Changes are coming soon to address Family and Domestic Violence

Terina HegartySocial security rights review

Sarah Sacher, Economic Justice Australia, Law Reform Officer

A key focus of EJA’s continued advocacy for victims/survivors of family and domestic violence (FDV) is the need to enhance the use of discretion in ‘member of a couple’ assessments, to treat those involved in FDV relationships as not being a ‘member of a couple’ for social security purposes, in certain circumstances. EJA understands that draft changes have been made to the Department of Social Security’s Social Security Guide to address this issue, taking into account suggestions made by EJA in suggestions made by EJA in its FDV legislative brief and research reports, including:  

The Social Security Guide provides guidance to decision-makers about the application of social security law – including for original decision-makers, review officers, and Administrative Appeals Tribunal members. Once these changes are finalised, they will have a profound impact for those reliant on social security who are victims of financial abuse and other forms of FDV, by enabling FDV to be properly considered in the decision-making process. 

Responses to the endemic levels of FDV in Australia must take into account the significant intersections between FDV and the social security system.   

Access to income support provides a vital safety net for women living with or escaping FDV. Income security is crucial to safety at times of greatest vulnerability, and social security support can be an essential resource for women to re-establish themselves so they may rebuild their lives and move on.   

Perpetrators may also abuse the social security system to exert power and control over victim-survivors, which is why it is essential that the system is sufficiently sensitive to the prevalence of FDV and flexible enough to respond to it in individual cases.  

Reforms to the social security system have the potential to greatly improve the lives of many victim-survivors of violence, increasing their capacity to escape abuse and its ongoing effects.  

EJA warmly welcomed the inclusion of social security considerations in the National Plan to End Violence against Women and Children 2022–2032. This was influenced by sustained advocacy by EJA and our member centres, but this needs to be followed by concrete steps in the first action plan to the National Plan.  

Member of a couple changes – in train  

Some victim-survivors find themselves in desperate circumstances when their abusive partner provides no financial support, which can also affect their capacity to leave the relationship and stay safe. Others are left with large debts when Centrelink retrospectively decides they were a member of a couple during an abusive relationship where their partner provided no financial support. Frequently, victim-survivors have had sole responsibility for the financial support of their children throughout the relationship and beyond. 

Section 4 of the Social Security Act defines what it means to be a ‘member of a couple’. The Social Security Guide currently provides that the presence of family and domestic violence may indicate that two people living together may not be a member of a couple for the purposes of section 4. This is important, as it accounts for financial abuse by recognising that a victim-survivor may need to be viewed as distinct from their partner for the purposes of assessing payments and compliance.  

EJA has lobbied that FDV considerations be more explicitly included and expanded upon in the updated Social Security Guide, in order to ensure that FDV is properly considered by decision-makers as a factor in making a member of a couple assessment.  

Section 24 of the Social Security Act provides that decision-makers have discretion to treat someone as not being a member of a couple, even if they meet the definition of a couple under section 4. This is another important safeguard for people experiencing FDV. For example, a person may not dispute that they are a member of a couple despite evidence of ongoing FDV – yet as a result of FDV they may face financial difficulty or be unable to share resources within the relationship. When FDV is considered in the context of section 24, it can allow a person to access a single rate of payment despite being in a relationship, with their rate of payment unaffected by their partner’s income and assets. EJA has advocated for FDV to be highlighted as a reason to exercise such discretion in the updated text of the Social Security Guide. The importance of this change is illustrated by the following case study.  

Case study – Tim  

Tim was coerced by his ex-husband into lying on a Centrelink form and stating that they had separated. There was a history of violence perpetrated by the ex-husband of our client, and when Tim contacted our member centre for advice, his ex-husband was facing three serious criminal charges. There is an ADVO in place.   

Tim stopped reporting to his job provider and to Centrelink earlier this year partly because he was trying to extricate himself from the relationship and had health issues, but mainly because of the incorrect information he had previously provided. He was without any income and could not re-apply for Jobseeker Payment without admitting to Centrelink that he had made the previous false statement (the claim form requires date of separation).  

