Member of a couple

6.5 The concept of being a couple, namely in a de facto relationship, is relevant across a wide range of Commonwealth and state and territory laws. The definition has a number of key elements and a finding that a person is in a de facto relationship may lead to a range of consequences such as the calculation of pension entitlements and the identification of next of kin.

6.6 In the social security context, ‘member of a couple’ is the basis of a different income support assessment based on the premise that it is cheaper to live as a couple than as a single person.

6.7 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.^[3]

6.8 While the same concerns have been raised in this Inquiry,^[4] 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.

6.9 The problem in this Inquiry is how best to factor in family violence issues in the social security context. Should family violence be considered as so undermining of a de facto relationship as to lead to a conclusion that the persons are not ‘members of a couple’? Or is there some other place in the social security context to include an understanding of the impact of family violence?

6.10 Section 4(2) of the Social Security Act 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’.^[5] There are exceptions: ss 4(2)(a) and 4(3A) exclude people who are ‘living separately and apart’; and ss 4(6) and 24 allow persons who otherwise would be treated as a ‘member of a couple’ to be considered ‘single’ for a ‘special reason’.^[6]

6.11 Section 4(3) of the Social Security Act provides a detailed range of criteria to be considered by a decision maker in determining whether a person is a member of a couple. Many of these criteria are relevant to family violence. However, the presence of family violence is not always considered by decision makers when assessing these criteria, nor are they directed to do so, even though family violence may influence a number of the criteria. This may have implications for determining whether a person is a member of a couple or whether they are living separately and apart—including whether they are separated under one roof.

Section 4 criteria

6.12 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;^[7]

• the nature of the household;^[8]

• the social aspects of the relationship (including whether the persons hold themselves out as married to each other);^[9]

• any sexual relationship between the persons;^[10] and

• the nature of the commitment to each other.^[11]

6.13 These criteria are points for the decision maker to consider and give weight to.^[12] They are not a checklist of circumstances that must be met in all cases,^[13] nor a balancing test requiring a relationship to satisfy the majority of criteria.^[14] 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.^[15]

6.14 In relation to determining living separately and apart, including separation under one roof, the Guide to Social Security Law directs a decision maker to consider the criteria under s 4(3).^[16]

6.15 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’.^[17]

6.16 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.^[18] 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.^[19] 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.^[20]

Concerns with the s 4(3) criteria

6.17 Concerns have been expressed by stakeholders in this Inquiry about possible underlying assumptions of a decision maker that may disregard family violence and its potential impact on a victim’s decisions.

6.18 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.^[21] This reflects the concerns that economic abuse may obviate consent to the ‘significant pooling of financial resources’.^[22]

6.19 Further concerns were expressed in relation to the criteria concerning the ‘nature of the commitment to each other’. For example, 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]

6.20 There may also be a correlation between the length of the relationship and the degree of violence.^[24] In other words, that due to violence—or threats of violence—a person feels trapped and unable to leave a relationship.

6.21 The Commonwealth Ombudsman noted anecdotal instances when 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. For example:

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.^[25]

6.22 Other concerns include:

• 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; and

• violence in a relationship may negate consent for any sexual relationship between the couple.^[26]

6.23 The Welfare Rights Centre NSW (WRC (NSW)) and the North Australian Aboriginal Justice Agency (NAAJA) also raised concerns that information about family violence—such as police reports—has been used to demonstrate the existence of a couple relationship, rather than finding that one did not exist.^[27]

6.24 Throughout the Inquiry, stakeholders indicated that determination of separation under one roof was not made consistently.^[28] Stakeholders provided examples of difficulties faced by customers, such as:

• where a person has obtained a protection order and the person using family violence breaches the order and returns to the home;^[29]

• 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;^[30] 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.^[31]

6.25 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.^[32]

6.26 The Homeless Persons’ Legal Service considered that, without clear articulation of family violence as an example of people living separately and apart under one roof, there is a risk that victims of family violence may be forced into homelessness, in order to receive Centrelink payments.^[33]

Does family violence always mean that there is no couple relationship?

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

6.28 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 criterion, and the circumstances of the whole relationship still to be considered.

