Member of a couple

Section 4 criteria

6.6 Section 4(2) of the Social Security Act 1991 (Cth) defines ‘member of a couple’ to include persons formally married and persons of the opposite sex who are, in the opinion of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), in a ‘de facto relationship’—previously, a ‘marriage-like relationship’.^[3] There are exceptions. Section 4(2)(a) excludes people who are ‘living separately and apart’; and s 24 allows persons who otherwise would be treated as a ‘member of a couple’ to be considered ‘single’ for a ‘special reason’^[4]—these are discussed separately below.

6.7 Section 4(3) of the Social Security Act provides that, in deciding whether a person is a ‘member of a couple’, consideration is to be given to ‘all the relevant circumstances of the relationship’. In particular, regard must be had to a detailed range of criteria which include:

• the financial aspects of the relationship;^[5]
• the nature of the household;^[6]
• the social aspects of the relationship (including whether the persons hold themselves out as married to each other);^[7]
• any sexual relationship between the persons;^[8] and
• the nature of the commitment to each other.^[9]

6.8 These criteria are points for the decision maker to consider and give weight to.^[10] They are not a checklist of circumstances that must be met in all cases,^[11] nor a balance test where a relationship has to satisfy the majority of criteria.^[12] They provide a core of what needs to be investigated, but do not close off the circumstances of a relationship from investigation.

It is possible a decision-maker might decide that the individual is a member of the couple even though she does not satisfy all or even the majority of the criteria. Conversely, many of the indicia … might be present yet the circumstances as a whole might justify the conclusion that the couple live separately and apart.^[13]

6.9 Detail is provided in the Guide to Social Security Law as to what type of information may be relevant to each criterion in s 4(3). Relevantly, in relation to the criterion of the ‘nature of the commitment to each other’, the Guide to Social Security Law provides that information about ‘domestic violence’, such as ‘court documentation … may indicate the absence of commitment and/or emotional support’.^[14]

6.10 Some interpretative guidance is also provided by case law. In a case considering whether the Administrative Appeals Tribunal (AAT) failed to have regard to extensive violence when considering whether a person was ‘living separately and apart’ under s 4(3) of the Social Security Act, Riethmuller FM stated that:

Family violence must 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. It is difficult to conceive of a case involving significant family violence, that would not require such violence to be carefully considered in the context of determining the nature of the parties’ commitment to each other, and in particular the nature of their emotional support.^[15]

6.11 As discussed in Chapter 5, the Guide to Social Security Law is updated regularly to reflect changes in government policy and legislative interpretation. However, the decision in Kozarova is yet to be incorporated.

6.12 Some scholars have noted that the criteria in s 4(3) and its interpretation by decision makers can lead to a ‘nebulous account of a de facto relationship’ due to the broad criteria and their flexible application.^[16] The Commonwealth Ombudsman has also noted that it is not unusual for a decision maker’s own experiences and values to weigh into the decision-making process.^[17] As stated by French J in Pelka v Department of Family and Community Services:

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.^[18]

Submissions and consultations

6.13 In the Family Violence and Commonwealth Laws Issues Paper—Social Security Law, Issues Paper39 (2011) (Social Security Issues Paper), the ALRC noted concerns that had been expressed about possible underlying assumptions of a decision maker that may disregard family violence and its potential impact on a victim’s decisions, such as:

• economic abuse may obviate consent to the ‘significant pooling of financial resources’;
• patterns of violence and lack of alternative accommodation may mean that a person has no choice but to remain in the same house;
• secrecy associated with family violence may mean that a person continues to hold themselves out as a member of a couple;
• violence in a relationship may negate consent for ‘any sexual relationship between the people’; and
• there may be a correlation between the length of the relationship and the degree of violence.^[19]

6.14 The ALRC asked whether the criteria in s 4(3) of the Social Security Act for determining whether a person is a ‘member of a couple’ should be amended to take into account the existence and effect of family violence.

