Iles; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1671

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1671

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T 2006/181

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Applicant

And   CHERIE HOLLY ILES

Respondent

DECISION

Tribunal Ms A F Cunningham Senior Member

Date16 August 2007

PlaceHobart

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal.

(Sgd) Ms A F Cunningham

Senior Member

CATCHWORDS

Disability support pension – whether member of a couple – applicant living in same residence as a male person for 18 years – no evidence of financial interdependence or commitment – no sexual relationship or displays of intimacy – no social relationship – applicant always maintained no marriage-like relationship – no evidence of any commitment or emotional support - some documented entries of suggested marriage-like relationship – Tribunal concluded relationship one of friendship with mutual support – decision under review affirmed

LEGISLATION

Social Security Act 1991, Sections 4, 4(2), 4(3), 117, 1064

AUTHORITIES

Staunton-Smith v SDSS (1991) 25 ALD 27

Tang & DGSS (1981) 2 SSR 15

Pearce & DGSS (1983) 5 ALN N 142

Lambe v DGSS (1981) 4 ALD 362

McKenzie & Secretary DFACS (2006) AATA 92

Gordon & Secretary DEWR (2006) AATA 792

Salter & Wilkinson & SDSS (1987) 12 ALD 495

Stopper & Palombo & SDSS (1987) 12 ALD 763

Peck & SDSS (1992) 76 SSR 1107

Reid & SDSS (1985) AATA 10463

REASONS FOR DECISION

16 August 2007 Ms A F Cunningham Senior Member      

1. The applicant has sought the review of a decision made by the Social Security Appeals Tribunal (SSAT) made on 27 October 2006 setting aside a decision made by a Centrelink Authorised Review Officer to cancel the respondent’s disability support pension on the basis that she is a member of a couple pursuant to Section 4 of the Social Security Act 1991 (the Act).

2. Section 117 of the Act provides for the rate of a person’s disability support pension to be calculated in accordance with the Pension Rate Calculator A at section 1064. Module B of section 1064 relevantly provides that a person who is not considered to be a member of a couple is paid a higher rate of pension than a person who is partnered. When Ms Iles was granted DSP in 2002 she was paid at the single rate based on information she provided in her claim form. The original decision set aside by the SSAT determined that Ms Iles was a member of a couple from the date of her claim for a DSP which was granted with effect from 29 June 2002. This decision also cancelled Ms Iles’ DSP.

ISSUE

3.      The issue for determination is whether Ms Iles was a member of a couple for the purpose of the assessment of her DSP entitlement. 

LEGISLATION

4. The meaning of ‘member of a couple’ is set out in Section 4(2) of the Act which states:

“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: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

·an ancestor of the person; or

·a descendant of the person; or

·a brother or sister of the person (whether of the whole blood or the part‑blood).”

5.      As Ms Iles is not legally married the applicable provisions are those set out in sub-paragraph (b).

6. The criteria for determining the nature of the relationship between Ms Iles and the man who shares her residence, Anthony Weeding, are set out in section 4 (3) which reads as follows:

“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.”

7. The above criteria are expressed in terms of circumstances which suggest a marriage-like relationship. Sub-section 4(3) also requires that regard is to be had to all the circumstances of the relationship. The Federal Court in its decision Staunton-Smith v SDSS (1991) 25 ALD 27 found that the Tribunal had erred by only making findings with respect to those circumstances which suggested a marital relationship and not those suggesting separateness such as the absence of a sexual and social relationship.

8.       Neither party necessarily bears an onus of proof as to the matters to be decided by the Tribunal which must make its decision on the balance of probabilities based on the evidence before it.  Oral evidence was given by Ms Iles, Mr Weeding, Ms Iles’ daughter, Alison Iles-Fyfe as well as various neighbours and friends of Ms Iles.

9.      The Tribunal in its decision re Tang & DGSS (1981) 2 SSR 15 identified the following factors as relevant in assessing a defacto relationship

(i)        the relationship having a quality of permanence;

(ii)the living arrangements and sexual activity of the parties having a quality of exclusiveness;

(iii)      the pooling of resources;

(iv)      the sharing of expenses;

(v)       the parties holding themselves out as married;

(vi)the parties having a subjective belief that their relationship is like one of man and wife;

(vii)     the parties being joint parents of a child;

(viii)     the parties having a sexual relationship;

(ix)      the parties indulging in a joint social life;

(x)       one party having a legal right to enforce obligations in respect of the other.

