Henderson and Secretary, Department of Family and Community Services

[2004] AATA 1404

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1404

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2004/822

GENERAL ADMINISTRATIVE  DIVISION

Re:         ELEONORA HENDERSON

Applicant

And:         SECRETARY,
  DEPARTMENT OF FAMILY AND

COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Regina Perton, Member

Date:             24 December 2004

Place:            Melbourne

Decision:The Tribunal affirms the decision under review.

(sgd) Regina Perton

Member

SOCIAL SECURITY – eligibility – parenting payment single – member of a couple – marriage-like relationship  

Social Security Act 1991 s 4

Re Lambe and Director-General of Social Security (1981) 57 FLR 262

Re Tang and Director-General of Social Security (1981) 3 ALN N83

Re Sturges and Director-General of Social Security (1983) 13 SSR 132

Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497

REASONS FOR DECISION

24 December 2004   Regina Perton, Member

1.      This is an application by Eleonora Henderson (the applicant) for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 17 June 2004.  The SSAT affirmed a decision of a delegate of the Secretary to the Department of Family and Community Services (the respondent) dated 23 February 2004 to refuse an application for Parenting Payment Single (PPS) on the basis that the applicant was a member of a couple.

2.      At the hearing of this matter on 23 November 2004, the applicant represented herself.  Mr B. Sparkes, a Centrelink advocate, represented the respondent. 

3.      The Tribunal received into evidence the documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T40) as well as further documents tendered by the respondent at the hearing.

BACKGROUND

4.      The applicant, who was born on 13 September 1954, was widowed in 1997.  She was in receipt of PPS until November 2002, when Centrelink investigated her circumstances following an anonymous call in which it was alleged that the applicant had been living with a male partner for at least a year. 

5.      The applicant was interviewed by a Centrelink officer on 20 November 2002.  Following the interview, Centrelink suspended payment of PPS to the applicant.  On 25 November 2002, the applicant lodged forms with Centrelink in which she stated that she commenced living in a de facto relationship with Huseyin (Steve) Huseyinoff on 31 May 2002.  Mr Huseyinoff countersigned the form. The applicant was subsequently granted Parenting Payment Partnered (PPP). 

6.      On 29 January 2004, the applicant applied for PPS.  In the application form she indicated that she and Mr Huseyinoff had separated in mid-September 2003 and that she is the parent of two dependent children, Steven, born on 28 July 1989, and Jennifer, born on 20 February 1994.  In the form she described Mr Huseyinoff as a friend who still lived in the same house. 

7.      On 23 February 2004, a delegate of the respondent rejected the application for PPS on the basis that the applicant was living as a member of a couple.  On 19 April 2004, an authorised review officer affirmed the delegate’s decision.  On 3 May 2004, the applicant sought review by the SSAT, which affirmed the decision.  On 16 July 2004, the applicant lodged an application with the Tribunal for review of the SSAT’s decision.

EVIDENCE

8.The documentary evidence provided to the Tribunal by Centrelink includes the following:

·The applicant’s statement dated 20 November 2002, witnessed by an Centrelink officer (T8), in which she states:

I have been advised of the allegation that I am living with a Steve in a de facto relationship.  I wish to state that Steve who is also known by his legal name of Husein Huseinoff initially moved in about twelve months ago as a friend as he did not have anywhere to stay.  This was supposed to be on a temporary basis.  Steve is still living with me and over time we have become closer and developed a relationship.  I have now decided to live with Steve in a similar situation as a couple.  Steve was employed up until two weeks ago.  He was employed for Bridgestone Underlay Carpet in Dandenong.  I understand I am no longer entitled to receive Parenting Payment Single but may be entitled to receive Parenting Payment Partnered.  I am not employed in any way and will advise the office of any changes. 

·A Becoming Partnered Form lodged on 25 November 2002 (T9), in which the applicant stated that she commenced living in a de facto relationship with Mr Huseyinoff on 31 May 2002. Mr Huseyinoff countersigned the form. 

·A Partner’s Details – Parenting Payment (partner) Form (T10), in which Mr Huseyinoff stated a de facto relationship commenced on 31 May 2002. 

·An application for sickness allowance lodged by Mr Huseyinoff on 6 December 2002 (T14), in which he states that the applicant has been his partner since 31 May 2002.

