Official Trustee on behalf of Jennie Martyniak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5 (12 January 2011)

Last Updated: 17 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL ) No 2010/0779

)

GENERAL ADMINISTRATIVE DIVISION		)
	Re		Official Trustee on behalf of JENNIE MARTYNIAK

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal

Professor RM Creyke, Senior Member

Date 12 January 2011

Place Canberra

Decision

The decision to treat Ms Martyniak as a member of a couple for the purposes of determining her rate of disability support pension is affirmed.

......................[sgd]................................
Professor RM Creyke, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether applicant a member of a couple – whether special reasons not to be treated as member of a couple under section 24(2) Social Security Act 1991 (Cth) – decision affirmed

PRACTICE AND PROCEDURE – bankruptcy – whether proceedings in Tribunal are actions under section 60 Bankruptcy Act 1966 (Cth)- role of Official Trustee in Bankruptcy

Administrative Appeals Tribunal Act 1975 (Cth) s 27(1)

Bankruptcy Act 1966 (Cth) ss 58, 60, 82, 149, 153

Social Security Act 1991 (Cth) ss 4, 24(2)

Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110

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

Main v Main [1949] HCA 39; (1949) 78 CLR 636 at 641

Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611

Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92; (2008) 102 ALD 22

R v Connell; Ex Parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407

Re Cook and Secretary, Department of Employment and Workplace Relations [2007] AATA 1690

Re Civitareale and Department of Family and Community Services [1999] AATA 486; (1999) 57 ALD 451

Re Hulme and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 414

Re Lenard and Secretary, Department of Family and Community Services [2004] AATA 83

Re Lobb and Repatriation Commission (1990) 20 ALD 575 at 577

Re Singh and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 720

Re Tang and Director-General of Social Services (1981) 3 ALN No 49

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

SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189

REASONS FOR DECISION

12 January 2011

Professor RM Creyke, Senior Member

1. Ms Jennie Martyniak has been anorexic since she was a teenager and also has had alcohol and drug problems, and suffers from depression. Her health problems have meant she has been hospitalized on multiple occasions since age fifteen. She has had jobs from time to time but as at July 2010 was unemployed.
2. Ms Martyniak met Mr Sean Fitzpatrick in 1999 and moved into a house where he was a boarder in May 2000. They were in a de facto relationship between 2002 and 2003 but have never married. Subsequently Ms Martyniak has lived at several addresses where Mr Fitzpatrick also resided. Mr Fitzpatrick works full time. His earnings are enough that, if he was considered to be a ‘member of a couple’ with Ms Martyniak, she would not be eligible for Centrelink payments.
3. Ms Martyniak has had periods of being on newstart allowance, single rate, since 1994. On 14 March 2008 Centrelink received a telephone ‘tip-off’ that Ms Martyniak was living in a de facto relationship with Mr Fitzpatrick. As a result Centrelink commenced an investigation including obtaining a surveillance report. On 11 December 2008, Centrelink decided to treat Ms Martyniak as a ‘member of a couple’ with Mr Fitzpatrick and to raise and recover newstart allowance debts for periods between 24 March 2005 to 2 December 2008 amounting in total to $28,882.72.
4. That decision was varied by an authorised review officer on 2 March 2009. Ms Martyniak was found to be a ‘member of a couple’ for the periods 4 August 2005 to 20 September 2006 and 18 September 2007 to 2 December 2008. As a consequence Ms Martyniak was said to have incurred newstart allowance debts of $9,996.03 and $12,928.01 respectively for those periods. This decision was upheld on appeal to the Social Security Appeals Tribunal on 11 January 2010.
5. On 6 April 2009 Ms Martyniak lodged a claim for disability support pension. The claim was unsuccessful on the grounds that she was a ‘member of a couple’ with Mr Fitzpatrick and his income precluded her eligibility. That decision of 23 June 2009 was affirmed by an authorised review officer on 17 July 2009 and was upheld on further review by the Social Security Appeals Tribunal on 11 January 2010.
6. Ms Martyniak appealed to the Tribunal on 22 February 2010. On 4 November 2010, the decision of the Social Security Appeals Tribunal that there were recoverable newstart allowance debts of $9,996.03 and $12,928.01 was affirmed by the Tribunal with the consent of the parties.
7. Ms Martyniak became bankrupt on 10 March 2010. On 4 November 2010, the Secretary withdrew the contention that Ms Martyniak’s actions leading to the newstart allowance debts were fraudulent. As a consequence, the Secretary has conceded that her newstart allowance debts will become irrecoverable at law upon her discharge from bankruptcy.
8. On 23 June 2009 Ms Martyniak was found to be medically eligible for disability support pension. That meant the sole issue remaining was whether Ms Martyniak was a ‘member of a couple’ on 23 June 2009 for the purpose of her application for the disability support pension. That matter was heard before the Tribunal on 24 November 2010.

