Stronach; Secretary, Department of Employment and Workplace Relations and [2007] AATA 1398 (5 June 2008)

Last Updated: 14 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1398

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A2006/302

GENERAL ADMINISTRATIVE DIVISION		)
	Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And

NERISSA STRONACH

Respondent

DECISION

Tribunal

Mr S. Webb, Member

Date 5 June 2007

Place Canberra

Decision

The decision under review is affirmed.

.............signed.................................
Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - parenting payment single - tip off - marriage breakdown - indicia of marital relationship - financial cooperation and living arrangements for the benefit of children - alcohol - abuse - health issues of children - living separately and apart indefinitely - decision affirmed

Social Security Act 1991, ss 4, 500, 503, 1068A, 1068B

Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546

Lambe v Director-General of Social Services [1981] FCA 171; (1981) 57 FLR 262

Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164

REASONS FOR DECISION

5 June 2007

Mr S. Webb, Member

1. Nerissa Stronach separated from her husband, who was violent and abusive when drunk, and left the family home with her three children. She claimed and was paid Parenting Payment Single (PPS). Later she returned to live in the family home and her husband moved to live in a caravan at the rear of the property. Her PPS payments were cancelled. Subsequently her husband relocated to live in Queensland and her PPS payments recommenced. Ms Stronach maintains that she was living separately and apart from her husband at all times following their separation. On review, Centrelink affirmed the cancellation decision. However, the Social Security Appeals Tribunal set that decision aside, finding in Ms Stronach’s favour. The Applicant Secretary has placed that decision before this Tribunal for review.
2. The following factual matrix is established on the evidence. Ms Stronach married Neil Stronach on 2 January 1999. They have three children born in 1997, 1998 and 2000[1]. The oldest has ADHD, severe learning difficulties and developmental delay. The youngest has ADHD and dyslexia. Ms Stronach and her husband jointly own a house at Warragrah Place, Parkes (the family home) in which they and their children lived until 19 June 2005[2]. On that day Ms Stronach separated from Mr Stronach. Mr Stronach drank alcohol to excess and became violent and abusive to Ms Stronach when drunk. Ms Stronach was fearful for her safety and for the safety of her children as a result of Mr Stronach’s behaviour. It was for this reason that she and the children left the family home on 19 June 2005. Having departed the family home, they stayed with Ms Stronach’s grand-parents and subsequently with her mother for a time. On 15 September 2005 Ms Stronach was provided with a Housing Commission house at Callaghan Street, Parkes.[3] She and the children resided at that address until 17 February 2006[4], when they returned to live at the family home. Ms Stronach and the children have not moved since that date. Mr Stronach relocated to Rockhampton in Queensland on or about 28 August 2006. Ms Stronach was paid PPS from 20 June 2005 to 22 March 2006. Centrelink decided to cancel her PPS payments on 23 March 2006[5]. On 26 June 2006 that decision was affirmed by an authorised review officer[6]. The Social Security Appeals Tribunal decided to set aside the decision on 10 August 2006, deciding instead that Ms Stronach remained qualified for PPS[7]. Regardless of that decision, and pursuant to a separate claim, Ms Stronach was granted PPS on 22 September 2006[8].
3. The issue for determination is whether Ms Stronach was entitled to payment of PPS from 23 March 2006 to 22 September 2006. The sole issue of entitlement agitated in these proceedings was whether Ms Stronach was a member of a couple during this period.
