Berghofer and Secretary, Department of Family and Community Servi Ces
[2003] AATA 1198
•28 November 2003
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DECISION AND REASONS FOR DECISION [2003] AATA 1198
ADMINISTRATIVE APPEALS TRIBUNAL)
)No Q2003/268
GENERAL ADMINISTRATIVE DIVISION)
ReWAYNE MORRIS BERGHOFER Applicant
AndSECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
TribunalMr I R Way, Member Date28 November 2003
PlaceBrisbane
DecisionThe Tribunal sets aside the decision under review and in substitution therefor determines that Mr Berghofer is not a member of a couple.
.(Sgd) IR Way
Member
CATCHWORDS
SOCIAL SECUIRTY ? Age Pension at single rate ? Whether living as a member of a couple.
Social Security Act 1991 4(2), 4(3), 4(3A)
Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497
Re Ford and Secretary, Department of Family and Community Services (2003) 72 ALD 718
Re SRWW and Department of Community Services [2001] AATA 495
Re Holmes and Secretary, Department of Social Security (1987) AAT Decision No. 4046, 23? December 1987
Re Lynn Janet Staunton-Smith and Secretary, Department of Social Security (1991) 32 FCR?164
Re Kajzer and Secretary, Department of Family and Community Services (1999) AATA 362
REASONS FOR DECISION
28 November 2003Mr I R Way, Member
This is an application by Wayne Morris Berghofer for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 24 February 2003, which affirmed a decision made by Centrelink on 14 November 2002 that Mr Berghofer was living as a member of a couple with Miss Judith Norman.
The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T35), and other documentary evidence as follows:
Exhibit A1Statement of Wayne Berghofer dated 24 July 2003
Exhibit A2Statement of Wayne Berghofer dated 17 October 2003
Exhibit A3Statement of Judy Norman dated 24 May 2003
Exhibit A4Report of Peter Briggs, Clinical Psychologist dated 10 July 2003
The applicant was represented by Ms L Dillon-Smith and the applicant and Ms?Norman gave oral evidence.The respondent was represented by Ms H Wallis-Dunn.
Issues and Legislative Framework
The applicant has been in receipt of disability support pension since 1999 and was still in receipt of such pension when, on 14 November 2002, Centrelink decided to treat the applicant as a member of a couple and as such he was no longer entitled to single rate pension.
The issue in this matter is of narrow compass, namely whether or not the applicant was living as a member of a couple with Ms Judith Norman.
This matter is to be determined within the provisions of the Social Security Act 1991 (the Act).Section 4 of the Act sets out family relationships definitions for couples.Section 4(2), 4(3), 4(3A) relevantly provide as follows:
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.
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.?
The Applicant?s Evidence
The applicant provided a written statement dated 24 July 2003 (Exhibit A1) and a further updated statement dated 17 October 2003 (Exhibit A2).
The applicant?s first written statement is very comprehensive and sets out clearly his evidence about the circumstances leading to his association with Ms?Norman and the scope, extent and the nature of this association.
In summary, the applicant was born on 17 October 1955 and has had a very troublesome upbringing with numerous court appearances and periods of detention, mainly associated with alcohol and drug problems.His initial association with Ms?Norman commenced in 1994 when the applicant and Ms Norman?s husband lived together in a detox unit and attended AA meetings.
The applicant?s relationship with Ms Norman continued and subsequently when Ms Norman?s marriage broke up, the applicant moved into Ms Norman?s house.The applicant described the circumstances of this association as follows (Exhibit A1):
?Background
?
11.In 1995 I re-offended and went back into prison.My sentence this time was 3?and a bit years.I wrote to Ms Norman and her husband, as I did not have anyone else.Ms Norman wrote back to say her husband was going off the rails.
12.After one letter from Ms Norman I asked her about the change of address on the letter and she wrote and said that her marriage had ended.
We continued writing every now and then over the time I was inside.
When I was coming up to parole I was told by my parole officer, that to get early parole I would need a sponsor, stable address and evidence that I would be living in a stable structured environment.I wrote to Ms Norman and asked her if she could be my sponsor and if she could suggest anywhere I could stay.Ms Norman made a few suggestions but most of these were not available or had a long waiting list.
I thought it was a long shot but I wrote to Ms Norman and asked if I could stay with her as part of my parole conditions.At first Ms Norman said no she did not think it was a good idea but then she changed her mind and told me I could stay but under very strict conditions.
Ms Norman said I had to refrain from using any alcohol or drugs and pull my own weight and attend AA.I have attended meetings since I was released.
