Farrugia and Anor and Secretary, Department of Employment, Education and Workplace Relations
[2008] AATA 810
•12 September 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 810
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5508
) & 2007/5511
GENERAL ADMINISTRATIVE DIVISION ) Re KATHRYN FARRUGIA
STEVEN BALTISApplicants
And
SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION & WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr S. Webb, Member Date12 September 2008
PlaceCanberra
Decision The decision under review is affirmed. ..........[Signed]....................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY - parenting payment - not living separately and apart on a permanent or indefinite basis - member of a couple - marriage-like relationship - decision affirmed
Social Security Act 1991 s4
Pelka v Secretary, Department of Family and Community Services [2008] FCAFC 92.
Lambe v Director-General of Social Services (1981) 57 FLR 262.
Main v Main (1949) 78 CLR 636
Staunton-Smith v Secretary, Departyment of Social Security
REASONS FOR DECISION
12 September 2008 Mr S. Webb, Member 1. Kathrynn Farrugia has three children (Jakob, born 15 February 2002, Sebastian, born 22 November 2005 and Claire, born 11 January 2007). Steven Baltis is the father of her two eldest children. Ms Farrugia says that she does not know who the father of her third child is. Mr Baltis has two older children by another mother. Ms Farrugia and Mr Baltis are not legally married.
2. In January 2006 Mr Baltis was granted Parenting Payment Single on the basis that Jakob was in his care and that he and Ms Farrugia were not members of a couple. In April of that year Centrelink received a tip-off that Ms Farrugia and Mr Baltis were living together at 4 Hawdon Street, Moruya.
3. Later, Centrelink decided that Ms Farrugia and Mr Baltis were to be treated as members of a couple and cancelled Mr Baltis’ Parenting Payment.[1] This decision was affirmed on review[2] and by the Social Security Appeals Tribunal.[3] The effect of the decision is that Ms Farrugia’s Parenting Payment is calculated at the partnered rated and Mr Baltis does not receive Parenting Payment.
The question before the Tribunal is whether Ms Farrugia and Mr Baltis were members of a couple on 29 May 2007. I must decide whether the relationship between Ms Farrugia and Mr Baltis is a ‘marriage-like relationship’.
[1] F25 and T26. Documents have been filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975 in relation to both applications. Documents filed in Ms Farrugia’s application will be referred to as ‘F’ documents. Documents filed in Mr Baltis’ application will be referred to as ‘T’ documents.
[2] T27, T28, T32, T33, F23 and F24.
[3] T2 and F2.
Credit
4. It is appropriate at this stage to make some observations about issues of credit. Mr Baltis asserted that he had “a very bad memory problem”. He produced no medical evidence to support this assertion. Having the benefit of observing him giving evidence during the hearing, it appears to me that if he has a memory problem it is not one of a medical nature, affecting the function or capacity of his memory, but is rather a problem of selective recall and deliberate obfuscation. Mr Baltis did not strike me as a credible witness of truth.
5. Furthermore there are apparent inconsistencies in Ms Farrugia’s and Mr Baltis’ evidence. Ms Farrugia staunchly denied any sexual relationship with Mr Baltis since 30 May 2005, whereas Mr Baltis conceded an occasional sexual relationship with Ms Farrugia at 4 Hawdon Street, Moruya. Ms Farrugia denied that Mr Baltis ever paid rent in relation to that property, whereas Mr Baltis gave evidence that he did on occasion pay such rent. Aspects of their sworn evidence are not consistent with the evidence they gave the SSAT and Centrelink, concerning the time, frequency, duration and purpose of Mr Baltis’ visits to 4 Hawdon Street, for example.
6. These considerations render their evidence unreliable. I do not, however, discount their evidence entirely. Considering their accounts and the evidence that has been accumulated over time, there is some consistency in relation to key issues that are presently relevant. It is more likely than not that such consistency points to the true relationship between Ms Farrugia and Mr Baltis and is not the result of serial misrepresentation. One must be cautious when assessing such unreliable evidence in order, properly, to distinguish the kernel of fact from the cloak of fabrication. Thus I will proceed with caution when evaluating aspects of their evidence, especially in the absence of independent corroboration.
is the relationship between ms farrugia and mr baltis a marriage-like relationship?
