Dunning and Secretary, Department of Family and Community Service S
[2003] AATA 348
•17 April 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 348
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/779
GENERAL ADMINISTRATIVE DIVISION )
Re ROBERT DUNNING Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member KL Beddoe Date17 April 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...................(Sgd)......................
KL Beddoe
Senior Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – disability support pension – eligibility – whether applicant is living in a marriage-like relationship
Social Security Act 1991 s 4(3)
REASONS FOR DECISION
17 April 2003 Senior Member KL Beddoe 1. By a decision notified on 24 June 2002, an authorised review officer affirmed the respondent’s decision that the applicant was a member of a couple. By decision dated 26 July 2002, the Social Security Appeals Tribunal affirmed that decision. The applicant sought review in this Tribunal.
2. Whether a person is a member of a couple is a relevant factor in assessment of benefits under the Social Security Act 1991 (“the Act”). Issues of assessment are not before the Tribunal, the review being confined to whether the applicant was, at relevant times, a member of a couple, and whether, in particular, on the facts of this case, the relationship between the applicant and a Ms Robinson is, in the Tribunal’s opinion (formed as mentioned in sub-section 4(3) of the Act), a marriage-like relationship.
3. Sub-section 4(3) of the Act reads as follows:
“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. At the hearing the applicant conducted his own case and Mr Ffrench represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were before the Tribunal marked as the T-documents but (on objection by the applicant) only as evidence of the existence of the documents and not as evidence of the facts asserted in the T-documents. Further documents were tendered and marked as exhibits. Oral evidence was given by the applicant and two other witnesses on his behalf. No oral evidence was called for the respondent.
5. I make the following findings of fact.
6. In April 2001 the applicant with one David Bate and Ms Robinson incorporated a company with the purpose of going into business as a landscaper. The company is called Bobcats and Boulders Pty Ltd and commenced earning income by August 2001. The company has not lodged any income tax return and has not lodged a business activity statement since December 2001. I am satisfied that the company has continued to carry on business. Ownership of the company is in the following proportions:
§The applicant 26%
§Ms Robinson 25%
§Mr Bate 49%
7. Mr Bate is the active employee of the company and the applicant is the managing director. Ms Robinson plays no part in the day-to-day operations of the business but has financed it with a loan of $35,000. It appears this loan is unsecured.
8. The three shareholders are long-term friends.
9. The applicant resided at Rode Road, Wavell Heights until March 2002 when he moved to Ms Robinson’s home in Pandora Street, Boondall.
10. At all relevant times the applicant was in receipt of a disability support pension but this was reduced to the member of a couple rate in June 2002.
11. The applicant’s driving licence was suspended for two years in October 1999 but the applicant continued driving a motor vehicle with the result that his licence was cancelled absolutely in May 2001.
12. Pandora Street, Boondall is the location of the company business, although company vehicles are garaged at another address.
13. The applicant has been ambivalent about his place of residence, having been haphazard as to his residential and/or postal address. A bank statement for his personal bank account dated 20 December 2002 was addressed to Rode Road, Wavell Heights.
14. The applicant commenced paying rent of $80 per week to Ms Robinson from 25 March 2002 but says he reduced this to $40 per week with a further $40 per week owing from 29 July 2002. The applicant’s oral evidence is that Exhibit C, which records the rent payments, wrongly records those payments. I am uncertain as to the correct amounts but am satisfied that the applicant has exaggerated his debt for unpaid rent owing to Ms Robinson. That is readily apparent from the tendered receipt book (Exhibit C). Exhibit C is in such a state that it might have been queried as to its veracity but this was not done and I make no inferences. Accepting the exhibit as it is, it is clear that the applicant has either exaggerated his debt to Ms Robinson, or, contrary to his evidence, he has not been paying her $40 per week since 29 July 2002. Such payments as he may have made are properly characterised as “board” rather than “rent”.
15. It is clear enough, on the evidence, that household bills are incurred by Ms Robinson with the applicant contributing only for “rent”, food and other household supplies.
16. A Holden utility is used for the company’s business but registered in Ms Robinson’s name. There is also a Ford sedan registered in her name. Both vehicles are registered for private use.
17. On 16 April 2002, the applicant and Ms Robinson signed statements by which they undertook not to make any claim on each other’s estate in the event of death (Exhibit D). The statements were witnessed by two persons, one of whom was Mr Crilley. Mr Crilley confirmed in oral evidence that the statements had been signed on or about 16 April 2002.
