Perry and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 959 (1 December 2010)

Last Updated: 1 December 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 959

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4380

GENERAL ADMINISTRATIVE DIVISION		)
	Re		FELICITY PERRY

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal

Ms J L Redfern, Senior Member

Date 1 December 2010

Place Sydney

Decision

The Tribunal sets aside the decision under review and substitutes a decision pursuant to s 24(2) of the Social Security Act 1991 that the Applicant is not to be treated as a member of a couple for the purposes of the Act during the period 24 March 2007 to 5 January 2009 and accordingly the Applicant does not owe a debt to the Commonwealth arising from her receipt of parenting payment at the single rate during this period.

.................[sgd].............................
Ms J L Redfern
Senior Member

CATCHWORDS

SOCIAL SECURITY – whether Applicant is a member of a couple – consideration of all of the circumstances of the relationship – abusive relationship – discretion under section 24(2) – decision under review set aside

Social Security Act 1991 ss 4, 24

Kozarova v Secretary, Department of Education, Employment and Workplace Relations & Anor [2009] FMCA 888; (2009) 234 FLR 304

Lynam v Director-General of Social Security (1983) 52 ALR 128

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

Re Perry and Department of Family and Community Services [2001] AATA 282

Re Rolton and Secretary, Department of Education, Employment and Workplace Relations (oral decision, 16 December 2008)

Re Secretary, Department of Social Security and Porter (1997) 48 ALD 343

Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 25 ALD 27

REASONS FOR DECISION

1 December 2010

Ms J L Redfern, Senior Member

BACKGROUND

1. In March 2007 the Applicant gave birth to her daughter (the child). Shortly after the birth of the child, the Applicant applied for parenting payment at the single rate, which was paid by Centrelink from 24 March 2007.
2. The Applicant and the child’s father lived together from shortly before the birth of the child until they separated on 5 January 2009.
3. On 21 April 2009 Centrelink determined that the Applicant had been overpaid the parenting payment for the period 24 March 2007 to 5 January 2009 because she was a “member of a couple” and was not entitled to the parenting payment at the single rate. It was also determined she was not entitled to the parenting payment at the partnered rate because the child’s father’s income exceeded the relevant threshold. Centrelink therefore raised a debt for the total amount of the parenting payment in the sum of $24,654.41.
4. The Applicant applied for the decision to be reviewed but on 9 June 2009, an authorised review officer determined the debt was properly raised. The Applicant unsuccessfully appealed the decision to the Social Security Appeals Tribunal (SSAT) and on 17 August 2009, the SSAT affirmed the decision that the Applicant had been overpaid. The SSAT found there was a debt based on the overpayment of the parenting payment and there was no basis for waiver or release of the debt by the Respondent.
5. The Applicant seeks a review of this decision. She contends that she and the child’s father had an abusive relationship and even though they lived together after the birth of their child, they were not a “couple”. She says she made the application for parenting payment under duress and did not receive the benefit of the majority of the payments.

LEGISLATIVE FRAMEWORK AND ISSUES BEFORE THE TRIBUNAL

6. The relevant legislation is the Social Security Act 1991 (the Act).
7. Section 500 of the Act deals with qualification for parenting payment, s 503 deals with the parenting payment rate and ss 1068A and 1068B set out the basis for calculating the parenting payment rate, which is dependent on whether the claimant is a “member of a couple” or not. If the person is a member of a couple, the rate will be reduced to take into account the combined income of the couple.
8. There is no dispute that if the Applicant was a member of a couple with the child’s father between 24 March 2007 and 5 January 2009 (the relevant period) she would not have been entitled to any parenting payment. Under s 1223(1) if a person is paid more than they are entitled to, the amount is a debt due to the Commonwealth. The debt may be waived or written off in certain circumstances, namely discretionary write off a debt (s 1236), waiver of debt arising from error (s 1237A) and waiver in special circumstances (s 1237AAD), but it is also agreed that the circumstances of this case do not qualify for such relief.
9. As such, the key issue in dispute is whether the Applicant was a “member of a couple” during the relevant period.
10. The Act provides that a person is a “member of a couple” where the person is not legally married to another person but has a relationship with a person of the opposite sex which is “in the Secretary’s opinion... a marriage-like relationship” (s 4(2)(b)(iii)). Section 4(2) was amended, with effect from 1 July 2009, by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008 and the term “de facto” was substituted for “marriage-like” in paragraph 4(2)(b)(iii). However, the payment was made in a period before the amendment came into effect and I will refer to the legislation as it was.
11. Section 4(3) of the Act provides guidance to the Secretary in forming an opinion about the relationship between two people for the purposes of s 4(2)(b)(iii) and states that all of the circumstances of a relationship must be considered, including the following:

s 4(3)(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 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.