6.15 Most stakeholders supported amending the criteria in s 4(3) of the Social Security Act to take account of the existence and effect of family violence.^[20] In doing so, stakeholders expressed a range of concerns with the current criteria in s 4(3) and their application by decision makers.

Concerns with s 4 criteria

6.16 An overarching concern raised by the North Australian Aboriginal Justice Agency (NAAJA) related to the principle that different rates of payment are available for couples and singles.^[21]

6.17 Other concerns specific to the s 4(3) criteria included concerns in relation to the ‘pooling of financial resources’. One stakeholder considered that due to the ‘high incidence of economic abuse in family violence’, the ‘automatic treatment of financial resources in a couple as pooled should not occur’, but rather the assumption should be ‘reversed in instances of family violence’.^[22]

6.18 Further concerns were expressed in relation to the criteria concerning the ‘nature of the commitment to each other’. The Council of Single Mothers and their Children (CSMC) and the Homeless Persons Legal Service submitted that the current reference in the Guide to Social Security Law to consider evidence of domestic violence as an indication of the absence of commitment and/or emotional support, ‘does not give adequate weight to the existence of family violence in determining whether a person is a member of a couple’.^[23]

6.19 The Welfare Rights Centre NSW and NAAJA also raised concerns that information about family violence—such as police reports—have been used to demonstrate the existence of a couple relationship, rather than finding that one did not exist.^[24] The following case study demonstrates this concern:

Legislative amendment

6.20 In a joint submission, Professor Patricia Easteal and Professor Derek Emerson-Elliot considered that the Social Security Act should be amended to require the decision maker to be ‘satisfied that both members have a reasonable equality of power in the partnership, or that if it is a dominant/submissive partnership the submissive member retains the capacity to validly consent to the partnership’.^[26]

6.21 On the other hand, the Welfare Rights Centre Inc Queensland considered it more appropriate and effective to amend s 24 of the Social Security Act in relation to the discretion to decide that a person is not a ‘member of a couple’. The Welfare Rights Centre Inc Queensland argued that, while ‘section 4 provides a definition of what a member of a couple is, section 24 allows for a decision maker to state what a member of a couple is not’.^[27] However, as discussed below, Easteal and Emerson-Elliot considered that any amendment to s 24 would only be a ‘band-aid solution’.^[28]

6.22 An alternative submitted by one stakeholder was that research be conducted to ‘investigate and document the ways in which economic/financial abuse interact with income security, in particular in the Australian context’.^[29]

Amendment to the Guide to Social Security Law

6.23 Most stakeholders who responded to this question also agreed that further guidance should be provided in the Guide to Social Security Law about how the existence of family violence may affect each of the criteria in s 4(3).^[30]

6.24 In particular, the Welfare Rights Centre NSW submitted that such guidance ‘may be supported by reference to the principles enounced in Kosarova’and should provide that the decision maker ‘consider the impact of extreme violence on the nature of the household (s 4(3)(b)) and the nature of the parties’ commitment to each other (s 4(3)(e))’.^[31]

ALRC’s views

Underlying premise

6.25 In the ALRC’s report, Equality Before the Law: Justice for Women (ALRC Report 69), the ALRC considered that the assumption that couple relationships will provide equal financial support for the people in that relationship is inaccurate and that there is a need to address entitlement to income independently.^[32]

6.26 While concerns have been raised as to the underlying premise of ‘member of a couple’, it is beyond the ALRC’s Terms of Reference to consider this at large. The underlying notion of financial interdependence, and that singles require more money to enjoy the same living standard as couples, is systemic across the social security system. To reverse this assumption for victims of family violence and not for others would result in a two-tiered structure within the social security system.

Flexibility versus consistency

6.27 In any decision-making process, the ALRC considers that it is important that there is flexibility—to ensure that law and policy is responsive to individual circumstances (the theme of self-agency and autonomy described in Chapter 2)—but also consistency, to provide a level of certainty that like circumstances will be considered in a like manner.