Issues:

9. The issues are:
   • Whether Ms Martyniak was a member of a couple with Mr Sean Fitzpatrick from 23 June 2009.

• Whether there is any reason for not treating Ms Martyniak as a member of a couple.
  

Legislation

10. The legislative provisions which are relevant to the determination of this matter are as follows:

Social Security Act 1991 (Cth)
Member of a couple - general
4 (2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if: ...
(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in this paragraph called the ‘partner’);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

Member of a couple--criteria for forming opinion about relationship
4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) 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 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.

4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
.....
Person may be treated as not being a member of a couple (subsection 4(2)) ...
24(2) Where:
(a) a person has a relationship with a person of the opposite sex (the ‘partner’); and
(b) the person is not legally married to the partner; and
(c) the relationship between the person and the partner is a marriage-like relationship; and
(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
.....

Bankruptcy Act 1966 (Cth)

82 Debts provable in bankruptcy 
(1) Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.

(1A) Without limiting subsection (1), debts referred to in that subsection include a debt consisting of all or part of a sum that became payable by the bankrupt under a maintenance agreement or maintenance order before the date of the  bankruptcy.
....

149 Automatic discharge
(1) Subject to section 149A, a bankrupt is, by force of this subsection, discharged from bankruptcy in accordance with this section.
....
(4) If the bankrupt becomes a bankrupt after the commencement of section 27 of the Bankruptcy Amendment Act 1991, the bankrupt is discharged at the end of the period of 3 years from the date on which the bankrupt filed his or her statement of affairs.
....
153 Effect of discharge
(1) Subject to this section, where a bankrupt is discharged from a bankruptcy, the discharge operates to release him or her from all debts (including secured debts) provable in the bankruptcy, whether or not, in the case of a secured debt, the secured creditor has surrendered his or her security for the benefit of creditors generally.

(2) The discharge of a bankrupt from a bankruptcy does not: ...
(b) release the bankrupt from a debt incurred by means of fraud ... .

Background

11. Ms Martyniak has had anorexia since she was 12 and has been hospitalised for the condition since the age of 15. She is now 42 years of age. She has also been addicted to drugs and alcohol since age 21 but claims to have been ‘clean’ or ‘sober’ since the beginning of 2009 as a result of her attending a rehabilitation centre. Ms Martyniak has had 7 jobs in the period since the end of 2008 but has difficulty holding down a job due to her illnesses. At the time of the hearing she was again seeking work.
12. Ms Martyniak commenced living in the same residence with Mr Fitzpatrick in 1999 and they were in a de facto relationship at least in 2002 to 2003. Both claim that they are no longer in a de facto relationship but are simply good friends and that Mr Fitzpatrick acts as a carer for Ms Martyniak.
13. For the purposes of the Social Security Act 1991 (Cth) (Act) factors are listed in section 4(2) and (3) to determine whether a person is a ‘member of a couple’. The factors are not exhaustive and are indicative only.[1] Those factors are considered in the material which follows.