6.29 This may mean that the presence of family violence can lead to a decision that a person is in a couple relationship or not. It is one factor to consider in the determination of a person’s relationship status. Likewise, if the couple is living under the same roof, they may be considered to be ‘separated under one roof’.

6.30 The ALRC therefore recommends that further information about the effect of family violence on ‘member of a couple’ decisions be provided in the Guide to Social Security Law. 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.

6.31 To some extent, s 4(3A) of the Social Security Act may provide for this. Subsection 4(3A) states that people who are living separately and apart should not be treated as being in a couple relationship. This includes where people are living separately and apart but remain under the one roof.^[34] This means that, in the social security context, a person is treated not as a member of a couple and can access the single rate of payment.

6.32 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] The Guide to Social Security Law directs a decision maker to consider the criteria in s 4(3) when making a determination as to whether people are living separately and apart.

6.33 In particular, the Guide to Social Security Law provides that the consideration of the criterion of ‘the nature of the commitment to each other’ and the degree to which they have distanced themselves physically and emotionally, includes whether there has been a withdrawal of intimacy, companionship and support to the other party.^[39] However, as s 4(3) provides the core criteria for assessment, stakeholders raised concerns about the extent to which, and the way in which, family violence is considered in relation to this criterion.

6.34 It is therefore necessary to inform decision makers how family violence may be relevant to each of the criteria to ensure family violence is adequately considered in making determinations about couple status and particularly the assessment of living separately and apart under one roof.

6.35 The ALRC also recommends that consistent, regular and targeted training should be provided to relevant staff on the ways in which family violence may affect the interpretation and application of the criteria in s 4(3) of the Social Security Act, in accordance with Recommendation 5–2. This was supported by stakeholders.^[40]

Should the Act or the Guide be amended?

6.36 The ALRC has heard of difficulties faced by victims of family violence in proving separation under one roof. The ALRC therefore recommends that further guidance be provided to decision makers in the Guide to Social Security Law on how family violence may affect such determinations and 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.

6.37 Although many 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,^[41] the ALRC considers amending the Guide to reflect this is preferable to amending the Act. To do otherwise may lead to unintended consequences, diminish flexibility in decision-making and create inconsistencies with other Commonwealth laws. Stakeholders 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).^[42] However, FaHCSIA considered that the Guide already covered this issue.^[43]

6.38 In a joint submission, Professors Patricia Easteal and Derek Emerson-Elliot argued that the Social Security Act should be amended to require that, before deciding that a person is a member of a couple, decision makers must 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’.^[44] They strongly supported amendment to the Social Security Act to reflect the difficulty for victims of family violence as a result of the power imbalance in a violent relationship:

The relationship is in reality more that of a (psychological) hostage and captor relationship. As a result of this disempowerment, victims may be limited in their ability to make choices and limited capacity to change or even challenge the circumstances that they are in… The Social Security Act must be amended in order to require the decision maker to be satisfied that both members of a couple have a reasonable equality of power in the partnership.^[45]

6.39 In any decision-making process, the ALRC considers that it is important that there is flexibility, to ensure that law and policy are 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.

6.40 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 laws, and intestacy, under state and territory law. For example, if a person is considered not to be in a couple relationship and the partner were to die, what relevance would the factual determination for social security purposes have in the context of eligibility as a de facto partner for inheritance purposes?

6.41 Section 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. 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 of separation under one roof, other examples would also need to be included. This may lead to a prescriptive list resulting in greater inflexibility in decision making.

6.42 Amending the s 4(3) criteria may also create an incentive for false or manipulated claims of family violence to access a higher ‘single’ rate of payment, thereby detracting from the overall purpose of social security law—to provide for those in genuine need. Accordingly, the ALRC considers that the level of verification of family violence in ‘member of a couple’ decisions should be appropriate—as discussed in Chapter 5.

6.43 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. The ALRC therefore considers that the emphasis in the Guide to Social Security Law should be placed on ensuring family violence is adequately considered in determining separation under one roof by including family violence as a circumstance were a person may be living separately and apart under one roof.

What sort of guidance should be included?