4. The Applicant Secretary asserts that Ms Stronach was not living separately and apart from her husband from 17 February 2006, when she moved back into the family home. In the Secretary’s submission, Ms Stronach and her husband reconciled their differences in the weeks or months prior to that event. The Secretary points to improved communication between Ms Stronach and her husband in September or October 2005 as the start of the reconciliation process. In the Secretary’s submission the existence of cooperative financial arrangements between Ms Stronach and her husband, including a joint bank account, jointly owned assets and financial transactions of convenience, indicate the enduring nature of the marital relationship between them. This, the Secretary says, is further supported by Ms Stronach’s stated willingness during the period in question to consider a reconciliation with her husband and Mr Stronach’s ongoing interest in resuming the marital relationship. Thus, in the Secretary’s submission, when the evidence is considered as a whole, the indicia of the relationship between Ms Stronach and her husband from February 2006 at least until his departure to Queensland in August 2006 describe a relationship between members of a couple who are not living separately and apart on a permanent or indefinite basis.
5. As will appear, I do not agree.
6. Under the Social Security Act 1991 the rate of parenting payment that is payable to a person who satisfies the qualification requirements for that payment[9] is to be calculated using the rate calculator at s.1068A if the person is not a member of a couple, or the rate calculator at s.1068B if the person is a member of a couple[10]. The term ‘member of a couple’ is given meaning by subs 4(2)-(6A) inclusive. Relevantly, a person is a member of a couple if the person is legally married and is not living separately and apart from their husband or wife on a permanent or indefinite basis[11]. When determining whether or not a person is a member of a couple it is necessary to consider all of the circumstances of the relationship, including all of the matters set out at subs 4(3) concerning financial, domestic, social, sexual and other characteristics: Pelka v Secretary, Department of Family and Community Services (2006)[12]. What must be considered, on all of the evidence, is the composite picture of the relationship: Lambe v Director-General of Social Services (1981)[13]. It is unlikely that a single factor, alone, will be determinative: Staunton-Smith v Secretary, Department of Social Security (1991)[14]. Each factor must be considered in the context of the evidence as a whole and the relationship thus revealed, and a determination made whether the married persons are living separately and apart on a permanent and indefinite basis. These are matters on which reasonable minds may differ on the same facts.
7. Ms Stronach’s credit as a witness was not seriously challenged. As it appears to me she gave her evidence in a straight forward manner to the best of her recollection. There were some apparent inconsistencies in her evidence, to which the Applicant Secretary drew attention in submissions. However, I do not accept that Ms Stronach sought to withhold or obscure the truth concerning the reasons she accessed the joint account for her husband or the fact that she and her husband shared dinner at a Chinese restaurant on 14 February 2006. When asked about these matters specifically she gave relevant evidence without hesitation or apparent guile, adding relevant detail under cross examination. I am satisfied that Ms Stronach responded honestly to questions put to her, providing general answers to broad questions put to her during her evidence in chief and more specific answers to questions of greater specificity under cross examination. This does not render her evidence unreliable. Nevertheless, I will proceed cautiously when evaluating her uncorroborated evidence.
8. Considering all of the evidence and the circumstances of the relationship between Ms Stronach and her husband from March to September 2006, I am reasonably satisfied that the Applicant Secretary’s case is not made out. The Secretary’s proposition that Ms Stronach reconciled her differences with Mr Stronach and moved back into the family home to resume life as a couple, even on a trial basis, is not established as a probability on the evidence. The inferences pressed by the Secretary are not consistent with the evidence as a whole or with the circumstances of the relationship there revealed. I am reasonably satisfied that Ms Stronach was living separately and apart from Mr Stronach on an indefinite basis from June 2005, and that circumstance continued through the period in issue and is presently ongoing.