Living Arrangements at Grenfell Street
When I was first released I moved into a room at Ms Norman?s house at Grenfell Street Coraki.We slept in separate bedrooms but shared the living room and bathroom and kitchen.I put in for food but bought food I put aside for myself and paid $80 per week rent.Ms Norman paid all the bills.
At Grenfell Street it became quite difficult because you couldn?t really do your own thing, as the place was too tight with both of us there.We both really wanted a place where we could have our own living quarters.
Ms Norman and myself have never been in a sexual or intimate relationship.I have never thought of Ms Norman in that way and think of her more as a sister or mother figure who keeps me in line.Ms Norman does this by reminding me of the hard times and bad times and keeps me going to AA.When things are going hard for me she will get me to read the AA book.She is pretty strict with me, which is what I need.
Ms Norman has always made it clear to me that if I stuff up, I?m out.
Purchase of House at 100 Queen Elizabeth Drive
Ms Norman was looking for a house for her father who was elderly and lived in Queensland.She wanted him to move closer to her so she could help care for him.Ms Norman found a house in Coraki but her father did not want to move down.
Soon after this Ms Norman was told by someone she bumped into in Coraki that the sale price for that house had dropped.The price had been $87,000 but had gone down to $52,000.Because it was a bigger house Ms Norman decided she would like to buy it.Ms Norman asked me if she was able to buy the house would I consider moving into the new house as a boarder because it had more room.I found Ms Norman a good person to share a house with and so I told her I would move to the next house if she could buy it.
Ms Norman went to the real estate agent and she thought that the finance would be okay because of the other house.When she went to the bank she came back home and told me that the bank will not give her any finance on her own.We had a discussion about it and I asked if there was anything I could do even though I was only on the pension.I told her to make an appointment with the bank.We went to the bank together and Ms Norman told the Bank Manager our situation.He said to us that I should sign up.
One of the ladies at the bank came up with the idea to set up a new account in both names so the mortgage payments could come straight out of it.
I agreed to do this because Ms Norman had done so much for me in that she had allowed me to stay with her when I was up for parole.I would not have been granted parole if she had not let me stay there.
I went to some solicitors with Ms Norman when she bought the house.I was asked to sign the papers but I was not really told anything about the contract.I did not receive any independent legal advice as I was only doing it to help Ms Norman buy the house.It was only much later that I was advised that I may have legal rights to the house if Ms Norman died.This is not what was meant when I agreed to put my name down on the loan.All I felt I was doing was helping her out and I was still a renter in her house.
My understanding at the time was that I was helping her to buy the house by putting my name down because without it the bank would not give her finance.She was advised when she went to the bank that she would need me to put my name down as my pension would provide them security in the sense that she would be able to afford the repayments.
When Ms Norman bought the new house I would have the $80.00 per week go into the new account the bank had advised us to set up.
This went on for a short time and then Ms Norman started getting mixed up with her different accounts and said that she wanted to close the joint account and just have the house payments taken out of her own account.After this I would jut give the $80.00 to Ms Norman.
At this time and previously, Ms Norman would go away a lot.Sometimes she would go to see her father in Queensland and sometimes to do work as an escort driver.She would often be away for one to two weeks.When she was away, Ms Norman would ask me to look after the bills if they came in.She would ask me to pay them with her credit card if they came in whilst she was away.
I would only ever use the credit card to pay Ms Norman?s bills and only at her request.It was never used for anything else.This only happened on a few occasions.
?
Living Arrangements
The house at Queen Elizabeth Drive has an upstairs section and a downstairs section.I live downstairs and Ms Norman lives upstairs.I have my own bathroom, kitchen and living space.I do all my own cooking and have an electric frying pan, microwave and barbeque where I cook all my meals.I occasionally will ask Ms Norman if I can use her oven if I feel like cooking a roast.
I do all my own washing and cleaning and we both share jobs in the backyard although Ms Norman will sometimes pay me for doing the lawn.
I like my own space and am happy just pottering around my unit and cooking and watching television.
Ms Norman has her own living area, bathroom and kitchen and bedroom.Ms?Norman does all her own cleaning cooking and washing.
Occasionally if one of us is cooking something big or special we may ask if the other wants to share the meal but this is not regular.
Ms Norman and I travel into Lismore once a week in the same car to do shopping.This is very common in the country and sometimes we will give someone else a lift.When you are on a low income and there is no public transport it is usual for people to share petrol costs.We go in together as there is no transport home and so we will shop together but select and pay for our food separately.
I have my own fridge, as does Ms Norman.
