Hitchcock and Anor; Secretary, Department of Education, Employment and Workplace Relations and

[2008] AATA 677

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 677

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          Nos S 200600075 &

GENERAL ADMINISTRATIVE DIVISION		)                 S 200600076
Re		SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And DAVID HITCHCOCK AND FAY CROYSDALE

Respondents

DECISION

Tribunal Senior Member R W Dunne

Date5 August 2008

PlaceAdelaide

Decision The Tribunal affirms the decisions under review.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – Parenting Payment Single – members of a couple – marriage-like relationship – shared house arrangement – circumstances of the relationship – decisions under review affirmed.

Social Security Act 1991 (Cth) ss 4(2), 4(3), 4(3A), 1068A

Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327
Lambe v Director-General of Social Services (1981) 4 ALD 362
Re Tang and Director-General of Social Services (1981) 3 ALN N83
Re Anderson and Secretary, Department of Social Security (1993) 31 ALD 155
Re Cavallaro and Forward and Secretary, Department of Family and Community Services [2000] AATA 85
Re Stead and Another and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 292

REASONS FOR DECISION

5 August 2008   Senior Member R W Dunne    

1.      The respondents in these matters are David Hitchcock (“David”) and Fay Croysdale (“Fay”).  They have both been in receipt of Parenting Payment Single (“PPS”).  On 25 January 2005, a Centrelink officer decided that they were no longer entitled to PPS as they were living as members of a couple.  On 17 February 2005, an Authorised Review Officer affirmed the determinations of the original decision-maker.

2.      The respondents applied for review to the Social Security Appeals Tribunal (“SSAT”).  On 21 February 2006, the SSAT set aside Centrelink’s decisions under review and substituted its decisions that the respondents were not living in a marriage-like relationship.  On 28 March 2006, Centrelink (“applicant”) applied to this Tribunal for a review of the SSAT decisions.

3.      At the hearing Ms Danielle Forrester (from the office of the Australian Government Solicitor) appeared on behalf of the applicant and Mr Stuart Cole (of counsel) appeared on behalf of the respondents.  The Tribunal received the following documents into evidence:

· the T documents, lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, relating to David and to Fay (Exhibits A1 and A2);

·     annexure to applicant’s original statement of facts and contentions (Exhibit A3);

·     Centrelink policy on “Determining a Marriage-Like Relationship” (Exhibit A4);

·     map of Port Augusta showing the location of the residences of David and Fay (Exhibit A5);

·     application for housing to Red Shield Housing Network dated 13 December 2004 (Exhibit A6);

·     Salmat Area Representative Details for David and statement of account (Exhibit A7);

·     Bendigo Bank statement dated 19 April 2007 for David (Exhibit A8);

·     Westpac Bank statement for 19 December 2005-19 June 2006 for Fay (Exhibit A9);

·     Salmat Distributor Details for Fay and statement of account (Exhibit A10);

·     Red Shield Housing Network Services Referral Information dated 16 December 2004 (Exhibit A11);

·     letter to Red Shield Housing Network from Ms Maxine Norfolk dated 16 December 2004 (Exhibit A12);

·     letter to S A Housing Trust from Ms Maxine Norfolk dated 13 January 2005 (Exhibit A13);

·     affidavit of Ms Dianne Cugley with annexures, dated 3 April 2008 (Exhibit A14);

·     email to David from Ms Dianne Cugley dated 29 September 2005 (Exhibit A15);

·     report of Dr Nigel Stewart, Paediatrician, dated 22 June 2005 (Exhibit R1);

·     witness summary of David (undated) (Exhibit R2);

·     witness summary of Fay (undated) (Exhibit R3); and

·     statement of Ms Maxine Norfolk dated 31 October 2007 with attachments (Exhibit R4).

issue for the tribunal

4.      The issue for the Tribunal is whether, in all the circumstances of their relationship, the respondents were, for the purposes of the Social Security Act 1991 (“Act”), members of a couple for the relevant period, being 25 January 2005 to 19 September 2006 (“Relevant Period”).

legislation

5. The rate of Parenting Payment varies according to whether or not a person is a member of a couple: see Part 3.6A of the Act. If a person is not a member of a couple, the person is entitled to PPS calculated in accordance with s 1068A at the single rate, and the rate is not reduced by the income of the person’s partner.

6. Section 4(2) provides, in effect, that a person is a “member of a couple” for the purposes of the 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.”

7. Under s 4(3) of the Act, the Secretary (and now this Tribunal standing in the shoes of the Secretary) is required to have regard to all the circumstances of the relationship between two people, including in particular certain enumerated matters. Section 4(3) provides as follows:

“4(3)    Member of a couple – criteria for forming opinion about relationship.

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.”

8. Under s 4(3A), the Secretary (and again this Tribunal standing in the shoes of the Secretary) must not form an opinion concerning a “marriage-like relationship” in the circumstances described. Section 4(3A) provides as follows:

“4(3A)  Living separately and apart from partner.

The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage‑like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”

background and evidence

9.      The following background and findings are based largely on the witness statements and oral evidence of the respondents, the amended statement of facts and contentions of the applicant and the amended statement of facts, issues and contentions of the respondents.

10.     It appears the respondents first met at the Meadow Inn Hotel in Melbourne in early 1995, when they commenced their relationship.  Fay became pregnant and their first child, Kiara Hitchcock, was born on 16 November 1995.  Fay was staying with her mother at Broadmeadows in Victoria when her daughter was born.  In March 1996, a Centrelink social worker provided the respondents with a letter, “To Whom It May Concern”, noting that they were at that time residing together in motels with their four-month-old baby.  The social worker stated that the respondents were in need of priority public housing and they felt that their family should be together.  Fay became pregnant again and their second child, Bryce Hitchcock, was born on 8 April 1997.  The respondents were living together in Hamilton, Victoria at that time.