12. If the Tribunal finds that the Applicant is a “member of a couple” after taking into account all of the circumstances of the relationship and the matters set out in s 4(3), a further issue will arise as to whether the Tribunal may nonetheless determine that the Applicant should have the benefit of the discretion in s 24. Section 24(2) of the Act gives the Secretary discretion to determine that a person is not to be treated as a “member of a couple” for the purposes of the Act where there is a “special reason in the particular case”.

THE EVIDENCE

13. The Applicant told the Tribunal she found out she was pregnant with her daughter after she and the child’s father had ended their relationship. They reunited but had problems after 13 weeks. The Applicant moved in and lived with her mother until just before the birth of the child. However, the child’s father and the Applicant reunited again and moved in together about a week before the baby was born. They lived in a house in Watanobbi, near Wyong.
14. The child’s father was not present at the birth and came to the hospital later that day. They argued about the baby’s name and the Applicant did not see the child’s father until the next day. Before he left, the child’s father had a discussion with the Applicant about claiming the parenting payment. The Applicant told the Tribunal she did not want to make the claim because she knew she and the child’s father were living together.
15. The Applicant gave evidence that the following day the child’s father raised the issue of applying for parenting payment again and they had a further argument. He told her that if she did not apply, he would take her baby from her. The Applicant told the Tribunal she believed this threat at the time. The child’s father was dominating and she knew he had been given the care of the two children from his previous partner. She suffered depression and was concerned he would be able to use this against her to take her child away from her. She was feeling depressed after the birth of her child and felt pressured.
16. Two days after the birth of her daughter, the Applicant telephoned Centrelink and applied for the parenting payment over the telephone. She was still in the hospital at the time. The Applicant told Centrelink that she would be living with her mother at Wyong.
17. When the Applicant left the hospital, she returned with the child’s father to the house they shared.
18. The Applicant went into Centrelink on 2 April 2007 which was about a week after she left the hospital. She completed a Customer Declaration Form Parenting Payment - Single which recorded that she lived at her mother’s address at Wyong. She also completed a statement to the effect,

I Felicity Perry (CRN ...) am a new single parent of a newborn baby born ... I am NOT with the father of [the child] and NOT living in a marriage like relationship. I live with my mother, ....