FINANCIAL ASPECTS

9. I find as follows. Ms Stronach jointly owns the family home with Mr Stronach. The property is under mortgage to the Commonwealth Bank. At all relevant times Mr Stronach paid the mortgage repayments, as well as the insurance and most of the Council rates on the property. Ms Stronach and her husband jointly own a car. This was registered in Ms Stronach’s name in 2006 but Mr Stronach took the car to Queensland when he left in August 2006, and registered the vehicle in his name. Ms Stronach continues to pay the insurance on this vehicle, she says, in order that she knows that it is covered. Sometime after Mr Stronach’s departure for Queensland, she purchased a car, “a bomb”, for her use in Parkes. She did so using a one-off child payment from the Commonwealth.
10. In December 2005 Ms Stronach and her husband consolidated debts over the house and car into a single debt secured against the house. As a result, it appears that the amount of debt in 2006 may have exceeded the value of the house at that time. Ms Stronach’s evidence is that it was Mr Stronach who decided to consolidate the debts as this would reduce the level of repayments. She conceded that she agreed with Mr Stronach’s proposal.
11. Ms Stronach and her husband hold a Commonwealth Bank account in joint names[15]. Mr Stronach’s salary payments were deposited into this account. Ms Stronach’s parenting payments were deposited into a Central West Credit Union Account in her name alone. Ms Stronach’s evidence is that Mr Stronach took her access card to the joint account when they separated in June 2005. However, he subsequently returned this to her when she moved back into the family home in February 2006. On the evidence of Ms Stronach, corroborated by Mr Stronach, an arrangement was agreed concerning her access to the joint account whereby she would only access the account with Mr Stronach’s permission to withdraw money to cover expenses relating to the children (examples given were school excursions, clothes and birthdays) or to withdraw money for Mr Stronach at his request when he was unable to do so himself as a result of his work commitments (Mr Stronach’s employment as a railway fitter involved shift work and periods of travel away from Parkes). Ms Stronach explained transactions appearing in the joint account statements in some detail in those terms. As many of the transactions recorded there are in the form of cash withdrawals from ‘autobank’ (identified by an ‘AB’ prefix) or automatic teller machines (identified by an ‘ATM’ listing) the bank statements do not assist identifying the person who made the particular transaction. I note that the statements for Ms Stronach’s Credit Union account indicate a level of account activity and transactions that is consistent with her evidence that she used this account, and not the joint account, to cover her recurrent living costs week to week. Thus, Ms Stronach’s evidence concerning her limited access to the joint account controlled by Mr Stronach is reasonable and open on the documentary evidence, and I accept it.
12. Ms Stronach’s uncontested evidence is that she has not changed her will following her separation from Mr Stronach in June 2005. Mr Stronach gave evidence that he changed his will following the separation nominating the children as beneficiaries with his sister as overseer.
13. Ms Stronach’s evidence is that in the period from February to August 2006 she and Mr Stronach split the electricity and gas bills, but she paid all the telephone bills herself as Mr Stronach did not use the telephone facilities inside the house. Her evidence is that she purchased food and other necessary items for the children, and that Mr Stronach would only do so when he had responsibility for them one or two weekends per month. This evidence was not seriously challenged and I accept it.
14. Ms Stronach sought child support payments from Mr Stronach following the breakdown of their marriage. By her own account, communication with Mr Stronach was extremely difficult at this time. Her evidence is that she was frightened of Mr Stronach, who drank alcohol to excess and had previously been violent and abusive towards her when drunk. She was granted an exemption from pursuing child support payments from him as she feared for her safety. Thus, Ms Stronach did not formalise any arrangement with Mr Stronach concerning regular child support payments. Mr Stronach did not make regular child support payments in respect of his children at any stage after his separation from Ms Stronach in June 2005. Ms Stronach’s evidence is that it was for this reason that the arrangement concerning her access to the joint bank account was agreed. I accept that even though Ms Stronach was exempt from pursuing child support payments from Mr Stronach, he addressed what otherwise would be a legal obligation on him by permitting Ms Stronach to withdraw amounts from the joint bank account, which he controlled after June 2005, for the benefit of the children.

