DAMIANO SCARFI and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 967

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 967

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2350

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAMIANO SCARFI

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Ms G Ettinger, Senior Member
Ms J Redfern, Senior Member

Date               18 December 2009

PlaceSydney

Decision The decision under review is affirmed.

..................[sgd]............................

Ms G Ettinger
  Senior Member

CATCHWORDS

SOCIAL SECURITY – whether Applicant is a member of a couple – consideration of all of the circumstances of the relationship – decision under review affirmed

Social Security Act 1991 s 4

Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495

Re Pelka v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92

Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7

Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789

Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27

Re Ford and Secretary, Department of Family and Community Services (2003) 72 ALD 718

REASONS FOR DECISION

18 December 2009 Ms G Ettinger, Senior Member
  Ms J Redfern, Senior Member  

BACKGROUND

1.      Mr Damiano and Mrs Heather Scarfi married in approximately 1984. They have lived together for more than 25 years with a break of six months after their joint purchase of land at Clarence Town, when they lived in separate accommodation while Mr Scarfi was setting up with a caravan and annexe, and an extension while he lived at a nearby caravan park. Over the last 25 years Mr and Mrs Scarfi also jointly purchased a house at Harrington Park after living together at Mr Scarfi’s parents’ house at Bradbury.

2.      Mr Scarfi told us that although they continued to live together, he and his wife separated in 1999/2000 after the death of Mrs Scarfi’s mother.  He felt that Heather Scarfi lost her way after her mother’s death. Mr Scarfi told us that they are civil to each other, and neither has had a serious personal relationship with another partner over any length of time during their years of marriage.

3.      Mr Scarfi applied for, and is eligible for Disability Support Pension (DSP), but it is not payable to him because Centrelink and the Social Security Appeals Tribunal (the SSAT) have held that he is a “member of a couple”, and that the combined income of the couple exceeds the threshold. Mr Scarfi has appealed the decision of Centrelink and the SSAT to this Tribunal.

4.      We note by way of completeness that Mr Scarfi told us that he asked his wife to come and give evidence at the hearing, or provide a Statutory Declaration, and thought she might have, but told us that ultimately she refused to do so.

5.      We have found on the evidence before us, and pursuant to the relevant legislation that Mr Scarfi is a “member of a couple”. We were not satisfied on the evidence that he is living separately and apart from his wife on a permanent or indefinite basis. Our reasons follow.

ISSUES BEFORE THE TRIBUNAL

6.      We must decide whether Mr Scarfi was a “member of a couple” as defined in section 4 of the Social Security Act 1991 (the Act), for the purposes of calculating his entitlement to DSP.

7.      The Respondent contended that at all relevant times Mr Scarfi was married to, and a “member of a couple” with Mrs Scarfi, and therefore a “member of a couple” as defined in section 4 of the Act. Mr Scarfi’s position was that he and his wife had ceased being a couple from approximately 1999/2000, but lived in the same house for convenience and financial reasons.

8.      We note here that the Applicant requested that the matter be heard in private, and had written to say he was a private individual, and had problems discussing his private life in public. He confirmed that request at the commencement of the hearing, and tendered a letter dated 3 November 2009 from a doctor at the University of Sydney Health Service (Exhibit A6) in which the doctor stated that: “He is (sic) retiring personality and sees his psychiatrist for management of anxiety and depression. He finds the process of an open tribunal meeting very confronting.”

9. The Members of the Tribunal considered Mr Scarfi’s request, and discussed section 35 of the Administrative Appeals Tribunal Act 1975 with him. We pointed out to Mr Scarfi that pursuant to section 35, the usual procedure is that hearings of the Tribunal are held in public, and decisions are published on the website. We were not convinced by Mr Scarfi’s argument that the matter should be heard in private, and did not accede to his request. The matter proceeded satisfactorily in the usual way.