·A Partner Details Form in the applicant’s name (T12) dated 6 December 2002, in which she stated that she had been living de facto with Mr Huseyinoff since 31 May 2002.

·A Personal and Medical Review – Sickness Allowance form dated 13 March 2003 (T15), including a statement declaring the details to be true and correct, signed by Mr Huseyinoff and countersigned by the applicant as his partner.

·A letter dated 22 January 2004 from Cilla Brookes, Family Law Solicitor, Westernport Regional Office of Victoria Legal Aid addressed to the Family Payments Section of Centrelink (T17) in which Ms Brookes stated:

The abovenamed [the applicant] has this day consulted our office in relation to her recent separation from her partner Huseyin Huseyinoff.  We are instructed that they separated in or about mid-September 2003.

We are instructed that Mr Huseyinoff continues to live in the same residence as Ms Henderson, however they are both financially independent of the other.

We request that her changed circumstances are considered by your office when deciding her eligibility for both Parenting Payments and Sole Parent Pension.

·     A Claim for Parenting Payment lodged by the applicant on 29 January 2004 (T18), in which the applicant stated that she and Mr Huseyinoff separated in mid‑September 2003.  She stated that Mr Huseyinoff, whom she described as a friend who moved in to the house in November 2002, paid $50 per week to share her home.  

·     An Assessment of Living Arrangements – Separated under one roof Form lodged by the applicant on 29 January 2004 (T19), in which she stated that she paid ¾ of the bills and bought her own food and household items.  She indicated that she separated in mid-September 2003.  In response to a prompt question asking how the relationship with her former partner had changed since they separated, she said Freedom and indicated that Mr Huseyinoff would provide no care if she required it for illness.  She responded to a question which asked how the relationship is different from that of a married couple with the comment happy to be friend. 

·     An Assessment of Living Arrangements – Separated under one roof Form lodged by Mr Huseyinoff on 29 January 2004 (T20), in which he stated, in response to prompt questions, that he owned a vehicle which he did not share with the applicant, that they do not have any shared finances, that he paid ¼ of the bills and bought his own food and household items.  In response to a prompt question asking how the relationship with his former partner had changed since they separated, he stated have flexibility & happier and indicated that the applicant would provide no care if he required it for illness.   He also indicated that he was happy to be friend.

·     References from Claire Dyplaat (T21) and Rosi Buttula (T22) lodged with Centrelink on 7 February 2004, in which the authors stated they have known the applicant and Mr Huseyinoff for three years and five years respectively.  They both stated that they have known the applicant and Mr Huseyinoff as a couple.  Ms Dyplaat stated that the applicant needed to have Mr Huseyinoff under the same roof, she likes to have a man figure around for her kids and herself, she feels more secure and safe to have a man around.  Ms Buttula stated that she thought that Mr Huseyinoff living with her in the same house gives her protection and also protection for her two little children.  Ms Buttula also stated that Mr Huseyinoff helped the applicant with maintenance around the house.  

·     A Witness Statement of Elizabeth Horton, Centrelink Customer Service Officer dated 19 November 2004 (R2), in which she stated that she had interviewed the applicant, who was accompanied by her daughter, on or about 30 January 2004.  Ms Horton’s stated, amongst other things, that:

I informed Mrs Henderson how Centrelink assessed whether a person was in a marriage like relationship with another person.

Mrs Henderson told me that she did not have a sexual relationship with Mr Huseyinoff.

Mrs Henderson told me that she did not want Mr Huseyinoff to move out of her home as he was renovating the house and the children wanted him there.

She used words to the effect that Mr Huseyinoff was a father figure to her children.

9.      The applicant told the Tribunal that she arrived in Australia when she was about 12 or 13 from Yugoslavia, via Italy.  She said that she finished school at the age of 15 and worked as a machinist until she married when she was 18.  She indicated that she has been a widow for seven years.  She stated that she and her husband had seven children, five sons now aged 31, 28, 25, 20 and 15 and two daughters aged 22 and 10.  She said that three children remain at home, namely the two younger ones, Steve and Jennifer, and her other daughter, Linda.  She said that Linda works and the two youngest children are at school.  She said that her son, Steve, suffers from diabetes.  The applicant said that she has lived in her present home since she was married.