11.       After the birth of their second child, Fay was living in Broadmeadows and David was living in Upfield, Victoria.  In May 1998, the respondents lodged “Assessment of Living Arrangements” questionnaires at the Hamilton Centrelink Office.  The responses given to the questionnaires were to the effect that David and Fay chose to reside together to jointly raise and provide for their two children.  Subsequently, Centrelink decided that the respondents were “members of a couple”.  David objected to the decision and, in June 1998, it was set aside and substituted with a decision that the respondents were not members of a couple.

12.     On 3 December 2001, the respondents’ third child, Tianna Hitchcock, was born.  Fay was again living with her mother in Broadmeadows at that time.  Centrelink records show that, between 10 October 1999 and 21 December 2004, David was living in Upfield and Moama in New South Wales.  Centrelink records show that, between 10 October 1999 and 13 January 2005, Fay was living in Broadmeadows.  On 3 August 2004, the respondents’ fourth child, Jordan Hitchcock, was born.  After Jordan was born, David was working on a farm at Thyra in New South Wales.  He had two of the children, Kiara and Bryce, living with him.  The other two children, Tianna and Jordan, were living with Fay in Broadmeadows.  The respondents had limited contact with each other.  Fay would see her two older children on an irregular basis, usually at Easter and Christmas.  It was not her practice to stay at the farm in Thyra.  However, on one occasion she had car trouble and had to stay there overnight.  David was forced to leave the farm in Thyra and Fay needed to move out of her parents’ Broadmeadows house.  Her niece, who suffered from bi-polar disorder, had moved into the parents’ house and Fay was concerned for her two younger children.  David made inquiries into housing in Port Augusta and Fay looked into the medical care that could be provided there for Jordan, who suffered from a blood disorder.  It was the respondents’ plan to obtain a four to six bedroom house in Port Augusta, so the children could be together under the same roof and the respondents would have their own bedrooms.

13.     From 14 January 2005 to mid-September 2006, the respondents both resided in leased premises at 36 Butler Crescent, Port Augusta.  Having moved to Port Augusta, no large houses were available and they obtained the three bedroom house at Butler Crescent from the Salvation Army and converted the lounge room into a fourth bedroom.  The lease was solely in David’s name.  On 19 January 2005, they completed Centrelink questionnaires about their relationship.  On 25 January 2005, Centrelink decided that the respondents were members of a couple and were no longer entitled to PPS.

evidence as to whether respondents are members of a couple

Evidence of David

14.     David’s evidence was that, prior to coming to Port Augusta, he had been living and helping out on a cattle farming property in New South Wales.  Fay lived with her parents in Broadmeadows.  As he did not have a driver’s licence, Fay would visit the two older children, mainly in the school holidays.  He came to Port Augusta with Fay because the four children were getting older and wanted to be together more often.  He said that, although he had lived with Fay in Hamilton, there was never any ongoing relationship between them.  They had their little “flirts and flings”, but after Hamilton they went their separate ways until the next child, Bryce, was born.  David said that there was never a time when he regarded himself as living together with Fay as a married couple.  As far as housing in Port Augusta was concerned, he had searched the Salvation Army websites and found that five or six bedroom housing could be obtained.  Apart from this, suitable housing would not be available in Melbourne for five or six years.  He first came to Port Augusta by himself in late 2004.  He had been told that he needed to be in Port Augusta and a resident of South Australia for a period of three months before he could apply for any housing.  When he first arrived he stayed with a girlfriend and then in caravan parks.  He had his two older children with him at that time.

15.     When he first spoke to the Salvation Army about housing, five or six bedroom housing had been advertised.  This meant separate bedrooms for himself and Fay and shared bedrooms for the children.  However, this eventually became the three bedroom house at Butler Crescent, which was turned into a four bedroom house.  The house was unfurnished, but he was able to obtain his own furniture, so that everything in the house was his.   Fay came to Port Augusta to join him around late January 2005.  They did things in the house separately.  Although they lived in the same house, Fay had her separate life and he had his.  He cooked for the two older children and, on occasions, for all the children and the whole family.  As far as cleaning was concerned, David did his own and what was required for the older children.  Fay would do her own cleaning and the cleaning for the younger children.  With food, David would buy his own and the food for the two older children.  Fay would do the same for herself and the two younger children.  However, on occasions, Fay would buy food for David and the older children.  There would also be occasions when everyone would have a meal together, which would happen when there were six people in a house together.  There were television sets in just about every room in the house, which meant that watching television was not a problem.  Fay and David had their separate banking and finance arrangements and, if money was needed for separate shopping, it would be borrowed and repaid.  David’s young son, Jordan, had a health problem.  Port Augusta was an attraction because medical assistance was more readily available.

16.     The tenancy of the Butler Crescent house was supposed to be in both the names of David and Fay when they first signed the lease documents, but between the Housing Trust and the Salvation Army a mistake had occurred and the lease was in David’s name.  He paid the rent and the electricity for the house.  At that time there was no adjustment made with Fay for her share of the rent and the electricity.  When he moved into Butler Crescent, David said he definitely had no sexual relationship with Fay.  That had ended a long time ago.  He had a couple of female friends in Port Augusta when he first arrived and he would go out with them, but there was no ongoing relationship with them.  Fay was aware of this, but they had their own separate lives.  He had an agreement with her that they would not bring people back to the house, for the children’s sake.  When asked by Mr Cole whether he was trying to reconcile his relationship with Fay, David said that that was never going to be the case.  The idea in coming to Port Augusta was solely to obtain decent housing and to keep the four children together.  As far as staying at Butler Crescent, the plan with the Salvation Army was that, when other housing became available, Fay would remain at Butler Crescent and he would move out, or vice versa, depending on what the other housing was.  He said that at one stage the Housing Trust had tried to provide him with half a house to occupy.  However, it was not suitable and he chose to wait for better housing, which became available at 6 Crichton Drive, Port Augusta.   He needed the larger house at Crichton Drive so that he had access to the four children.  He moved out of Butler Crescent, taking the two older children, Kiara and Bryce, with him.  Since moving, the situation changed and he had the two boys with him and Fay had the two girls with her.  This change had taken place in about December 2007 and the children were able to see each other any time they want to.

