Baird; Secretary, Department of Family and Community Services

[2004] AATA 149

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 149

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           N2003/895

GENERAL ADMINISTRATIVE   DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And MS LISA BAIRD

Respondent

DECISION

Tribunal Ms N Bell, Member

Date13 February 2004

PlaceSydney

Decision The decision under review is affirmed. 

[Sgd] Ms N Bell
  Member

CATCHWORDS

SOCIAL SECURITY – Newstart allowance – whether member of a couple – whether marriage-like relationship exists – factors including financial independence and emotional support assessed – decision under review affirmed.

Social Security Act 1991 – subsections 4(2), 4(3) and 4(3A)

REASONS FOR DECISION

13  February 2004 Ms N Bell, Member

1.       The Applicant claimed Newstart allowance in December 2002 and the Respondent rejected her claim on the basis that she was considered to be living in a defacto relationship and therefore her partner’s income was to be taken into account in relation to the rate of Newstart allowance payable to her.  That person’s income was such as to make the Applicant not entitled to be paid Newstart allowance.

2. The issue to be considered in this application is whether the Applicant was living in a marriage like relationship and was therefore a member of a couple. Section 4 of the Social Security Act 1991 (“the Act”) provides:

Member of a couple—general

4.(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b)       all of the following conditions are met:

(i)the person has a relationship with a person of the opposite sex (in this paragraph called the partner);

(ii)       the person is not legally married to the partner;

(iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

Member of a couple—criteria for forming opinion about relationship

4.(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a)       the financial aspects of the relationship, including:

(i)any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)any significant pooling of financial resources especially in relation to major financial commitments; and

(iii)any legal obligations owed by one person in respect of the other person; and

(iv)      the basis of any sharing of day-to-day household expenses;

(b)       the nature of the household, including:

(i)any joint responsibility for providing care or support of children; and

(ii)       the living arrangements of the people; and

(iii)      the basis on which responsibility for housework is distributed;

(c)       the social aspects of the relationship, including:

(i)whether the people hold themselves out as married to each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d)       any sexual relationship between the people;

(e)       the nature of the people's commitment to each other, including:

(i)        the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see their relationship as a marriage-like relationship.

4.(3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

3.       At the hearing before the Tribunal the Applicant confirmed her evidence to the Social Security Appeals Tribunal (“the SSAT”).  That evidence was:

“6.Ms Baird has known Mr Sutton for some three years.  Ms Baird was living with two other people in Leichhardt in mid 2002 when she and her co-tenants were evicted.  Mr Sutton was at that time living in Glebe with his sister.  His sister then decided to go overseas and Mr Sutton would have been forced to leave his rented premises, as he could not afford to pay the rent by himself.  Ms Baird and Mr Sutton decided to live together and found a house in Leichhardt.  Although the lease for the premises described it as a one-bed room house, in fact it had a second bedroom in the attic.

7.Ms Baird and Mr Sutton shared a bed in the attic bedroom.  However Ms Baird kept her belongings in the main bedroom, as she needs to have separate space for her own things.

8.Ms Baird does not regard her relationship with Mr Sutton as ever having been “really serious”, although she “really likes him”.  Ms Baird described Mr Sutton as her boyfriend, but denied any “full-on commitment”.  She and Mr Sutton call each other boyfriend and girlfriend and have a sexual relationship.

9.In relation to the household at Leichhardt, Mr Sutton brought to it items of furniture such as lounges.  Ms Baird had a washing machine and dryer and rented a fridge.  Mr Sutton paid half the rent on the fridge.  This was the same type of arrangement that Ms Baird had had in previous households.  However Mr Sutton also bought a TV and VCR, which she did not contribute financially to.

10.They do the shopping together when they do a “serious shop”, but otherwise shop separately.  They do not have a formal “kitty” arrangement.  Ms Baird pays for her own telephone calls as she tends to use the telephone more then Mr Sutton and makes STD calls to her family in Melbourne.  All other household bills are shared fifty/fifty between them.  Ms Baird pays half of the rent out of her bank account and Mr Sutton pays the other half.  Their payment arrangements are quite separate.  Each paid half of the bond.