10.     It was submitted on behalf of Ms Iles that at no time has she considered herself to be living in a marriage-like relationship.  Ms Iles contends that she and Mr Weeding are simply friends living together for their mutual benefit.  The Tribunal held in Re  Pearce and DGSS (1983) 5 ALN N 142, that a finding is not based on the persons belief as to the nature of their relationship but the actual objective circumstances of that relationship.

11. The criteria for determining the nature of the relationship as set out in Section 4(3) will be considered under the following headings:

FINANCIAL ASPECTS

12.     The Full Court of the Federal Court in Lambe v DGSS (1981) 4 ALD 362 rejected a suggestion that the financial aspects of a relationship are the only or the paramount or crucial considerations in determining whether a woman is living with a man as his wife on a bona fide domestic basis.  The Full Court said at p.369 ‘It is without doubt an important factor, the significance and weight of which will doubtless vary from case to case.’

13.     A factor that has been held to be relevant is the joint purchase of a home particularly where the title is held as joint tenants.  On the other hand, financial independence has been recognised as a not uncommon arrangement for many couples in today’s society and therefore not a disqualifying factor for the finding of a marriage-like relationship.

14.     There was no dispute at the hearing as to the background facts of the relationship and the Tribunal finds as follows.

15.     Ms Iles has been in receipt of a DSP from June 2002 when she was forced to cease work due to rheumatoid arthritis.  Mr Weeding has part-time work as a truck driver.  They each have separate bank accounts.  The title to the property in which they both currently reside at Unit 3/61 Crosby Road, Rosetta is registered in the sole name of Ms Iles.

16.     In around 1996 Ms Iles obtained a loan by way of a mortgage over her Rosetta unit in the approximate sum of $13,000 which she lent to Mr Weeding for the purchase of a motor vehicle.  The motor vehicle was and remains registered in the joint names of Ms Iles and Mr Weeding despite Mr Weeding having repaid the loan in full.  Ms Iles said that she obtained the loan by way of mortgage because Mr Weeding was unable to obtain a loan due to his casual employment and the fact that he had not previously obtained finance on terms.

17.     There have been other occasions when Ms Iles has used her cheque account to make payments on Mr Weeding’s behalf.  For instance when he purchased a Statesman motor vehicle on a Saturday and was unable to withdraw sufficient funds from his Island State Credit Union account.  Ms Iles withdrew a cheque for $1,100 towards the purchase of the car which Mr Weeding reimbursed the following week.  On other occasions Ms Iles drew cheques to pay for car parts, insurance and the like, all of which were subsequently reimbursed by Mr Weeding.  Ms Iles gave evidence that she had also assisted friends and family members who did not have access to a cheque account by drawing cheques to pay their accounts on various occasions.

18.     Mr Weeding has resided in Ms Iles’ Crosby Road unit for some eighteen years.  He originally paid board in the sum of approximately $50.00 per week which was subsequently increased to around $75.00 per week.  Ms Iles decided to waive the board payments when her niece, Alison Iles-Fyfe came to live with her when Alison was around 10 years of age.  Alison continued to live in the unit until she was 19 years of age.

19.     Mr Weeding was boarding at the house at the time.  Ms Iles said that she decided to terminate Mr Weeding’s board commitment as she believed that he would otherwise be subsidising her niece’s occupation of the home.  As a ‘trade-off’ Mr Weeding undertook maintenance works, attended to the garden and mowed the lawns.  He also purchased the wood which is around $110 per tonne.  Mr Weeding makes no other financial contribution towards the general outgoings except that he has paid the electricity account on a few occasions.  He does not contribute towards the phone account because as Ms Iles said, he does not use the telephone.  They each purchase their own groceries as they organize their own meals and rarely eat together.

20.     There was an occasion when Ms Iles did not have sufficient money to pay for her medication obtained from Switzerland and Mr Weeding gave her money for this.

21.     Other relevant financial aspects are that Mr Weeding has named Ms Iles as the sole beneficiary of his superannuation policy.  Mr Weeding explained that his only other close relative is his grandmother who is 82 years of age and that he had no-one else to nominate as his beneficiary.

22.     Mr Weeding was asked why his employment records recorded Ms Iles as his wife.  He said that he had never provided that information and believed that Ms Iles’ brother may have been responsible for the notation.  Ms Iles’ brother undertakes the accounting work for Mr Weeding’s employer.  Ms Iles confirmed that her brother may have been responsible for this entry and that she does not have a good relationship with her brother.