Evidence

14. Ms Belinda Hendry, Ms Martyniak’s psychologist since May 2009, provided a statement dated 13 August 2010. She said she did not believe that Ms Martyniak and Mr Fitzpatrick saw themselves as a couple nor did she so consider them.
15. Ms Hendry says Mr Fitzpatrick provides emotional, practical and, when necessary, financial support to Ms Martyniak. He takes her to medical appointments if there is an emergency or she asks him to do so. He usually remains outside but comes in if there is discussion of treatments since he administers medication when Ms Martyniak is very unwell.
16. She said he ‘provides stability and encouragement’ to her to help ‘orient and ground her when distressed’. He also assists by modelling normal eating behaviour, and at meal times he may supervise the size of serves, and provides a meal-time routine. Ms Hendry said the relationship with Mr Fitzpatrick is crucial in Ms Martyniak's recovery and without his help she would probably have relapsed into drug addiction and alcoholism.
17. Ms Hendry says as Ms Martyniak’s family are generally a negative influence on her and she has no other close friends on whom to rely, Ms Martyniak is dependent on Mr Fitzpatrick. Ms Hendry also said:

Recently Jennie's health has worsened. She has intense anxiety and unexplained physical symptoms - distorted vision, and altered consciousness, abnormal ECG results, blood levels of sodium, potassium and glucose. Jennie is now having difficulties leaving the house and particularly struggles with stressful situations.

18. Dr Sunita Singh, Ms Martyniak's general practitioner in a practice she has attended for over a decade, provided a statement on 12 August 2010. Dr Singh reported that when Ms Martyniak's condition is stable she attends once or twice monthly but when she is unwell, she attends once or twice a week. In Dr Singh's view 'Mr Fitzpatrick's relationship to Ms Martyniak seems to be of a friend/carer type relationship' a relationship which 'has been very therapeutic for Ms Martyniak'. Dr Singh’s report said:

I have regularly given Ms Martyniak’s prescription medications to Mr Fitzpatrick so that he could monitor the administration of these medications. Mr Fitzpatrick has supported Ms Martyniak through her difficult recovery periods, providing support and care. He helps with her meals, supervises her intake of food, provides encouragement to help in Ms Martyniak’s recovery. He is a back up and someone that Ms Martyniak can talk to. Ms Martyniak has [a] lot of issues with her own family and [is] unable to confide in them.

In Dr Singh’s opinion, without that support Ms Martyniak would not have survived her drug and alcohol addiction.

19. Credibility. The Tribunal notes that the Secretary withdrew the contention that there had been fraud on Ms Martyniak’s part in the information she had provided to Centrelink concerning her relationship with Mr Fitzpatrick. The Tribunal considers that concession was properly made. The Tribunal has examined the documents and records and has found that both Ms Martyniak and Mr Fitzpatrick have not been deliberately dishonest or reckless about whether the information provided in their dealings with Centrelink was true or false.[2] Ms Martyniak’s recollections may, at times, have been affected by her medical conditions. To that extent, in cases of inconsistency the Tribunal has relied on other evidence, particularly that provided by Mr Fitzpatrick. Nonetheless, the Tribunal considers there was no deliberate dishonesty evident in Ms Martyniak’s evidence. The Tribunal also notes that the Social Security Appeals Tribunal ‘considered the two ... were credible witnesses’. The Tribunal concurs with that assessment.