6.28 It is inherently difficult to define, in precise terms, what constitutes a relationship. Some relationships, while unpleasant, do not necessarily involve family violence.

6.29 The criteria contained in s 4AA of the Family Law Act 1975 (Cth) and s 22C of the Acts Interpretation Act 1901 (Cth) for defining a ‘de facto relationship’ are similar to those in s 4(3) of the Social Security Act, therebyproviding a level of consistency in the interpretation of ‘de facto relationships’ across Commonwealth laws.

6.30 While the current criteria in s 4 for determining a couple relationship can lead to ‘nebulous’ results, it also allows flexibility in decision-making by providing a
non-exhaustive list of criteria, with no fixed determination as to the weight to be placed on each criteria, and the circumstances of the whole relationship still to be considered.

6.31 The current criteria do not preclude consideration of family violence, but rather it is a question of practice and guidance provided to decision makers in applying s 4(3) to a particular set of circumstances. Yet, despite this flexibility, the ALRC agrees with stakeholders that the criteria in s 4(3) need to reflect more accurately the nature and effect of family violence on the criteria used to determine couple relationships. The ALRC is concerned that decision makers are not expressly directed as to how family violence may be relevant to the criteria in s 4(3) of the Social Security Act,which may, in turn, lead to decisions that do not reflect the true nature of the relationship. This is of particular concern in circumstances of economic abuse where the victim of family violence is prevented from accessing shared finances yet cannot access the higher ‘single’ rate of payment, which may enable the victim to leave a violent relationship.

System integrity

6.32 A tension also exists between reflecting the true nature of a relationship and ensuring unintended consequences do not flow from changing the criteria on which a couple relationship is determined—the theme of ‘fairness’, discussed in Chapter 2. The ALRC envisages that amending the criteria in s 4(3) may lead to unintended consequences for both the victim of family violence and the social security system.

6.33 For example, for victims of family violence, a determination that a person is not a member of a couple in social security law may arguably be used in other areas of law such as child support, under Commonwealth law and intestacy, under state and territory law.

6.34 Amending the s 4(3) criteria may also create an incentive for false or manipulated claims of family violence, thereby detracting from the overall purpose of social security law—to provide for those in genuine need. In other words, if claiming family violence is seen as a way of claiming a ‘single’ rate of payment, some may seek to falsify a claim of family violence. Accordingly, the ALRC considers that the level of verification of family violence in ‘member of a couple’ decisions should be appropriately high—as discussed in Chapter 5.

6.35 The ALRC therefore does not propose to amend the criteria contained in s 4(3) of the Social Security Act. To do so may lead to unintended consequences, diminish flexibility in decision-making and create inconsistencies with other Commonwealth laws. Rather, the ALRC’s preliminary consideration is that it is more appropriate to provide additional guidance to decision makers through further information about the effect of family violence on ‘member of a couple’ decisions in the Guide to Social Security Law. By directing decision makers to consider how family violence affects a victim’s decisions, actions and inactions, will improve the way in which family violence is considered in ‘member of a couple’ decisions. The ALRC makes further proposals in relation to s 24 of the Social Security Act, considered below.

Separation under one roof

6.36 A person is considered not to be a ‘member of a couple’ where ‘living separately and apart’ from the other person on a permanent or indefinite basis.^[33] Where a person is assessed as ‘living separately and apart’, a person is deemed to be single and paid a single rate of income support.^[34]

6.37 Generally, a physical separation as well as an emotional separation of the couple is required.^[35] They must establish that: they are living apart either permanently or indefinitely, and there has been an ‘estrangement or breakdown in their relationship’.^[36] The Guide to Social Security Law recognises that there may be instances where a person is ‘living separately and apart under one roof’,^[37] but one or both parties must ‘form the intention to sever or not to resume that relationship and act on that intention’.^[38]