10.     The applicant said that she and Mr Huseyinoff, who has always been single, met through friends about seven years ago at the Keysborough Tabaret (the pokies).  She said that Mr Huseyinoff moved in to her home about four or five years ago (she later amended it to about 3 years ago) as he had nowhere to live and she needed some extra money and someone to help around the house.  The applicant said that Mr Huseyin had been boarding with other people but the house they were renting was to be sold.   She said that she rearranged the four bedrooms in her house so that Mr Huseyinoff had his own room.   She said that Jennifer moved in and still shares her bedroom.  

11.     The applicant said that she attends the pokies most days and sometimes Mr Huseyinoff accompanies her, depending on whether he is on night or day shift.  She said that she likes talking to and having coffee with the other patrons, many of whom are now her friends.   The applicant said that she cooks dinner for herself and the two younger children around 4pm and that Mr Huseyinoff, who comes home later, caters for himself, either bringing home takeaway food or cooking something simple.  She said that she reheats a meal for Linda but does not leave anything for Mr Huseyinoff.  She said that Mr Huseyinoff does his own washing, using the household’s washing machine and shares use of the refrigerator.  The applicant said that Mr Huseyinoff has painted the bedrooms, removed the carpet from and then polished the floorboards and sometimes helps with the gardening.  She said that he pays $50 per week in board.  The applicant said that she does not own a car but has a driver’s licence.  She said that she sometimes uses Mr Huseyinoff’s car and that Linda also has a car.   She said that she and Mr Huseyinoff have not had a sexual relationship since he moved in as he is not interested in a relationship of that nature with her.   The applicant said that they have no shared bank accounts, she pays the rates on the house, which is in her name alone, and she pays the bills with Mr Huseyinoff contributing towards the utility bills as well as board.

12.     The Tribunal referred the applicant to the documents cited in paragraph 8.  The applicant said that the handwriting in the forms was a blend of hers and other people’s but conceded the signatures were hers.  She said that when she went to the Centrelink office for an interview on 20 November 2002, she was told that, in Centrelink’s view, she and Mr Huseyinoff were partners and she, therefore, signed the statement and forms that attested to the partnership. The applicant said that she had told Centrelink she wanted to be Mr Huseyinoff’s partner rather than that she actually was his partner.  She said that she had tried to turn the relationship with Mr Huseyinoff into a de facto relationship but it did not work out due to his reluctance to become intimate.  She said that she did not know what the term de facto meant until a Centrelink officer explained it to her.  She said that she had previously thought that the term referred to persons suffering from cerebral palsy.  The applicant said that she and Mr Huseyinoff had been friends not partners when she filled out the forms in which she declared that they were partners.  She said that she did not know why she had chosen 31 May 2002 as the start date of their de facto partnership.  She said that Mr Huseyinoff had also nominated that date and filled out forms declaring their de facto relationship as she had asked him to do so.  

13.     The applicant said that Mr Huseyinoff has never invited friends over to the house.  She said that he visits other people at their homes.  She said that he is not in a relationship with anyone else.  If mutual friends visit, he sometimes joins them if he is at home.  She said that when he is home he sometimes drives her to the pokies but otherwise friends drive her there.   She said that Mr Huseyinoff is a less regular attendee than herself. 

14.     Under cross-examination, the applicant said that Mr Huseyinoff moved into her home in November 2002.  When it was brought to her attention that she had signed documents stating that she and he were partners from 31 May 2002, she changed the approximate date of his move to November 2001.  The applicant said that friends had helped her fill out the Centrelink forms in which she declared the de facto relationship but she could not recall who they were.  She conceded the signatures were hers and reiterated that she had declared Mr Huseyinoff as her partner because that was her wish rather than the reality.  She could not recall when or from whom she had first learned the meaning of the term de facto.  The applicant said that the only social activities she and Mr Huseyinoff share are the pokies.  She said that he also provides her with emotional support such as calming her down when she is upset.  She said that while Mr Huseyinoff sometimes encourages her son to have his required daily injections and the children and he are friends, he does not take on the parenting role.  She said that he does not take the children to school or to social activities nor buy them clothes or shoes which she sees as indiciae of a parental role.  When questioned further about whose cars she drives to go shopping or pick up the younger children from school, the applicant said that she either borrows a car from one of her sons or uses Mr Huseyinoff’s car if he is on night shift. 