18. Mr Crilley also confirmed that the applicant lived at Pandora Street and that he had occasion to observe that the applicant and Ms Robinson have separate bedrooms in Ms Robinson’s house.
19. Mr Brennan, a long-term friend, said that he had observed the applicant at barbecues sometimes in the company of women other than Ms Robinson or unaccompanied, while on other occasions, both were present but did not give the outward appearance of being a couple (Exhibit F).
20. Exhibit A includes a bank statement issued by the National Australia Bank, Coolum Beach, in the applicant’s name. The bank account is described as a business cheque account, and the name of the business as “Bob’s Protection Service”. The account is for the period 22 June 2002 to 20 December 2002. I am satisfied that the only credits to the account for the six months were amounts described as Centrelink pension.
21. The applicant said he uses a company mobile phone for making phone calls and does not make calls on Ms Robinson’s phone.
22. The applicant intends continuing to live at Pandora Street while his friendship with Ms Robinson continues. He described her as one of his best friends and says there is a continuing non-exclusive sexual relationship.
23. The applicant said he did not require Ms Robinson to attend and give evidence to the Tribunal. He said, but did not establish, that Ms Robinson suffers anxiety/depression. He sought to tender two pages of an eight page psychiatric report about Ms Robinson but the tender was rejected by the Tribunal because the document was both incomplete and did not disclose the diagnosis.
24. The applicant conceded he and Ms Robinson go on annual holidays together, including camping together, but in a larger group albeit that the applicant only stays for a limited period of about one week.
Consideration
25. Whether the applicant is a member of a couple must be determined in accordance with sub-section 4(2) of the Act. There is no dispute that paragraph 4(2)(a) has no application on the facts of this case.
26. As to paragraph 4(2)(b), I am satisfied that:
(a)the applicant has a relationship with Ms Robinson which is not a prohibited relationship;
(b)the applicant and Ms Robinson are not legally married;
(c)the applicant and Ms Robinson may be presumed to be over the age of consent because they both have adult children; and
(d)the applicant is in a relationship with Ms Robinson which in the Tribunal’s opinion is a marriage-like relationship.
27. In coming to the conclusion that there is a marriage-like relationship, I have considered the evidence before the Tribunal having regard to all the circumstances of the relationship put before me with particular regard to the following matters:
(a)the applicant lives at Pandora Street on the basis that he makes a financial contribution, incorrectly characterised as rent, to household expenses of a set amount of $80 ($40) per week plus extras for food and supplies;
(b)the applicant and Ms Robinson do not own any property jointly but are both shareholders in Bobcats and Boulders Pty Ltd which carries on business as a landscaper and of which the applicant is managing director and Ms Robinson is the financier to the extent of a loan of $35,000;
(c)the applicant and Ms Robinson do not appear to have any legal obligations to each other and have specifically denied an interest in each other’s property (Exhibit D);
(d)there is a clear sharing of day-to-day household expenses although Ms Robinson is solely liable for utilities;
(e)the applicant and Ms Robinson live together in the same house and have an established long-term sexual relationship which does not extend to sleeping in the same bed. Except for separate bedrooms, the applicant lives at Pandora Street as if he was the occupier, although he only takes limited responsibility for household tasks;
(f)the applicant and Ms Robinson present to others as friends, do not hold themselves out as being married (although I have not heard Ms Robinson’s evidence as to how she sees the relationship), engage in social activities together and separately and are perceived by others as living together;
(g)there is a long-term sexual relationship which is not exclusive from the applicant’s point of view;
(h)the evidence of Exhibit D, and the arrangements in relation to the company, evidence a limited commitment to each other which appears to be mainly of a sexual nature with companionship and limited emotional support;
(i)the applicant says the relationship is not marriage-like but I do not know how Ms Robinson regards the relationship.
28. For these reasons I am satisfied, on the balance of probabilities, that the applicant is a member of a couple.
29. In my view the decision of the Social Security Appeals Tribunal was correct and should be affirmed.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member KL Beddoe
Signed: Sarah Oliver
AssociateDate of Hearing 31 March 2003
Date of Decision 17 April 2003The Applicant Appeared in Person
Solicitor for the Respondent Mr T French, Departmental Advocate
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