7. Ms Farrugia and Mr Baltis gave oral evidence, separately, at the hearing. Each asserted that they were not and are not members of a couple. Each said that they have only ever lived together for short periods and they have lived separately and apart since 2005: their relationship could be characterised as “on again, off again” prior to that time. In their submissions all of the evidence on which the Respondent Secretary relies, suggesting that they have a marriage-like relationship, is wrong, and should be discounted.
8. Under the Social Security Act 1991 (the Act) a person is a member of a couple if the person has a marriage-like relationship with a member of the opposite sex to whom they are not legally married[4]. When determining whether or not a person has a marriage-like relationship with another person it is necessary to consider all of the circumstances of the relationship, including:
(a)the financial aspects of the relationship;
(b)the nature of the household;
(c)the social aspects of the relationship;
(d)any sexual relationship;
(e)the nature of their commitment to each other; and
(f)any other relevant matter.
[4] Subs 4(2)(b).
The relationship cannot be ‘marriage-like’ if Ms Farrugia and Mr Baltis were living separately and apart from each other on a permanent or indefinite basis.[5] What must be considered, on all of the evidence, is the composite picture of the relationship.[6] Each factor must be considered in the context of the evidence as a whole and a determination made concerning the relationship thus revealed. Plainly enough, these are matters on which reasonable minds may differ on the same facts. Nevertheless, they must be decided to the reasonable satisfaction standard of proof; on the balance of probabilities. Mere suspicion is not sufficient.
[5] Subs 4(3) and 4(3A) of the Act.
[6] Pelka v Secretary, Department of Family and Community Services [2008] FCAFC 92 at [24]; Lambe v Director‑General of Social Services (1981) 57 FLR 262 at [200].
9. As will appear, and it is not surprising, there are factors pointing to a relationship that is marriage-like between Ms Farrugia and Mr Baltis in the period from 29 May 2007; and there are factors weighing against it.
financial aspects of the relationship
10. In the period from mid 2005 there is objective evidence concerning financial aspects of the relationship between Ms Farrugia and Mr Baltis. On 9 June 2005 both were named as joint tenants and appear as co-signatories to a 12 month lease over the house at 4 Hawdon Street, Moruya.[7] Under the lease they are jointly liable for the weekly rent and the cost of water used, and they were jointly responsible for the maintenance of the lawns and gardens. It appears that the lease period was extended at least once and ended on 26 July 2007. There is no evidence that the lease was amended or that Mr Baltis was removed from the lease as a joint tenant at any time during this period.
[7] F 22 folio 142-144.
11. Ms Farrugia and Mr Baltis gave contradictory evidence concerning the payment of rent. Ms Farrugia stated that she always paid the rent with her money and that Mr Baltis never paid the rent. Mr Baltis said that he sometimes paid the rent, especially if Ms Farrugia had fallen behind; he gave an example of his father paying an amount of $600 rent in arrears for the 4 Hawdon Street property. Mr Baltis’ account is consistent with the evidence of Toni Kear, of LJ Hooker Real Estate[8], that I accept is correct.
[8] F 22 folio 141.
12. Ms Farrugia and Mr Baltis conceded that the telephone service at 4 Hawdon Street was registered in Mr Baltis’ name. Ms Farrugia asserted, however, that she paid all of the telephone accounts, even though these were sent to Mr Baltis at 4 Hawdon Street: he would open his mail and give her the bill to pay. This evidence is difficult to accept as the evidence returned by Telstra indicates that the telephone service was connected on 7 April 2006 and was disconnected on 25 May 2006. On Mr Baltis’ evidence, Ms Farrugia had a mobile telephone. It is not clear on the available evidence if this telephone service was also in Mr Baltis’ name, although that possibility lies open on the present evidence.