Since my payments have been stopped I have suffered extreme financial hardship.At first I moved into a caravan at the back of a friend?s place.I was able to live off a small amount of savings I had and when that ran out I earned enough money for cigarettes and food going rabitting and selling them.I also have done odd jobs around Coraki, as I am well known there.Ms Norman has also given me a few odd jobs and friends invite me for a meal here and there.
The caravan was destroyed in a storm and so I slept in my car for a period.When Ms Norman found this out she told me to come back and stay in my unit even though I couldn?t pay her any rent.She had me doing odd jobs instead.I have been very wonderfully supported by friends in Coraki.
Because I had to move back into the unit at Queen Elizabeth Drive I am not able to apply for the pension because they will say I am a member of a couple.?
The applicant described Ms Norman as a mate, friend and like a mother or sister, who kept him on the ?straight and narrow?.And that either one of them would go their own way if either met someone they liked a lot.He said that none of the people he and Ms Norman knew mutually think of them as anything other than mates, that they both have separate sets of friends, most often go out socially separately although on some occasions, being in a small town, they go out together.
In his supplementary statement (Exhibit A2) the applicant, on 17 October 2003, said he had now moved out of the house at Queen Elizabeth Drive and was living on a friend?s property in a caravan.He said:
??
I decided to move out of Judy?s house as I felt I had had enough of relying on people whilst I was not in receipt of the pension and had no money.
I feel I need to just be on my own and be independent for a while.
I also feel that Judy has been very supportive and I just felt like I was a burden.
Judy has said that she will be looking for another boarder to help her financially pay the mortgage.I understand she will want another male boarder as they provide her with security and also a man is able to take on any urgent heavier repairs around the home.
I still maintain that Judy and I have never been in a marriage like relationship.
Judy and myself are still friends and I sometimes pop in to say hello when I am in town.
I am very grateful for all the support and help Judy gave me she is a very good and kind-hearted person.?
In cross-examination, the applicant said he had moved out of the house at Queen Elizabeth Drive at the end of August 2003 because of the ?bullshit from the Department?, inferring he did this because the Department would not accept that he and Ms Norman were not living as a couple.The applicant when questioned about moving back to the house at Queen Elizabeth Drive was equivocal, initially saying no and then saying he could not be sure if he would ?move back home?.The applicant told the Tribunal he had moved into the house at Queen Elizabeth Drive in 2001 and that he moved out of the house at Queen Elizabeth Drive (as described in his statement paragraph 10 above) in November 2002 but went back ?every so often?, perhaps twice a week to shower as there was no hot water where he was staying; and eventually moved back as described in his statement.
The applicant told the Tribunal that he had lived downstairs at Queen Elizabeth Drive, separate to Ms Norman from day one, doing up his living quarters bit by bit, building cabinets and installing cooking equipment.He said he had his own fridge, barbeque, bed, TV, stereo, cooking utensils, shower and toilet.The applicant said at no stage had the department come to inspect his living arrangements at Queen Elizabeth Drive.
The applicant was adamant that he did not consider he had made any financial commitment to the property at Queen Elizabeth Drive; that it was not his house;that it did not belong to him;and that in the event of Ms Norman dying he would expect her sons to have the house and he would not wish to move back into the house, being happy to go out with what he came in with.The applicant said he had not made a will and while he realised that in the bank?s eyes he was a joint owner, in his own eyes this was not the case.
Further in cross examination, the applicant said that he had told the bank he was a boarder on a pension who wanted to help out Ms Norman and he had never said he and Ms Norman were a married couple.In respect of what was stated in the house loan documents the applicant said he had pretended to read the documents, having a ?bit of pride?, but had not understood what he was signing and that in so doing he trusted Ms Norman.
The applicant said that Ms Norman was assisting him in improving his reading.The Tribunal notes that while the applicant?s written statements are comprehensive and well constructed, when taken to various points in his statement, the applicant displayed difficulty in reading what was said.
The Tribunal is mindful that the SSAT, in affirming the decision under review, referred to a number of matters of credit, namely:
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11.?The Centrelink file shows that Mr Berghofer has been claiming rent assistance after the purchase of the property at Queen Elizabeth Drive and occupying it with Ms Norman.A debt has been raised against him for this rent assistance which has been affirmed by an authorised review officer and has not been challenged before this Tribunal.Ms Norman completed a rent certificate to support his claim for rent assistance although she knew that Mr Berghofer was a co-owner of the house they occupied.The Tribunal is of the view that she knew the certificate was false.Further, another debt has been raised by Centrelink against Mr Berghofer for failing to declare his earnings from Sunbuster.Again, this decision was affirmed by an authorised review officer and has not been challenged before this Tribunal.Mr?Berghofer and Ms Norman have completed a claim for health insurance on the basis of being a couple.The explanation most favourable to Mr Berghofer?s appeal, and supported by Ms Norman, is that they deliberately misstated the nature of their relationship to obtain a cheaper rate of insurance cover.?