11.The Tribunal asked Ms Baird how the relationship changed after she and Mr Sutton began living together.  Ms Baird observed that they naturally spent more time together but the fundamental nature of the relationship did not change and they continued to socialise separately as well as together.

12.Although they had a 12-month lease on the Leichhardt house, they relocated to a unit in Cronulla in January 2003.  This was originally because Mr Sutton was offered a position in Wollongong and planned to take it up.  He did not want to have to commute from Leichhardt to Wollongong.  Although Ms Baird loved the house in Leichhardt, she was quite happy to move to Cronulla.  Also, she did not want to remain in the house in Leichhardt living with a stranger and could not find anyone among her circle of friends who wished to share with her.  Prior to their move to Cronulla, Mr Sutton spent a couple of months working in Adelaide (in late 2002).  Although ideally Mr Sutton wanted his rent on the Leichhardt house to be covered, he continued to pay it.  Ms Baird tried to find someone who would move in for that two-month period but could not.  Ms Baird found the unit in Cronulla and liked it as it has a big, good kitchen, is located on the ground floor and is very clean.  She signed the lease and then Mr Sutton signed.  Their domestic arrangements have not changed since moving to Cronulla.  Ms Baird observed that she continues to often buy food for their dinner and Mr Sutton will “repay her by doing the washing up”.

13.The Tribunal asked Ms Baird why she did not look for a one bedroom flat in Cronulla.  Ms Baird said that she felt that a one-bedroom place would be too confining for her.  Ms Baird is a musician (studying the trombone at the Conservatorium) and needs the space to practice in.  She also needs space for her belongings.  However when Ms Baird and Mr Sutton moved to Leichhardt, they decided not to keep the second bed, as it was not needed.  Ms Baird and Mr Sutton continue to share a bed.  Mr Sutton also keeps some of his belongings in the other bedroom.

14.Their domestic arrangements continue as in the Leichhardt house.  They continue to socialise separately at times.  Ms Baird said that she sometimes stays out all night and will not always let Mr Sutton know in advance that she will be doing so.  However she will ring him the following morning to let him know where she is.  Ms Baird understands the relationship to be an exclusive one.

15.The Tribunal asked Ms Baird about her plans and those of Mr Sutton to travel overseas.  Ms Baird said that Mr Sutton may be going overseas on 1 June 2003.  She is not certain of the details but understands that he has six months off work.  She has had a round-the-world ticket for some time and thinks that she may travel overseas in early October 2003.  However it will depend upon whether she has sufficient funds and although she would love to meet Mr Sutton overseas she has no firm plans or expectations of doing so.  The arrangement is that she will take over the lease fully once Mr Sutton leaves for overseas.  Ms Baird said that she will not be able to remain overseas for very long, although she had always wanted to go overseas to live for a couple of years.  Ms Baird doesn’t know where she would go overseas and would like to go to South America and Africa.

16.The Tribunal asked Ms Baird about family occasions.  Ms Baird said that she always goes home to Melbourne for her birthday.  Mr Sutton’s family lives in the Sutherland Shire and sometimes his mother visits them or invites them out to dinner.  Mr Sutton’s brother also visits from time to time.  When Ms Baird had her wisdom teeth extracted, her mother came from Melbourne to take care of her and took her to stay in a hotel.  The Tribunal asked Ms Baird whether Mr Sutton had cared for her at that time and Ms Baird had responded that she and Mr Sutton are not very supportive of each other in that way.  Ms Baird is very close to her family.

17.Ms Baird said that she and Mr Sutton have never been on holidays together and have never discussed long term plans.  The Tribunal asked whether Ms Baird is allowed to us(sic) Mr Sutton’s car.  Ms Baird said that she does not drive but Mr Sutton will offer her a lift if she is late.  The Tribunal asked Ms Baird why she had described Mr Sutton as her “partner” in the second statement, which she provided to Centrelink (as referred to further below).  Ms Baird said that she feels that this was an error but it was her attempt to use what she believes to be the legally correct term for her boyfriend.”