LEGISLATION

10.     The relevant legislation in this matter is the Social Security Act 1991 (the Act). Section 94 deals with qualification for Disability Support Pension (DSP). There is no disagreement that Mr Scarfi is eligible for DSP, but the Respondent submits that it is not payable, because, he is a “member of a couple”, and Mr and Mrs Scarfi’s combined income exceeds the relevant threshold. We noted that where a person is partnered, the partner’s income is taken into account when the rate payable is calculated. Section 1064 of the Act is used to determine the rate of DSP payable.

11.     The Act provides that a person is a “member of a couple” if the person is legally married to another person, and is not living separately and apart from the other person on a permanent or indefinite basis (section 4(2)(a)). Section 4(3) of the Act states in determining whether a person is a “member of a couple” all of the circumstances of a relationship must be considered, including the following:

s 4(3)(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.

CONSIDERATION OF THE EVIDENCE AND CONCLUSIONS

12.     In order to make the correct and preferable decision regarding whether Mr Scarfi was a “member of a couple” in terms of the legislation at the relevant date in May 2008, we must assess the totality of the circumstances surrounding Mr and Mrs Scarfi, and all the evidence and submissions of the parties. We are aware that the indicia in section 4(3) of the Act must be addressed, but are mindful it is not a matter of mechanically listing all the evidence. Rather we must consider the totality of the evidence in making the correct or preferable decision regarding whether Mr Scarfi was a “member of a couple” at the relevant date, or whether Mr and Mrs Scarfi were living separately and apart, on a permanent or indefinite basis.

13. We moved then to consider the evidence in the application of section 4(3) of the Act.

financial aspects of the relationship

14.     We first considered the financial aspects of the relationship.

s 4(3)(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;

15.     We noted that when Mr and Mrs Scarfi first married in 1984 they lived in a house at Bradbury, formerly the home of Mr Scarfi’s parents. Mr Scarfi’s income is by way of superannuation because following a motor vehicle accident in 1986, he has been medically retired since 1994.

16.     Mr Scarfi told us in 1995 he paid for land at Harrington Park; both Mr and Mrs Scarfi are shown as the joint owners on the Certificate of Title in May 1999.  In 1999 Mr and Mrs Scarfi also jointly entered into a mortgage to build a house on the land at Harrington Park, which they still own jointly. Mr Scarfi told us that the mortgage was listed in both names because that was a requirement of the bank which lent them the money. He said that it would not loan moneys to him because his income was by way of superannuation, and that they receive a slightly reduced rate of interest because Mrs Scarfi works for the lender bank. They are shown on the mortgage as Mr and Mrs Scarfi, a married couple to all intents and purposes, Mr Scarfi attributing that to the Bank’s forms and its field for completing the application. We noted that Mr Scarfi sold Bradbury in May 2000 (Exhibit A3).

17.     Mr Scarfi said that according to him, the couple separated in 1999/2000, and that after a serious argument he moved into the upstairs bedroom in 2002.

18.     In January 2006 Mr Scarfi and Mrs Scarfi again jointly purchased land, this time at Clarence Town, and obtained a mortgage which is in the names of Mr and Mrs Scarfi, ostensibly a married couple. Mr Scarfi told us that, again, this was a requirement of the bank. We are satisfied that on each occasion neither Mr nor Mrs Scarfi told the bank that they were separated. Mr Scarfi told us that Clarence Town is now paid in full with funds obtained by selling Bradbury.

19.     We are satisfied from the evidence that for a period of six months at the beginning of 2006, Mr Scarfi lived at a caravan park near the land at Clarence Town. He then lived on the land while erecting a caravan and annexe, and then an extension, before Mrs Scarfi joined him there. Mr Scarfi said that he did not want Mrs Scarfi to come and live there. However he appears to have acceded because Mrs Scarfi told him, so he told us, that she had a transfer with the bank (for which she worked), into the area. This appeared not to have proceeded; however the evidence before us was that she moved in, in mid 2006, and has been there ever since.

20.     In his efforts to have us accept that he is separated, the Applicant told us that he spent more than half of 2007 at Harrington Park because he needs to come to Sydney for medical treatment. We noted from Mr Scarfi’s statement which is Exhibit A1 before us, that he thought he might return to live in Harrington Park which was contradicted by his oral evidence, which was that he returns to Clarence Town because he likes living there. He did add that in any case Mrs Scarfi is at work full time, only returning at night.