6.44 The case of Kosarova v Secretary, Department of Education, Employment and Workplace Relations considered 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.^[46]

6.45 The National Welfare Rights Network (NWRN) submitted that such guidance may be supported by reference to the principles enunciated in the case of Kosarova and by should provide that the decision maker should ‘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))’.^[47]

6.46 However, the NWRN considered that it should not be necessary to prove ‘extreme violence’ as described in Kosarova in order for family violence to be taken into account and that all forms of family violence—not only physical violence—need to be considered.

6.47 The Australian Association of Social Workers Queensland (AASW (Qld)) and the Welfare Rights Centre Inc Queensland (WRC Inc (Qld)) recommended that the Guide to Social Security Law should also include

examples showing the impact of family violence on each relationship ‘factor’ and also include suggestions for questions to assist in eliciting this information. For example, in relation to finances, questions should consider the level of decision making victims of family violence have had on family resources and the way in which this has impacted on them.^[48]

6.48 Stakeholders agreed that the Guide to Social Security Law should clearly state that family violence may be taken into account in a determination of separation under one roof.^[49] Such guidance could include:

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.^[50]

6.49 In particular, the way in which financial resources are exploited within family violence situations needs to be better understood to allow for the treatment of income as separate and not pooled as a ‘household income’.^[51]

‘Special reason’

6.50 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’.^[52] 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’.^[53]

6.51 Section 24 does not preclude family violence from being taken into consideration by a decision maker. 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 therefore recommends that further guidance as to how family violence may constitute a ‘special reason’ should be included in the Guide to Social Security Law. This was supported by stakeholders.^[54] However, Easteal and Emerson-Elliot considered s 24 to be an inappropriate mechanism for decision making on ‘such a significant and basic issue as whether a relationship is genuinely that of a couple, or is that of captor and hostage’.^[55]

6.52 The ALRC notes that while Recommendation 6–1 may go some way to addressing concerns of family violence in ‘member of a couple’ decisions, for consistency, family violence should also be expressly considered in relation to the s 24 discretion.

6.53 The ALRC noted in the Family Violence—Commonwealth Laws, ALRC Discussion Paper 76 (2011) (Discussion Paper), that if reliance is to be placed on the discretion in s 24 for persons experiencing family violence, it needs to be adequately accessible.^[56] In particular, the ALRC queried whether its use as an ‘option of last resort’ presents a barrier to those experiencing family violence from accessing the discretion.^[57]

6.54 Stakeholders mentioned that s 24 was rarely used for family violence and victims were unaware that they could invoke this discretion. One reason for its disuse appears to be lack of knowledge of the discretion itself—both by customers^[58] and Centrelink officers.^[59]

6.55 The ALRC therefore recommends that information about the discretion be provided to customers as part of Recommendation 4–2 to ensure that customers are aware of its availability.

Unusual, uncommon or exceptional?

6.56 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.^[60] 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.^[61]

6.57 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?^[62]

6.58 While the Guide to Social Security Law considers some common scenarios,^[63] it does not provide family violence as an example of where the discretion might be exercised. Some stakeholders indicated that family violence was not adequately taken into consideration by the decision maker in exercising the discretion in s 24.^[64] A number of cases serve to demonstrate how family violence has previously been considered in exercising the discretion under s 24.

6.59 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.^[65]

6.60 Similarly, in Lynwood and Secretary, Department of Education, Employment and Workplace Relations, the applicant was seen to have suffered from family violence from her husband over a long period. 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’.^[66] Other cases have been determined in a similar manner.^[67]

6.61 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)’.^[68]

Alternatives for reform

6.62 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,^[69] in particular to ‘require recognition by the decision maker of the disempowering effects of family violence and “battered women’s syndrome”’.^[70]

6.63 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’.^[71]

6.64 Similarly, the CSMC noted that, due to abuse experienced by victims of family violence and threats made 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’.^[72]

6.65 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’.^[73] 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’.^[74]

6.66 The WRC Inc (Qld) argued that, while s 4 ‘provides a definition of what a member of a couple is, s 24 allows for a decision maker to state what a member of a couple is not’.^[75] The Centre therefore 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 Centre 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.

6.67 The WRC (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.^[76]

6.68 The WRC Inc (Qld) 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.^[77]

6.69 However, throughout social security law and policy, references are made to modifying words such as ‘extreme’ or ‘special’. It is beyond the ALRC’s Terms of Reference to recommend that such words be deleted from social security legislation.