6.38 Neither the Social Security Act nor the Guide to Social Security Law provides family violence as an example of where people may be ‘living separately and apart under one roof’. Rather, a decision maker is directed to consider the five criteria in s 4(3) of the Social Security Act to determine whether a person is in a couple relationship or separated under one roof.^[39]

6.39 The Guide to Social Security Law provides, however, that the consideration of the criterion of ‘the nature of the commitment to each other’ and the degree they have made to distance themselves physically and emotionally, includes whether there has been a withdrawal of intimacy, companionship and support to the other party.^[40]

6.40 The Guide to Social Security Law also indicates that in circumstances of ‘domestic violence’, different ‘evidentiary’ requirements may apply.^[41] This is discussed further in Chapter 5.

Submissions and consultations

6.41 In the Social Security Issues Paper, the ALRC asked whether, in practice, family violence is adequately considered in determining separation under one roof and, if not, how family violence should be taken into consideration.^[42]

6.42 Most stakeholders who responded to this question indicated that determination of separation under one roof was not made consistently.^[43] Stakeholders provided examples of difficulties faced by victims of family violence in proving separation under one roof such as:

• where a person has obtained an Apprehended Violence Order (AVO) and the person using family violence breaches the AVO and returns to the home;^[44]
• lack of refuge accommodation and the desire to give children some stability can mean it is hard to leave and the fear that if they leave the relationship, and do not have stable accommodation, they may lose custody of their children to the person using family violence;^[45] and
• dependency by people with disability on their partner for physical and financial assistance may lead to a finding that they are still in a relationship.^[46]

6.43 In addition, the Sole Parents’ Union submitted that victims of family violence were not always aware that a person could be separated under one roof and that it can be difficult to prove, ‘particularly given the element of control by the perpetrator’:

Every time I tried to leave he’d threaten that he’d take the kids away from me. He told me that no court would award me custody if I didn’t have somewhere to live and there was no way he was going to leave the house. I didn’t even know you could be separated if you were still living together.^[47]

6.44 Consequently, most stakeholders submitted that family violence should be considered when determining separation under one roof,^[48] and in particular:

the impacts of family violence on victims, including financial abuse, and other environmental and social factors that may prevent a victim from leaving, such as the extreme public housing shortage in some locations and the high cost of private rental.^[49]

ALRC’s views

6.45 As discussed above, the criteria in s 4(3) of the Social Security Act are reflected in other Commonwealth laws, enable flexibility in decision-making and, if amended, may lead to unintended consequences. For the reasons stated above, the ALRC does not propose to amend the criteria in s 4(3). However, because of difficulties faced by victims of family violence in proving separation under one roof, the ALRC considers that decision makers need more guidance on how family violence may affect determinations that a person is living separately and apart under one roof.

6.46 At the time of writing, s 4(3A) of the Social Security Act does not provide any examples of when a person is living separately and apart. This detail is provided in the Guide to Social Security Law. Again, this provides flexibility in decision-making and—on its face—does not preclude a decision maker from considering family violence. If s 4(3A) included family violence as an example, other examples would also need to be included. It may also lead to inflexible decision making and create an incentive to claim family violence in order to access a higher ‘single’ rate of payment.

6.47 Accordingly, the ALRC proposes that further guidance be provided to decision makers in the Guide to Social Security Law to ensure that family violence is adequately considered in determining whether a person is living separately and apart under one roof. As discussed previously, such an amendment would provide direction to decision makers as to how family violence affects a victim’s decision to stay or leave a violent relationship such as financial abuse and other social and economic factors that may prevent a victim from leaving a violent relationship.

6.48 The ALRC is also concerned that some victims of family violence may be unaware of the ability to claim ‘living separately and apart under one roof’. As such, the ALRC considers that information about this should be included in Proposal 4–8.