21.     Mr Scarfi told us that between 2004 and 2006 he encouraged his wife to change her name back to her maiden name, and even offered to pay for the costs of doing that because he does not believe she is his wife. There was no other evidence to corroborate any such conversations and no documentary evidence before us in that regard. We give those statements little weight, if any.

22.     Mr Scarfi told us that the couple had a joint bank account from 1984 to 1986/7, but that they now have separate accounts. He said that from the marriage in 1984 to his retirement in 1994, he earned more than his wife, and paid more bills, but that after 1994, Mrs Scarfi earned more, and paid more of the bills. 

23.     Ms Schuster who appeared for the Respondent, asked Mr Scarfi a number of questions about the way he had filled in forms for Centrelink. We noted that in an “Assessment of Living Arrangements – Separated under one roof” form, Mr Scarfi had indicated at T10/36 (2 June 2008), to Centrelink, that he was not a guarantor for anyone since separation, when in fact he had to concede at the Tribunal that he had a joint loan agreement with Mrs Scarfi at the bank.

24.     Mr Scarfi also told us that he had a will under which his first wife was the beneficiary. He also indicated at T10/36 that neither he nor his wife was a beneficiary under each other’s will, then conceded that as a result of information from his superannuation fund he understood that on his death, his wife, in order to obtain a benefit, would have to prove she was his wife. We understood this to mean that Mr Scarfi was claiming his wife would not automatically, if he predeceased her, be eligible for his superannuation. That is plainly incorrect. 

25.     When asked whether it seemed that Mrs Scarfi’s actions in paying half the costs of complicated financial transactions seemed to equate to the actions of a separated woman, Mr Scarfi replied that they were the acts of a woman increasing her portfolio. We noted from a letter at T17 from Mr Scarfi to which he drew special attention, that as to rates, water, electricity, gas and the telephone, the couple each paid a portion. That to us did not differentiate Mr and Mrs Scarfi from a couple in a marriage-like relationship, particularly if one is working full time, as Mrs Scarfi is.

26.     Mr Scarfi also emphasised that he had paid over $100,000 to establish in-ground electricity, toilet systems, and paid for other expenses on the Clarence Park property, the source of the money being selling “bits and pieces” such as artworks. There were no documents before us to verify those claims.

27. In reply to questions regarding section 4(3)(a)(iv) of the Act which deals with the basis of any sharing of day‑to‑day household expenses, Mr Scarfi told us that he and his wife used to share meals and shop together, but that since 2002, household expenses have been more divided. Mr Scarfi told us also that after his DSP had been refused, he was advised by a Centrelink officer that in order to demonstrate he was not a “member of a couple”, he would have to show how he was separated. As a result, and since that conversation in 2008, Mr and Mrs Scarfi now eat separately he said, they each do their own cooking and washing, and have separate Medicare cards. He said that they live more separately than previously.

28.     In summary then, notwithstanding Mr Scarfi’s claims that he is separated from Mrs Scarfi, we have noted above the joint ownership of at least two residences between 1999 and the present, where Mr and Mrs Scarfi have lived together, with the exception of a period of six months when Mr Scarfi was erecting a dwelling on the land at Clarence Park. Both partners have entered into and paid the mortgages over the years, and have shared household expenses, shared common living areas, and dined together, until, as Mr Scarfi told us, he obtained advice from Centrelink in 2008 that in order to indicate better that he is separated, and not a “member of a couple”, he should change his ways.