Consideration

20. As Ms Martyniak filed for bankruptcy on 10 March 2010, she is subject to the duties and obligations set out in the Bankruptcy Act 1966 (Cth). One such obligation is to obtain the permission of the Official Trustee in Bankruptcy (Official Trustee) for continuation of an ‘action’. An ‘action’ means ‘any civil proceedings, whether at law or in equity’[3] on foot at the time of the bankruptcy. This proceeding had been commenced before Ms Martyniak became bankrupt on 10 March 2010.
21. The Tribunal accepts as correct the reasoning of Deputy President Hack in Re Cook and Secretary, Department of Employment and Workplace Relations [2007] AATA 1690 which adopted an expanded meaning of the expression ‘civil proceedings’ to include proceedings in the Tribunal.[4]
22. The need for permission is because, on bankruptcy, the bankrupt is divested of any interest in property.[5] Since Ms Martyniak no longer had any ownership of her property Ms Martyniak was not a person whose interests were affected by a decision of the Tribunal as required by section 27(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Accordingly, the permission of the Official Trustee was needed to continue the action relating to Ms Martyniak's eligibility for disability support pension.[6] That permission by the Official Trustee was granted on 17 September 2010, subject to the proviso that the applicant was listed as the Official Trustee in Bankruptcy. This proviso has been met.
23. The Tribunal accepts that the factors must be considered in relation to the facts as at 23 June 2009. Nonetheless, to the extent that the earlier arrangements shed light on the nature of the relationship of Ms Martyniak and Mr Fitzpatrick in June 2009, those facts will also be considered.
24. The expression 'member of a couple' is defined in section 4(2) and (3) of the Act. The factors there listed are relevant but not exhaustive. The overall picture of the relationship must be considered.[7] Each factor must be considered in the context of the evidence as a whole and the decision made should reflect this process. The decision must be made to the reasonable satisfaction standard of proof, on the balance of probabilities. Mere suspicion or possibility is not sufficient.[8]
25. The Act gives a particular meaning to the expression ‘member of a couple’ and it is that special statutory meaning which determines the outcome for the purposes of social security law, not what is understood as the meaning by the persons involved. It is the statutory meaning which governs the findings which the Tribunal makes.
26. In order for a couple to be living separately and apart normally there must be a physical separation as well as a breakdown of the conjugal relationship.[9] It is possible, however, for a couple who are living under the same roof to be regarded as not a ‘member of a couple’.[10]
27. While the parties’ view of their relationship is important, the opinion of the Secretary must take account of that subjective belief in light of objective indicators of the nature of the relationship.[11] That opinion must be that of a reasonable person who correctly understands the meaning of the law under which they act.[12]
28. Since by consent at the Tribunal on 4 November 2010 Ms Martyniak accepted that the overpayment debts were recoverable newstart allowance debts, she has, by implication, also accepted that she was a 'member of a couple' until 2 December 2008. The Tribunal is unable to go behind that finding. That is not inconsistent with the Tribunal's findings in relation to the credibility of Ms Martyniak and Mr Fitzpatrick. The Tribunal has no doubt that the two do not see themselves as being 'a couple'.
29. The Tribunal must determine whether as at June 2009, Ms Martyniak was a ‘member of a couple’ according to the statutory meaning. Given the consent decision, this means in effect that the Tribunal may only find that she is not a ‘member of a couple’ if it is also able to find that the circumstances of the couple, as indicated by the factors of the Act, have changed since 2 December 2008.
30. The Secretary has claimed that nothing has changed between December 2008 and June 2009; Ms Martyniak disputes that contention. Consideration of the relevant factors follows.