‘Special reason’

6.49 The Secretary of FaHCSIA has a discretion, under s 24 of the Social Security Act, to rule that, for a ‘special reason’ in the particular case, a person should not be treated as a ‘member of a couple’. The Guide to Social Security Law states that s 24 is intended to be an ‘option of last resort and should only be applied when all other reasonable means of support have been explored and exhausted’.^[50] When the discretion under s 24 is applied and a person is determined not to be a member of a couple, the person is: treated as a ‘single’ person for all purposes of the Social Security Act; paid the single rate of payment; and ‘only their individual income and assets are included in the assessment of the rate of their payment’.^[51]

Unusual, uncommon or exceptional

6.50 The Guide to Social Security Law states that the ‘special reason’ must be ‘unusual, uncommon or exceptional’—that is, there must be something unusual or different to take the matter the subject of the discretion out of the ordinary course.^[52] The discretionary power must also be exercised for the purpose for which it was conferred—that is, to make provision for those who are in genuine need.^[53]

6.51 The Guide to Social Security Law directs the decision maker to consider three questions while also looking at the full circumstances of the case:

• Is there a special reason to be considered in this couple’s circumstances?
• Is there a lack of being able to pool resources for the couple as a result of the circumstances?
• Is there financial difficulty as a result of the couple’s circumstances?

6.52 While the Guide to Social Security Law considers some common scenarios,^[54] it does not provide family violence as an example of where the discretion might be exercised. However, a number of cases demonstrate how family violence has been considered by decision makers in exercising the discretion under s 24.

6.53 In Perry and Department of Family and Community Services, the AAT found that a longstanding history of family violence did not amount to a ‘special reason’ under s 24, as the applicant was not prevented by some external force from separating from the person using family violence.^[55]

6.54 Similarly, in Lynwood and Secretary, Department of Education, Employment and Workplace Relations, the applicant was seen to have suffered from family violence over a long period from her husband. While her husband did not help in any way with the raising of 11 children, this was not seen as ‘something unusual or different to take the matter the subject of the discretion out of the ordinary course’.^[56] Other cases have been determined in a similar manner.^[57]

6.55 On the other hand, in Rolton v Department of Education, Employment and Workplace Relations, the AAT found that, while the person was a member of a couple under s 4 of the Social Security Act, her circumstances, ‘namely, her being in an abusive and controlling relationship, and the nature and severity of her mental condition, amount[ed] to a special reason within the meaning of section 24(2)’.^[58]

Submissions and consultations

6.56 In the Social Security Issues Paper, the ALRC asked whether family violence was adequately taken into consideration in the exercise of the discretion under s 24 of the Social Security Act not to treat a person as a member of a couple. The ALRC asked further whether the s 24 discretion should be amended expressly to require the existence and effect of family violence to be taken into account. ^[59]

Concerns

6.57 Some stakeholders indicated that family violence was not adequately taken into consideration by the decision maker in exercising the discretion in s 24.^[60] The Commonwealth Ombudsman noted anecdotal instances where Centrelink has determined that a customer is a member of a couple, even where it appears the ‘relationship’ may have only continued as a result of duress or financial abuse.

It is unclear whether this has resulted from decision makers believing that the criteria in s 4 of the Social Security Act 1991 do not allow them to find the customer was not a member of a couple, or whether the facts of the individual cases were not sufficiently strong to overcome those criteria which did point to the existence of a relationship.^[61]

6.58 The Welfare Rights Centre NSW submitted that the discretion under s 24 not to treat a person as a member of a couple is rarely used for victims of family violence and that people who may benefit from its use are not made aware of it as an option.^[62]

Reform options

6.59 Stakeholders recommended that family violence should be taken into account expressly in considering the special reason discretion in s 24 of the Social Security Act,^[63] in particular to ‘require recognition by the decision maker of the disempowering effects of family violence and “battered women’s syndrome”’.^[64]

6.60 Easteal and Emerson-Elliot identified that the ‘real problem arises from the fact that women living with, or having lived with, serious family violence are unable to consent to a marriage-like relationship in the first place’ likening such relationships to ‘master/slave relationships, where the battered woman does not consent to what is happening but has no power—in fact no will—to change or even challenge the circumstances in which she finds herself’.^[65]