29. In considering the effect of section 4(3)(a) at the relevant time, we were satisfied from Mr Scarfi’s evidence and the documentary evidence before us that there was at the relevant time, and on a continuing basis, a significant pooling of financial resources, and joint ownership of real estate, as well as legal obligations related to Mr and Mrs Scarfi’s mortgage in a manner that is indicative of a married couple living together. We are also mindful of Mr Scarfi’s evidence in regard to some separation in the sharing of day‑to‑day household expenses.

nature of the household

s 4(3)(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;

30. In considering the indicia in section 4(3)(b) of the Act we note that Mr and Mrs Scarfi have no children (section 4(3(b)(i)). Mr Scarfi’s evidence was that the couple’s living arrangements are such that they live in the same house because of financial considerations and convenience, and have done so since their marriage in 1984, with the exception of a period of six months to which we have referred above. Mr Scarfi told us that their bedroom arrangements are separate, and have been so since he moved “upstairs” in 2002.

31.     We have noted in the paragraphs above that eating, shopping and household duties have been shared, noting that Mr Scarfi did the cooking because Mrs Scarfi was working fulltime, whereas he was at home. Mr Scarfi’s evidence was that that was the case until he received advice from Centrelink in 2008. He said that since that time, Mr and Mrs Scarfi have separated the domestic arrangements.

32.     Mr Scarfi told us that when he filled in the applications for for Centrelink at the relevant time in May 2008, his daily living situation was different from the present, and that before that time, he used to cook for his wife and do most of the housework.  He told us that he was happy to make the changes to his lifestyle and live more separately. 

33. In coming to a conclusion regarding the domestic situation between Mr and Mrs Scarfi, and taking into consideration section 4(3)(b), we are satisfied that the couple lived, not necessarily happily, but with Mr Scarfi doing the cooking while Mrs Scarfi went out to work, and otherwise sharing domestic duties and dining together, until approximately mid-2008 when Mr Scarfi says he received advice from a Centrelink officer. We are satisfied Mr Scarfi lived as a “member of a couple” throughout, but that Mr Scarfi now maintains he has modified his household duties.

social aspects of the relationship

s 4(3)(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;

34.     Mr Scarfi’s evidence was that he enjoys the solitude at Clarence Park, and his evidence indicates to us that he is not a person who has socialised much over the years. Mr Scarfi told us however, that at Christmas he and his wife would formerly join the family to celebrate. This was right up until last year when he said that he was told he was no longer welcome at the family Christmas, and spent it alone.

35.     It was of interest to see Mr Scarfi’s replies to a question at T9/27 (Centrelink “Living Arrangements” form), where he indicated when asked whether Mrs Scarfi ever stayed away from home, that she did when he was in Sydney. We had no further information in order to draw conclusions about whether Mrs Scarfi felt free to be away from home when her husband was not there, or whether she preferred to be there with him when he was.

36.     Certainly when obtaining loans and buying real estate Mr and Mrs Scarfi have held themselves out to be a married couple, but we have little other information about their social activities. Mr Scarfi told us that at various times he suspected his wife had a short term relationship with another person, and that he himself was in a relationship with another woman for approximately two years. He did not give us much detail about the nature of this relationship, but told us that he broke that up a few years ago, because she was too young for him, and had certain undesirable habits. 

37. In coming to a conclusion as to the indicia in section 4(3)(c) of the Act, we find that Mr and Mrs Scarfi have not socialised much together outside the home at all during their marriage. We noted that until Christmas 2008, Mr and Mrs Scarfi attended social functions, if at all, then together, particularly family Christmas celebrations. We have noted that Mr Scarfi did not go last year because he said he had been made unwelcome. We have no evidence before us to be able to conclude that Mr and Mrs Scarfi have told family and friends of any separation.

38.     On the evidence before us regarding the nature of the household and living arrangements between Mr and Mrs Scarfi, we have noted above the evidence regarding the conscious separation of home duties by Mr Scarfi after mid- 2008 when he received advice from a Centrelink officer. We find however that the living arrangements and sharing of living space which is quite small at Clarence Town are indicative of him being a “member of a couple”.

any sexual relationship between the people

39. In considering, section 4(3)(d) of the Act, we accept Mr Scarfi’s evidence that he has had no sexual relationship with his wife for many years. He has been married since 1984. That in itself is not determinative of whether a person is a “member of a couple”  in terms of the legislation.

nature of the people’s commitment to each other

s 4(3)(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.