NATURE OF THE HOUSEHOLD

15. Prior to returning to the family home the evidence reveals that Ms Stronach and her children used the air-conditioned family home and the pool on hot afternoons. This was done with Mr Stronach’s knowledge, as he left the back door open for them to use. Ms Stronach said that Mr Stronach was never in attendance during these visits. His evidence was that he could not recall, but stated that he usually worked afternoons into the evening and if his wife and daughters visited the house when he was at work he would not come into contact with them. In the period from June 2005 to 17 February 2006 Ms Stronach dropped the children off at the family home for Mr Stronach’s access time, usually every second weekend.
16. I am reasonably satisfied that Mr Stronach moved into a caravan at the rear of the family home on or about 17 February 2006, when Ms Stronach and the children returned to live in the family home and so find. Thereafter, in all likelihood, the living arrangements were as follows:
    • (a) Ms Stronach had primary care responsibilities for the children. Mr Stronach had primary responsibility for the children two or so weekends each month.
    • (b) Ms Stronach and the children slept in the house. Ms Stronach slept in the main bedroom, the oldest and youngest daughters in the second bedroom and the middle daughter by herself in the third bedroom. Mr Stronach slept in the caravan but used the bathroom and toilet in the house. Mr Stronach had access to the house and to the children when he wanted, but not after Ms Stronach locked the backdoor each night.
    • (c) Mr Stronach was involved in his children’s lives at this time, and was especially involved in his oldest daughter’s activities.
    • (d) Ms Stronach cooked for herself and the children. Mr Stronach cooked in the house when he was responsible for the children (on weekends, for example) and at times when the gas stove in the caravan was not operational. In the latter case he cooked and ate separately from Ms Stronach and the children, and cleaned up after himself. He ate his meals in the caravan.
    • (e) Ms Stronach took the children to school and picked them up. She cleaned the house and washed their clothes. She did not wash Mr Stronach’s clothes. Mr Stronach kept his work and everyday clothes in the caravan. His best clothes and his white bowls uniforms remained hanging up in the wardrobe in Ms Stronach’s bedroom. However, he did not wear these clothes regularly or often.

SOCIAL ASPECTS

17. There is no evidence that either Ms Stronach or her husband held themselves out to each other, or to family members, or to anybody else as a married couple during the period in question and subsequently. The evidence reveals that family members and friends knew that their marriage had broken down in June 2005 and that they had separated[16]. Family members have attested to the violent and abusive nature of their relationship as a result of Mr Stronach’s alcohol consumption.
18. The evidence reveals infrequent “social” activity involving Ms Stronach and her husband. It is not contested that they attended the funeral of Mr Stronach’s uncle as a family and went out together to a Chinese restaurant on 14 February 2006. It is also conceded by Ms Stronach that she and Mr Stronach would attend Police and Citizens Youth Club baton-twirling group activities in support of their daughters in the group and, sometimes, would attend school parent-teacher interviews together.
19. The stated basis of these outings was to support the children.

