Editors --- "Marriage like relationship: meaning of pooling of resources, effect of shared caring responsibilities" [2007] SocSecRpr 55; (2007) 9(4) Social Security Reporter, Article 13

• MAREI and SECRETARY TO THE DEWR Federal Magistrates Court
• Background
• The AAT decision
• The issue before the Court
• Decision

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Marriage like relationship: meaning of pooling of resources, effect of shared caring responsibilities

MAREI and SECRETARY TO THE DEWR Federal Magistrates Court

Decided: 13th April 2007 by Barnes F.M.

Background

Marei arrived in Australia from Sudan in 1994. She married Azmi and they had two children. In December 2003, Marei advised Centrelink that she and Azmi had separated and began receiving parenting payment at the single rate.

In June 2005, Centrelink, determining that Marei was a member of a couple within section 4(2) of the Social Security Act 1991(the Act), began paying her the lower, partnered rate of parenting payment after she advised she had begun sharing accommodation with Azmi ‘for the sake of the child...’(Reasons, para. 2).

On the basis that she did not consider herself a member of a couple, Marei requested review by an ARO who affirmed the decision in August 2005. That decision was further affirmed by the SSAT in December 2005, and again by the AAT on 26 July 2006.

On 23 August 2006, a notice of appeal was filed in the Federal Court. On 19 September 2006, the matter was transferred to the Federal Magistrates Court and an amended notice of appeal raising eight questions of law was lodged on 20 December. The matter was heard on 8 February 2007, with the last two questions relating to who bore the onus on a section 4(2) appeal not pressed by Marei .

The AAT decision

Before the AAT, it was accepted that, as Marei was married, the relevant section was 4(2) of the Act, which requires, in the case of married persons, consideration of whether or not they live ‘separately and apart’ on a ‘permanent or indefinite basis’, (Reasons, para. 9).

The AAT made a finding of pooling of resources, citing the Federal Court decision of French J. in Pelka v Secretary, Department of Family & Community Services (2006) FCA 735, stating:

both had the use of a car, in effect provided by the husband and maintained by the wife, that the applicant provided for household and day to day expenses, that there was a pooling of financial resources. (Reasons, para. 11)

The AAT accepted that Marei did resume cohabitation for the psychological health of the youngest son, and accepted the evidence of the general practitioner that his health had since improved.

In considering the nature of the household, the Tribunal said, although Marei and her husband did not have a close personal relationship, ‘the nature of the household does not indicate that the Applicant and Mr. Azmilive separately and apart’(Reasons, para. 13).

On considering the social indicators of the status of the relationship, the Tribunal formed a view ‘that any lack of social activity was not a significant indicator of the parties living separately and apart’ (Reasons, para. 14).

The Tribunal also found that, ‘the longstanding absence of a sexual relationship, while being an indicator, ‘...should be given little weight...’ (Reasons, para. 15).

Finding Marei and her husband, ‘individually and collectively do care for their children, (Reasons, para. 16), and that they ‘intended to continue residing together and caring for the children’, (Reasons, para. 17), the Tribunal held that Marei was not living separately and apart on a permanent or indefinite basis, as required by section 4(2) of the Act, (Reasons, para. 17).This was so even though,

‘...the applicant and her husband’s commitment to each other clearly is lacking and that there were entrenched difficulties in their interpersonal relationship...’ (Reasons, para. 16)

The issue before the Court

The question before the Court was whether, as a question of law, the AAT had properly applied itself to consideration of the issues ins.4(3) of the Act. The Court noted the exhortation in Pelka to examine the factors in the section while, at the same time, not being constrained to considering only those items.

The Court considered the question of the proper starting point where the issue was a married couple who had separated and then resumed cohabitation. The Court considered that a negative question was raised on the facts before it by section 4(2) (b) (iii),namely, ‘the Tribunal’s opinion as to a negative – that is that the person was not living separately and apart from the spouse on a permanent or indefinite basis.’ (Reasons, para. 25).

The Court addressed the questions of law raised by examining, in order, the AAT’s decision on pooling of resources, childcare and the nature of the household, and more briefly questions regarding the nature of the commitment, the place of a payment recipient’s subjective beliefs, and the reasons behind a household’s existence, as well as the relevance of children to the financial aspects of a relationship.

On the financial aspects of a relationship, after lengthy deliberation, the Court found no error of law and that the reference in the AAT decision to pooling was appropriately qualified to demonstrate that the pooling of resources was only in relation to accommodation outlays, which admitted no error of law.

In considering the care and protection of children, the Court found the Tribunal had properly included care of children as a joint responsibility, as required by s.4(3)(b)(i), and had noted that there was an individual and collective sharing of that care provision. However, the Tribunal had fallen into error by holding that the care and protection of the children was a ‘significant essential element of a marital relationship’, and this was an error of law.

In considering the way the Tribunal had dealt with the nature of the commitment, particularly in light of the Tribunal’s finding that commitment to each other which ‘clearly is lacking’, and other findings indicated that Marei and Azmi wished to project an image of togetherness, the Court found such considerations were a question of fact, and therefore a matter for the Tribunal.

However, when considering the Tribunal’s treatment of an individual’s subjective beliefs in the assessment required bys.4(3), the Court found that, by not taking these into account, the Tribunal did commit what amounted to an error of law. The Court clarified that it was not adequate to refer to Marei’s belief that she was not in a marriage like relationship in summarizing the evidence, and that it also should have been included in the Tribunal’s consideration of that evidence.

Marei had stated that the central reason for the household, as it was set up at the time of the decision under review, was concern for ‘the sake of the children’. The Court was asked by Marei to consider whether the AAT had complied with the exhortation in Staunton-Smith and Secretary to the DSS, 67 SSR 954 to, ‘delve deeper’ to find the reasons for such arrangements. Marei was given leave to amend the notice of appeal to include this question. The Secretary said that the reasons for the household arrangements was not one of the factors enumerated in the section, and hence not a consideration that was required to be taken into account.

The Court noted that Staunton-Smith pre-dated s.4(3), and that the case could not be authority for the proposition that it, ‘require(d) express consideration of this factor’, (Reasons, para.108). The Court found there was no error of law, holding that the Tribunal had given ‘weight and significance’ to these matters which were questions of fact for the Tribunal.

Marei then asked the Court to consider whether the Tribunal was bound to take into account, in assessing the financial aspects of the relationship within s.4(3), the fact that Marei and her alleged partner had two dependent children.

Marei submitted that the Tribunal should have asked, ‘...why they kept their finances separate despite the presence of two dependant children...’ (Reasons, para. 113). The respondent took the view that the submission went to the merits of the Tribunal’s decision and did not disclose a question of law.

The Court was lastly asked to consider whether the correct starting point should take into account the fact that Marei and her alleged partner had lived separately and apart during a period from November 2003 to May 2005. It was suggested the Department had the onus of proving that there had been a resumption of cohabitation, that, ‘the starting point for the enquiry must be that there was no marital relationship while they were living apart’, and that this was not done. The Department offered the view that there was no onus of proof, as per the Full Federal Court decision in McDonald v Director, Social Security, [1984] FCA 57; (1984, 11 SSR 114).

The Court differentiated between the Family Court cases to which it was referred and ‘the formation of an opinion by an administrative decision maker’, (Reasons, para. 129). The Court adopted the position in McDonald that there is no application for the ‘notion of a legal onus of proof’. The Court disagreed with Marei’s submissions, noting that past separation is part of all the circumstances for consideration.

Decision

The Court decided to allow the appeal with the matter remitted to the AAT for reconsideration according to the law.

[J.S.]