23.     It was Ms Iles’ evidence that she was first informed of the fact that Mr Weeding had nominated her as the beneficiary of his superannuation policy during a discussion with a Centrelink Officer.

24.     Mr Weeding was not aware of the fact that hospital records had recorded him as Ms Iles’ next of kin and partner in 2001 when Ms Iles was admitted to hospital.  Mr Weeding said that he did not recall having ever described Ms Iles as either his partner or his wife.  He views his relationship with Ms Iles as a friendship arising from their existence as flatmates.  He sees his relationship with Ms Iles as very different from that which he had experienced with his former wife.  He described the relevant aspects of a marriage relationship as going out together socially, sleeping in the same bed, buying presents for each other and the house, going away together and visiting each others families as well as planning for the future together.

25.     The Tribunal was referred to various decisions where the financial aspects of the relationship were suggestive of a marriage-type partnership.  There is a paucity of such aspects in this relationship.  The Tribunal does not accept Mr Sparkes’ suggestion that the evidence suggests a pooling of financial resources or a significant degree of ongoing financial interdependence.  Ms Iles and Mr Weeding operate separate bank accounts.  Apart from the motor vehicle which is registered in their joint names but which both parties agree belongs to Mr Weeding, there are no other assets in their joint names.  There is no evidence that they share the living expenses rather that they pay separately for their groceries, Mr Weeding purchases the firewood, Ms Iles’ meets the other outgoings including the telephone and electricity.  The Tribunal accepts Mr Weeding’s explanation as to why Ms Iles is named as the beneficiary of his superannuation policy and that he sees it as one way of repaying her kindness.

26.     Although Mr Weeding does not pay a weekly board amount, the current arrangement whereby he pays for the firewood, undertakes any maintenance works and attends to the garden is not an unreasonable trade-off.

THE NATURE OF THE HOUSEHOLD

27.     Mr Sparkes submitted that the evidence regarding the split in household tasks between the parties reflects a conventional household rather than a landlord/boarder arrangement or one of friendship as contended by the applicant.  Mr Sparkes commented on the following;  that Ms Iles does the washing and sometimes cooks meals for Mr Weeding;  Mr Weeding cooks meals for Ms Iles including cooking meat on the barbeque;  Mr Weeding and Ms Iles watch TV together;  they spend some leisure time together;  Mr Weeding has the use of the garage for his vehicles and tools;  Mr Weeding maintains the outside of the house and the garden areas;  Mr Weeding assists with the care of Ms Iles’ mother and her pet bird;  Ms Iles and Mr Weeding told the SSAT that they have separate bedrooms.

28.     The Tribunal however does not consider that the evidence given at the hearing was entirely consistent with the above conclusions.  It was the evidence of both Ms Iles and Mr Weeding that they each do their own personal washing except that Ms Iles washes Mr Weeding’s work clothes to ensure that the metallic fibres do not damage her washing machine.  Both parties stated that they purchase their own groceries and cook their own meals.  Mr Weeding generally prefers to barbeque his meat and will on occasions put a piece of Ms Iles’ steak on the barbeque at her request.  Ms Iles said that occasionally she has offered Mr Weeding any leftover roast dinner that she had cooked for herself and her mother.

29.     It was the parties evidence that they seldom watch television together in the same room.  The evidence was that they spend little leisure time together.  Ms Iles did not agree that they would go out even occasionally, apart from Sundays when she drives Mr Weeding to her mother’s house to put the parrot to bed because he is unable to drive himself when he has been drinking.  There was evidence that on one occasion Ms Weeding’s niece Alison took her out for her birthday many years ago and that Mr Weeding accompanied them.  On one other occasion they went out to celebrate Ms Iles’ mother’s birthday.  Other than their weekly Sunday journeys to Ms Iles’ mother’s residence for the purpose of putting the bird to bed, the evidence was that Ms Iles and Mr Weeding do not go out together.  Mr Weeding said that he enjoys looking after Ms Iles’ mother’s pet bird and is happy to assist because the cage is too heavy for Ms Iles’ mother to carry.  The Tribunal does not accept that these outings constitute a finding that the parties spend leisure time together.  Ms Iles described Mr Weeding as having a separate relationship with her mother who has taught him a lot about gardening.  There was no evidence that Ms Iles and Mr Weeding have spent time visiting friends together.  Ms Iles described Mr Weeding as a loner who spends most of his time in the garage with his cars and tools. He has few if any visitors.