17.     As far as the children’s schooling was concerned, he said that Fay attended to most of that.  He did not communicate well with the teachers, so Fay dealt with them most of the time.  The children lived only a short distance from their school and were able to walk to and from the school each day.  Fay visited the children at Crichton Drive and was able to see them without any restrictions.  The same applied when he wanted to visit his daughters at Butler Crescent.  As far as a typical day was concerned, he would get his sons ready for school, attend to the daily chores and then, when the children came home, give them the evening meal.   This situation was no different from the time when he shared the house at Butler Crescent with Fay.

18.     Mr Cole referred David to the witness statement of Ms Dianne Cugley, who had been Fay’s Salvation Army support worker since July 2007 when Ms Maxine Norfolk left the Salvation Army.  In answer to Mr Cole’s questioning, he said that, with the four children, Fay would drive him around Port Augusta from time to time.  They would sometimes come together to the Salvation Army if they both had appointments.  He had given her the car and she did her own driving because he did not have a driver’s licence.   If Ms Cugley wanted to contact Fay by telephone, she had David’s phone number and would do so on his mobile phone.  Fay did not have a telephone herself.  He said that Fay did not have a joint email account with him as she did not know how to use a computer.  He also said that he did not share food expenses with Fay.  When asked about an operation that Fay had in September 2006, he said that she came to stay with him for a while because she was unable to care for herself and needed help in looking after the children.  Fay could often be contacted at Crichton Drive because two of her children were staying there and David did not stop her from being around the house.  However, they were not living as a married couple and there was no commitment by him to enter into a relationship with Fay.  The only commitment was to get suitable housing so they could both continue bringing their family back together. 

19.     In cross-examination by Ms Forrester, David said that he would not have described his relationship with Fay as “partners”.  The only time may have been when Fay first became pregnant and they may have referred to themselves as partners at that time.  Although he had indicated to Centrelink in 1998 that his relationship with Fay was purely platonic, he acknowledged that he had been residing with her in motels, for a period, after their first child was born.  He had moved to New South Wales in about March 2003 and Fay had visited him from time to time.  He said that he and Fay had agreed to move to Port Augusta to find somewhere else to bring their children together.  Fay needed to leave her parents’ home and he had been forced to leave the farming property in New South Wales.  He could not recall when he had arrived in Port Augusta, but he had found details of Red Shield Housing on the internet and had travelled to Port Augusta.  They could not get accommodation in Melbourne and would have to wait a long time for public housing becoming available in Sydney.  He acknowledged that there was no certainty that he would obtain housing, but he had to reside in Port Augusta for three months before he could even apply for the housing.  When he first arrived in Port Augusta, he stayed with girlfriends.  When Fay first arrived, she stayed in her own caravan.  David also stayed in a caravan, on and off, for three months after he had arrived.  He had been coming and going with the two children and was often not at the caravan park. 

20.     Ms Forrester referred David to the application for Red Shield Housing that he had made in December 2004 (Exhibit A6) and to the Red Shield referral information (Exhibit A11).  When questioned, David denied that he had stayed together with Fay and the four children in a caravan park at Port Augusta when they first arrived.  He also denied advising Ms Norfolk that living in the caravan park, with Fay and the four children, was becoming unworkable and that he and Fay had had an ongoing relationship for many years.  He said the application to the Housing Trust was for the purpose of getting separate accommodation.  As this could not be achieved, they had to take the housing that was available.  They did not seek to live together, but to have adequate housing so the four children could be together, either in one house or in separate housing, close to each other.  When questioned about the lease of Butler Crescent, he confirmed that the lease had been solely in his name, although it was supposed to have been in joint names when they first moved there.  Although Fay did not make any initial contribution to the rent of the premises, in the end, she did make some contribution to assist with the rental.  He also confirmed that the electricity had never been a shared cost and had always been debited to his account.  He said there had been some sharing of different financial support for the children when they needed items, such as clothing.  When questioned about his Medicare card, he said that Fay’s name and the names of the four children had always been on his card.  This was something that Medicare required because it was easier than having separate Medicare cards for Fay and the two daughters.  When asked about doing chores around the house, David said he would do the washing of the older children’s clothes and the cleaning-up after them.  He would also cook occasionally for the whole family and, if he went out to dinner, he would take the older children with him.  He looked after the gardening at Butler Crescent, but the house was maintained by the Salvation Army.  David said that, when he went on holidays, he went by himself.  Fay went by herself.  They never had holidays together as a couple.  With school holidays, they would go away separately and would meet in Melbourne, so the children could see their grandparents.  There was never any plan to have holidays together.  When David took the children to visit their grandparents, Fay was not present at that time.  Both David’s parents and Fay’s parents lived in Broadmeadows and the children were taken there by David and Fay separately to meet the grandparents.  David acknowledged that there were occasions when he had cared for Fay, once when they were both living in Hamilton and Fay had had a tram accident.  The other had been at Butler Crescent when Fay came out of hospital.  Although he had been looking after Fay, it was also necessary for him to look after all the children because Fay was unable to do so.  Then, after Fay went into hospital a second time in October 2006, he again looked after Fay and cared for the four children.