40.     Mr and Mrs Scarfi have been married, and lived together, (with the exception of a period of six months), since 1984, and we have no evidence that a divorce is underway. Mr Scarfi has told us that he would like a divorce, but he has taken no action in that regard. We have little evidence regarding whether the relationship is likely to continue indefinitely, and in particular none from Mrs Scarfi.

41.     We noted from T12/44, a note by a Centrelink officer in July 2008 which confirmed what Mr Scarfi told us, which is that he is worried regarding the allocation of assets and financial loss in the case of a divorce. Mr Scarfi replied, when asked, that he did not know how Mrs Scarfi saw this side of things, but that he was worried Mrs Scarfi would gain, and he would lose financially, if he divorced.

42.     We were mindful of the file note at T12/43 that the Centrelink officer spoke with a man, RS, in mid 2008, who characterised Mr Scarfi as a “second father” to him, indicating to us that it is more than likely they know each other well. The file note stated that RS advised Mr and Mrs Scarfi had been separated for at least three years by then. That would make it approximately 2005. We have no evidence before us that anything occurred which might be characterised as an event or a change in Mr and Mrs Scarfi’s relationship in 2005. In fact, if anything, the evidence regarding their financial arrangements mitigates against this, in that in early 2006, they again jointly entered  into ownership of a property, Clarence Town, and a jointly held mortgage.

43.     We have noted the comments recorded by the Centrelink officer after speaking to RS. However there were factors such as the sharing of expenses and Mr Scarfi doing the cooking, which indicated to us that the couple exhibited a level of care and commitment to each other that was inconsistent with separation on a permanent or indefinite basis. We have noted that Mr Scarfi made some changes to his domestic duties after speaking to the Centrelink officer in 2008. However we are satisfied also that Mr Scarfi did not indicate he made the changes because of a change in sentiment towards Mrs Scarfi, but rather because he had been advised that changes in household arrangements would be desirable in order to support his contention that he is living separated under one roof.

44.     We noted in Re Pelka v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92, at [27] that their Honours stated:

The tribunal (the AAT), was satisfied that Ms Pelka and Mr Kuhl displayed a special commitment to each other, both physically and emotionally, which was qualitatively different from the commitment that either had to any other person.

And at [30]:

The matter to which s 4(3) of the Social Security Act requires a relevant decision-maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly the tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision-maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person. The fact that the commitment that Ms Pelka had to Mr Kuhl was qualitatively different from the commitment that Ms Pelka had to any other person is clearly relevant to the nature of her commitment to Mr Kuhl.  … the tribunal, as the decision-maker, had regard to precisely the matter to which it was required to have regard, namely, the nature of the commitment to Ms Pelka and Mr Kuhl to each other.

45.     Mr Scarfi made considerable effort to have us accept that he does not see himself in a marriage-like relationship, but we have no evidence that he has had a change in feelings towards Mrs Scarfi in the relevant period, or made efforts to sever his relationship with Mrs Scarfi. We had no evidence before us from Mrs Scarfi on the subject, but we understand from Mr Scarfi’s evidence that any commitment he has had to Mrs Scarfi is unique to that relationship, and has not changed, notwithstanding his relationship with another woman for a period during the marriage.

46.     We are satisfied from the evidence before us that although this may not be a marriage where there is a great deal of love between the partners, as told to us by Mr Scarfi, the length of the relationship commencing with a courtship, and followed by the marriage in 1984, continuous co-habitation, a long term sharing of household duties, some social activities and financial commitments, satisfy us that Mr Scarfi continues to be a “member of a couple” (section 4(3)(e)).

WHAT IT ALL MEANS

47.     We are required to decide whether Mr Scarfi was a “member of a couple” at the relevant time in 2008. In doing so, we have reviewed the indicia in section 4(3) of the Act, and note that in Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27, O’Loughlin J referred to a list of considerations he considered might be relevant and stated at [32]-[33]:

“It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.”