Tim’s ex-husband had threatened to report the misrepresentation to Centrelink. Tim believed that he was capable of doing so, despite the fact that the ex-husband also made a similar misrepresentation to Centrelink. The EJA member centre solicitor gathered evidence of the circumstances surrounding the misrepresentation to Centrelink and the history of domestic violence, and prepared submissions arguing that Centrelink should use its discretion to treat Tim as a single person rather than a member of a couple from the date of the coercion. The solicitor also liaised with Centrelink to request an in-person appointment with a social worker for Tim so he could hand over the submissions and explain his situation. Tim’s appointment with the social worker went well. He is now getting Jobseeker Payment and has been told that he will not receive a debt.  

Need for further legislative changes  

Section 24 

Ideally, these FDV clarifications would be reflected not only in the Social Security Guide, but in the Social Security Act itself. EJA has recommended that section 24 be amended to make clear that a special reason exists to not treat a person as a member of a couple where the Secretary is satisfied that the person is being, or has been, subjected to family or domestic violence by the other person that has limited their access to shared financial resources. 

Debt waivers  

Legislative change is necessary to address issues with ‘special circumstances’ debt waivers. Such reform would protect victim-survivors from being pursued for debt that was caused by an abusive partner. Victim-survivors are sometimes forced or coerced into making statements regarding their own or their partner’s circumstances in order to obtain independent income from Centrelink. Those victim-survivors can be left with a substantial Centrelink debt, and may be prosecuted, including where the income support was their only source of income or where their partner stole the income the person was receiving from Centrelink. 

Changes to the Social Security Guide alone will not address this issue, as the problem is the wording of the provision itself. Section 1237AAD of the Social Security Act allows for debts to be waived in special circumstances. However, that option is not available if the debtor has ‘knowingly’ made a ‘false or misleading statement’ or ‘knowingly’ failed to comply with an obligation under social security law. That provision results in victim-survivors being held liable for debts accrued as a result of physical violence or threats of violence by the perpetrator, including where the perpetrator refused to financially support the victim-survivor or their children in any way. 

Further, section 1237AAD does not apply where the false statement or omission was made by the victim-survivor or ‘another person’. This means that a false statement or misrepresentation , to Centrelink by a violent and controlling partner precludes any recourse for the victim-survivor to have the debt waived under the section 1237AAD. 

Legislative change is required to prevent significant injustice and stress for victim-survivors in these circumstances.  

Case study – Sarah 

Sarah had separated from her ex-husband in February 2017. She suffered from severe anxiety and depression due to the domestic violence, with a number of police reports mase about her ex-husband’s domestic violence.  Before the separation, Sarah and her ex-husband sold an investment property. However, Sarah had no access to the money and their bank account was in her ex-husband’s name and he had changed the logon details for the account after the sale.  

Sarah was unemployed. She had a 17-year-old daughter living with her who was sitting her HSC, and a 10-year-old son. Her daughter also needed to see counsellor and had been prescribed anti-depressants. They lived in a garage and Sarah had to borrow money from her mother who was relying on Age Pension.   

Sarah contacted the EJA member centre after she received a Family Tax Benefit debt of $19,000, plus a School Kids Bonus debt of $1,200 and Child Care Benefit debt of $200, which she incurred after her ex-husband submitted his tax return, which included the sale of the property. 

 The member centre obtained and reviewed documents under Freedom of Information from Centrelink regarding her debt, collected evidence of her circumstances and appealed to the Authorised Review Officer. The member centre submitted that the debt should be waived due to Sarah’s special circumstances – i.e., that she is a victim of domestic violence, and the debt arose as part of her ex-husband’s financial abuse. Sarah’s review was successful; the three debts were waived in full. The member centre also referred Sarah to get further advice from the Child Support Service at Legal Aid. 

The recent focus on addressing FDV by politicians and policy makers is a welcome and necessary development. EJA’s advocacy in this regard has borne important outcomes in the context of social security and FDV concerns. There are however ongoing issues that can be addressed through relatively modest legislative reform – which would prevent unnecessary suffering and costs for victim-survivors. We continue to press for these changes to government.