Evidence of Fay

21.     Fay’s evidence was that, when she lived with David in Hamilton, they were simply under one roof – he had his own bed and she had hers.  A couple of years later, she lived in Broadmeadows with two of the children, and David worked on a farm in New South Wales with the other two.  During that period she mainly visited him there and took the two younger children with her.  David had the two older children.  She said she visited David about five times a year.  When she first discussed with David coming to Port Augusta, she was staying with her mother.  Her niece had moved in and she had bi-polar.  She could not trust her niece around her children because she believed it was unsafe.  The house was not big enough to live in with her two children, her mother and the niece.  She was looking at Port Augusta because David had to leave the farm and she could no longer live at her mother’s house.  She had been waiting for a Housing Commission house in Melbourne and had made her own application, with the two children.  David had then found suitable housing in Port Augusta on the internet that would become available before any housing in Melbourne.  She was looking for somewhere to settle down with her own children in her own house.  She was hoping that she could work out something where she could also see the other two children from time to time.  David told her about the Salvation Army housing and that something should be done to get their own house and stop moving around.  Coming to Port Augusta was an opportunity for the children to be together, but living with David was a different thing.  She said they were two different people and did not get on together.  She knew it would be hard to live with him in Port Augusta because she had lived with him in Hamilton.  But she had to have a roof over her children’s heads, not only the two children that lived with her, but also the two other children.  It had been hard living with David because he was a different personality.  He had done his own thing, paid his own bills, did his own cooking and bought what he needed.  As he did not drive, if he ran out of anything, he would ask her to get it for him and he would reimburse her the money involved.  She said he also had a drinking problem and became louder after he had been drinking.  She said that he had made the arrangement to obtain housing and to make the move to Port Augusta.  He had gone first and she had followed him. She stayed in a caravan park at Port Augusta, when her young son was having a blood transfusion in hospital, before moving into housing.  After coming to Port Augusta, she went back to Melbourne and then returned.  She came from Broadmeadows to the Butler Crescent house. 

22.     Butler Crescent was supposed to be a six bedroom house, but turned out to be only three bedrooms.  She had her own bedroom with the baby, David had his and the other bedrooms were shared by the children.  As far as the cooking was concerned, David cooked his own meals and she cooked hers.  He cooked for his two children and she cooked for her two children.  There were times when he might do the cooking for all the children.  He would buy his own food and groceries and she would buy hers.  If he ran out of anything, he would ask her to get it for him if she was shopping.  Otherwise, she would tell him to do his own shopping himself.  He did his own cleaning and washing.  He paid the rent for Butler Crescent and the electricity, which was all in his name.  Ultimately, an application was made to the Housing Trust for a separate three bedroom house for her to move into.  But, in September 2006, a house became available and David moved into it with the two older children.  They wanted to go with their father and she felt she could not stop them.  While at Butler Crescent, she had her own circle of friends, who were different from David’s friends.  She had a good male friend for a couple of months and she said this was none of David’s business.  After David left Butler Crescent, she maintained contact with him and the two children that went with him.  She would drive around to Crichton Drive.  Then, if Centrelink wanted to contact her, they would have to do so on David’s mobile phone.  If someone called her on his phone, he would walk to Butler Crescent and give her the message.  There were never times when she was contacted by David’s email.  She did not have a computer herself.  She would look after the children’s schooling and deal with the teachers.  David was not a talkative person and was unable to handle the teachers.  She generally maintained the communication between the school and the children.  However, she was unable to sign any paperwork for the two children in his care, but took it to him for signing.  Three of the children walked to school and she would pick them up afterwards.  Because she had had problems with Red Shield and Centrelink in recent times, she had taken David in the car with her to visit them.  She normally did not do the shopping with David, but he helped when she had been unwell.  While living with David at Butler Crescent, she had no commitment to a relationship with him.  She had had an operation in September 2006 and spent some time at David’s house at Crichton Drive.  She had to rest and, because Jordan was a handful, she had to have David care for him.  After the surgery, she had been coming and going from David’s house to get her clothing and to arrange for Jordan to be cared for.  Initially, Kiara and Bryce were living with David and Tianna and Jordan were living with her.  Later, Bryce and Jordan lived with David and the two daughters lived with her.  David would buy clothing for the two older children and she would shop for the two younger children. 

23.     In cross-examination, Fay said that she stayed in motel accommodation with David for a period after Kiara was born.  She had a tram accident while living with him, but never lived with him permanently until they went to Hamilton.  When David was living on the farm, she would visit him.  She did not stay at the farm, but in a caravan about a 10 minute drive away.  She stayed on the farm on only one occasion and would stay in the caravan otherwise.  David would let the children call her on the telephone, or they would write.  David came to Melbourne for Jordan’s birth, but nothing more.  Shortly after the birth, they started discussing the move to Port Augusta.  David organised everything and travelled to Port Augusta first.  She travelled later with Jordan and Tianna.  David was in Port Augusta for about two or three months before she arrived.  As far as medical care for Jordan was concerned, David went on to the internet and found there were five medical practitioners in Port Augusta.  She had not made enquiries about schooling for the children.  Her daughter, Tianna, was not old enough then to go to school.  She said she stayed at the Shoreline Caravan Park when Jordan was in hospital for a blood transfusion.  She returned to Melbourne, then waited until she heard further from David.  She said she was in Port Augusta for about a week the first time she arrived.  When questioned about her operation in September 2006, she said that she stayed at Crichton Drive, but also returned to Butler Crescent to get things she needed.  Since July 2007, when Ms Cugley took over as her support worker, she had spent time at Crichton Drive and sometimes Ms Cugley would find her there.  Sometimes she would ask Ms Cugley to collect the children from various places and bring them to either Butler Crescent or Crichton Drive.  She said that she would only contribute to the food for the younger children in her care.  The older children were in David’s care and, as they ate a lot, he had a bigger grocery bill than she did.  As David was paid earlier, he would occasionally do the shopping first.  She confirmed that she never had a mobile phone and that, if she needed to be contacted, she could be on David’s phone and he would relay a message to her.  When asked whether she frequently drove David around, she said it was only when there were problems with Red Shield or Centrelink or when the children in his care became ill and she would take them and David to the doctor  When asked about her involvement as a Salmat distributor in September 2006 (Exhibit A10), Fay said that it was her daughter doing the work.  She would simply drive her daughter around to put brochures in letter boxes.  She said that normally David would look after the two older children and she would look after the younger children, unless he was going out and he wanted her to care for all the children.  He would also look after all the children when doing so was unavoidable.  She said there were no times when all six of them would have a meal together.  Sometimes she might purchase a take-away meal for Tianna and the older children.  After David moved to Crichton Drive, they had one or two common friends, but mainly they had their own friends.  They never went out for a meal together, but on one occasion they attended a Salvation Army Christmas function which was mainly for her children to see their father.  She said there were occasions when she would rely on David for support, but this would only be when she had a bad day.  She would also ask for David’s help when there were meetings with the Salvation Army or discussions with Centrelink.  When asked by the Tribunal why she thought David gave her support, she said it was because of her health problems.  She needed his support because the children needed to be looked after.

