Department that she returned to live with [Applicant] for financial reasons (T2/9; T33/210-211).
36.It is necessary for the Tribunal to decide whether, having regard to the totality of the evidence, [Applicant] and [Other Party] were, on an objective test, members of a couple during the relevant period.
…
52.In regards to [Other Party’s] absence from 10 June 2016 to 14 June 2016, it is open to the Tribunal to consider that this period does not constitute a significant departure from the established pattern of care, through the operation of subsection 23(2) of the Act.

The Applicant has made the following written submission to the Tribunal. He states (A1):
I, [Applicant], provide this material which I believe to be factual to the best of my knowledge, for evidence in the above matter.
1: [Other Party] and myself have been together as partners from November 1999 up until 5th December 2017. We were married in 2010. We have had 2 children in our relationship – [Child 1] and [Child 2].
2: We moved as a Family from New South Wales to Western Australia 2014.
3: From time to time [Other Party] experiences periods of decline in her mental health. During several of these periods [Other Party] has left the matrimonial home for varying periods of time.
4: [Other Party] was admitted to Rockingham Hospital in 2014 for a period of 5 weeks. During this time, I had full care of the children whilst maintaining my employment.
5: On 22nd February 2015 [Other Party] contacted Department’s Crisis Care stating she was unable to cope with our 2 children due to her serious mental health issues. Department spoke to myself [Applicant] about long term full care of the children due to ongoing mental health illness for [Other Party].
6: At this time [Other Party] stated to the crisis team that I was her full-time carer.
7: Between 22nd February 2015 up until 22nd October 2015 [Other Party] had been assessed and treated for mental health disorders during which time she made false allegations towards the family. She spent time in hospital with myself being full time-carer of [Child 1] and [Child 2]. The Department of Child and family services became involved and supported myself as the children’s full time-carer.
8: In November 2015 [Other Party] left the family home to reside with a lady who helps people who may become homeless. I contacted [Other Party] as I had concerns for her mental health at the time. [Other Party] stated she needed time out from the home to focus on herself. I spoke to the lady and raised concerns for [Other Party’s] mental health. At this time, I had full time care of [Child 2].
9: In January 2016 [Other Party] was admitted to Rockingham Hospital supported by the lady she was residing with. [Child 2] was in my full time care through this time.
10: In January 2016 [Child 2] and myself travelled to Queensland to assist my son from my first marriage to move to Western Australia to be supported by myself.
11: On May 15th 2016 I was assaulted by [Other Party] in front of [Child 2]. Police were called and [Other Party] was placed on 72 hour police order. [Other Party] was removed from the house by police. On May 19th 2016 [Other Party] was charged with assault on myself and with placing a child at risk.
12: On May 16th 2016 I received a call from [Other Party] stating that she had moved out of our home and was residing in a place known as ‘Daughters of Destiny’ located in Baldivis. She said that she was doing a program that similar to a rehabilitation program there.
13: Whilst [Other Party] remained at the residence stated above, [Child 2] remained in my care at the family home.
14: At this time I lodged a Family Tax Benefit application with supporting documents. On May 30th the Department of Human Services received verbal confirmation that [Child 2] was no longer in [Other Party’s] care and that the Family tax benefit should be handed over to myself. This information is noted on the department’s notes.
15: On June 14th 2016 [Other Party] collected [Child 2] from his school without any consultation with myself and fled to New South Wales. I contacted [Other Party] who stated it was for a holiday. In further conversation [Other Party] stated that she was confused and was not thinking straight. [Other Party] stated that she was told to collect [Child 2] by ‘a person’ and flee to New South Wales. [Other Party] returned on the 16th June to the family home with [Child 2] after she asked me to fly over and assist her to return.
16: Between August 2016 and October 2017 [Other Party] removed herself from the matrimonial home 4 times. This was due to mental health concerns and [Other Party’s] delusional thoughts that are symptomatic to her illness. When [Other Party] removed herself, she left [Child 2) in my full time care.
17: Supporting documentation by the Department of Child and Family services quoting [Other Party’s] own words claiming that I was her carer are attached. I have always been the protective and full-time carer for our son [Child 2] due to [Other Party’s] mental health issues.
18: During [Child 2’s] 9 years I have fully provided financial emotional and physical support as documented by the above said department (CPFS). It is also documented by the department (CPFS) that [Other Party’s] mental health issues have had significant impact on [Child 2’s] well-being be it emotional or physical. Further the department supports [Child 2’s] full-time care by myself. Friends close to the family also identify that I have been [Child 2’s] primary carer since birth.
19: The department has raised a debt under my name even though the first Administrative Appeals Tribunal (A.A.T) ruled that [Other Party] and I were a couple between the period specified. This remains a fact even though [Other Party] had removed herself either by free-will or mental health concerns which played a major factor in her delusional thoughts which are a symptom of her mental health condition.
Since [Other Party] agreed to transfer the Family Tax benefit and had left the house dated 16 May 2016 [Other Party] never requested or put in an argument about our son and the care of our son. Up until the 5/12/2017 [Other Party] had left the matrimonial home 6 times for various reasons. The only time [Other Party] had full time care of [Child 2] was when [Other Party] was influenced by another party to collect [Child 2] from his school and go to New South Wales. [Other Party] had rung myself and asked for myself to go and assist with [Child 2] as she was not coping with him or been away from Western Australia. In late November 2017 [Other Party] associated herself with people that influenced her to lodge an application under falsehoods. I would request that the AAT reverse the decision of care and return this to myself. Further supporting evidence will be lodged as required.
The Applicant stated that:
·The parties were a married couple and he was the primary carer of their son during the period May 2016 to December 2017.