15.     The applicant said that she could not remember why she picked mid‑September 2003 as the date of separation from Mr Huseyinoff in the documents lodged with Centrelink on 29 January 2004 or why she had lodged them at that time.    The applicant said that she had been receiving little or no parenting allowance since July 2004 because Mr Huseyinoff had resumed work, putting her over the income threshold.    She said that her children help support her and Mr Huseyinoff sometimes gives her a little extra money as well as his board.  The applicant said that Mr Huseyinoff had considered moving away earlier this year due to Centrelink’s refusal of PPS to her but she had persuaded him to stay as a matter of principle and because she likes his presence as security. 

16.     Mr Huseyinoff, who was excluded from the hearing room while the applicant gave evidence, told the Tribunal that he and the applicant had met at the pokies seven or more years ago.  He stated that prior to moving into the applicant’s home, he had been sharing a rented house with a father and son for several years when they were told the property was to be sold and that they had to move.  He said that on telling the applicant about his predicament, she suggested he board with her.  He said he was initially reluctant given the number of children she had and his lack of desire for a closer relationship with her but he agreed when she persisted with the offer.    Mr Huseyinoff said that he usually worked a 12 hour shift from 6 to 6, either day or night shift and that when on day shift, he usually had either takeaway food or a sandwich, as he does not like leftovers.  He said that he prefers to do his own washing.  Mr Huseyinoff said that he accompanied the applicant to the pokies about once or twice a week.  He said that he pays $50 in board per week and does jobs around the home.  He has painted the inside of the house, removed the carpets and polished the floors.  He said that the applicant usually mows the lawns but he does things like take out the garbage.  He said that he contributes to the utility bills but not to the telephone bill, as he rarely uses it.  Mr Huseyinoff said that he has never married or lived in a de facto relationship but had a girlfriend seven or eight years ago.   He said he was too busy working to form relationships.

17.     Mr Huseyinoff said that he had taken a year off work in 2003 due to illness and was paid sickness benefits during that period.   He said that he and the applicant applied for, and were granted, the benefits as a couple.  He said that he had been told by Centrelink and the applicant to sign the documentation declaring them to be partners and did as instructed.  He said that he had expressed his intention of moving elsewhere a few times but that the applicant was reluctant for him to do so and therefore he stayed.

18.     Under cross-examination Mr Huseyinoff said that he moved into the applicant’s home in late 2000 or early 2001.  He said that at the time he and the applicant filled out the forms declaring each other as partners, he had been ill and stressed and did as instructed.  He said that he had not picked 31 May 2002 as the starting date of the relationship but wrote it down at the applicant’s direction as she was preparing the paperwork.  He said he was told to sign so he signed the form. 

19.     Mr Huseyinoff said that he has no children of his own and does not see himself as a parent to the applicant’s children.  When Steven has been unwell, he has accompanied the applicant to the doctor and/or hospital with him. He said that he has lent money to the applicant who always pays him back.  When asked what he does on weekends, he said he usually stays home, watches television in his room and sometimes goes to visit friends or from time to time goes to the pokies with the applicant. 

20.     Rosie Buttula told the Tribunal that she has known the applicant for about four years having met her through a mutual friend at the pokies.  She said that she has known Mr Huseyinoff for longer.  Ms Buttula said that she sees the applicant several times a week, usually at her home but occasionally at the pokies.  She said that her  daughter and the applicant’s daughter, Jennifer, are friends.   She said that if she invites Mr Huseyinoff, she usually invites the applicant but does not usually invite Mr Huseyinoff when she invites the applicant.   She stated that she sees the applicant and Mr Huseyinoff together when she visits the applicant’s home.   Ms Buttula said that she does not believe that the applicant and Mr Huseyin are, or were, a couple.  She said that Mr Huseyinoff is his own man and does not like to be hemmed in by a relationship.  She said that the applicant had told her of the difficulties she was having with Centrelink and that the applicant initially did not know what the term de facto meant.   