In his written statement (Exhibit A1) the applicant has offered the following explanations of these matters:
?Rental Assistance Payments
When I claimed for rental assistance I did this because I believed it was only a technicality that my name was on the house.I had done this to help Ms?Norman but didn?t see that I was getting anything out of it.I was still having to pay rent and so I felt I was entitled to rental assistance. I felt that I should not be disadvantaged because I had helped Ms Norman out.I was living in a separate unit from Ms Norman and to my understanding I was paying rent for that unit.My solicitor has now explained to me the consequences of my name being on the title to the house.At the time I did not consider I had any greater rights than I had before my name was on the house.
I do not and never have considered that I owned any part of Ms Norman?s house.
I now understand that I was misleading Centrelink, however I would have been happy to explain that my name being on the house was just a technicality.I regret not having handled that situation better.
Overpayment from Sunbuster
Ms Norman helped me get the job at Sunbuster Sports Wear as she had been working there for many years.It was a good start for me because it is hard to get work with a long criminal record like mine.
When I began work with Sunbuster I immediately telephoned the Lismore Centrelink office and told them I had started work and informed them of the amount I was earning.I did this because I knew I would be cut off the pension and so I asked them about how long I could go off the pension.I wanted to know if I could go back on the pension if I lost my job.The person at Centrelink told me ?no worries? it would not affect my pension and that I could work for 2 years before I would lose my pension.
[I] knew that I had a duty to notify Centrelink that I was working and earning an income.I advised them of my original pay.I did not hear anything from Centrelink until this case had arisen.When I started work at Sunbuster, Centrelink even gave me a special payment for clothes and shoe wear because I could not afford them.
I can only say that it was due to my lack of understanding about my varying pay amounts that I omitted to inform Centrelink.I at no time deliberately misled Centrelink about my working or pay.
When I went into custody at Glen Innes the Social worker told me she had informed Centrelink that I was in custody and to stop my pension.For some reason, which I do not understand this did not happen and my pension kept being paid for the 87 days, I was in custody.I did what I was supposed to and informed the welfare in Glen Innes.
Health Insurance
40.Myself and Ms Norman applied for the health insurance at the time I was working at Sunbuster.Because I had been on a pension.I knew that by working I would lose my pension for the period I was working.I knew that this would also mean that I would lose benefits you get on the pension like cheap prescriptions, bulk billing, dental hospital and other things.I was worried about how I could afford health care and spoke to Ms Norman about this.
41.This was about the time that John Howard, the Prime Minister was doing a big push for everyone to join up to private health insurance.We saw all the advertisements and became frightened that if we did not join up we might miss out on health insurance in the future.
42.Ms Norman and I decided we would go together to check our health insurance.Ms Norman has quite detailed health needs and I have some health problems.Ms Norman also wanted to join it for tax reasons.
43.Ms Norman and I went into Lismore into the Manchester Unity building as one of the girls from Sunbuster had told us about them.We had been coming into town to see different health funds every afternoon after work and became a bit panicked because we knew there was a deadline to join.
44.We went into Manchester Unity and sat down with a man who works there.We told him everything about our living arrangements and our own health needs.The man at Manchester Unity told us, ?lady work together, you may as well put down that you live as a couple because you will get a cheaper rate?.At first we were unsure of this but the insurance man said it was okay so we agreed to.At first I gave Judy money for the health insurance and they took it straight out of her bank account.
45.The joint insurance has now been cancelled.I no longer have health insurance.?
Ms Norman?s Evidence
Ms Judy Norman provided a written statement dated 24 May 2003 (Exhibit A3) and gave oral evidence.
In her written statement Ms Norman, in essence, affirmed the statement made by applicant about their living/relationship arrangements and the circumstances that led to these arrangements.In respect of the purchase of the property at 100 Queen Elizabeth Drive, Ms Norman stated:
?Purchase of 100 Queen Elizabeth Drive
?.
I went to the ANZ who advised me that because I was still paying off Genfrell Street I did not have enough income to get a loan.
I told Mr Berghofer about this and that I was disappointed I couldn?t buy the house.Mr Berghofer asked if they would take his pension into account and told me to make another appointment with the bank.
We both went into the bank and asked whether, if the loan were in both names would they provide the finance.They checked this out and then approved the arrangement.
We went to the solicitor who was doing the conveyancing at the end when we had to sign the documents.There was no real discussion to my knowledge about tenancy or joint tenancy.