SEXUAL RELATIONSHIP

20. There is no evidence of any sexual or intimate relationship between Ms Stronach and her husband after June 2005.

COMMITMENT

21. Ms Stronach asserted that has not considered herself to be in a marital relationship with her husband as a member of a couple since June 2005. Ms Stronach explained that, nevertheless, she has been and would be willing to consider reconciling her differences with Mr Stronach if there was a significant improvement in his behaviour[17]. In those circumstances she would be willing to consider resuming life as a couple on a trial basis. However, in her evidence, the prerequisites for such a change have not occurred since June 2005.
22. Mr Stronach gave evidence that he has always wanted to reconcile the difficulties with his wife and resuscitate his marriage, but she will not agree. It can be accepted that Mr Stronach drank large quantities of alcohol (Ms Stronach estimated six 750ml bottles of full strength beer in a sitting, several nights per week) and became abusive and violent to her and the children prior to June 2005. It was this behaviour that caused her to leave Mr Stronach. Ms Stronach gave evidence that Mr Stronach reduced the level of his alcohol consumption in or about January 2006, to the extent that, in her estimation, he would drink six 750ml bottles of full strength beer over a weekend. This, she asserted, was not a significant change, nor a sufficient basis on which to consider reconstituting married life as a couple with Mr Stronach. She was not sure about Mr Stronach’s alcohol consumption since he moved to Queensland, or his present alcohol consumption.
23. What is abundantly clear from the evidence is that both Ms Stronach and Mr Stronach are deeply committed to doing the best for their children in the circumstances. It appears to me that both are committed to encouraging the children to have a continuing and positive relationship with the other parent.
24. Neither Ms Stronach nor her husband have pursued a divorce, and remain legally married to each other. They were married on 2 January 1999. I note that Ms Stronach no longer wears her wedding ring.
25. The reason Ms Stronach gave for moving back into the family home was that it was in the children’s best interests to do so. The family home was equipped with air-conditioning and a swimming pool, which were of assistance in managing the febrile convulsions her youngest daughter suffered on hot days. Ms Stronach had difficulty coping with her two daughters with behavioural problems, especially the oldest. Her evidence was that her oldest daughter “is her father’s child... He says and she does”. The children felt safe and secure in the family home and wanted to return, presumably also to be in close proximity to their father. Furthermore, Ms Stronach’s evidence was that she wanted to move out of the government house because the neighbours partied all night during the week and disturbed the children, and other neighbours were nosey and would watch her daughters. It appears that Ms Stronach has past experience of sexual abuse as a child and this may have heightened the level of her concern to protect her daughters from harm, including the undesirable attention of strangers. Ms Stronach also gave evidence that she was very concerned about her husband’s state of mind at the time, and thought that he may be suicidal.
26. The Applicant Secretary asserted that communication between Ms Stronach and her husband improved following a mediation process in Dubbo in or about September 2005. Ms Stronach accepted that that may have been so[18], but asserted that resolution of the child support payments issue was a significant factor in the improvement. The evidence, scant as it is, indicates that Mr Stronach was very unhappy and engaged a solicitor to address the issue of child support in response to Ms Stronach’s claim. This was only resolved when Ms Stronach was granted an exemption for pursuing child support payments from Mr Stronach. Thereafter it appears that some improvement in communication between them followed. Ms Stronach denied any significant change in the character of their relationship after September 2005, and noted that communication remained difficult, conflicted and unpredictable[19].
27. There is no reliable evidence that Ms Stronach and her husband gave each other any emotional support or derived companionship from each other in the period from February to September 2006. Neither Ms Stronach nor Mr Stronach gave any indication that resumption of married life as a couple was in contemplation in February 2006, or presently, although that possibility remains open as a possibility in the future. Neither presently see their relationship as marriage-like, and I am satisfied that they did not see their relationship in that way in the period from February to September 2006.