Financial aspects of relationship

31. Ms Martyniak has a joint Westpac bank account with Mr Fitzpatrick opened in approximately 1999. The account is used principally to pay joint bills for the household including rent, insurance, utilities, and on occasion petrol and food. The telephone bill is in Mr Fitzpatrick’s name and he said he did not know why the two were listed together in the telephone directory. He pays the bills which are directed to him alone.
32. Initially the joint account was to be contributed to equally but during periods when Ms Martyniak has been out of work, Mr Fitzpatrick has been the sole contributor. He deposits $1,000 to the account from his salary each fortnight. Mr Fitzpatrick said when Ms Martyniak is working she contributes to the account. In 2009 she was contributing although not to the same level as Mr Fitzpatrick. He is happy for this position to continue in order to keep a roof over his head. Ms Martyniak said she considers she owes Mr Fitzpatrick about $25,000 and listed him as a creditor for that amount in her bankruptcy application.
33. In October 2009 Ms Martyniak took out a personal loan for $11,000 with Westpac. Her funds with Service One Credit Union were moved to this account. The loan has flexible repayment terms and is paid off like a credit card bill. In a ‘Customer Declaration Form – Newstart Allowance’ on 7 April 2005 Ms Martyniak had confirmed she had 4 bank accounts; one with the Commonwealth Bank and three with the Credit Union of Canberra. She also said at that time she had two superannuation funds in her name only.
34. Ms Martyniak is not currently receiving any income from Centrelink. She has been given access to her superannuation fund accrued during her employment with the Australian Tax Office. She uses monies from that fund to pay her accounts and, on occasions, to repay Mr Fitzpatrick. The funds in that account are now low as she has been using them for her medical and treatment expenses. She admitted that at present she is not paying rent since she is not in employment.
35. Mr Fitzpatrick said he has three accounts in his own name. He pays $1,000 a fortnight into the joint account and the balance is spread between the other three accounts: a savings account; a bills account; and an investment account.
36. Ms Martyniak and Ms Fitzpatrick affirmed that they do not have access to accounts in their separate names. Mr Fitzpatrick said they had no joint liabilities and no loans in joint names and no joint assets. Ms Martyniak said neither was nominated as a beneficiary under a will, life-insurance or superannuation policy of the other; and neither claimed the other as a dependant for taxation purposes. Mr Fitzpatrick however noted that Ms Martyniak was nominated as beneficiary of his life insurance but this was simply because he had not changed the policy.
37. Mr Fitzpatrick conceded that Ms Martyniak had bought lounge furniture for their current house in October 2009 and that it was purchased in Ms Martyniak’s name, using her credit card. Joint furniture items included a dining setting. The washing machine and the fridge have either been purchased by Mr Fitzpatrick outright or on deferred interest on his credit card. Ms Martyniak said apart from her bedroom suite she regards all the furniture in the house as belonging to Mr Fitzpatrick.
38. Ms Martyniak is the registered owner of a Toyota Corolla vehicle which lists Mr Fitzpatrick as a registered operator. Mr Fitzpatrick has no car. As at 30 October 2008 the NRMA insurance on the car was in joint names. Ms Martyniak said she had substantially paid for the vehicle when she sold another vehicle in her name. However, Mr Fitzpatrick had provided about $3,000 to cover a shortfall in the purchase price.
39. She said payments for vehicle expenses from the joint account were legitimate since they both used the car although she had it for the most part. Mr Fitzpatrick often caught public transport but if Ms Martyniak is up and capable she gives him a lift to and from work. Mr Fitzpatrick has used the car to take her to medical appointments or to the hospital in the past and they travel together to do the shopping. It is understood that if he needs the car he can drive it. The home contents policy is solely in Ms Martyniak's name.
40. Mr Fitzpatrick agreed that he would lend Ms Martyniak money if she needed it. However, if the amounts were large he said they would discuss the issue and come to an agreement. However, he had no records of these discussions or the outcomes.
41. Mr Fitzpatrick said in his statement to Centrelink dated 27 May 2009 that ‘recently [on 15 May 2009] he had added Ms Martyniak to his private health insurance policy with Medibank Private’ as she could not afford it for herself and she needed ongoing medical treatment. He maintained he had not told the insurance company that they were a couple although that appeared on the documentation. However, his name alone appears on his Medicare card and the same is the case for Ms Martyniak.
42. Until Ms Martyniak obtains employment the Tribunal considers there will be no change to these arrangements. At the hearing Ms Martyniak said she had been interviewed for two jobs in Melbourne in October 2010 and November 2010 respectively. For one of these jobs, there was the possibility of a trial period to see whether she could manage to live away from Canberra. However, her psychologist is concerned that despite her not using alcohol or drugs since the beginning of 2009, it was still too early for her to move to another city without the support of Mr Fitzpatrick. She believed Ms Martyniak needed another 12 months of being 'clean' before they two should live separately. Ms Martyniak said at the hearing that she was also seeking employment in Canberra.
43. When she obtains employment, Ms Martyniak said she would arrange for a regular direct debit to be made to begin repayments to Mr Fitzpatrick. However, that position had not been reached at the time of the hearing, nor was it in operation as at June 2009.