4.       Mr Sutton also gave evidence to the Social Security Appeals Tribunal as follows:

“18.Mr Sutton and Ms Baird first met socially three to four years ago through mutual friends.  After that they met from time to time and gradually became friends, and then boyfriend and girlfriend.  Mr Sutton was living with his sister in Glebe when his sister left to go overseas on short notice.  As the lease of the property was not in his name and he was unable to have the lease transferred to him Mr Sutton had to look for alternative accommodation.  Ms Baird was evicted from her rented premises at the same time.  They decided to live together as it was financially preferable to do so and they trusted each other.  An important factor in their decision to live together was that they had been friends before becoming involved as boyfriend and girlfriend so that Mr Sutton was confident that they could continue living together even after their relationship as boyfriend and girlfriend ended.  The property that they rented in Leichhardt had two bedrooms, which offered them more options.  The decision to live together was a practical financial decision and based on the fact that they could rely on each other.

19.Towards the end of 2002, Mr Sutton was working in Adelaide for a few months, when he learned that he had been promoted to a position based in Wollongong.  He then contacted Ms Baird and told her that he would be moving out of the property in Leichhardt and that he would be looking for a one-bedroom unit in Wollongong.  Ms Baird was very uncertain of her plans at that time.  The lease for the Leichhardt house was cancelled.  Mr Sutton then found out that he had been awarded a scholarship to travel overseas.  Therefore he would not be taking up the position in Wollongong.  Mr Sutton expected to go overseas around March 2003 and did not expect that he would be able to find a three-month lease on premises.  He decided to move with Ms Baird to the flat in Cronulla, which she had found on the basis that she could remain in the flat after he left overseas.

20.Mr Sutton is now due to leave for overseas at the beginning of June 2003. The placement that he is to take up will be for six months but he may stay on in Europe.  He has six months leave without pay from his employment.  His long-term goal is to do more study and he may pursue that overseas.  The Tribunal asked Mr Sutton whether he and Ms Baird would be meeting overseas.  Mr Sutton stated that every couple of months Ms Baird changes her plans for overseas travel and chooses a different destination.  He too is uncertain of his destination.  Because of this uncertainty, they have not had any real discussion or made plans for meeting overseas.

21.The Tribunal asked Mr Sutton why he had signed the lease for the Cronulla flat as he is planning to go overseas.  Mr Sutton stated that he was required to sign the lease as he has a full-time position and a regular income, whereas Ms Baird has only casual employment (at a pharmacy in Oxford Street).

22.Mr Sutton has not provided any financial assistance to Ms Baird.  He is not in a position to do so as he has a car loan to pay off and credit card debts.  Currently, his mobile telephone and the landline at Cronulla have been cut off due to non-payment of bills.  Mr Sutton has never paid rent for Ms Baird and has never paid her share of any bills.  Mr Sutton pays his half share of the rent fortnightly by money order.  He assumes and expects that Ms Baird will keep up her share of the rent and does not question her about it.  She makes her own arrangements for payment.  In relation to telephone accounts, each pays according to her/his actual use of the telephone.  Previously, when Mr Sutton’s car was registered, he would occasionally pick Ms Baird up if she were in need of this.  However his car is currently not registered, as he cannot afford the registration.  Mr Sutton and Ms Baird have not made any joint purchases of property.  Mr Sutton has not thought about what he will do with his furniture once he goes overseas.

23.Mr Sutton has met Ms Baird’s parents on a couple of occasions, for example at her end of year music recital.  Mr Sutton has been to Melbourne with Ms Baird to attend her sister’s twenty-first birthday party and has been to Melbourne with Ms Baird and several other friends for a holiday.