Evidence of Ms Maxine Norfolk

24.     Mr Cole referred Ms Norfolk to her witness statement (Exhibit R4).  She confirmed that, to the best of her recollection, the contents of the statement were true and correct.  She had been involved in the respondents’ initial application for Red Shield Housing in Port Augusta.  They were looking for housing for the six members of the family and the Salvation Army was able to offer them temporary housing and then assist them to obtain permanent housing.  The only choices available for housing in Port Augusta at the time had been privately or through the Housing Trust.  The respondents had spoken of trying to get two houses from the Housing Trust that were close together, so they could each have the two children they were responsible for, but in separate houses.  Once they moved into Butler Crescent, her role as support worker was to visit them at least once a week, until they settled.  Then, there would be home visits, as well as the respondents visiting the Red Shield office.  Generally, the home visits were arranged but, if she needed to speak to them quickly, she would go to Butler Crescent and would expect to see them.  Initially, Butler Crescent was a three bedroom house with a kitchen cum dining room, combined and a separate lounge room.  The respondents had converted what was the lounge room into another bedroom, making a four bedroom house.  Fay and Jordan were in the converted bedroom, David and Bryce each had a room and the two daughters had another bedroom.  Although they had moved into Butler Crescent, the respondents were looking for a four bedroom house or similar, so that the rooms they could each have were the same as they had been in Butler Crescent.  When they first came to Port Augusta, the respondents said that they had been living separately and were now choosing to parent together, that is, sharing a house, but not living together.  They said they were working on their relationship, but did not know if they would ever be a couple.  Ms Norfolk said that she had seen the respondents out and about in the town on occasions.  However, when she saw them, they always had at least one child with them and often the two younger ones, because the older ones would have been at school.  She said she never witnessed anything that gave her the impression the respondents were behaving as two people in a de facto relationship.  When the Housing Trust notified Red Shield that another house had become available, they advised David.  He went to the Housing Trust and decided to take it up and move there with the two older children.  Red Shield was then notified of what was going to happen.  David moved into a three bedroom house, having earlier seen a house that was not going to be big enough to make into the four bedroom house that the respondents wanted.  If the respondents had refused two Housing Trust offers for housing, it could alter their whole position and they would be removed from the Category 1 list for housing.  Accepting the Crichton Drive property was important to them.  Ms Norfolk said that, initially, the respondents were looking for something that would house the whole family, but then the situation changed and eventually, when Crichton Drive became available, David accepted it. 

25.     In cross-examination, Ms Norfolk said that she was not involved in the initial assessment of the respondents’ housing needs.  Once an assessment was made, it was taken to a panel meeting and a determination made as to who had the greatest need for housing at the time.  Ms Norfolk attended the panel meeting and, when it was decided that the respondents would be offered Butler Crescent, she was assigned to be their support worker.  She said the respondents had indicated that they were staying at the caravan park at the time they were filling out an application for housing.  She said she understood they were staying together and had been there for 4-8 weeks.  She said it was at that time that David had told her that they were attempting to reconcile their relationship.  They did not know whether they would be a couple again and were attempting to parent their four children together.  Ms Forrester then referred Ms Norfolk to the Red Shield Housing referral information (Exhibit A11) and the letter Ms Norfolk had forwarded to the Red Shield Housing Network (Exhibit A12).  In both documents, Ms Norfolk had indicated that the respondents were attempting to reconcile their relationship.  Ms Norfolk indicated that she had been advised of this by David.  When asked about the Housing Trust housing that had been offered to the respondents, Ms Norfolk said that they had refused two offers.  The first because of the locality – it was not on the west side of Port Augusta near where the children were attending school – and the second because the house was too small.  She said that, at the very beginning, the respondents wanted two houses and she was surprised that they chose to move into Butler Crescent.  As he was paying the rent, David was the contact with the Salvation Army.  Fay would come to most of the meetings if she could, but that was difficult sometimes because of the young children.  She could contact both David and Fay on the one mobile phone but, if she wanted to contact Fay, she would leave a message with David to pass it on to her.  When asked whether she saw David and Fay with the children as a family, she said as a family only in respect of parenting their children together.  Ms Norfolk said that on one occasion, she visited Fay at David’s house after her operation.  There were also times when she found David at Butler Crescent helping Fay tidy up the yard and the like.  He also helped her with the gardening after he moved out.  She said that sometimes she saw them together in the supermarket and walking down the street.  This was at the time they were in Butler Crescent, but she could not recall whether it was also after David had moved to Crichton Drive.

Evidence of Ms Dianne Cugley

26.     Ms Forrester referred Ms Cugley to her affidavit dated 3 April 2008 (Exhibit A14).  Ms Cugley confirmed that she adopted the affidavit as her evidence before the Tribunal.  Ms Forrester referred Ms Cugley to paragraph 18 of her affidavit.  There, she said that, since taking over as Fay’s support worker in July 2007, she had found it very difficult to contact her as she was hardly ever at home.  She said that the reference to “home” was to 36 Butler Crescent.  She confirmed that she started working with both David and Fay in July 2007.