I was aware that there was a risk to me but I knew I could say that I had mostly made the contributions to the loan.I also knew I had the Grenfell Street house as security.I also felt I could trust Mr Berghofer and that he would not try to claim the house was his.
When I went to the bank to get the loan, the lady at the bank advised that it would be better if we had a ?house account? for all of the mortgage payments to come out of.I agreed to this and so an account was opened in both names because the loan was in both names.?
With respect to rental assistance payments Ms Norman stated:
?Rental Payments
Mr Berghofer came to me sometime after we moved into Queen Elizabeth Drive and asked me to sign a form to do with renting.I didn?t really read it but I was a bit worried because it said something about having your name on the house.
Mr Berghofer told me he felt that as he was only paying rent and the agreement had been just to help me buy the house he felt he should still be entitled to rental assistance.I assumed that because his name on the house was just a technicality he was still just paying rent.I understand now that I should not have just signed it but there was no option for an explanation of a situation like the one we were in.I should have told Mr Berghofer to go and speak to someone at Centrelink about it and regret that I just signed off on it.?
In her oral evidence, Ms Norman said that she cannot afford to keep the house at 100 Queen Elizabeth Drive now that Mr Berghofer has moved out and she no longer receives the $80 rent from him.She said her options were to seek another tenant for downstairs or to sell her property at Grenfell Street to pay off 100 Queen Elizabeth Drive.In respect of a tenant she said she would prefer a male who could fix things, mow the lawns and provide security.She told the Tribunal that her ex-husband was an alcoholic who has threatened her.She also said she had now got ?my own life?.
In cross-examination, Ms Norman said she used the same solicitor for the purchase of 100 Queen Elizabeth Drive as she had in purchasing the property in Grenfell Street.She reinforced her written statement in respect of their being no discussion with or questions from the solicitor about buying the property jointly and no alternative methods of purchasing the property were discussed.She said she had not considered what would happen if she died, but she had not made a will or discussed this with her solicitor, but expected the house to go to her children and not to the applicant.
Further, in cross-examination, Ms Norman told the Tribunal that the applicant had moved out of 100 Queen Elizabeth Drive because it was hard trying to prove they were not a couple.
Evidence of Peter Briggs
Peter Briggs, a Clinical Psychologist, has assessed the applicant and has provided a written report dated 10 July 2003 (Exhibit A4).
Mr Briggs found the applicant?s numeracy and literary skills to be very poor and expressed the opinion:
?In summary, it is my opinion that based on the information I obtained, and results of testing, that Mr Berghofer has significant limitations with his living skills.In particular he is likely to need support, guidance and encouragement with regard to abstinence from alcohol and attendance at AA.He would be in a much more vulnerable situation were he living on his own without appropriate support and guidance.In many ways he could be considered from a psychological point of view, as at best, being psychologically an adolescent.For example, he still needs ?parenting? and guidance, he is not sufficiently skilled to be able to successfully live independently, he has a tendency to impulsivity rather than considering long term issues and he will remain highly susceptible to the influences of others.He therefore would have a better chance of living a constructive life, if he were in a living situation where there is good guidance and control. However if he were living on his own and solely left to his own devices, then it would be highly likely that he would resort to his dysfunctional patterns of behaviour.This would increase his chance of alcohol dependence and would most likely have the associated problem of financial difficulties, and possible further crime and a tendency to associate with others who save similar problems.?
The Tribunal notes that the applicant was interviewed by a social worker in 2002 and the social worker?s recommendation is recorded and set out at T14/73-74 as follows:
?SW recommends that a/n?s history of alcoholism & long term incarceration periods be taken into account as it is viable that someone with a/n?s history would genuinely enter into the kind of close friendship & mutually helping style relationship with a lesbian woman.It appears that Judith has been integral in keeping a/n out of jail & alcohol free by providing AA sponsorship support & a stable place to live.It is also very viable that a friendship formed in the type of environment as AA provides by two recovering alcoholics would cement the type of mutually helpful friendship that a/n outlined in our interview.?
Submissions
It was submitted for the applicant that the applicant and Ms Norman were bona fide witnesses and that their testimony clearly established that Mr Berghofer was not a member of a couple.
It was the applicant?s contention that the applicant had not deliberately misled the respondent in respect of claiming rent assistance and failing to declare earnings from Sunbuster.It was submitted that the applicant and Ms Norman declared themselves as a couple in applying for health insurance because they were told to say this to achieve a better rate.
In respect of the criteria to be considered in determining whether the applicant was a member of a couple it was submitted:
?(a)The applicant in his view did not jointly purchase a house with Ms Norman but merely acted to assist her to obtain the finance for that house and is merely there as a boarder or tenant paying rent to Ms Norman.