24.Mr Sutton is very involved with family.  He has a brother who suffers from schizophrenia and who has stayed with him from time to time.  His brother stayed with Ms Baird and Mr Sutton in Leichhardt for about two months and in Cronulla for about one week.  The period in which Mr Sutton’s brother was staying with them in Leichhardt was very difficult as Mr Sutton’s brother was in and out of hospital and was at that time just being diagnosed as suffering from schizophrenia.  This is related to his drug use and his presence in the house at Leichhardt was very difficult for Ms Baird.  Mr Sutton believed that Ms Baird coped with the situation by trying to avoid being around his brother.  Mr Sutton did not ask Ms Baird to take on any responsibility of his brother.  Ultimately, that situation was too difficult and Mr Sutton asked his brother to leave.  Mr Sutton also sees his mother from time to time and occasionally goes to family dinner.  Ms Baird knows his mother and sometimes accompanies him.  She does not have a deep involvement with his family but it is impossible to avoid having some involvement, as he is very close to his family.

25.Ms Baird is a very giving person but she and he live separate lives.  Ms Baird has never looked after Mr Sutton for any long period and he has not cared for her when she has been ill or otherwise.  He does not like to take days off work because many people depend on him at work.  He has never taken a day off work to care for Ms Baird.

26.The Tribunal asked Mr Sutton if the relationship is an exclusive one.  Mr Sutton stated that he had had an involvement with a woman while living in Adelaide and also while on holiday on the North Coast (without Ms Baird).  Ms Baird is aware of these involvements.  Mr Sutton has not had any other partner in Sydney since living with Ms Baird although he does not rule out that it is possible this might occur.  He does not set out to find other partners.  He believes that if he were to become involved with anyone else he would tell Ms Baird about it.  Ms Baird and he have a modern view of their relationship.  They are each at a cross roads in life and face uncertainty as to their future.  Mr Sutton feels that as Ms Baird is from Melbourne and is very close to her family living there, she will probably return there to live.  He therefore does not have a long-term view of their relationship.

27.Mr Sutton expressed the view that the Act fails to recognise the modern reality of young people’s relationships. The fact of living together often simply reflects the financial burden for young people of living in Sydney. Mr Sutton and Ms Baird certainly did not decide to live together to further their relationship.

28.Mr Sutton also expressed the opinion that Ms Baird had been treated differently (and adversely) by Centrelink because he and his mother both work for Centrelink.”

5.       In her oral evidence to the Tribunal Ms Baird said by using the word “partner” when she completed a living arrangements form lodged with Centrelink she thought she was using the correct legal term for “boyfriend”.  She said that she is 22 years old and Mr Sutton is 23 years old.  She also said that her understanding of the meaning of “commitment” is an understanding between two people that they are “in it for the long-term, always referring to the other person and how their actions will affect that other person".  She said that with Mr Sutton it is her practice to put herself and her career first.

6.       Ms Baird said that when she had her wisdom teeth removed and was sick as a result, her mother came up from Melbourne to look after her, rather than Mr Sutton providing care for her.

7.       Ms Baird said that when she claimed Newstart allowance she had been Mr Sutton’s girlfriend for approximately six months.  She said that theirs is not an exclusive relationship and that she would go out frequently and stay with other people overnight and so did Mr Sutton.

8.       Ms Baird said that when she and Mr Sutton moved to Cronulla it was because they had friends there and she loved the area.  She emphasised that she was not “dragged there”.

9.       Ms Baird emphasised that in payment of her rent she had a direct debit arrangement with the real estate agent in respect of her half share of the rent and so her monies were not pooled with those of Mr Sutton for rent payments.  She said that Mr Sutton never gave her any money even though he had a full time job and she was only working casually.  She said they split the cost of food down the middle.

10.     Ms Baird said that Mr Sutton went overseas on 28 August 2003 and she stayed in contact with him by email and telephone.  She visited him there for three weeks and has only recently returned having travelled further after her visit to Mr Sutton.