13. There is no objective evidence concerning utility accounts for the property at 4 Hawdon Street during the period of the lease. Ms Farrugia asserted that she paid all of these bills.
14. On 26 March 2007 the Roads and Traffic Authority provided information concerning Ms Farrugia and Mr Baltis.[9] As can be seen the registered address for both applicants is 4 Hawdon Street, Moruya.[10] These records indicate that Ms Farrugia and Mr Baltis are listed owners of a Holden Commodore Sedan (vehicle identification 01500659) and a Toyota Corolla Sedan (vehicle identification 080223106; registration number XSB871, cancelled 24 March 2007).
[9] F13 and T22, respectively.
[10] F13 folio 95 and T22 folio 128.
15. There is no evidence of other assets that are (or were) jointly owned, or of other joint liabilities, than those to which I have referred. There is no clear evidence of any other pooling of financial resources. There is scant evidence concerning day-to-day expenses in the household. Ms Farrugia’s evidence was that she pays all of the day-to-day expenses herself.
16. On the evidence before me the only other legal obligation between the parties is in relation to support for the children they have produced. These obligations are given expression in a child support agreement. However that agreement is not in evidence. By Mr Baltis’ account he did not make child support payments in cash to Ms Farrugia, but contributed ‘in kind’, buying things for the children that they needed, including food, clothing and presents.
nature of household
17. Ms Farrugia gave evidence that she has had primary care of and responsibility for the children at all times with the exception of a short period following the birth of her second child, Sebastian. At that time she “transferred” Jakob into Mr Baltis’ care as she was experiencing difficulty coping. By her evidence Jason remained in Mr Baltis’ care for April or May 2007 and then returned into her care at 4 Hawdon Street. Ms Farrugia stated that during this period Mr Baltis would bring Jason to visit three or four times each week and he would stay whenever he felt like it. These visits were not planned or according to any regular arrangement. He would stay overnight at 4 Hawdon Street two or three times each week, and would sleep in the lounge room or in Jakob’s room, but never with her. During these visits Ms Farrugia would not cook for Mr Baltis, or do his laundry, but he would eat with the children. She said that she did all of the household chores. On her evidence, Mr Baltis would not usually visit before 9.00am in the morning, but he did so for a period in early 2006 and when he had work: “he would visit early to get Jakob ready for day care”.
18. The Premier Early Learning Centre in Moruya provided the following information: “we were told that he [Jakob] was living with dad 0424581008”, “when we were told he was living with Dad we were not given an updated enrolment form”.[11] The mobile telephone number cited in this information, apparently associated with ‘dad’ is Ms Farrugia’s.[12] It is not clear who provided the information to the child care centre or when the information was provided.
[11] T16 folio 83.
[12] See enrolment form at T 16 folio 84 and Moruya District Hospital Records at F6 folio 36.
19. Mr Baltis gave evidence that Jakob was in his care for roughly eight months: “I was in a position to help out”, “I had part-time work at the time so I had time to put in”. His evidence was that he initially lived at his father’s property but moved out, ostensibly because his father did not want a young child around, and then lived in a caravan at Ms Farrugia’s father’s property at 17 Yongara Place, Moruya. Mr Baltis’ evidence was that he visited and stayed at 4 Hawdon Street in the period to May 2007, and on “a couple” of those occasions he slept in Ms Farrugia’s bed. He explained that he kept no clothes or other items at Ms Farrugia’s house. He would check and feed some parrots he had previously given to the children. He said that he bought food and clothes for the children; he would pack lunches and morning tea: “muesli bars and fruit and sandwiches”. While Jakob was in his care in late 2006 he would drop him off and pick him up from day care. Mr Baltis told me that he may have mown the lawn, but he never carried out any repairs on the house or on Ms Farrugia’s cars.
20. Ms Farrugia and Mr Baltis agreed that Mr Baltis used 4 Hawdon Street as his mailing address. This, he said, was a matter of convenience as he was staying in a caravan.