(b)The applicant does not make a financial contribution to the mortgage.The applicant pays rent or board to Ms Norman who then uses that money to cover her own expenses being the mortgage, and other bills.
(c)The applicant and Ms Norman and on occasion other local persons, travel together to do shopping in the nearest town.They do this in a similar way as do many persons in the country where there is almost no public transport and it is necessary to travel distances for conveniences.
(d)The applicant and Ms Norman rarely eat together and each is responsible for the cleaning in their respective units.The applicant does all of his own laundry.
(e)The applicant and Ms Norman have separate friends and socialise together only occasionally.
(f)The applicant and Ms Norman have shared accommodation for some time as they feel comfortable sharing a house together as it is difficult to find housemates that are trustworthy and easy to live with.?
In respect of the criteria set out in sections 4(2) and 4(3) of the Act, it was submitted that this matter can be distinguished from other cases and the Tribunal was referred to Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497 (where it was contended that the facts were much higher than in this matter); and Re Ford and Secretary, Department of Family and Community Services (2003) 72 ALD 718.
It was submitted that each case needs to be dealt with on its merits and that Re Ford and Secretary, Department of Family and Community Services (supra) can be distinguished on the basis that there is not another case like the one before the Tribunal in that in this case there is not an exclusive and permanent relationship; there is a casualness about the relationship which does not support a predominantly emotional commitment; there are no intimate relations, no pre-existing relationship and no children; and there is a desire by both parties to go their own way.It was the applicant?s contention that the relationship demonstrated in this case is that of boarder and landlady, albeit a caring landlady, with no real social relationship and that for the applicant to be a member of a couple the relationship must go above mere practical convenience and thus transcend mere friendship.
It was further submitted that the community should be grateful to have caring persons such as Ms Norman and that the respondent, in effect, is discouraging community support and mutual assistance as has occurred in this case.
Finally, the applicant submitted that:
??it is not the intent of the legislation to cover this type of situation.The applicant relies on SRWW and Department of Community Services [2001] AATA 495 at para 65 and 66 and also re Holmes and Secretary, Department of Social Security (1987) AAT 4046, 23 December 1987 and Re Lynn Janet Staunton-Smith and Secretary, Department of Social Security FCR 164 (1991) 25 ALD at para 19."
Ms Wallis-Dunn, for the respondent, referred the Tribunal to section 4(3) of the Act and addressed each of the matters contained therein.In so doing, Ms?Wallis-Dunn submitted that types of marriages that exist are as multitudinous as the couples who enter them (Re Kajzer and Secretary, Department of Family and Community Services (1999) AATA 362) and that not all of the factors in section 4(3) of the Act need to be present in any relationship.
With respect to financial aspects of the relationship it was submitted that the applicant and Ms Norman jointly own the house in which they both live, both contribute to the joint mortgage payments, and for a time held a joint savings account.The basis of day to day household expenses is that they are shared.It was the respondent?s contention that there was a significant pooling of resources and that the applicant stands to gain from joint ownership of the house at 100 Queen Elizabeth Drive despite his evidence, which was self-serving.
Insofar as the nature of the household, it was submitted both parties claim they prepare their meals separately and shop separately although they go together to do the shopping in Lismore.Both parties tend to the yard although since Ms Norman has had health problems the applicant now looks after the lawns.Both parties claim they live in separate parts of the house with only the laundry being shared.
In respect of the social aspects of the relationship it was accepted that the parties do not have an activejoint social life.However, it was submitted that there were aspects of Mr Berghofer?s and Ms Norman?s activities which were jointly carried out, such as visiting the club together once a month and that it was not unusual for members of couples to not have much of a social life together, particularly when each member was used to doing their own thing.In this regard it was submitted that Mr Berghofer?s and Ms Norman?s social relationship was not different from a lot of marriages where people start to go their own ways, including social obligations.It was the respondent?s contention that although the applicant and Ms Norman did not see themselves as married to each other and the applicant had moved out of 100 Queen Elizabeth Drive, Ms Norman was happy to have the applicant back on an indefinite basis and that in effect the applicant?s saw 100 Queen Elizabeth Drive as home.The respondent drew the Tribunal?s attention to the fact that the applicant and Ms Norman were well known in Coraki.The Tribunal notes that the respondent, in a Statement of Facts and Contentions referred to two mutual friends who testified that the applicant lived downstairs at 100 Queen Elizabeth Drive and that Ms Norman lived upstairs and that the relationship is one of friendship.