19. The Applicant concedes this statement was not true, although she said she believed at the time she was not in a “marriage-like relationship”.
20. The Applicant gave evidence that her relationship with the child’s father was abusive, and she had only moved back with him so that the child could have a father. According to the Applicant, the child’s father was controlling and verbally abusive. During the time that she lived with him the child’s father would closely monitor her actions, put her down and threatened her with the removal of the child. The Applicant said she now realises she should have left him earlier but she was frightened of what he would do. She had little confidence and did not confide in friends or her mother about her predicament as she was ashamed. The Applicant told the Tribunal she did not want to admit to others that she had allowed herself to remain in a domestic abusive relationship.
21. The Applicant told the Tribunal that the child’s father did not hit her, but manhandled her when they had a disagreement about their child’s baptism. The child’s father would telephone her about four times an hour during the day, check her mobile telephone for messages, check her emails and facebook accounts and would not agree to her meeting with her friends.
22. The Applicant provided statutory declarations from friends and associates to the Tribunal to corroborate her evidence. The statutory declarations were admitted into evidence without objection.
23. Ms Melissa Anne Rose provided a statutory declaration dated 22 September 2010. Ms Rose stated that she and the Applicant had been friends since preschool and had been best friends until the Applicant started dating the child’s father. According to Ms Rose she had tried to contact the Applicant during the period the Applicant was with the child’s father but she was told by the Applicant that the child’s father would not allow her to have contact with her friends. The Applicant did not return her calls. The Applicant contacted Ms Rose after she left the child’s father in January 2009 and told her she had used her pension to pay for everything, including bills for the child’s father. Ms Rose states, the Applicant “was in a very depressed state, drinking and was smoking almost a whole packet of smokes. I have not seen Felicity like this before.”
24. Ms Samantha Simpson, a former neighbour of the Applicant and the child’s father, also provided a statutory declaration. Ms Simpson witnessed the argument at the time of the child’s baptism and stated that the Applicant came to her home “seeking shelter” from an argument with the child’s father and his mother but they came into her home started yelling at the Applicant. There was also a physical altercation. Ms Simpson and a nearby workman supported the Applicant and suggested to her that she telephone the police. The Applicant refused. Ms Simpson stated that when she went shopping with the Applicant, the Applicant would telephone the child’s father to ask if she could have coffee with Ms Simpson. She also stated that the Applicant “always appeared to be struggling to provide the basics for herself” and spent money on the child’s father’s two children from a previous relationship.
25. The Applicant told the Tribunal she found the strength to move out of the house on 5 January 2009 after confiding in her sister. She left the house when the child’s father was out for the day on a boat with his sister. She telephoned her mother and asked her mother to collect her and her child. The Applicant said that this is the first time, she told her mother about her situation.
26. The Applicant told the Tribunal she had been depressed as a result of the relationship and the debt to Centrelink was a burden that reminded her of the child’s father and makes it difficult for her to rebuild her life. She believes that the child’s father was the source of an “anonymous tip” to Centrelink after she left him in January 2009. However, there is no evidence to support this. There is evidence from the Applicant’s general practitioner, Dr Howard Oxley, that the Applicant suffers “moderate to severe depression” and that she is receiving counselling from Dr Oxley and a psychologist.
27. Mr Mark Grant, psychologist, who has been treating the Applicant since 2009, provided a report dated 13 August 2009. Mr Grant noted that the Applicant suffered from depression and low self esteem and, in his opinion, her application for the pension “was made under conditions of duress and emotional abuse”.
28. The evidence is that the Applicant was in an abusive relationship with the child’s father until she left him on 5 January 2009. However, the Applicant contends this relationship was not marriage-like.
29. The Applicant told the Tribunal she and the child’s father did not pool their resources or own any joint assets. Initially, they lived together at Watanobbi and the Applicant said she paid the rent of $290 per week from her pension. In about April 2008, they moved into a home owned by the child’s father’s parents. They did not pay any rent, although the child’s father paid his parents’ mortgage.
30. The Applicant told the Tribunal the child’s father had the care of his two children from a previous relationship, five days a week. She looked after the children for him, took them to school, bought clothes for them and helped them with their homework. Notwithstanding this, she told the Tribunal she did not feel close to them. She said she felt like a housekeeper. The Applicant told the Tribunal the child’s father did not give her any money for herself, her child or his children, even though he received child support payments for his children.
