The ‘Couple Rule’ and Domestic Violence

admin SOCIAL SECURITY RIGHTS REVIEW

Lyndal Sleep (Griffith University) and Helen Sowey (ANROWS)

Centrelink uses “the couple rule” to determine whether a person should be considered a member of a couple for social security purposes. For women attempting to leave a violent partner, the couple rule can cause difficulty.

New research published last week explored the experiences of women who appealed Centrelink decisions about the couple rule, in cases where domestic violence was involved. The research was commissioned by Australia’s National Research Organisation for Women’s Safety (ANROWS) and conducted by early career researcher Dr Lyndal Sleep.

The couple rule can pose a range of problems for those seeking to leave a partner. The end-date of the relationship will not necessarily be clear-cut — it is common for women to make multiple attempts to leave. Moreover, perpetrators often intensify their abuse at this time, increasing the risk to women’s safety. A woman may also require additional financial support in order to leave, without which she can become financially entrapped in a violent relationship.

For this research project, Dr Sleep analysed Administrative Appeals Tribunal (AAT) decisions between 1992 and 2016 that involved domestic violence and the couple rule. Among the 70 decisions identified, there was little evidence that domestic violence was adequately understood and taken into account by the decision-maker.

Learn more about this research: Register for the webinar on 26 July, 1-2pm AEST.

Key findings

The nature of violence and control by the perpetrator was rarely considered in AAT decisions about the couple rule

Even when domestic violence was identified at the AAT, the reality of women’s lived experiences was seldom taken into account in decisions. While the “special reason” provision offers an opportunity to override the couple rule, there was little indication that the AAT regularly applied it in cases involving domestic violence. Of the 70 AAT decisions studied, there were only three in which the decision-maker used section 24 of the Social Security Act 1991 (Cth) “special reason” provision to override the finding that a couple relationship existed. In a further five decisions, the decision-maker used the provisions under s. 1236 and s. 1237 to waive debt due to hardship or special circumstances.

Records used by the AAT as evidence of a relationship might be inaccurate if domestic violence was involved

Intimate records of day-to-day living are used to construct an image of an alleged couple’s finances, household, sex life, commitment and social life, and this image is used as the basis for the decision as to whether a couple relationship exists. There was little indication that the AAT considered whether, in cases involving domestic violence, the information presented to the tribunal as evidence might be inaccurate due to systems abuse, i.e. due to having been manipulated by a perpetrator.

EXAMPLE: Shared bank account opened under duress:

Karen,[1] who worked at a school, explained that the perpetrator intimidated her to allow him to access her bank account after separation:

During the time when I was trying to enforce a separation from [Perpetrator], I changed my bank account at the St George Bank into joint names so that [Perpetrator] could also use the account. It was at [Perpetrator’s] insistence that I did this. He said that he would contact the School about my past and made other threats about what he would do if I did not cooperate….I did not question why he wanted the account. (AAT Matter No 2001/282 [8])

Police and health records documenting past domestic violence were often used during AAT hearings as evidence that there was a couple relationship

In 80% of the couple rule decisions studied where the relationship involved domestic violence, police and health records documenting domestic violence were used as evidence of a relationship. This information had originally been collected with women’s safety in mind, yet it was used to make adverse findings against women at AAT hearings.

EXAMPLE: Police records

…the admission by the wife to Police after the date of alleged separation of being in partnership with her husband….point to them being members of a couple. (AAT Matter No 2007/1321 [69])

EXAMPLE: Health records

The frequency of the hospital admissions by the wife as a consequence of assault by her husband, the times of her admissions and the frequency of attendances by police all point to him being at those premises on many occasions. (AAT Matter No 2007/1321[54])

The publication of AAT decisions poses safety risks for women who have experienced domestic violence

In almost every case examined in this study, identifiable details about the individuals who appeared before the AAT were published on the AustLII website. These included full names, street addresses, places of work and children’s schools. This is a serious violation of privacy and a safety risk for those who are victims/survivors of domestic violence and their children.

 Key recommendations

  1. The Social Security Act 1991 (Cth) should be amended to explicitly include domestic violence as a factor to be considered when determining whether a person should be considered a member of a couple for social security purposes and whether a Centrelink debt should be waived.
  2. All Centrelink and Administrative Appeals Tribunal (AAT) decision-makers should be required to complete training in domestic violence.
  3. Centrelink and the AAT should develop guidelines regarding the use of domestic violence records from state institutions (including police and hospitals).
  4. AAT decisions should be de-identified before becoming publicly available to protect women’s safety.

 

Read the full research report at https://www.anrows.org.au/project/domestic-violence-social-security-law-and-the-couple-rule/

Register for the webinar on 26 July, 1pm-2pm AEST  at https://www.eventbrite.com.au/e/webinar-domestic-violence-social-security-and-the-couple-rule-tickets-64711795723

 

 Administrative Appeals Tribunal decisions cited

AAT Matter No 2001/282

AAT Matter No 2007/1321

AAT Matter No 2007/1321

[1] Names in the reported AAT decisions have been changed to protect the identity of the women.