48.     Clearly what we must do is not simply mechanistic, but an exercise of assessing the totality of the evidence and other material before us. We are mindful that we must consider all of the circumstances of the relationship, and what weight is to be accorded to those circumstances.

49.     The concept of a “marriage-like relationship” under the Act was discussed in Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495, where the Tribunal noted at [61] that each matter is to be considered on its merits, and that the Tribunal should remain flexible in its approach:

The Tribunal notes that each individual case must be considered on its merits and in today's world, the indicia of a marriage or a marriage-like relationship and being a member of a couple has very different connotations, depending on the circumstances of the couple and the context in which their relationship occurs.  It behoves decision-makers to look at the merits of the individual case and to be flexible in its findings about such matters…

50.     We have also noted what Senior Member McCabe observed in Re Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789:

Application of the criteria [in section 4(3) of the Act] will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.

51.     In Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7, the Tribunal said that the provisions of section 4(3) of the Act provide objective criteria for determining if a person is a “member of a couple” having regard to the legislation and facts of the particular case. How Mr and Mrs Scarfi view their relationship, based on their mutual or individual perceptions of what constitutes a “marriage-like relationship”, is relevant but not determinative.  The test is an objective one. In this context the Tribunal said in WAP at [12]:

The Tribunal is sympathetic with WAP when she takes the view that one cannot be in a marriage-like relationship (and therefore not a member of a couple) unless the couple provide each other with emotional support and share everything including financial obligations. However, whilst that no doubt is an acceptable description of the phrase as it is commonly understood, although not exhaustive, it is not the relevant statutory test. Therefore, in getting to its decision the Tribunal finds it necessary to work through the statutory criteria in s4(3) of the Act and consider all the relevant circumstances of this case.

52. As noted above, we have considered the indicia in section 4(3) of the Act, and found in each of the subsections of 4(3) with the exception of subsection 4(3)(d), that the indications are of Mr Scarfi living as a “member of a couple”. We have already made the point above the lack of a sexual relationship between Mr and Mrs Scarfi for many years is itself not determinative of whether a person is a “member of a couple”  in terms of the legislation. (Re Ford and Secretary, Department of Family and Community Services (2003) 72 ALD 718).

53.     A consideration of the totality of the evidence favours Mr Scarfi behaving like a “member of a couple” in particular in relation to the financial aspects of the relationship. It is very relevant in considering the nature of a relationship that the largest asset, the family home, and even the second property were, and continue to be held as joint tenants. The mortgages for the two properties Harrington Park and Clarence Town, ownership of which is held jointly, were entered into jointly, and with the couple holding themselves out to be a married couple, which they continue to be. These were entered into after the period which Mr Scarfi nominated as the separation. The joint ownership means that if either dies the survivor becomes the sole owner of the property. That joint ownership of the properties, coupled with the other indicia explored in section 4(3) of the Act, and viewed as a totality, are important factors influencing our decision that Mr Scarfi is a “member of a couple”.

54.     We have noted also that until at least the advice Mr Scarfi reports receiving from Centrelink in 2008, the domestic living arrangements the couple had were those which indicated Mr Scarfi was a “member of a couple”.  We were satisfied that the changes he says he made were not due to a change in feelings towards Mrs Scarfi or as a result of a specific event in their lives, but rather a physical adjustment. Although we had no direct evidence from Mrs Scarfi, we have found above that the level of care and commitment between Mr and Mrs Scarfi is not consistent with separation on a permanent or indefinite basis.

55.     Therefore, upon reviewing the totality of the evidence, we have come to the view that Mr and Mrs Scarfi were in a “marriage-like relationship” at the relevant date, and that Mr Scarfi was not living separately and apart on a permanent or indefinite basis when he lodged his claim for disability support pension in May 2008. He is a “member of a couple” for purposes of the Act.

DECISION

56.     The Administrative Appeals Tribunal affirms the decision under review.

I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Ms J Redfern, Senior Member.

Signed:         .................[sgd]...............................................................
  Associate

Date of Hearing  9 November 2009
Date of Decision  18 December 2009
Applicant   Self Represented
Respondent   Ms H Schuster, Advocate