In regard to a sexual relationship the respondent acknowledged that both parties stated that there is no sexual relationship.It was submitted that it was not surprising that there are no children as a result of their relationship given the age of the applicant and Ms Norman.
In relation to the nature of the commitment to each other it was submitted that the parties have known each other since about 1994 and remained in contact when the applicant was in goal from 1995 to 1998.The parties have shared accommodation since his release from gaol in 1998 in two different premises.They have provided emotional support to each other, he, at least in the role of making her feel safer and she, at least, in the role of supporting him with his alcohol problems.At the time the decision was made, the applicant still lived in the jointly owned premises although the applicant had left the property briefly in November 2002 and again recently.
In its consideration of this matter, the respondent referred the Tribunal to: Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497, Re Holmes and Secretary, Department of Social Security (1987) AAT Decision No?4046, 23?December 1987 and Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495.
In respect to the credit of the applicant, the respondent referred to the applicant?s claim for rent assistance (supported by Ms Norman) and the applicant?s failure to declare earnings from Sunbuster.The respondent also referred to the applicant?s evidence that he was advised by Manchester Unity to take out a partnered rate of health cover because it was cheaper than two single rates, and that Manchester Unity had advised that this was not so, the partnered rate being twice the single rate.
It was submitted that on balance the Tribunal would be satisfied that there was a marriage-like relationship between the applicant and Ms Norman from at least the 7 March 2001.
Consideration
At the outset the question of the applicant?s credit and Ms Norman?s credit needs to be considered.
A significant factor in any such consideration is the assessment of the applicant?s intellectual capacity and psychological state.The Tribunal accepts the opinion of Peter Briggs, Clinical Psychologist, that the applicant has significant limitations with his living skills and in many ways could be considered from a psychological point of view, as at best, being psychologically adolescent and that, in particular, his numeracy and literacy skills are very poor.The Tribunal notes that the applicant?s presentation at the hearing was consistent with Mr Brigg?s opinion.
It is within this context that the Tribunal has considered the applicant?s actions and explanations about his claim for rent assistance, his failure to declare his income from Sunbuster and his application to Manchester Unity for medical insurance.While the Tribunal is troubled by some aspects of these matters, on balance, the Tribunal is satisfied that the applicant?s actions do not reflect adversely on his credit.Furthermore, taking into account the applicant?s intellectual capacity, the Tribunal is satisfied that the applicant presented his oral evidence honestly and to the best of his ability and that his oral evidence is consistent with his written statements, which the Tribunal has already noted as being comprehensive and very well prepared.As far as Ms Norman is concerned, the Tribunal found her answers to questions put to her to be frank and straight forward.
The Tribunal is satisfied that both the applicant and Ms Norman are bona fide witnesses.
Turning then to the consideration of the question as to whether the applicant is a member of a couple for the purposes of the Act.
In Re Spencer and Secretary, Department of Social Security (supra) it was held that the two people in question, were partly motivated in setting up their common household by consideration of convenience, practicality and economy.However, their predominant motive had been to secure the emotional gains of a personal relationship conducted on a permanent basis under the one roof.This gave their relationship a special quality which set it apart from relationships with others, and made it a de facto relationship (within the statutory definition).
In arriving at that conclusion the Tribunal took into account that both members (S & B) were experienced business people who before setting up house together had happily lived and worked together with B?s son in a different location.The Tribunal said:
??
Both were experienced business persons.I can only assume that they were aware of the consequences, particularly the right of survivorship, which is inherent in joint ownership.This type of decision is not consistent with a relationship of mere economic convenience.
The evidence of Mrs B that while the relationship had started off as a business one, they had grown closer, to the extent that she was prepared to describe their relationship as being like ?brother and sister?.In addition there are numerous expressions of her liking and concern for the applicant.
Mrs B?s involvement with the applicant extends beyond the traditional housekeeper role in that she attends his medical appointments and has discussed his treatment with them.
Notwithstanding the decision under review, the applicant has continued to reside with Mrs B, and she has continued to assist him in meeting his daily personal needs, to the extent to which he is unable to meet them himself, because of illness, notwithstanding affirmation in July 1986 of the decision under review.
These circumstances were either a prelude to, or a consequence of, what must be a strong bond between two people based upon mutual respect, affection, loyalty, and trust.While none of these factors alone would be sufficient to indicate a marriage-like relationship, in combination with my assessment of Mrs B?s demeanour and the general presentation of the case, I can come to no other conclusion than that reached by the delegate.?
After careful consideration of the all of the material before it, the Tribunal accepts the applicant?s submission that Spencer?s case can be distinguished in this instance and that the facts in Spencer?s case are well above those that pertain in this matter.