21. Information provided by the Commonwealth Bank under cover of letters dated 21 December 2006 reveals that Ms Farrugia and Mr Baltis had the same residential and postal address: 4, Hawdon Street, Moruya.[13] Information provided by the National Australia Bank concerning Mr Baltis is in the form of a telephone application for credit dated 3 July 2006 in which his marital status is described as “De facto” and his address is shown to be 4 Hawdon Street, Moruya.[14] Mr Baltis denies making this application.
[13] F7 folio 41 and T20 folio 94.
[14] T 9 folio 55.
22. Information provided by Baycorp Advantage Business Information Services Ltd on 10 June 2006 is that:
Ms Farrugia’s registered addresses were:[15]
· On 2 February 2006 4 Hawdon Street, Moruya, NSW, 2537
· On 7 October 2004 311 Princes Highway, Moruya, NSW, 2537
· On 17 April 2003 10 Berra Close, Ngunnawal, ACT
Mr Baltis’ registered addresses were:[16]
· 21 June 2005 4 Hawdon Street, Moruya, NSW, 2537
· 21 June 2005 3427 Bergalia Park, Princes Highway, NSW, 2537
· On 9 May 2001 311 Princes Highway, Moruya, NSW, 2537
[15] See also T 13 folio 97.
[16] See also T 22 folio 130.
On 25 September 2006 John Farrugia, Ms Farrugia’s father stated that on 20 August 2006 Mr Baltis moved onto his property and the weekly rent was $150.[17] I note in passing that 311 Princes Highway, Moruya and 3427 Bergalia Park, Princes Highway, Moruya may be the same physical location, being the property and farm owned by Mr Baltis’ father. In oral evidence Mr Baltis stated that his father’s farm is at 311 Bergalia Park, Moruya.
[17] T 19 folio 92.
23. Surveillance was carried out by Panther Investigations Pty Ltd. The resultant video material is not in evidence. A surveillance report is at F14. The report states that surveillance was carried out on 12 days in the period from 10 to 22 April 2007 and:[18]
“the customer’s partner’s [Mr Baltis] regular pattern is to leave the customer’s [Ms Farrugia] address each morning to attend work and return there each afternoon after work. Neither the customer nor her partner were observed to stay overnight at any other residence than the customer’s during the period of observations. All three of their children reside with the customer and her partner.”
[18] F 17 folio 112.
Ms Farrugia and Mr Baltis denied this conclusion.
24. There are difficulties with this surveillance material. First the material is not all before the Tribunal and those who conducted the surveillance did not give evidence. Second, the surveillance was of limited duration, covering 12 days in April 2007 with observations being conducted for short periods between the hours of 6.25am and 9.42pm. Third, the conclusions made overstate what was observed and, to that extent, are speculative: Mr Baltis was not “observed to stay overnight at 4 Hawdon street…with…[Ms] Farrugia on every night”[19] during the surveillance period. No overnight surveillance was conducted. Nevertheless, it appears that Mr Baltis was in attendance at 4 Hawdon Street on more occasions and with greater frequency during this period than he admitted in his evidence.
[19] F14 folio113.
social aspects
25. Ms Farrugia and Mr Baltis gave evidence that they did not socialise together or hold themselves out as a couple at any time after 2005. They agreed that they did not have friends in common, other than Mark Pallister. However, it can be inferred from the oral evidence that they have a number of friends and acquaintances in common. Both conceded that Moruya is a small community located in the Batemans Bay region in which people know each other and socialise together, albeit with the ebb and flow of tensions, rivalries, friendships and allegiances that one would expect to find in response to changing circumstance and the passage of time, characterising the rhythm of community life in that region. It is simply inconceivable that Ms Farrugia and Mr Baltis, who both grew up in this region, would have only one friend in common.