27.     In cross-examination, Ms Cugley acknowledged that she had not received a response to the joint  email she had sent to David and Fay on 29 September 2005 (Exhibit A15).  There was no record that the email had been read.  When questioned further, she said that, when she had seen the respondents driving around Port Augusta on occasions, they mostly had their children with them, in particular the two younger ones.  Also, on the occasions when the respondents came to the Salvation Army office together, it was because arrangements had been made to see both of them.  These arrangements occurred in July 2007.  She said that, when she was preparing the budget for the respondents in connection with their Housing Trust application, the amounts in the budget were for both the respondents collectively.  When Fay had an operation in September 2006 and stayed with David, she had Jordan and Tianna with her.  David’s mobile phone was the only phone contact she  had for Fay.  Fay herself had no mobile and no landline. 

consideration – were the respondents members of a couple?

28. The specific issue in this case is whether the respondents were, for the purposes of the Act, members of a couple for the Relevant Period. Whether the respondents were members of a couple at other times is not the point, unless it is possible to discern some behaviour or characteristics at other times that would point to the respondents being members of a couple during the Relevant Period. The provisions of the Act that are relevant to the issue in this case are ss 4(2)(b) and 4(3). As was submitted by Ms Forrester (and accepted by the Tribunal), the only aspect of s 4(2)(b) that is relevant is whether the relationship between the respondents was a marriage-like relationship, and that aspect must be considered having regard to the criteria referred to in s 4(3).

29. The matters listed in s 4(3) of the Act are not exhaustive, since the decision-maker’s obligation under that section “is to have regard to all the circumstances of the relationship including, in particular, the [enumerated] matters”.  The Tribunal notes the discussion at [6.56] to [6.60] in DC Pearce and RS Geddes, Statutory Interpretation in Australia, (6^th Edition, 2006) in relation to the meaning of the word “includes” in this context.  It is clear that the decision-maker is required to assess the totality of the evidence and other available material in order to decide whether applicants for a pension are members of a couple, taking into account that the personal circumstances of people varies substantially: see Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546. It is nevertheless necessary to “have regard to” the relevant matters, and this expression has been interpreted to entail a requirement to take the relevant matters into account and give weight to them as a fundamental element in the decision-making process: R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333.

30.     In Pelka (supra) French J, after setting out the provisions of ss 4(2) and 4(3) of the Act, reviewed a number of authorities where the Courts have considered various analogous criteria or statutory formulae to determine whether a marriage-like relationship existed. His Honour provided at paragraph 46 what is, with respect, a most helpful summary of the effect of the authorities. He said:

“46.      Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:

1. Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).

2.        Must have regard to each of:

(a) the financial aspects of the relationship;
  (b) the nature of the household;
  (c) the social aspects of the relationship;
  (d) any sexual relationship between the people;
  (e) the nature of the people’s commitment to each other.

3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).

4. Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.

5. Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:

(a) financial cooperation;
(b)      cohabitation;
(c)       a sexual relationship;
(d)      cooperative household arrangements;
(e)      mutual commitment.”

31.     Ms Forrester submitted that there were numerous instances where the evidence of the respondents before the Tribunal, when compared with their evidence before the SSAT, was inconsistent or contradictory.  The Tribunal noted the following instances:

(a)the evidence regarding ownership of the mobile phone;

(b)the buying of clothing for the children;

(c)the eating of family meals together;

(d)whether the respondents went shopping together or separately;

(e)the evidence regarding the preparation of a joint budget for the application to the Housing Trust;

(f)ownership and use of the motor car and who drove who around Port Augusta;

(g)the evidence regarding the respondents living in caravans in Port Augusta at various times; and

(h)the evidence relating to the number of the respondents’ sexual encounters. 

32.     Mr Cole submitted that, without being disrespectful to them, his clients were not sophisticated people and did not have an ideal manner of communication.  He said that, when they were completing forms and the like, they did what they thought was needed to be said and done because, if that was what was needed to achieve the ends they wanted, they were happy to comply with the bureaucracy as they saw it. 

33.     The Tribunal found that David was often short in his responses and became impatient when he believed questions asked of him by Ms Forrester were repetitious.  Mr Cole submitted that he may have had a certain view about bureaucracy and, rightly or wrongly, saw the Tribunal’s involvement to be part of it.  This, he submitted, coloured David’s evidence and should be taken into account in evaluating what both the respondents said before the Tribunal.  In Fay’s case, the Tribunal found her demeanour to be reserved and she was less forthright in the answers to questions put to her.  

34. In matters involving a determination of whether persons are members of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance. The Tribunal has carefully considered the instances referred to in paragraph 31 of these reasons. Although there were inconsistencies (and sometimes contradictions) in their evidence, on the essential matters relevant to the question of whether they were members of a couple, the evidence of the respondents was clear and substantially consistent. Overall, the Tribunal found that the respondents gave a truthful account of the essential matters pertaining to their relationship during the Relevant Period. As Mr Cole submitted, they were trying their best in somewhat intimidating circumstances. The following are the Tribunal’s findings about the relationship criteria to be considered pursuant to s 4(3) of the Act.

financial aspects of the relationship

35.     The respondents had separate banking and financial arrangements.  David paid for his expenses and Fay paid for hers.  There was no pooling of financial resources.  David would buy his food and the food for the two older children, while Fay would buy her food and the food for the two younger children.  They would each do their own food shopping and that for the two children in their respective care.  However, there was some sharing of financial support for the children, particularly in buying their clothing.  Although the tenancy of Butler Crescent was to be in the respondents’ joint names, due to an oversight, the lease of the premises was solely in David’s name.  David paid all the rent and electricity for Butler Crescent initially, but later Fay made some contribution to these expenses.  The Tribunal is satisfied that, although there was some sharing of expenses for the children, particularly for clothing, and later as a contribution by Fay for the rent and electricity, for the most part there was no sharing by the respondents of day-to-day household expenses at Butler Crescent.  Ms Forrester submitted that the financial aspects of the respondents were different to what one would expect from two people merely sharing accommodation.  The Tribunal is unable to accept this submission.  The respondents’ financial arrangements were as you would expect from two people living separately under one roof, but with the commitment of allowing their children to grow up together or, as it was after Butler Crescent, to grow up close to each other. There may have been some pooling of minor expenses for expediency, however, there was no pooling of financial resources in relation to major assets.      