Living arrangements

44. Ms Martyniak and Mr Fitzpatrick have been sharing accommodation since 1999. At times, for example, in 2006 and 2007, she has lived with her parents but she has always moved back with Mr Fitzpatrick. Since 29 June 2009, the two have been renting 21/16 Litchfield Place, Gilmore. They have separate bedrooms and bathrooms, separate television sets, and share the costs when Ms Martyniak is able to do so. She is listed as an 'occupant' in the LJ Hooker records. Between 12 April 2009 and 10 May 2009 Ms Martyniak was at the South Pacific Treatment Centre, Curl Curl, Sydney NSW. Ms Martyniak said she prefers to live with Mr Fitzpatrick because he is more understanding of her condition and if she is unable to do so he pays the rent.
45. Ms Martyniak said that occasionally the two eat together – sometimes as frequently as once a week - but generally she cooks her own meals. Mr Fitzpatrick has a role to supervise her eating by reminding her of the need for a meal, such as breakfast. She said she had a problem eating in public and Mr Fitzpatrick was helping her to do so. As part of her recovery program he was asked to attend breakfast with her to encourage her to eat. If he is at work he goes out for twenty minutes and sits with her while she eats. He does not eat on these occasions. However, she claims she is now well enough to eat on her own.
46. She said they do grocery shopping together but buy separate items and have separate trollies and meet up at the end. She does not do Mr Fitzpatrick’s washing, nor generally does she cook for him. They both share the household cleaning; Ms Martyniak said she manages the garden.
47. Mr Fitzpatrick says that if Ms Martyniak is really ill he will take her to the doctor or sometimes take a day off to look after her. Generally, however, she is on her own. Ms Martyniak said since 2009 she has not purchased pills or alcohol. In 2004 she was said to be spending up to $800 per fortnight on alcohol and pills.
48. Ms Martyniak said at the hearing that she was committed to living with Mr Fitzpatrick. She said if she can be clean and sober and he is happy with the arrangement, it will continue. She does not have an interest in developing another close relationship and she believed that was also true for Mr Fitzpatrick. However, at the hearing he said he had been giving thought to the future and whether the two could live separately.

Social aspects of the relationship

49. Ms Martyniak says about once a month they may have a social outing together as friends but each pays separately. They do not share tastes in movies so do not go to them together. Ms Martyniak says she does not socialise or mix regularly with others since her condition makes it difficult to form lasting friendships and relationships with others. She said that most of the time she comes home and would ‘make a toasted sandwich and I’ll go straight into my bedroom and watch TV in my bedroom and that’s basically every day’.
50. Mr Fitzpatrick said he has activities that do not involve Ms Martyniak including going to the pub with friends, bowling and walking. He said when his father was very ill with bowel cancer in 2006 Ms Martyniak came with him to Melbourne to support him but ended up overdosing and having to go to hospital herself. Since that time he said he has known he could not longer have a close relationship with her since he regarded that incident as disrespectful to his father and to himself.
51. From time to time each exchanges gifts with the other and the other’s family. On occasion they attend her family functions together, although less frequently now. Ms Martyniak said this was not surprising since each has known the other’s family for a number of years. Mr Fitzpatrick comes with her to Christmas Eve with her family as ‘he’s close to mum and dad because, basically, they think he’s a godsend’.
52. Ms Martyniak said others did not see them as a couple, they had no family membership of clubs or organisations, had no intention of marrying, no sexual relationship, and had not claimed to be married for any purpose. She said Mr Fitzpatrick provided support for her when she was depressed and in personal crisis.
53. Ms Martyniak had been admitted to hospital between March 2005 and July 2008 on some 32 occasions. Her admissions were particularly frequent in late 2007 and early 2008. As she said 'I was overdosing at least twice a month at that time’. Ms Martyniak said that originally hospital records showed each as next of kin when they were in a de facto relationship. For example, her marital status was listed as ‘Married (includes de facto)' until 13 September 2006. Since then she claims the records have not always been updated. She says she now lists Mr Fitzpatrick as a carer and not as de facto or next of kin.
54. From March to August 2005 Ms Martyniak’s mother was shown as her next of kin and Mr Fitzpatrick as an emergency contact. However, the Canberra Hospital records show Mr Fitzpatrick (also referred to as Lorraine Fitzpatrick, Andrea Fitzpatrick, Samuela Fitzpatrick, and Douglas Fitzpatrick) as next of kin. Ms Martyniak said that often when admitted to hospital she has been unconscious or not in a position to provide information so she had not filled out the forms even though she may eventually have signed them.
55. Mr Fitzpatrick said that he lists his brother Tony as his next of kin and Ms Martyniak as a friend and an emergency contact only. Mr Fitzpatrick said that in the period 2004 to 2006 when taking Ms Martyniak to hospital for emergency admissions he had no recollection of any forms showing him as de facto and next of kin. He also gave evidence at the hearing that he had never gone to the hospital and presented himself as Ms Martyniak’s de facto after their relationship ceased. When she was admitted he said he was her ‘friend’. He agreed that he had taken her to hospital if she overdosed when at home. However, generally an ambulance was called.
56. He said the significance placed by the authorised review officer and the Social Security Appeals Tribunal on the fact that in 2005 the emergency admission forms from August 2005 had entered Mr Fitzpatrick’s name as next of kin was misplaced. Mr Fitzpatrick said the only reason for such an entry must be that the hospital had not changed its records and he noted he was not responsible for their records.
57. In his responses on the ‘Relationship Details – Separated under one roof’ form completed by Mr Fitzpatrick on 27 May 2009 he said that others consider the relationship as ‘marriage-like’ ‘because we were involved prior to separation, and currently reside at same address’.