·The Other Party was absent for 4 or 5 days with their son during that time but returned to the matrimonial home.
·The Other Party was not well and had periods of hospitalisation and ongoing treatment.
The Tribunal adjourned the hearing to another date in order to give both parties the opportunity to provide further evidence. The hearing was reconstituted on 23 January 2019 and a number of new exhibits were put into evidence for the consideration of the Tribunal. The Applicant attended in person and the Respondent’s representative Ms Moore appeared by video. The Other Party again failed to attend in spite of efforts made to contact her.
The Applicant outlined to the Tribunal the new evidence provided. He said the Other Party had left Western Australia for New South Wales. She left their son with him and was undergoing treatment in her new home.
The Applicant stated that the new evidence demonstrated they were members of a couple for the period May 2016 to December 2017 and that during that time he was the primary carer of their son.
CONSIDERATION
The Applicant and the Other Party told the AAT1 (T2, 9):
18.[Applicant] told the tribunal that his issue with the Department’s care decision is that this was not a shared care situation. Whilst there was a brief period of separation between himself and [Other Party] in 2016 he and [Other Party] resumed their marital relationship once she returned from New South Wales and in effect there had been no change in the overall pattern of care for [Child 2] until [Other Party] decided to again leave the relationship in late 2017. He said that since then [Child 2] was placed in care by the Department of Child Protection and has now recently returned into his full-time care.
19.[Applicant] stated that he and [Other Party] were a “normal married couple” who were jointly taking care of their son. [Other Party] had periodic periods of being unwell and hospitalised. When [Other Party] took [Child 2] with her to New South Wales she contacted [Applicant] asking that he come over and bring them back home which he did. They then resumed their relationship. [Applicant] stated that they tried to make another go of their marriage and in the period he bought [Other Party] a Jeep, they went on a holiday and he bought her a ring. [Applicant] referred the tribunal to Facebook entries which he says are posts made by [Other Party] about their relationship in about August 2017 which supports his evidence. He stated that they were acknowledged in their community, family and social circle as a couple.
20.[Other Party] briefly spoke to the tribunal. She was very upset and stated that she did not wish to have anything to do with [Applicant] due to domestic violence and had moved to a refuge. She said that she did not consider that they were members of a couple but were in effect separated and living under the one roof until she decided to move out again.
The Tribunal notes evidence contextualising the relationship between the Applicant and Other Party (T2, 14-16).
There are Facebook posts (A7) indicating a range of family outings with friends; including celebrating Christmas and New Year with the Applicant.
There is a Facebook post, dated 5 August 2017 with a ring on a finger with the commentary – “[Other Party] is feeling loved with …” and the following inscription: “So this just happened...”(T2, 15).
There is a further Facebook post, dated October 6 with the following to [Other Party] – “I’m sorry it’s belated babe, but Happy Anniversary. I know I stuff up sometimes but I do love you. [Applicant]” (T2, 16).
The Tribunal notes in the Applicant’s application for first review of the Centrelink decision of 24 January 2018 the following – “[Other Party] (wife) and I have maintained marriage up until 18 October 2017 as a normal husband and wife raising our son together” (T13, 123).
The Tribunal notes the statement in support of a Crisis Payment application made by the Other Party, which confirms the Other Party left the matrimonial form on 18 October 2017 and entered a refuge on 5 December 2017 (T31, 197).
The case law suggests the Tribunal must determine a number of elements in order to categorise the relationship between the Applicant and the Other Party.
The elements include finance, nature of the household, social interaction of the relationship, sexual relationship and the nature of the commitment. Not all elements need to be present between the parties in order to determine the category of the relationship. The Tribunal finds taken as a whole, in terms of finance, nature of the household, social interaction and commitment that these elements were present in the relationship between the parties for the period in question.
The evidence does show as late as August to October 2017 there is a narrative to suggest that the parties had a level of commitment towards each other. The Facebook entries give credence to this proposition in the form of discussion relating to a holiday, a ring and a wedding anniversary comment from the Other Party. These all point to a relationship which is much more than not being a member of a couple.
The Tribunal has viewed financial transactions and is satisfied the Applicant had been assisting the Other Party accordingly with living and other expenses (A6).
The Tribunal accepts the Other Party has had a difficult history which has led to hospitalisation and ongoing treatments (A9). The Tribunal accepts there was a break in the relationship during this time but it was only for a short duration. The short separation did not in the view of the Tribunal constitute a significant departure from the established pattern of care.
Having considered all the evidence before it the Tribunal accepts the evidence of the Applicant that for the period 17 May 2016 to 4 December 2017 the Applicant and the Other Party were members of a married couple. The Tribunal is not persuaded on the evidence provided that the parties were not in a couple relationship or that the Other Party was the primary carer of their son for the period 17 May 2016 to 4 December 2017.
The Tribunal notes that the Other Party’s medical condition from February 2016 resulted in periods of hospitalisation and treatment which inevitably impacted on her ability to effectively act as primary carer for [Child 2].
DECISION
The Tribunal finds as the AAT1 did, that the parties were members of a couple for the period 17 May 2016 to 4 December 2017, and not in a shared care arrangement.
The decision under review is affirmed.

I certify that the preceding 50 (Fifty) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

......[Sgd]...........................................................
Associate
Dated: 8 February 2019

Date of hearing: 23 January 2019

Applicant: In person

Counsel for the Respondent: Ms Moore

[2019] AATA 113

8 February 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Appeal

Date of hearing:	23 January 2019
Applicant:	In person
Counsel for the Respondent:	Ms Moore