Editors --- "Parenting paynent single: whether member of a couple, whether marriage-like relationship" [2013] SocSecRpr 4; (2013) 15(1) Social Security Reporter, Article 4

• CWTJ and SECRETARY TO THE DEEWR
• Background
• The issue
• Legislation
• Discussion
• Credibility
• Formal decision

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Parenting payment single: whether member of a couple, whether marriage-like relationship

CWTJ and SECRETARY TO THE DEEWR

(2012/910)

Decided: 21st December 2012 by N. Bell

Background

CTWJ was married for a second time in Lebanon after meeting her husband there a few weeks earlier. In 2002 she had a stillborn child. In February 2004, she lodged a claim for parenting payment single (PPS) declaring she had separated from her husband and her first surviving child was born in October 2004. CWTJ claimed Family Tax Benefit (FTB) in respect of that child. In April 2007 another child was born and CWTJ claimed FTB for that child.

In February 2010 following an investigation into CWTJ’s circumstances, the Secretary determined that she had been a member of a couple since 27 January 2004. Debts of more than $92,000 were raised against her for PPS, FTB, child care benefit and child care rebate. CWTJ and her husband divorced in 2010.

The issue

The central issue was whether CWTJ and her then husband were members of a couple from 27 January 2004 to 26 February 2010.

Legislation

Section 4(2)(a) Social Security Act 1991 (the Act) poses the question whether the then partners, being married, were during that time living separately and apart from each other on a permanent and indefinite basis.

Section 4(3) of the Act prescribes five secondary factors which must be considered in resolving the central issue.

Discussion

The AAT considered that in this application historical and cultural factors were ‘a highly relevant backdrop and shed light on some of the other evidence more directly related to the factors’ which must be considered. (Reasons para. 10)

The AAT considered detailed evidence about the historical and cultural context of this case from CWTJ, her then husband and third parties. The third parties included a social worker and CWTJ’s mother, sister-in-law and friend. The majority of the historical and cultural evidence was not contested.

The AAT said ‘cultural determinants and family pressure permeate the entire history of this relationship. I accept as plausible their [CWTJ and her then husband’s] evidence of why they wished to present as not separated. (Reasons para. 75) The AAT accepted CWTJ as a credible witness despite the Secretary’s arguments to the contrary.

CWTJ was born and raised in Australia to parents who had migrated from Lebanon. At the age of 18 she was taken to Lebanon for an arranged marriage. She did not grasp the purpose of the visit in the first instance but was married one month after arriving in Lebanon. CWTJ was unhappy and objected but suffered beatings form her father and male cousins and had a gun held to her head.

Eventually, when back in Australia, it was accepted by the wider families of both CWTJ and her first husband that the two would divorce. CWTJ suffered her parent’s shame and rejection because of the divorce.

CWTJ was also raped by her first husband’s cousin on over 150 occasions. The Secretary questioned the plausibility of the evidence regarding the rape questioning why CWTJ did not go to the police. The AAT specifically accepted CWTJ’s evidence considering the cultural history of the case and the fact that many rapes are not reported in the wider population.

When CWTJ’s family found out about the rapes they were ‘disgusted by her and she was chaperoned everywhere’. She felt her only escape was to marry someone. She went to Lebanon with her mother and was married again. She returned to Australia and lived with her family while her husband awaited the resolution of his immigration issue. CWTJ’s family were much nicer to her during this time.

CWTJ fell pregnant in early 2004 and her husband left the house following an argument. CWTJ gave evidence that this was the beginning of an enduring separation. She did not tell her family about the separation because she was too frightened. When her family did find out they yelled and screamed at her not to bring such shame upon them.

The AAT considered at length the s.4(3) of the Act factors. The financial aspects of the relationship included a mortgage on the home where CWTJ and the children lived which was refinanced in 2005. CWTJ gave evidence that this was at her father’s suggestion when pressuring her to reconcile. CWTJ gave evidence that there was a short-lived reconciliation in 2005. While CWTJ and her former husband had and continue to have some continuing co-operative financial arrangements, the AAT found that the arrangements did not amount to a ‘pooling of funds’. They were acts of co-operation between people who had children in common. CWTJ had sole responsibility for day to day and household expenses and bills. In particular, her former husband’s request for the repayment of $4,000 for the funeral of their stillborn child was seen by the AAT as a ‘seemingly brutal request ... [which] suggests the absence of a marriage like relationship rather than its existence’. (Reasons para. 46)

The AAT found that the nature of the household was such that the couple had separated on a permanent and indefinite basis. In January 2004 when CWTJ fell pregnant she was surprised because she had only let her husband into the bedroom on one occasion in the recent past. CWTJ said her former husband did not believe the baby was his. A fight ensued and he walked out. Neither partner told their respective families. CWTJ’s former husband corroborated her evidence. A social worker who met CWTJ also confirmed that she visited about three or four times in mid - 2004 and there was no evidence of a male presence.

In July 2005 CWTJ began to think about divorce and her former husband was not shocked. However, when her brother heard, he and a male cousin beat her. Her former husband moved into her other’s house which meant that she hardly ever went there. In 2006, because her family were worried that they had been separated so long that it would automatically constitute divorce, she agreed to give it one more go. One night her husband raped her and her third child was born from this isolated union.

Her former husband continued to use the house for his postal address despite her objections. That remained the case even following the divorce.

The AAT found:

evidence of separation in January 2004 with two brief attempts at reconciliation in 2005 and 2006 consistent and compelling. (Reasons para. 74)

The inconsistencies in the documents were explainable.

The AAT found that there was no evidence that CWTJ and her former husband had presented as a couple after the initial period of their separation. On a trip to Lebanon in 2009, they did not present as a couple.

The AAT found that the ‘sparse’ sexual relationship CWTJ and her former husband had during their separation and their attempted reconciliations were not consistent with a marriage-like relationship.

The AAT found that the brief attempts to reconcile were made under intense cultural and family pressure and did not indicate a commitment to each other. Commitment to children in common does not amount to commitment to each other.

Credibility

CWTJ’s credibility was at issue. The Secretary argued that she had lied for gain when she submitted the application with her husband for mortgage refinancing. The Secretary also argued that her failure to advise Centrelink of the attempts to reconcile cast doubt on her credibility, as did the information she filled in on certain Centrelink forms about the date of separation. In addition, the Secretary sought to question the plausibility of the repeated rapes of CWTJ by a male cousin before her second marriage.

The AAT addressed each argument and then said: ‘I do not consider that these matters, alone or together, damage the Applicant’s credibility’. (Reasons para. 99) The AAT accepted CWTJ as a credible witness and said that her credibility was bolstered by a considerable amount of corroborating evidence from other witnesses.

The AAT was not deterred by the considerable amount of documentary evidence showing the former husband’s persistence in using his previous address for mail.

The balance of the evidence, including the evidence as to background events, was found to be overwhelmingly in support of the conclusion that from January 2004 CWTJ and her former husband were not in a marriage like relationship.

Formal decision

The AAT set aside the decision under review and decided that CWJT and her former husband lived separately and apart from each other on a permanent or indefinite basis from 27 January 2004. From that time they were not members of a couple.

[M. O’H.]