Sexual relationship

58. The two have not had sexual relations since they stopped being in a de facto relationship. Mr Fitzpatrick said any hopes of resuming a more intimate relationship had ceased for him at Easter 2006 when they had been in Melbourne when his father was seriously ill. That is why he lists that time as the date of their separation. Ms Martyniak maintains that their sexual relations ceased in 2003. The Tribunal accepts that they have not had sexual relations for many years.

Commitment to each other

59. Both Ms Martyniak and Mr Fitzpatrick gave evidence that they are only friends and do not see themselves as a couple. Ms Martyniak says Mr Fitzpatrick is more like a carer. She has few other friends and her family are no support. Ms Martyniak said in her Centrelink interview that ‘I don’t have any friends’ and ‘I rely on him an awful lot’. Mr Fitzpatrick said that he is a good friend to Ms Martyniak and cares about her well-being.
60. Mr Fitzpatrick has been 'extremely supportive' of Ms Martyniak and without his assistance the evidence of Ms Henry and Dr Singh is that Ms Martyniak may not have survived during the periods she was most unwell. He continues to provide that support by taking her to medical appointments, modelling good eating behaviour, ensuring that she has sufficient food, and paying for her expenses when she can not afford to do so. When asked why he does this if he does not regard himself as being in a long-term relationship with Ms Martyniak he said 'I was raised to do unto others what you would like them to do unto you'. In other words he saw himself as her friend in need.
61. Although he said he could see the relationship continuing, Mr Fitzpatrick said he has no long term expectations of the relationship, other than to see Ms Martyniak well and happy. He does not envisage always living with her and would like to see her go out on her own.
62. Ms Martyniak when asked how she would feel if Mr Fitzpatrick entered into a close relationship with someone else said at the hearing that she would be hurt since he would no longer be available to her. However, she would be happy for him and she may have to cope with such a situation but 'not yet'.

Conclusion

63. The Tribunal is required to assess whether it considered there were any changes to the circumstances of Ms Martyniak and Mr Fitzpatrick. That consideration must take into account the criteria in section 4(2) and (3) of the Act relating to whether two persons who are living under the one roof are a ‘member of a couple'.
64. The concept of 'separately and apart', an integral element of the test for being a ‘member of a couple’ when living under one roof, was discussed by the High Court in Main v Main[13] and by the Federal Court in Staunton-Smith v Secretary, Department of Social Security.[14] What must be considered is not only whether the parties live separately, in physical terms, albeit under one roof, but also whether their de facto relationship (the consortium vitae) has broken down. These are matters of fact and degree.[15]
65. There have been two significant changes in the couple's circumstances since 2 December 2008 which affect the nature of their relationship during June 2009. The first, and to her credit, is that Ms Martyniak has continued to be drug free and alcohol free, thus markedly reducing her dependence on Mr Fitzpatrick and her need for his support. The second was Ms Martyniak's job interviews in Melbourne late in 2010. Had she been in a position to take one of those positions and to maintain herself alone in Melbourne, this would have been a marked change in her circumstances and would have justified a finding that the two were no longer a 'member of a couple'.
66. The warning of her psychologist that Ms Martyniak will not be sufficiently strong for another 12 months to take such a step appeared to have negated that opportunity. In that context the Tribunal notes the report of Ms Henry that Ms Martyniak has recently developed other health conditions which have retarded her recovery. Ms Martyniak said at the hearing that she would rather be looking for positions in Canberra for the present.
67. In those circumstances, and given the continued financial dependence of Ms Martyniak on Mr Fitzpatrick and their living arrangements at the time, the Tribunal considers there has not yet been a sufficient separation of their circumstances in terms of the factors in section 4(2) and (3) of the Act to justify a finding that they are no longer a 'member of a couple'. There is no sufficient indication at this time that the consortium vitiae or close relationship between the two has broken down or changed to one solely of co-tenants.
68. The Tribunal also has no reason to make a finding under section 24(2) of the Act that there is a 'special reason in the particular case' that the two should not be treated as a 'member of a couple'. Although the discretion to make such a finding 'is not lightly to be enlivened',[16] as French J said in Boscolo v Secretary, Department of Social Security:

The core of the requirement for 'special circumstances' or 'special reasons' is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course. ... But that does not require that the case be extremely unusual, uncommon or exceptional.[17]

69. Although Ms Martyniak is still recuperating from her medical conditions, she is on the road to recovery. Her condition alone does not justify a finding of ‘special circumstances’ or a ‘special reason’ for denying that in terms of the Act the two are regarded as a ‘member of a couple’.
70. Each of the two has indicated respect, and concern for the welfare of the other and neither has suggested unequivocally that their good relationship no longer exists.[18] Mr Fitzpatrick has indicated that he would continue to care for Ms Martyniak, generally and financially, until she is able to do so independently. Ms Martyniak, by opting to try to obtain work in Canberra has indicated that she is still in need of that support. They live together, and have no intention of changing that circumstance in the immediate future; they share household cleaning tasks, and go shopping together, even though they may not often eat together or socialise together and have no sexual relationship. Their finances are substantially independent, but they do share household and travel costs, and Mr Fitzpatrick has undertaken to include Ms Martyniak on his private health insurance to ensure she receives proper medical attention and that it is paid for out of his funds. On balance, although the two do not consider themselves to be a ‘couple’, for the purposes of the Act they are so regarded and the Tribunal considers there are no 'special circumstances' which would justify treating Ms Martyniak as not a 'member of a couple'.
71. The decision to treat Ms Martyniak as a ‘member of a couple’ for the purpose of the disability support pension is affirmed.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.

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

C. Baillie, Associate

Date of Hearing 24 November 2010

Date of Decision 12 January 2011

Solicitor for the Applicant Bill Redpath

Nicholl and Co

Solicitor for the Respondent Raewyn Harlock

Centrelink Advocacy Branch

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[1] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
[2] SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189; Re Civitareale and Department of Family and Community Services (1999) 57 ALD 451.
[3] Bankruptcy Act 1966 (Cth) s 60(2).
[4] Re Cook and Secretary, Department of Employment and Workplace Relations [2007] AATA 1690 at [16]- [26]. See also Re Singh and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 720 at [104].
[5] Bankruptcy Act 1966 (Cth) s 58.
[6] Re Cook and Secretary, Department of Employment and Workplace Relations [2007] AATA 1690 per Hack DP at [24]-[26].
[7] Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92; (2008) 102 ALD 22 at 27; Lambe v Director-General of Social Services [1981] FCA 171; (1981) 57 FLR 262 at 271.
[8] Re Hulme and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 414 at [7].
[9] Main v Main (1949) 78 CLR 636.
[10] Re Lenard and Secretary, Department of Family and Community Services [2004] AATA 83.
[11] Re Tang and Director-General of Social Services (1981) 3 ALN No 83.
[12] R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430 per Latham CJ; Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118 per Gibbs CJ; Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 654 per Gummow J.
[13] Main v Main [1949] HCA 39; (1949) 78 CLR 636 at 641.
[14] Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164 at 175.
[15] Re Hulme and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 414 at [40].
[16] Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at [18].
[17] Ibid.
[18] Re Lobb and Repatriation Commission (1990) 20 ALD 575 at 577.