26. Ms Farrugia and Mr Baltis gave evidence concerning Mr Pallister. On their evidence this fellow was a childhood friend of Mr Baltis who often visited 4 Hawdon Street. On one account he lived next door. Mr Baltis told Centrelink that he did not know Mr Pallister’s surname.[20] On Ms Farrugia’s evidence she was “seeing” Mr Pallister in the period from Christmas 2006 to March or April 2007, but she did not have a sexual relationship with him. She told the SSAT that she commenced ‘a relationship’ with Mr Pallister in early 2007.[21] Mr Baltis was certain that Ms Farrugia was in “a relationship” with Mr Pallister, but his evidence concerning the sleeping arrangements at 4 Hawdon Street in early 2007 does not point to any such relationship. Mr Pallister was not called to give evidence.
[20] T 33 folio 169.
[21] T 2 folio 7.
27. Records provided by the Moruya District Hospital concerning an admission on 21 November 2005 record Ms Farrugia’s address as 4 Hawdon Street, Moruya and her marital status as ‘married or de facto’, with Mr Baltis as partner.[22] In the section “TO BE COMPLETED BY THE PATIENT” Ms Farrugia cited Mr Baltis as the first ‘person for notification’, stating that his address was 4 Hawdon Street, Moruya and listing his telephone numbers. Sections concerning ‘marital status’ and ‘relartionship’ were left blank.[23] Records from the same Hospital concerning an admission on 1 September 2005 cite “Steve” as the person for notification, recording his relationship to Ms Farrugia as “Defacto”.[24] This information is reflected in the Inter Hospital Antenatal Transfer records which record Mr Baltis as ‘next of kin’ and “Partner”, at 4 Hawdon Street Moruya.[25]
[22] F 6 folio 35.
[23] F 6 folio 36.
[24] F 6 folio 38.
[25] F 6 folio 37.
28. Records provided by the Sydney South West Area Health Service concerning Ms Farrugia’s admission on 1 September 2005 record Mr Baltis as ‘Next of Kin”, “Partner” and “Emergency Contact”; his address is “4 Halden Street, MORUYA” and his “home phone” is the telephone at 4 Hawdon Street a mobile telephone number is also recorded.[26]
[26] F 9 folio 82.
29. No evidence was adduced from family or friends of Ms Farrugia or Mr Baltis concerning their relationship or their social activities.
sexual relationship
30. Ms Farrugia denied any sexual relationship with Mr Baltis at any time since late in 2005. Mr Baltis conceded that he did have a sexual relationship with Ms Farrugia at 4 Hawdon Street, and on “a couple” of occasions he slept in her bed. Considering this evidence, it is more likely than not that there has been a sexual element to their relationship for a long period of time.
31. Mr Baltis’ evidence concerning his sexual relationship with Ms Farrugia was coloured by a callous, exploitative attitude: sex was “the only reason to stay there [in Ms Farrugia’s bedroom at 4 Hawdon Street]” and, by his own account, boasting to his friends that “I could have her whenever I wanted”. This attitude, if true, is consistent with Ms Farrugia’s description of Mr Baltis as “too immature”: a person with “a lot of growing up to do”.
commitment
32. Ms Farrugia and Mr Baltis stated that they did not see their relationship as marriage-like in March and April 2007.
33. Ms Farrugia characterised their relationship as ‘on again, off again’ and asserted that she and Mr Baltis were not committed to each other or to their relationship. Her evidence was that Mr Baltis is prone to violence and is immature. Mr Baltis conceded that he was in love with Ms Farrugia, but had difficulty accepting that she had a child (a daughter) by another man; this rendered any future relationship with Ms Farrugia difficult. Mr Baltis questioned his paternity of Sebastian (Ms Farrugia’s second child) and gave evidence that this uncertainty undermines his relationship with Ms Farrugia. Nevertheless, Mr Baltis said that he was not disturbed by Ms Farrugia having ‘a relationship’ with Mr Pallister. He was observed to be in frequent and regular attendance at Ms Farrugia’s house at 4 Hawdon Street in April 2007, within months of Claire’s birth. There is no evidence that Mr Baltis has previously questioned his paternity of Sebastian.