31. The Applicant said she paid the household bills and shopping for everyone in the house, including his children. The child’s father also used her debit card to pay for some of his own expenses. She was regularly required to pay for his lunch and the lunch of one of his work associates and the child’s father would telephone her to come to his work or to the takeaway restaurant to pay for the meal.
32. The Applicant provided her bank statements for the period 23 March 2007 to 13 January 2009 to the Tribunal, which were annotated by her with handwritten notes to evidence her claims. The bank statements showed deposits of her pension into the account. The statements also show regular withdrawals, against which the Applicant had made some handwritten notations. The Applicant told the Tribunal she used a diary and budget planner to make these notes but she did not bring the diary to the hearing.
33. The notes record that the Applicant paid for a substantial number of expenses for the child’s father’s children from this account, including school uniforms and school shoes, clothing, electronic games, videos and Christmas presents. The notes also record the payment of expenses for the child’s father for alcohol, petrol for his car, lunch for him and a work colleague, work shoes, presents for his children, work clothes, a motorcycle helmet and motorcycle repayments.
34. The statements show that almost all her pension was withdrawn each month. The Applicant said that the payments were made to cover these expenses, Telstra telephone bills and food shopping, generally from Coles Supermarket. In some cases the statements showed the recipient of the funds and were consistent with the Applicant’s evidence.
35. The Applicant agreed that not all her pension was paid towards expenses for the household, the child’s father and his children but estimates that over half the pension was used for these expenses. She told the Tribunal she had little money left for her own expenses. She denied receiving any money from the child’s father but agreed she received the benefit of not having to pay rent while she and the child’s father lived in his parents’ house from about April 2008.
36. The Applicant told the Tribunal that the child’s father took out a loan with Esanda in her name to purchase a motorcycle for his use. The Applicant signed the loan documentation and said she paid about $68 per fortnight for the loan. When she left the child’s father, the Applicant asked if she could take the car but the child’s father refused so she took the motorcycle and sold it so she could purchase a car.
37. The Applicant opened a joint account with the child’s father for her child. She deposited money when she could and sometimes used the money to pay for expenses for her child. The account was closed by the child’s father.
38. The Applicant gave evidence that she cooked meals for the family, but she and the child’s father did not eat together or attend social functions together. She went to a business function with the child’s father at his work and a friend’s party. She had not wanted to go to either of these functions with the child’s father, but he had insisted. They did not have a sexual relationship and the Applicant slept in another room when the child’s father’s children were with their mother. The child’s father did not provide her with any emotional support.
39. The Respondent accepts that the relationship between the Applicant and the child’s father was abusive and unhappy, but contends that the Applicant conceded she was in a marriage-like relationship because of “admissions” to Centrelink on 2 and 7 April 2009 and to her psychologist, Mr Mark Grant. The statements to Centrelink on 2 and 7 April 2009 were to the effect that the Applicant and the child’s father had “lived together” and were “separated”. This is not an admission of a marriage-like relationship. Mr Grant referred to the child’s father in his report of 13 August 2009 as an abusive “partner”, however there is no evidence about what the Applicant told Mr Grant so it is difficult to accept this as an “admission” as opposed to a conclusion by Mr Grant. The Respondent contends that the Applicant held herself out to others, including the children of the child’s and her family, as having a marriage-like relationship with the child’s father.
40. When the Applicant was asked why she moved in with the child’s father, the Applicant said that she hoped to “create a family life” with the child’s father after the birth of their child. She did not move out because of fear and depression. The Applicant was also asked why she lied about the fact she and the child’s father were living together if she considered they were not in a marriage-like relationship. The Applicant said she knew Centrelink would not pay her the pension if they knew she and the child’s father were living together. Much emphasis was placed on the living arrangements by Centrelink staff, for good reason as this is one of the indicia referred to in s 4(3) of the Act. However, both Centrelink and the Applicant seemed to proceed on the basis, at least at the early stages, that this was a determining factor.
41. When questioned about the issue in late March 2009 the Applicant initially denied she and the child’s father had lived together, but within days rang Centrelink and conceded she lied.