6.61 Similarly, the CSMC noted that, due to abuse experienced by victims of family violence and threats made against them if they leave, victims may have no choice but to remain in a violent situation. ‘In these circumstances they are not part of a ‘couple’ by any usual definition—there is no equality or sharing in that situation’.^[66]

6.62 Easteal and Emerson-Elliot submitted that, as a result of the decision in Rolton, ‘consideration is being given to amending section 24 of the Act to specifically recognise circumstances such as those in Rolton’.^[67] However, they also submitted that while liberalising the discretion in s 24 of the Act would be welcome ‘it would only be a band-aid solution to the problem’.^[68]

6.63 The Welfare Rights Centre Inc Queensland recommended the addition of a new subsection to s 24 to provide that a victim of family violence should not be treated as a member of a couple. The Welfare Rights Centre Inc Queensland raised concerns about the potential for such a provision to be abused, but considered that the definitions surrounding duress at both common law and in statute would, to some extent, guard against such abuse.

6.64 The Welfare Rights Centre NSW considered that the Guide to Social Security Law should direct a decision maker expressly to consider family violence in the exercise of the s 24 discretion and any previous decisions should be backdated, where appropriate.^[69]

6.65 The Welfare Rights Centre Inc Queensland raised an additional concern about the use of modifying words, like ‘extreme’, ‘special’ or ‘exceptional’ and submitted that they have

dealt with many cases where a decision maker has agreed that a circumstance prevents a victim from living in their place of residence, however due to this situation being quite normal in the victim’s life, the requirement is not met.^[70]

ALRC’s views

6.66 Section 24 of the Social Security Act is a discretionary area of law. As discussed above, a number of cases indicate that decision makers may not place sufficient weight on the existence of family violence. However, as noted by the Commonwealth Ombudsman, it is unclear whether this has resulted from decision makers believing that the criteria in s 4 of the Social Security Act do not allow them to find the customer was not a member of a couple, or whether the facts of the individual cases were not sufficiently strong to overcome those criteria which did point to the existence of a relationship.

6.67 Section 24 does not preclude family violence from being taken into consideration by a decision maker. In fact, as the cases outlined above demonstrate, family violence has been taken into consideration. However the ALRC is concerned that there may be insufficient guidance and training for decision makers about how family violence can affect a person’s decisions. The ALRC considers that further guidance as to how family violence may constitute a ‘special reason’ should be included in the Guide to Social Security Law.

6.68 While the Welfare Rights Centre Inc Queensland expressed concern that the reference to ‘special’ in ‘special reason’ was unsuitable, the ALRC notes that this terminology is repeated throughout the Social Security Act,for example in relation to waiver of debt in ‘special circumstances’ (considered in Chapter 7). The ALRC therefore considers that to remove the word ‘special’ from the ‘special reason’ discretion, would be beyond the scope of the ALRC’s Terms of Reference for this Inquiry, as it would also affect other customers—not only those experiencing family violence.

Verification of family violence

6.69 There are also concerns about maintaining the integrity of the system—to ensure that the addition of family violence as a consideration for ‘special reason’ is not abused by people claiming family violence when they are not in fact experiencing it. The ALRC’s preliminary consideration is that this potential for abuse could be minimised by requiring the level of verification of family violence to be rigorous for the exercise of the discretion. Verification of family violence in relation to social security payments and entitlements is considered in detail in Chapter 5.

Access to the s 24 discretion

6.70 The ALRC notes further that if reliance is to be placed on the discretion in s 24 for persons experiencing family violence, it needs to be adequately accessible. In particular, the ALRC queries whether its use as an ‘option of last resort’ presents a barrier to those experiencing family violence from accessing the discretion.

6.71 Stakeholders mentioned that s 24 was rarely used for family violence and victims were unaware that they could raise this discretion. One reason for its disuse may be accessibility and knowledge of the discretion itself. The ALRC therefore proposes that information about the discretion be included in Proposal 4–8.