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Social Security Reporter |
Abusive relationship: discretion under s.24(c) to treat person as not being a member of a couple
(2009/959)
Decided: 1st December 2010 by J.L. Redfern
In April 2009 Centrelink decided that Perry had been overpaid parenting payment single (PPS) for the period 24 March 2007 to 5 January 2009 because she was a member of a couple. Centrelink decided to raise and recover a debt of $24,654. Perry claimed that she and the child’s father had an abusive relationship and that they were not a ‘couple’.
Perry found that she was pregnant after she had ended the relationship with the father of the child. They reunited but within 13 weeks there were problems and Perry returned to live with her mother. A week before the baby was born she moved back with the father of the child and they lived in a house in Watanobbi. The baby was born in March 2007. They argued about the name of the baby on the first day; on the next day they argued about her claiming PPS — he told her if she did not apply for PPS he would take the child away from her. Perry believed he would carry out the threat: he already had the care of two children from a previous partner.
The AAT had to determine if Perry was a member of couple. If a member of couple Perry was overpaid all of the PPS for the period because the child’s father’s income exceeded the relevant allowable threshold. It was agreed in this case the circumstances could not qualify for the special circumstances waiver under s.1237AAD ofSocial Security Act 1991(the Act).
If the Tribunal determined that Perry was a member of a couple, was there a special reason in this particular case to exercise the discretion of s.24 under the Act, not to treat her as such?
Section 500 deals with qualification for parenting payment and ss.503 and 1068 deal with the calculation of entitlement dependent upon the single or partnered status of the claimant and the income of the family. Section 1223 provides for an overpayment to be a debt to the Commonwealth. Section 4(3) provides the guidance for the Secretary to form an opinion about the relationship of two people for the purposes of the Act. The AAT referred to Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 25 ALD 27 andLynam v Director-General of Social Security (1983) 52 ALR 128 and how the indicia in s 4(3) of the Act ‘are intended to capture the essence of a marriage-like relationship’ (MLR) but that the decision maker is also to consider the ‘overall impression of the relationship’.
Perry applied for PPS by telephone from the hospital. She returned to live with the father of the child but completed the Customer Declaration Form for PPS stating that she was a single parent, that she was not with the father of the child, that she was not in a MLR and that she lived with her mother. At the hearing Perry conceded that the statement was not true but that she did not believe that, at the time, she was in a MLR.
Perry gave evidence that the child’s father was abusive and that she only moved back with him so that her child could have a father. She said he was controlling and verbally abusive, that he would monitor her actions and threaten her with removal of the child. Perry said he would check her mobile phone, emails and facebook accounts, that he would not allow to her to meet or have contact with her friends. Perry provided statutory declarations from friends and associates to corroborate the evidence.
A former neighbour gave evidence that Perry had come to her house ‘seeking shelter’ and that the child’s father and his mother had come in and yelled at Perry. There was a physical altercation and the neighbour and a nearby workman supported Perry and suggested telephoning the police. The neighbour stated that Perry ‘always appeared to be struggling to provide the basics for herself’.
Perry had been too ashamed to tell her family about her predicament but finally in January 2009, when the child’s father was out for the day, she arranged for her mother to come and collect her and her child. Her general practitioner said that she suffered from ‘moderate to severe depression’ and the report from her treating psychologist stated that in his opinion her application for pension had been made ‘under conditions of duress and emotional abuse’. Perry said that she moved in with the child’s father because she had hoped to ‘create a family life’; and then she could not move out because of fear and depression.
Initially Perry and the father of her child were joints tenants on the rental premises lease, then in April 2009 they moved into a home owned by his parents and he paid his parents’ mortgage. They owned no joint assets, had no joint bank accounts save for a small joint account established for the child. Perry had paid the rent; she paid most of the household expenses and paid for the shopping for everyone including his children. Perry told the Tribunal that the child’s father took out a loan in her name to purchase a motorcycle for his use. Perry signed the loan documentation and she paid about $68 per fortnight on the loan. When she left the child’s father she asked if she could take the car but the child’s father refused so she took the motorcycle and sold it to purchase a car. The AAT found there was some sharing of expenses and some pooling of resources, although not in Perry’s favour. The AAT found that there was no attempt by either party to conduct separate accounts and that the finances were suggestive of a MLR.
Perry cooked and shopped for the extended family but she did not eat with the child’s father. They did not sleep in the same room when the children were away but they slept together when they were there. Perry said she felt like a housekeeper or babysitter for the children of the previous relationship. Perry said she did everything for the child’s father and his children with little feedback or connection with the children. The AAT said the domestic arrangements were unusual because of the way Perry was treated.
Perry and the child’s father rarely engaged in social activities together. Perry told of two functions she said she was forced to attend. To her family and to the children it is possible that it appeared a normal MLR, however, the isolation from friends and the problems kept secret from her family indicated that the social aspects were not marriage like.
The AAT accepted Perry’s evidence that there was no sexual relationship with the child’s father after the birth of the child.
Perry lived with the child’s father for nearly two years. Her evidence was that she had hoped to live as a family, that she initially expected the relationship to continue indefinitely, but that the child’s father was abusive and controlling and at some stage her attitude to the relationship changed.
Domestic abuse is a significant consideration relevant to s.4 (3) (b) & (e) and has been considered in Perry and Department of Family and Community Services [2001] AATA 282 and Kozarova v Secretary, Department of Education, Employment and Workplace Relations & Anor [2009] FMCA 888; (2009) 234 FLR 304 where the abuse was violent: in Perry the AAT decided that there was still a commitment to the marriage. In this case, the Tribunal held that verbal and psychological abuse was inconsistent with the notions of marriage and should be given equal weight. It was held to be difficult to assess if a relationship was merely dysfunctional or if it was divorced from all the qualities associated with a MLR, and if so when that occurred. In this case the AAT decided that Perry became isolated and depressed and that the relationship was exploitive.
In Perry it was argued that the s.24 discretion should be limited to circumstances where a couple is prevented from pooling resources. In this case the AAT did not accept that narrow construction. The AAT found that the abusive, controlling relationship, the exploitation, and Perry’s mental state constituted a ‘special reason’ to allow the exercise of the discretion.
The AAT set aside the decision under review and decided that, pursuant to s.24
(2) of the Act, Perry was not to be treated as a member of a couple and accordingly did not owe a debt to Centrelink for the period 24 March 2007 to 5 January 2009.
[M.R.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2011/10.html