CONSIDERATION OF THE EVIDENCE

42. In order to make the correct and preferable decision regarding whether the Applicant was a “member of a couple” in the relevant period, the Tribunal must assess the totality of the circumstances surrounding the relationship between the Applicant and the child’s father. While the indicia in s 4(3) of the Act must be addressed, it is not a matter of mechanically listing all the evidence.
43. In Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 25 ALD 27, O’Loughlin J, when determining whether a husband and wife were “living separately and apart”, referred to a list of factors he considered might be relevant based on the statutory indicia in s 4(3) but stated at 32-33:

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.

44. The factors set out in s 4(3) provide guidance to decision makers in forming a view about whether a relationship is marriage-like. However, in many cases the analysis will be complex and challenging, as are many relationships, and it is useful to draw on the observations of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

45. These observations should be taken into account when considering the evidence in the application of s 4(3) of the Act.

FINANCIAL ASPECTS OF THE RELATIONSHIP

46. There is no evidence that the Applicant and the child’s father owned any assets jointly or that they had joint accounts, apart from the account for the child. This account was small and showed little activity. It was not significant. They were the joint tenants on the lease of the property at Watanobbi and shared some expenses but the evidence, which is not contradicted, is that the Applicant paid for most of the household expenses and many expenses for the child’s father and his children. In this respect, it is argued by the Applicant there was no real “pooling of financial resources”. On the basis of the Applicant’s evidence, it appears that the child’s father, rather than the Applicant, was the financial beneficiary of the relationship. However, the child’s father did pay his parents’ mortgage for approximately eight months and he must have paid some household expenses such as energy and water bills. There is no evidence of these bills being paid from the Applicant’s account.
47. On balance, the financial aspects of the relationship between the Applicant and the child’s father are suggestive of a marriage-like relationship because there was some pooling of resources and sharing of expenses, albeit not in the Applicant’s favour. There was no attempt by either party to conduct a separate accounting. While the Applicant gave evidence that she took steps to record payments made for or on behalf of the child’s father, she did not claim these moneys and there was no suggestion the expenses would be repaid.

NATURE OF THE HOUSEHOLD

48. The Applicant’s evidence was that she provided support and care for the children, including the children of the child’s father’s previous relationship. She cooked and shopped for the extended family, but did not eat with the child’s father. They did not sleep in the same room when the children were away, conversely they slept together when the children were there, which was apparently most of the time. There is no evidence the Applicant and the child’s father discussed and distributed the housework between them. The Applicant told the Tribunal she was like a housekeeper or baby sitter for the children of the previous relationship. She felt no emotional attachment to them.
49. The domestic arrangements between the Applicant and the child’s father were unusual, perhaps because of the way the child’s father treated the Applicant. Arrangements in an extended family are often challenging for a carer who is not the parent, but the evidence of the Applicant is that she did everything for the child’s father and his children with little feedback from or connection with the children. The Respondent accepts that the relationship between the Applicant and the child’s father “appears to have been an exploitative one” but nevertheless contends that they lived together as a family, which is indicative of a marriage-like relationship.

SOCIAL ASPECTS OF THE RELATIONSHIP

50. The Applicant’s evidence was that she and the child’s father rarely engaged in social activities together with the exception of the two functions which she told the Tribunal she was forced to attend with the child’s father. The Applicant was isolated from her friends and says she was too ashamed to tell her family about her relationship. It is probable that friends and family thought the Applicant and the child’s father were in a marriage-like relationship until they separated. Mr Grant referred to the child’s father as the Applicant’s partner and the Applicant slept in a room with the child’s father when his children were at home so the children would believe things were normal.
51. This factor is difficult to assess. It is clear from the evidence of the Applicant there was little social interaction between her and the child’s father yet she was careful to ensure others believed they were a couple because she was too ashamed to admit otherwise. While it is relevant to consider the views of others, it is also important to assess the underlying facts to understand the nature and extent of the social aspects of their relationship. Any evidence about the views of family and friends is of little value in the circumstances given evidence that the Applicant was isolated from friends and deliberately kept her problems a secret from her family.
52. Having regard to the evidence, I am not satisfied that the social aspects of the relationship between the Applicant and the child’s father were marriage-like.

ANY SEXUAL RELATIONSHIP BETWEEN THE PEOPLE

53. In considering, s 4(3)(d), I accept the Applicant’s evidence that she had no sexual relationship with the child’s father while they were living together after the birth of the child. However, I also note that this in itself is not determinative of whether a person is a “member of a couple” in terms of the legislation.

NATURE OF THE PEOPLE’S COMMITMENT TO EACH OTHER

54. The Applicant and the child’s father lived together for almost two years. The Applicant told the Tribunal she had hoped they could live as a family. She also told the SSAT when she first moved in with the child’s father she expected the relationship to continue indefinitely.
55. At some stage in their relationship, the Applicant changed her attitude but there is no clear evidence as to when this occurred. The Applicant told the Tribunal that the child’s father provided no support and she wanted to leave but felt unable to do so. The evidence is that the child’s father was abusive and controlling.
56. In an appeal from a decision of this Tribunal in Kozarova v Secretary, Department of Education, Employment and Workplace Relations & Anor [2009] FMCA 888; (2009) 234 FLR 304, Riethmuller FM considered whether evidence of domestic abuse was relevant to the consideration of s 4(3)(b) (the nature of the household) and s 4(3)(e) (the nature of the people’s commitment to each other). Riethmuller FM concluded that the Tribunal had erred in failing to properly consider these matters and in his view [at 21] this should be:

... a significant consideration when determining whether parties are members of a couple: it strikes at the very heart of the concept of “companionship and emotional support” to each other.