nature of the household

36.     Before coming to Port Augusta, the respondents intended that Butler Crescent would be a five or six bedroom house.  However, it originally comprised only three bedrooms and the large lounge was converted into a fourth bedroom.  The respondents each had their own bedroom, Fay with the youngest child, Jordan, and the remaining bedrooms were occupied by the older son and the two daughters were together.  There were television sets in about every room in the house that could be watched separately by the occupants.  David would normally cook meals for the two older children and Fay would cook for the younger children.  There were occasions when David or Fay would arrange food for all the children, but this might involve a take-way meal.  David’s evidence was that there were also occasions when everyone would have a meal together, which could be expected when there were six people in the house at meal-time.  David would do the washing and cleaning around the house, for himself and the two older children.  Fay would do the same for herself and the two younger children.  Ms Forrester submitted that, on the evidence, there was the establishment of a family unit and indications of joint care and responsibility for all four of the children.  However, in the Tribunal’s view, the respondents’ position was more accurately described by the SSAT, when it said (at paragraph 13 of its decision):

“The Tribunal’s overall impression is that Mr Hitchcock’s and Miss Croysdale’s commitment to the current arrangement is due to their commitment to the children rather than a commitment to each other.”

The Tribunal is satisfied that, by and large, the respondents were living separately and apart under the same roof at Butler Crescent during the Relevant Period.

the social aspects of the relationship

37.     The Tribunal finds that, on the evidence, the respondents did not hold themselves out as married to each other during the Relevant Period.  There was evidence from Ms Norfolk that, when they were first staying at the caravan park at Port Augusta, David intimated the respondents were attempting to reconcile their relationship.  However, in earlier examination by Mr Cole he was quite clear this was never going to be the case.  The respondents were coming together in Port Augusta for the benefit of the children.  Ms Norfolk and Ms Cugley said they had seen the respondents out together on occasions.  However, it became clear that, when this occurred, the children (or some of the children) were with them.  The same took place when the respondents spent Christmas and school holiday time together.  Their evidence was that the time spent was with and for the benefit of the children to spend time together, and often to see their grandparents.  Ms Forrester referred the Tribunal to the Centrelink policy on “Determining a Marriage-Like Relationship” (Exhibit A4) and to the social aspects of a relationship.  She pointed to the factor in the policy which suggested that shared plans for spending Christmas and holidays together as a couple or family unit was an indicator of a marriage-like relationship.  However, this indicator was only one of several other indicators which, together, were to the contrary in the respondents’ case.  They did not present themselves to the community as a married couple.  Apart from school activities for the benefit of the children, they did not present as a couple at joint social or leisure activities.  They did not present themselves as partnered, married or living in a marriage-like relationship in writing or verbally to third parties.  Finally, apart from a case note of Ms Norfolk to the effect that there seemed to be some ongoing association involving the respondents and mutual friends after David moved out of Butler Crescent, there was no evidence that family, friends and associates perceived that the respondents were a couple.  Their clear evidence was that they did not have common friends during the Relevant Period.  Subject to what is said above, the Tribunal is satisfied that, during the Relevant Period, the respondents did not engage in joint social activities.             

sexual relationship between the respondents

38.     Ms Forrester again referred the Tribunal to the Centrelink policy on marriage-like relationships and the fact that the respondents had mutual children.  However, the Tribunal noted that the policy restricted inquiry in this area to establishing whether there had been the existence of a sexual relationship and whether it was ongoing and exclusive.  Based on the evidence before it, the Tribunal accepts that there was no sexual relationship between the respondents during the Relevant Period.

nature of the respondents commitment to each other

39.     The respondents first met each other in about 1994-1995 and they have four mutual children who, at the time of the hearing, were between 3 years of age and 12 years of age.  This obviously demonstrates the long-standing nature of their association.  However, it was Ms Forrester’s submission that their companionship or emotional support was different to two people merely sharing accommodation.  There was evidence of some emotional support and an expectation of companionship between them.  But as Ms Forrester also noted, when the respondents moved to Port Augusta from interstate, they had no extended family or support structures.  It was inevitable that they would have to rely on each other during times when they were sick or needed assistance, so that the children could be cared for.  There was clearly some relationship between the respondents during the Relevant Period.  But was it a marriage-like relationship?  There was some ongoing friendship between them, albeit strained at times because of their different characters.  There was also some ongoing understanding between them that they engage in activities together, but where the children were either directly or indirectly involved, such as taking them to school, picking them up from school and going to school activities.  Mr Cole submitted (and the Tribunal accepts) that, during the Relevant Period, the respondents were caring for the children but, in terms of their evidence, they spoke of a split of responsibility.  Fay spoke about her children in the sense of the two children she was responsible for and David spoke about his children in the sense of the two children he was responsible for, even though they were all living under the same roof.  There were times when David cared for Fay, in October 2006 when she had surgery and earlier in 2004 when she had a tram accident.  It would have been unfeeling of him to simply look after the children and ignore Fay’s needs, and in looking after Fay he was looking after the wellbeing of the children.  It was clear, on the evidence, that there was some common bond between them and it was Mr Cole’s submission (which the Tribunal again accepts) that the common bond fell short of the respondents living as a married couple.     

overall assessment

40.     The evidence of Ms Norfolk, who was called for the respondents, and of Ms Cugley, who was called for the applicant, was rather interesting.  Ms Norfolk had been involved in the respondents’ initial application for Red Shield Housing.  Once they moved into Butler Crescent, she was assigned to be their support worker and remained so until she ceased working with the Salvation Army Community Centre in July 2007.  Ms Norfolk’s evidence was that she never witnessed anything that gave the impression the respondents were behaving as two people in a de facto relationship.  When they applied for housing, David had indicated that they were attempting to reconcile their relationship, but they did not know whether they would be a couple again.  At the very beginning, in 2004 or 2005, the respondents wanted two separate houses.  This did not eventuate until Crichton Drive became available.  In the meantime, in what appears to be out of necessity, they accepted the housing at Butler Crescent. 