11.     In relation to an address history printout (Exhibit A2) produced by the Respondent which shows Ms Baird as residing at 12 Cook Street Glebe on 14 February 2002, Ms Baird said that she was not residing with Mr Sutton at that address at that time.  After the hearing, at the request of the Tribunal, Ms Baird forwarded a submission to the Tribunal on this question.  She wrote:

“The time period which I was asked to account for was from February to June 2002.  Since it has been brought to my attention that I filled out the initial Newstart Claim Form incorrectly (admittedly making up a date that I thought I moved into Rofe Street (Leichhardt) when my memory failed me) I assumed that the time period for which I’m required to account for now is the time between when I moved out of Edith Street and when I moved into Rofe Street.

This would have been a period of approximately two months.  I had difficulty recalling why the Departmental Advocate would have had a record of me living at Cook Street Glebe when I couldn’t remember having lived there.  Then I remembered that I had gone to Centrelink Leichhardt to apply for a health care card, which I would have had delivered (as with any other mail I considered to be important) to Christopher’s house in Glebe.  Every summer holidays I visit my family in Melbourne.  I remember this summer especially because it was my twenty-first birthday on the third of February and Christopher and a few other friends had come to Melbourne for my party.  When I got back to Sydney just prior to university starting, I would have plausibly stayed at Christopher’s house for a week or so, or at my other friend Andrew’s house.

I asked the real estate agent about providing me with the relevant documentation for this case, but was turned down as she said the lease agreement was not in my name, and therefore subject to privacy issues.”

12. Turning to the factors for consideration set out in section 4(3) of the Act, I considered the financial aspects of Ms Baird’s and Mr Sutton’s relationship and noted that they have no joint ownership of assets or real estate nor any joint liabilities. They pooled resources only in relation to some household expenses such as food but made separate arrangements for payment of each of their shares of the rent. There was no subsidisation by one of the other financially notwithstanding that their incomes were different.

13.     In relation to the nature of the household, I note that the Applicant shared a bed with Mr Sutton but that she also maintained a separate room for her belongings.  Her evidence was that the household tasks were shared but she also stated that not a great deal of housework was done.  This is not unlike the arrangement in many shared accommodation households.

14.     In relation to the social aspects of the relationship, I accept Ms Baird’s evidence that she and Mr Sutton did not hold themselves out as married to each other.  I also accept her evidence that Mr Sutton was known to Ms Baird’s family as her boyfriend and she was known similarly to Mr Sutton’s family.  They socialised on some occasions together and on others separately.  I accept Ms Baird’s explanation of her use of the word “partner”.

15.     In relation to the sexual relationship between Ms Baird and Mr Sutton, I accept that they had such a relationship and that it persisted throughout the period during which they lived together.  I again note that neither Ms Baird nor Mr Sutton regarded the relationship as an exclusive one.

16.     In relation to the nature of Ms Baird’s and Mr Sutton’s commitment to each other, the relationship, six months old at the time Ms Baird claimed Newstart allowance, is a relatively new one.  While it appears that a degree of companionship was afforded by each to the other, I note that, during a period of illness, it was Ms Baird’s mother who cared for Ms Baird and not Mr Sutton.  I also note that Mr Sutton left Australia in August 2003 and remains overseas with Ms Baird visiting him recently for a period of only three weeks.  While this occurred well after the time the original decision was made, it may serve to shed some light on the level of commitment the two had to each other at the relevant time.  I accept Ms Baird’s evidence that, by her definition of commitment, she felt no commitment to Mr Sutton.  I do not consider that Ms Baird’s having moved from one rented premises to another with Mr Sutton is particularly significant. 

17. Having considered all of the evidence, in the context of the factors set out in section 4(3) of the Act, I do not consider that, on balance, the relationship between the Applicant and Mr Sutton was “marriage like”.  In particular, the absence of joint financial commitments or pooling of resources, the lack of exclusivity of their relationship and the absence of commitment between them outweighs, in my view the presence of a sexual relationship and a shared household.

Decision

18.     The decision under review is affirmed.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed:          Neil Glaser
  Associate

Date of Hearing  9 December 2003
Date of Decision   13 February 2004

Representative  for the Applicant      Lisa Baird – self represented

Advocate for the Respondent        George Lozynsky