57. The issue of domestic abuse was also considered in Re Perry and Department of Family and Community Services [2001] AATA 282. In that case, as in the case of Kozarova, the abuse was physical and violent. In Perry, the Tribunal found Mrs Perry had continued to stay in the relationship “because she still had a commitment to the marriage and lived in hope of an improvement”. The Tribunal did not accept she stayed because she was afraid to leave but rather because she had not reached the point of making a decision there was no future in the relationship [at 97].
58. While physical abuse is inimical to the concept of a marriage-like relationship, verbal and psychological abuse is similarly inconsistent with notions described in s 4(3)(b) and s 4(3)(e) of the Act and should be given equal weight.
59. There is no evidence before the Tribunal about the commitment of the child’s father other than the inference that can be drawn from the evidence of the Applicant that he exploited her but wanted her to remain living with him.
60. It is a complex and difficult assessment about when a relationship is to be adjudged as merely dysfunctional as opposed to one that is divorced from any of the qualities normally associated with a marriage-like relationship. In this case, the Applicant was dominated by the child’s father. She paid for expenses and did things for him and his children, apparently without question, receiving little in return. There is evidence she was depressed and isolated and she has told the Tribunal she did not feel able to leave until after she had taken the step to confide in her sister.
61. I am satisfied the relationship between the Applicant and the child’s father, as volatile as it was, started as a genuine attempt to reconcile and live as a couple, albeit for the sake of the child. In this respect, I do not accept the Applicant’s evidence that she was of the view she and the child’s father were not in a marriage-like relationship at the time she completed the Customer Declaration Form. However, I am also satisfied that some time after the birth of the child, the nature of the commitment between the Applicant and the child’s father deteriorated to such an extent so as to militate against the existence of such a relationship.

FINDINGS

62. In reviewing the indicia in s 4(3) of the Act, I am mindful to consider the totality of the relationship and the weight to be accorded to each of the factors. As noted by Fitzgerald J in Lynam, “each element of a relationship draws its colour and its significance from the other elements”. The evidence in relation to s 4(3)(a) to (d) of the Act is relevant to and informed by the evidence in respect of the matters in s 4(3)(e). It is not a case of simply listing the factors for and against and deciding in favour of the majority. The indicia in s 4(3) of the Act are intended to capture the essence of a marriage-like relationship but it is the overall impression of the relationship, when considering all of those factors, which will lead a decision-maker to a conclusion. It is ‘art’ rather than ‘science.’ As French J stated in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546 at [47]:

The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of “marriage like”, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.

63. The Applicant and the child’s father pooled some resources but there was an element of exploitation rather than ‘sharing’ which is the principal factor underlying s 4(3)(a) of the Act. The Applicant cared for the child’s father’s children and they lived together as an extended family. The Applicant slept in the same room as the child’s father for some of the time and cooked and shopped for the family. However, the Applicant’s evidence was that she did these things reluctantly. There is no evidence the Applicant and the child’s father enjoyed social pursuits together and there was no sexual relationship between them after the birth of the child. Importantly, there is evidence that the relationship of the Applicant and the child’s father deteriorated so that at least the Applicant was of the view their relationship was abusive rather than marriage-like. This deterioration colours the application of the other factors.
64. The difficult question is when did this happen? There is no clear evidence on this and it is probable the process was gradual. The Applicant hoped they could live as a family and apparently made significant efforts to facilitate this. It is difficult to form a view about whether this was through fear and/or control or through a genuine desire to make the relationship work for the sake of her daughter. There is little evidence from others about the relationship, necessarily so because of the nature of the relationship as described by the Applicant. I accept the Applicant’s evidence but find that as time has passed it is probable she has come to view the relationship less favourably.
65. Having regard to all of the evidence and the circumstances of the case, I am satisfied that for a significant part of the relevant period, namely from 24 March 2007 until 5 January 2009, the Applicant and the child’s father were in an abusive and dysfunctional marriage-like relationship. However, at some stage after the child’s birth, but before the Applicant moved out, the relationship deteriorated to such an extent that they could no longer be considered to be members of a couple.
66. It is therefore relevant to consider whether a determination should be made under s 24(2) of the Act that the Applicant should not be treated as a member of a couple for part or whole of the relevant period.