21.     Elizabeth Horton told the Tribunal that she has worked for Centrelink for 16 years in various positions and that her present role required her, amongst other things, to look at claims for PPS.  She said that she had interviewed the applicant after the claim for PPS was made on 29 January 2004. She said the applicant was accompanied by her elder daughter who attempted to answer many of the questions for her mother.  She said that she had been presented with a completed form which the applicant had wanted returned to her.  She said that she was satisfied that the applicant understood what a de facto relationship is.

22.     The applicant indicated that she had not been happy with the way Ms Horton had assessed her situation, nor the manner in which she had been interviewed. 

CONSIDERATION OF THE ISSUES

23.     The relevant sections of the Social Security Act 1991 (the Act) are:

4(1)     In this Act, unless the contrary intention appears:

…

"member of a couple" has the meaning given by subsections (2), (3), (3A), (6) and (6A);

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.

Note:    …

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.

24. Mr Sparkes submitted that the applicant’s statements to Centrelink, the SSAT and the Tribunal contained many inconsistencies and contradictions. He submitted that less weight should be given to the oral evidence before the Tribunal than to the documents submitted to Centrelink. He referred to the criteria contained in s 4(3) of the Act and stated that the evidence pointed to a finding that the applicant was in a marriage-like relationship with Mr Huseyinoff. He submitted that a sexual relationship is only one of many factors to be considered. He cited Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497 as a relevant authority on the importance of emotional security as an indicator of a relationship and pointed to the applicant’s reliance on Mr Huseyinoff. He referred the Tribunal to Re Lambe and Director-General of Social Security (1981) 57 FLR 262 as an authority that a financial relationship is not an essential requirement for a marriage-like relationship. Mr Sparkes referred the Tribunal to Re Tang and Director-General of Social Security (1981) 3 ALN N83, in which it was found that a belief by the parties that they are not in a de facto relationship is not necessarily a determining factor as to the nature of the relationship.   Mr Sparkes suggested that Mr Huseyinoff’s continuing presence in the applicant’s home had parallels with the situation in Re Sturges and Director‑General of Social Security (1983) 13 SSR 132.  He submitted that the applicant was still a member of a couple on 29 January 2004 when she applied for PPS.

25.     In reaching its decision the Tribunal takes into account the written material, the oral evidence and the submissions made at the hearing.

26. In determining the nature of the relationship between the applicant and Mr Huseyinoff, the Tribunal has regard to the criteria set out in s 4(3) and considers whether the applicant’s circumstances meet those criteria, as follows:

Financial aspects of the relationship

The applicant’s home has been in her name only since she was widowed.  The mortgage is in her name and she has responsibility for paying rates, utility and telephone bills.  The applicant does not own a car.  Mr Huseyinoff owns a car.  Mr Huseyinoff pays board and a share of the utility bills.  He stated that he lends the applicant money which she repays although no details were provided.  The applicant uses his car when it is available.  There is no pooling of financial resources, but Mr Huseyinoff is happy to advance the applicant some additional money over and above the cost of board if she is experiencing difficulties.  While Mr Huseyinoff was on sickness allowance, the applicant received benefits as his partner.

Nature of the household

Three of the applicant’s seven children live at home.  Linda, aged 22, is independent.  Steven and Jennifer are dependent on the applicant.  Mr Huseyinoff does not have any formal responsibility for the children but assists the applicant in dealing with their problems, particularly those relating to Steven’s health.  Mr Huseyinoff had lived in the applicant’s house for two years as at 29 January 2004.  He and the applicant had declared themselves to be in a de facto relationship from 31 May 2002 to mid‑September 2003 in documents they provided to Centrelink.   The applicant and Mr Huseyinoff gave evidence that they sleep in separate rooms.  They share the rest of the house apart from the bedrooms.  Mr Huseyinoff has refurbished the house and helps with household tasks such as taking out the garbage.  Evidence was given of his long working hours and his preference for preparing his own evening meals.