In Re Holmes and Secretary, Department of Social Security (supra) both members had been married and at the relevant time separated although living in the same house.The Tribunal affirmed the Department?s decision that a marriage did exist and in so doing said:
?The living situations of different people that could constitute separation ?under the one roof? are too numerous to detail.At the least the evidence must satisfy the decision maker that a couple?s lives are led separately, not only in the personal but also in the social and economic sense and that joint activity is not because of the existence of an exclusively binding relationship but for some material advantage.Commonly, in the quite numerous similar cases coming before this Tribunal the reason for remaining under the one roof is the fact that the property is jointly owned and that division would be economically disastrous.?
The Tribunal notes that in Re SRWW v Secretary, Department of Family and Community Services (supra) the Tribunal referred to the above paragraph in Holmes case, and went on to find on the evidence before it that:
?While ?SRWW? and ?SRXX? maintain to the Tribunal that they are not members of a couple and that their reason for staying together is economic and morally or socially based, the weight of objective evidence, the Tribunal finds, indicates that ?SRWW? and ?SRXX? are members of a couple, albeit an unhappy couple, who have maintained a marital relationship which has been unhappy virtually since its inception.Further, the Tribunal cannot accept that the level of care and concern as provided by ?SRXX? can be explained only by moral obligations, as one might expect from a friend.In addition, the Tribunal must also consider that it is not acceptable for ?SRWW? and ?SRXX? to hold out to the Australian authorities that they are not members of a couple, while very clearly and publicly, they are holding out to the Italian authorities that they are members of a couple and are happy to receive the financial benefits that such a relationship provides.?
The lesson to be learnt from the cases referred to above is that, as indicated in Re Kajzer and Secretary, Department of Family and Community Services (supra) there is no one formula that determines whether or not people are members of a couple and that the types of couples that exist are as multitudinous as the couples who enter them.Each case must be considered on its own merits having regard to all of the circumstances of the relationship including the provisions of section 4(3) of the Act, and taking into account the difficulties in assessing what are often complex issues in relation to subjective and objective matters.
The Tribunal has carefully considered all of the material before it and the submissions of both parties and is reasonably satisfied that the weight of the evidence before it points to the applicant not being a member of a couple and the Tribunal so finds.
In arriving at this finding the Tribunal has taken into account the bona fides of the applicant and Ms Norman; the history of the applicant?s difficulties with alcohol and drugs leading to the applicant?s association with Ms Norman; the empathy she clearly has for the applicant?s difficulties and her caring and helping actions; the opinions of Mr Peter Briggs, Clinical Psychologist, who saw the applicant in July 2003 and the recommendation of the social worker who saw the applicant in October 2002; the separate living arrangements of the applicant and Ms Norman; the convenience of this to each party and the gratitude of the applicant for Ms Norman?s assistance leading to joint ownership of 100 Queen Elizabeth Drive.
The Tribunal accepts that there is no sexual relationship between the applicant and Ms Norman, there are no children resulting from their association, and that they and their friends do no see them as a couple.The Tribunal also accepts that the applicant and Ms Norman predominantly go their own way socially and that social activities jointly engaged in by the applicant and Ms Norman are limited and more matters of convenience in a small town rather than jointly planned activities.Insofar as the commitment of the applicant and Ms Norman the Tribunal is of the view that their friendship is likely to continue and it has elements of support, not only in a practical sense with respect to financial resources but also with respect to home maintenance and security.However, the Tribunal is satisfied that any such commitment between the applicant and Ms Norman can not be categorised as a predominantly emotional commitment (as found in Spencer?s case).In weighing up the evidence in this matter, the Tribunal has been troubled by the applicant?s and Ms?Norman?s joint ownership of the property at 100 Queen Elizabeth Drive.However, the Tribunal has accepted the applicant?s evidence as to how the situation arose and his expressed intention ?whatever I come in with I go out with?.As such the Tribunal has found insufficient weight of evidence, on balance, to support the respondent?s finding that the applicant is a member of a couple.The Tribunal is satisfied that the applicant is not a member of a couple.
The Tribunal sets aside the decision under review and in substitution therefor determines that Mr Berghofer is not a member of a couple.
I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr I R Way, Member
Signed: .....................................................................................
Associate
Date/s of Hearing29 October 2003
Date of Decision28 November 2003
For the ApplicantMs L Dillon-Smith , Solicitor
For the RespondentMs H Wallis-Dunn, Departmental Advocate
PAGE3
PAGE 6
? Commonwealth of Australia ( CREATEDATE \@ "yyyy" \* MERGEFORMAT 2003)
EMBED PBrush
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