CONCLUSION

28. Considering all of the evidence and the facts as I have found them, I am reasonably satisfied that Ms Stronach and her husband were living separately and apart on a permanent or indefinite basis from 17 February 2006. The evidence reveals a sequence of events, to which the Secretary pointed, after September 2005 in which communication between Ms Stronach and her husband improved. They jointly arranged their finances in relation to their assets and consolidated their debts in December 2005. Mr Stronach reduced the level of his alcohol consumption in or about January 2006. The family attended a Chinese restaurant on 14 February 2006, merely three days before Ms Stronach and the children moved back into the family home. However, the inference pressed by the Secretary that these factors point to their resumption of married life as members of a couple is not supported by the whole of the evidence and the facts. I am reasonably satisfied that Ms Stronach and her husband made joint financial arrangements to reduce the recurrent amount of Mr Stronach’s debt repayments against their joint assets, at least in part, in lieu of formal child support payments. I am also satisfied that her access to the joint account facility was within the terms of the cooperative financial arrangements they made for the benefit of their children, and that access was approved by Mr Stronach on a case by case basis. In other words, I am not satisfied that Ms Stronach had free or open access to the funds deposited by her husband into the joint account facility.
29. In the Secretary’s submission the Chinese meal on 14 February 2006 was a celebration of Ms Stronach’s return to the family home. That may be true, although Ms Stronach denied it. In her submission it was merely an attempt to go out for a meal once in a while as a family for the children’s benefit. As it appears to me going out as a family for a meal three days before the significant step of Ms Stronach and the children returning to the family home after a period of substantial conflict and dislocation may well be a celebration of some sort. Even if it was, as appears likely, that occurrence does not mean that Ms Stronach had at that time intended to resume married life as a couple with her husband, even on a trial basis. The dinner event must be considered in relation to all the other factors and other evidence of the nature of the relationship then pertaining between them. I note that the dinner event is an isolated occurrence on the evidence before me. If Ms Stronach’s married life as a couple was reconstituted on or about 17 February 2006, one could expect to find evidence of further such occurrences or outings, but no such evidence is apparent.
30. In sum, the evidence and the facts thus revealed are, in my mind, more consistent with the account and explanations given by Ms Stronach than the inferences urged by the Secretary. Furthermore, in order to accept the Secretary’s submissions, it would be necessary to find that Ms Stronach has deliberately and consistently set out to deceive and defraud the Commonwealth, and this Tribunal, while under oath. I am reasonably satisfied that she has not. On the contrary, I found Ms Stronach to be a witness of truth who gave her evidence concerning difficult and personal matters without guile and with a measure of consistency under cross examination that is indicative of truth rather than deliberate deception.
31. Finally, I feel compelled to observe that relationships between parents in broken marriages are of very great variety. Many are the cases in which separated parents, facing the disturbance of family life for themselves and their children in difficult circumstances, become enmeshed in bitterness and conflict to the extent that reasonable cooperation and communication fail. However, there are other cases of broken marriages and failed relationships in which separated parents adopt a cooperative approach based on reasonableness and the best interests of the children, insofar as the circumstances allow, in order to provide their children with some stability, security and normalcy in separated family life. Thus, one should not be too hasty to interpret the care and concern of such parents for their children, or their efforts to stabilise their lives by making cooperative domestic and financial arrangements of convenience in the best interests of their children, or their attempts to normalise communication and contact, in so far as it may be possible in the circumstances, and to behave with some respect towards each other, as evidence that a marriage-like relationship has resumed. In this case I am satisfied that these elements indicate nothing more than the genuine efforts of both parents to make and do the best for their children, directly and indirectly, in difficult circumstances. Nor in such circumstances should the hopes or even the aspirations of a separated parent to reconcile differences with the other parent and to resume life as a united family, with parents reunited together as members of a couple at its heart, be taken as real or probable against the weight of the evidence. Such aspirations I am sure are within the experience of many separated parents, at least at some time, especially when faced with the difficult challenges of children suffering behavioural and learning difficulties. As it appears to me, this is such a case. Nevertheless, Ms Stronach’s hopes for her children and herself in this regard are based on firmly stated criteria concerning significant improvements in her husband’s alcohol consumption and behaviour, which by her account have not yet, since July 2005 at least, been satisfied. Whatever hopes or aspirations she may have harboured concerning the resumption of family life with Mr Stronach in 2006, it appears that the change in Mr Stronach’s alcohol consumption and the improvement in communication between them were not sufficient bases for Ms Stronach to resuscitate her broken marriage, and her hopes were not realised. There is scant evidence concerning any changes in Mr Stronach’s alcohol consumption and behaviour, and one must evaluate his evidence and that of Ms Stronach, which is largely consistent, in the context of the evidence as a whole. When that is done the picture that emerges is not consistent with Mr and Ms Stronach living as members of a couple during the relevant period.
32. Thus, all things considered, I am reasonably satisfied that Ms Stronach was living separately and apart from Mr Stronach on a permanent or indefinite basis at all relevant times and remained entitled to PPS from 23 March 2006 to 22 September 2006. It follows that the decision under review is affirmed.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:

Jane Gribble

Associate

Date of Hearing 15 May 2007

Date of Decision 5 June 2007

Counsel for the Applicant Mr Zac Chami

Solicitor for the Applicant Andrew Klein

Centrelink Legal Services Branch

Counsel for the Respondent Mr David Mossop

Solicitor for the Respondent Jaleh Johannessen

Welfare Rights and Legal Centre Ltd

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[1] T11 folio 39
[2] T23 folio 77 refers
[3] T15 folio 45, T23 folio 77 refers
[4] Exhibit R1
[5] T13
[6] T21
[7] T2
[8] T22 folio 75 and T23 folio 82 refer
[9] Section 500
[10] Section 503
[11] Subs 4(2)(a)
[12] [2006] FCA 735; 151 FCR 546 at 553-556
[13] [1981] FCA 171; 57 FLR 262 at [200]
[14] [1991] FCA 513; 32 FCR 164 at 170
[15] T24
[16] T2 folios 3-4; oral evidence of Ms Stronach and Mr Stronach
[17] T15 folio 47 refers
[18] T15 folio 45 refers
[19] T15 folio 45 refers