34. Plainly enough Ms Farrugia and Mr Baltis have held themselves out as members of a couple from time to time, using words such as ‘defacto’ and ‘partner’. Ms Farrugia has relied upon Mr Baltis for emotional, financial and other support during times of crisis. Mr Baltis attended on her in hospital in Sydney, he has paid the rent, he stepped in a cared for Jakob after Sebastian’s birth, he has fed and maintained birds he bred and gave to his children at 4 Hawdon Street. These matters, including matters that may appear trivial and inconsequential, indicate a commitment between Ms Farrugia and Mr Baltis that aspects of their oral evidence purport to belie.
marriage-like relationship
35. Doing my best with the available evidence, considering all the relevant factors and the overall picture of the interpersonal relationship between Ms Farrugia and Mr Baltis, I am reasonably satisfied that their relationship was marriage-like on and about 29 March 2007.
36. The interpersonal relationship between Ms Farrugia and Mr Baltis has endured since 2001. At least two children have been produced. There is uncertainty attaching to the paternity of Ms Farrugia’s third child. I accept that Mr Baltis was prone to become aggressive or violent and displayed an exploitative and callous attitude in relation to the intimate and sexual aspects of his relationship with Ms Farrugia. It was perhaps for this reason there were difficulties in the relationship between them, as asserted by Ms Farrugia. However, as it appears to me their relationship did not come to an end.
37. Carefully considering the evidence I am satisfied that Ms Farrugia and Mr Baltis have not been entirely truthful or frank about the history of their relationship and all of the circumstances of relevance, to which I must have regard.
38. The evidence concerning Mr Pallister and Ms Farrugia’s alleged relationship is less than compelling. If it was true that she was ‘in a relationship’ with Mr Pallister from Christmas 2006 to April 2007, and that is far from clear, that relationship would have occurred around the time when she gave birth to her third child (11 January 2007) and at a time when Mr Baltis was frequently and regularly in attendance at 4 Hawdon Street.[27] Ms Farrugia gave evidence that her relationship with Mr Pallister was not sexual. Mr Baltis’ evidence was that he was not concerned about Ms Farrugia having a relationship with Mr Pallister. As it appears to me, Mr Baltis, and to a lesser extent Ms Farrugia, have sought to overstate the alleged ‘relationship’ between Ms Farrugia and Mr Pallister. If Mr Baltis is not Claire’s father, and that is far from clear, one can accept that he may have experienced negative feelings and difficulty accepting that situation. In such circumstances Ms Farrugia may have obtained support from Mr Pallister without engaging in a sexual relationship with him. If that was true one would not expect to find evidence of Mr Baltis being in frequent and regular attendance at 4 Hawdon Street during that period. And yet that is what the preponderance of the evidence, including the video surveillance report, reveals.
[27] See video surveillance report.
39. There is no real evidence of financial pooling of significance and I accept that their financial affairs were substantially separate. There is no evidence that Mr Baltis contributed to the day to day living expenses of Ms Farrugia and her children. Ms Farrugia and Mr Baltis did, however, jointly own vehicles and Mr Baltis or his father provided Ms Farrugia with a vehicle. They had joint liabilities under the terms of the lease over 4 Hawdon Street. Mr Baltis’ assertion that he only signed the lease to help Ms Farrugia may be true, but this must be weighed against his evidence that he treated the house as if it was his own, visiting and staying overnight at will. By his own account Mr Baltis did not make child support payments, instead providing material support; buying things that the children needed.
40. I am satisfied that Mr Baltis was a frequent and regular visitor to 4 Hawdon Street during the period in question. In all likelihood he frequently stayed overnight and maintained a sexual relationship with Ms Farrugia. Ms Farrugia was primarily responsible for the care of the children, even though Mr Baltis may have had Jakob in his care for a period of months following Sebastian’s birth in 2006. The information provided by the Premier Early Learning Centre is not reliable evidence that Jakob was living with Mr Baltis in the period immediately preceding March 2007. Despite Mr Baltis’ alleged concerns about paternity, I accept that he is committed to his children and has maintained an involvement in their education, health and welfare in some degree. It is unlikely that Mr Baltis undertook any housework at 4 Hawdon Street, although it is more likely that he undertook maintenance tasks, including mowing the lawns. Mr Baltis conceded that it was he who dealt with the Real Estate Manager in relation to a plumbing problem.