41.     Ms Cugley’s evidence was that she took over as Fay’s support worker in July 2007, which was well after the Relevant Period.  However, according to her affidavit, there were periods during mid to late 2005, when Ms Norfolk was on holidays, that she had regular contact with the respondents.  Much of her evidence was what you might expect when there were two people who had four mutual children and they would need to see each other from time to time.  It was not surprising that Ms Cugley saw them driving around town, often with at least some of the children.  It was also not surprising that Fay could only be contacted on David’s mobile.  She had no mobile of her own or a landline at Butler Crescent.  As was submitted by Mr Cole, there was nothing in these happenings that would suggest the respondents were members of a couple.  They were pure practicalities.

42.     In Lambe v Director-General of Social Services (1981) 4 ALD 362, the Full Federal Court considered Commonwealth legislation, the principles of which have been incorporated into the present Act. At page 369, the Court said:

“… We agree with the Tribunal that in order to determine whether the appellant was living with Foxwell as his wife ‘all facets of the inter-personal relationship’ of the two persons need to be taken into account.  We also agree that the question of the financial support which Foxwell provides is an important, although not necessarily crucial, consideration, but is only one of a number of relevant matters which the Tribunal should take into account in characterizing, as required by the definition, the nature of the relationship between the appellant and Foxwell.

…”

43.     In Staunton-Smith (supra), when dealing with similar provisions in the Social Security Act 1947, O’Loughlin J  in the Federal Court referred to the list of subject-matters relating to “bona fide domestic basis” that were mentioned in Re Tang and Director-General of Social Services (1981) 3 ALN N83 and said [at pages 32-33 and 35]:

“…

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.

It should, of course, be clearly understood that no tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list.  The personal circumstances of people vary substantially.  The responsibility of the tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations.  If the tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which  those findings were based.

…

I am of the opinion that it is not sufficient to merely note that a couple are sharing accommodation, nor it is sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements.  Those reasons will be better indicators in determining the correct nature of their relationship.  For example, in arriving at its decision, the tribunal regarded it as a matter of significance that there was a supportive relationship existing between Mr and Mrs Staunton-Smith.  I agree that normally that would be an indicator pointing to the conclusion that the parties were not living separately and apart.  But in the particular circumstances of this case, did the tribunal accept the evidence of both Mr and Mrs Staunton-Smith that during the period of their separation, he would, on occasions, stay at her home and care for her and her children when she was sick or in hospital? …”

44.     Ms Forrester referred the Tribunal to the decision of Deputy President P W Johnston, Senior Member S D Hotop and Member R D Fayle in Re Anderson and Secretary, Department of Social Security (1993) 31 ALD 155, to the decision of Senior Member W J F Purcell in Re Cavallaro and Forward and Secretary, Department of Family and Community Services [2000] AATA 85 and to the decision of Member R G Kenny in Re Stead and Another and Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 292. The Tribunal has considered these decisions. In Re Anderson, it was significant that the applicant was legally married to, reconciled with and living with her husband.  Despite the independence in financial and social matters, and the lack of any sexual relationship, the Tribunal concluded, “not with any strong conviction”, but “as a matter of impression and degree”, that the couple were not living “separately and apart”.  In Re Stead, Member R G Kenny found that the most significant of the factors in s 4(3) was that relating to the nature of the commitment by each of the applicants to maintain a family unit. They had shared premises, both with and without children, for approximately 10 years with no intention of making changes in the immediate future, which meant they were members of a couple at the relevant time. In Re Cavallaro, the applicants met in 1985, lived together, on and off, for several years, resumed co-habitation and purchased a home jointly in about May 1995.  This was their major asset and they shared the outgoings relating to it.  Their child was born on 1 January 1995.  They submitted that, prior to February 1998 they were members of a couple, but that, as of February 1998 the nature of their relationship changed significantly.  Senior Member W J F Purcell was satisfied, on the evidence, that the marriage-like relationship that existed prior to February 1998 had not broken down irretrievably and that, at the relevant time (at 25 November 1998), the applicants were living in a marriage-like relationship.  

45.     The Tribunal is of the view that the cases in paragraph 44 above were decided on their own particular facts and, based on the evidence of the respondents presently, are of no great assistance.  The Tribunal prefers the submission put by Mr Cole in his closing, as to whether the respondents were living in a marriage-like relationship, when he said:

“… And my submission is that when all the matters are considered and weighed, that they are not living like a married couple.  They are living like a separated couple but who have four children and, therefore, have some common interests in relation to the four children and are still prepared to provide some assistance to each other from time to time.  But I say no differently from any couples who may separate, live nearby and provide some assistance to each other. …”

46. Having regard to the factors in s 4(3) of the Act and all the facets of the inter-personal relationship of the respondents, the Tribunal is satisfied that they were not in a marriage-like relationship during the Relevant Period. It follows that they were not members of a couple, at the time of the decisions under review, for the purposes of s 4(2) of the Act.

decision

47.     The Tribunal affirms the decisions under review.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         .............J Coulthard..........................................
  Associate

Dates of Hearing  9/10 April 2008
Date of Decision  5 August 2008
Advocate for the Applicant       Ms D Forrester
Solicitor for the Applicant          AGS
Counsel for the Respondent     Mr S Cole
Solicitor for the Respondent     Legal Services Commission