Social aspects of the relationship

The parties held themselves out to be, or to have been, in a de facto relationship in documents they gave to Centrelink in November 2002, December 2002, March 2003 and January 2004.   In their oral evidence, they stated the contrary.  At the hearing, the applicant stated that she had merely wished to be Mr Huseyinoff’s partner rather than actually being such.  Mr Huseyinoff gave evidence that he was happy to go along with whatever the applicant told him to write or say regarding the relationship.  He told the Tribunal that he was not in a marriage-like relationship with the applicant, as did Ms Buttula.  He gave evidence that he offered to move out after the Centrelink refused the application for PPS, but had not done so at the applicant’s request, as she valued his ongoing presence.  In terms of social activities, evidence was given that the parties regularly go to the pokies together and socialise with mutual friends, such as Ms Buttula, either at her place or theirs. 

Any sexual relationship between the people

The applicant and Mr Huseyinoff agreed that there had been a small number of intimate encounters between them before he moved in.  They also gave evidence that Mr Huseyinoff had health problems which inhibited such activities during the period in which he and the applicant have been living in the same household.  It is difficult for the Tribunal to assess this criterion.

The nature of the people’s commitment to each other
The parties have known each other for several years.  Mr Huseyinoff moved into the household in late 2001 or earlier.  The applicant gave evidence of the emotional support that Mr Huseyinoff gives her, as well as the additional feeling of security in having a man in the house.   Mr Huseyinoff indicated that his appreciation of the applicant’s cleanliness as well as her enthusiasm for him to move in when he had to leave his previous accommodation were part of the reason for his living in the household.  The applicant and Mr Huseyinoff both gave evidence that he had offered to move out several times but that she had encouraged him to stay.  Both parties stated in their oral evidence that they are not in a marriage-like relationship but had previously declared in writing to Centrelink that they were in such a relationship.

27.     The Tribunal agrees with Mr Sparkes that the evidence contains a number of inconsistencies and contradictions, particularly given the number of Centrelink documents in which the parties have described themselves as partners.  The Tribunal is satisfied that, while the applicant may not always have known the meaning of the term de facto, she knew what it meant by the time she completed her statements and forms at Centrelink in November 2002, December 2002 and March 2003.  The Tribunal is satisfied that the applicant was aware of what she was doing when she filled out the forms and declared the date of commencement of the de facto relationship to Centrelink.

28.     The Tribunal is satisfied that the applicant and Mr Huseyinoff saw themselves as being in a marriage-like relationship at the time they lodged the documents in late 2002 and during 2003. It does not accept that the applicants lodged several documents with Centrelink which included various terms to describe a marriage‑like relationship, without understanding the nature of the material they were providing. However, the key date in relation to the application before the Tribunal is 29 January 2004. In the material she gave to Centrelink at that time, including the letter from Ms Brookes authored on her instructions, the applicant stated that she and Mr Huseyinoff had separated in mid-September 2003. The applicant could not provide any explanation as to why she had selected that date as the official separation date, beyond that she had stopped trying to have a closer relationship with Mr Huseyinoff. The Tribunal is unable to discern any difference between the nature of the relationship between the applicant and Mr Huseyinoff as at 29 January 2004 and that which had existed for at least 18 months prior to that date. Whether or not a sexual relationship had existed, or would have if the health issues faced by Mr Huseyinoff not impacted on such a relationship, is something which the Tribunal is unable to determine. In any case, a marriage-like relationship does not require a sexual relationship to be considered as such. The Tribunal is satisfied that the relationship between the parties as at 29 January 2004 was of the same nature at that date as it was for at least 18 months prior to that date. The Tribunal finds that the relationship between the applicant and Mr Huseyinoff as at 29 January 2004 was a marriage-like relationship as prescribed in s 4(3) of the Act.

29. The Tribunal finds that on the date of claim for PPS, the applicant was in a relationship with a member of the opposite sex to whom she was not legally married and that the relationship between the applicant and the partner was a marriage‑like relationship with both parties over the age of consent and which was not a prohibited relationship under the Marriage Act 1961. Therefore, the applicant was not entitled to PPS at that date.

DECISION

30.     The Tribunal affirms the decision under review.

I certify that the thirty [30] preceding paragraphs are a true copy of the reasons for the decision of:

Regina Perton Member

(sgd)       Catherine Lake

Clerk

Date of hearing:  23 November 2004

Date of decision:  24 December 2004
Advocate for applicant:                Self-represented
Advocate for respondent:            Mr B. Sparkes, Centrelink