41. Considering all of these factors and all of the evidence regarding the period in question it can be seen that Ms Farrugia and Mr Baltis were committed to each other in a number of important ways. They have at least two children together and a long and enduring relationship, albeit with difficulties from time to time. The relationship was sexual. They had convenient and mutually beneficial arrangements of a financial nature. They lived in close proximity to each other. They shared responsibilities and jointly provided for their children. They obtained companionship and support from each other.
42. When these matters are considered together, the character of Ms Farrugia’s relationship with Mr Baltis can be seen. The test to be applied for present purposes is not whether two people live together permanently in the same house, it is whether their interpersonal relationship is marriage-like. There are many examples of married couples who spend periods of time living in different places without disturbing the marriage-like nature of their relationship, and it appears that Ms Farrugia and Mr Baltis may have lived at separate addresses from time to time. I am mindful that subs 4(3A) requires that a relationship must not be determined as marriage-like if the parties are living separately and apart. The concept of ‘separately and apart’ was discussed by the High Court in Main v Main[28] and by the Federal Court in Staunton-Smith v Secretary, Department of Social Security[29]. What must be considered is not only whether the parties live separately, in physical terms, but also, and perhaps more importantly, whether the marital relationship (the consortium vitae) has broken down. These are matters of fact and degree. In the present case I am reasonably satisfied that the vital relationship between Ms Farrugia and Mr Baltis had not broken down during the relevant period or in the preceding months to the extent that they assert.
[28] (1949 78 CLR 636 at [641
[29] FCR 175
43. Having considered the evidence, the total picture of the relationship between Ms Farrugia and Mr Baltis and the reasons for the arrangements they made between them, I am reasonably satisfied that their relationship was marriage-like, as that term is used for the purposes of the Social Security Act on or about 29 May 2007. It follows that I am satisfied that Ms Farrugia and Mr Baltis were members of a couple at that time.
44. There is difficulty attaching to cases such as this when much of the evidence is principally derived from the two people concerned and is otherwise largely circumstantial. Furthermore, interpersonal relationships between parents take many forms in a modern society. Without passing moral judgement, the fluidity of casual relationships involving intimacy and unplanned offspring, especially among young adults, where those concerned are bound as parents in interpersonal relationships, often attended by repetitive and disruptive ‘on again, off again’ behaviour over many years, serves to blur and challenge assumptions about the characteristics of marriage-like relationships. Even though evidence of occasional cohabitation, or financial cooperation and performance of parenting responsibilities in the context of a child support agreement, or engaging in occasional sexual intimacy may not found a conclusion that a relationship is marriage-like, one must look to the circumstances of the relationship as a whole and to the nature of the commitment between the two people concerned.
45. In this case, even though much of the evidence is ambiguous and open to different interpretation, and being mindful that circumstances change, especially in the lives of young adults such as Ms Farrugia and Mr Baltis, I am satisfied that on the date the original decision was made sufficient indicia of a marriage-like relationship arise from the evidence to conclude that such a relationship existed between them at that time. Whether the same can be said of their present circumstances is another matter, and one about which there is insufficient evidence before me to permit any reasonable finding.
46. It follows that the decision under review is affirmed. Of course, if Ms Farrugia’s circumstances have changed and she is no longer in a marriage-like relationship with Mr Baltis, as she contends, it is open for her to provide Centrelink with relevant evidence to support a claim for Parenting Payment at the single rate.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S Webb, Member.
Signed: .............[Signed].........................................
Demelza-Rose Gale
AssociateDate of Hearing 15 August 2008
Date of Decision 12 September 2008
Representative for the Applicant: Unrepresented
Representative for the Respondent: Centrelink Legal Services
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