SHOULD THE STATUTORY DISCRETION BE EXERCISED IN FAVOUR OF THE APPLICANT?

67. The Respondent contends that the Applicant should not get the benefit of the discretion. She received the benefit of the pension and the financial pooling of resources, and there is no conclusive evidence of the funds she is alleged to have spent on behalf of the child’s father and his children. The circumstances of the case do not disclose a “special reason” and the Applicant’s circumstances were less severe than those described in Perry and Re Rolton and Secretary, Department of Education, Employment and Workplace Relations (oral decision, 16 December 2008).
68. In Perry, the Tribunal declined to exercise the discretion. The Department submitted that s 24 should be limited to circumstances where a couple is prevented from enjoying pooling of resources, for example through illness or absence overseas. Determinations should be made prospectively after notice and not retrospectively. The Tribunal was influenced by the fact that Mrs Perry was able to achieve separation of her own volition, and had not been prevented by some “external force”. The Tribunal appeared to accept the Department’s view of the narrow scope of this discretion.
69. I do not accept the contention that the discretion in s 24(2) should be so narrowly construed. However, in determining whether “special reason” exists in a particular case, it is relevant to consider the scope and purpose of the Act: Re Secretary, Department of Social Security and Porter (1997) 48 ALD 343 at 351:

The Act is welfare legislation whose general objective is to make provision, by way of social security payments, for those who are in genuine need thereof. The purpose of s 24(1) of the Act is to preclude the application of the abovementioned general rule in a particular case if, for a “special reason” in that case, such application would not promote, but would instead impair, the welfare of the relevant “member of a couple” in receipt of social security and, therefore, would not accord with the general object of the Act.

70. The facts of Rolton are similar to the present case, although there was evidence of companionship, emotional support and an ongoing sexual relationship between the couple. The Tribunal exercised the discretion on the basis of evidence about the nature and severity of Ms Rolton’s mental condition as well as the abusive relationship. The Respondent says this case can be distinguished from the present case because of the severity of Ms Rolton’s mental condition. I do not agree.
71. There is evidence the Applicant has anxiety and severe depression and suffered from these conditions during the period she lived with the child’s father. There is no dispute the relationship was abusive and exploitative. There is also no dispute that the Applicant received little benefit from financial pooling. I accept she made payments from her pension to the benefit of the child’s father and his children when she had no obligation to do so. I also accept that the child’s father did not give her money and provided limited financial resources for household expenses. I have found that there was a marriage-like relationship for a substantial period when the Applicant received payments but have also found the relationship deteriorated some time before the Applicant left the child’s father.
72. In my opinion, the abusive and controlling relationship, the exploitation, the Applicant’s mental state, the fact the Applicant received little or no net benefit from “pooling” of resources and the difficulties in identifying when the relationship altered are circumstances in this particular case that constitute a “special reason” to depart from the general rule. The exercise of discretion is consistent with the nature and scope of the Act. The Applicant was, during the relevant period and remains, in financial need. The Applicant lied to Centrelink and in normal circumstances it would not be consistent with the Act to allow a claimant to retain the benefit of the deceit. However, there is evidence that the Applicant was under pressure when this decision was made and her situation did not improve. Mr Grant is of the opinion this should be excused in the circumstances and I agree.

CONCLUSIONS

73. I set aside the decision under review and substitute a decision pursuant to s 24(2) of the Act that the Applicant is not to be treated as a member of a couple for the purposes of the Act during the period 24 March 2007 to 5 January 2009 and accordingly the Applicant does not owe a debt to the Commonwealth arising from her receipt of parenting payment at the single rate during this period.
    

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member

Signed: .............[sgd]...................................................................

Associate

Date of Hearing 27 September 2010

Date of Decision 1 December 2010

Appearance for the Applicant Self-represented

Appearance for the Respondent Ms R Harlock