30.     This evidence was confirmed by other witnesses who gave evidence on behalf of the applicant.  Ms Iles’ niece Alison Iles-Fyfe described the relationship between Ms Iles and Mr Weeding as one of friendship and flat-mates.  She had not observed them ‘doing things together’ or going out socially nor did they cook for each other or sleep together.  She said that Mr Weeding had not cared for her when Ms Iles worked for six months in Burnie in 1995 and that she went to live with her grandmother.  During the time that she lived at Ms Iles’ residence she observed that Ms Iles undertook the cleaning and housework and that Mr Weeding maintained the outside of the house. 

31.     Ms Iles-Fyfe ceased to reside with her aunt in around 2001 but still regularly visits Ms Iles often in the company of her fiancé Mark Hoyle who also gave evidence before the Tribunal.  Mr Hoyle said that he used to visit Ms Iles a couple of times a week but other commitments have reduced the visits to one or two times a month.  He said that Mr Weeding is generally present and that he would describe the relationship as friendship.

32.     Sonja Jessup gave evidence by telephone and informed the Tribunal that she has known Ms Iles for over 6 years and Mr Weeding for approximately 4 years.  She generally visits Ms Iles once or twice a week.  Ms Jessup described the relationship as one of friendship and understands that Mr Weeding boards at Ms Iles’ house.  Ms Jessup has been present when Mr Weeding has been sick or retired early to bed in the back bedroom.  Ms Jessup confirmed that she is a close friend of Ms Iles and would expect her to have informed her if she was living in a marriage-like relationship with Mr Weeding. 

33.     Another long-term friend of Ms Iles’, Brian Whitton gave evidence by telephone.  Mr Whitton resides next door to Ms Iles and has known her for approximately 12 years.  He generally sees Ms Iles once a fortnight and said that he has a closer friendship with Mr Weeding.  He had not observed Ms Iles and Mr Weeding socializing together and understands that they occupy separate bedrooms.  Approximately 6 years ago he painted a bedroom and toilet in Ms Iles’ house and observed that Mr Weeding’s bedroom was at the back of the house and that Ms Iles’ bedroom was at the front.  He has never observed any display of affection between Ms Iles and Mr Weeding.

34.     Mr Whitton’s wife, Katrina Whitton also gave evidence at the hearing.  Ms Whitton said that she visits Ms Iles approximately once or twice a fortnight.  She has observed that they occupy separate bedrooms, that Ms Iles does all of the housework whereas Mr Weeding undertakes the maintenance, mows lawns, gardens and gets the wood in.  It was her evidence that Ms Iles had never given her the impression that she was living in a marriage-like relationship with Mr Weeding.  Nor had Mrs Whitton observed Ms Iles and Mr Weeding socializing or going out together apart from the weekly visits to Ms Iles’ mother’s house.

35.     A statutory declaration was received in evidence from Faye Iles, the mother of Cherie Iles.  Ms Faye Iles was unable to give oral evidence due to illness.  Mr Sparkes submitted that no weight should be placed on her evidence because she was not present for cross-examination.

36.     Ms Faye Iles described her daughter as having a generous and helpful nature and a person willing to help others in need.  Whilst she was adamant that her daughter and Mr Weeding are not in a marriage-like relationship, there was little other contentious evidence in her declaration.  Most of her evidence was confirmation of statements made by other witnesses.  The Tribunal does not disregard the evidence but takes account of it largely comprising opinion evidence and not tested by cross-examination.

37.     Mr Sparkes submitted that none of the witnesses who gave evidence on behalf of Ms Iles were independent and were either friends or relatives giving evidence in support of Ms Iles’ case.  Mr Sparkes contended that they were unable to give any meaningful evidence as to the nature of the relationship between Ms Iles and Mr Weeding.

38.     Whilst the Tribunal accepts that these witnesses were either friends or relatives of the applicant, this is to be expected given the very nature of the issues in dispute.  It is unlikely that such evidence could be given by completely independent witnesses who have no association with the applicant.  Only persons who know the applicant intimately would be in a position to describe the nature of the relationship and details of the sleeping arrangements.  There was little if any oral evidence presented to suggest that the relationship between Ms Iles and Mr Weeding is any different than that described by Ms Iles.  Mr Sparkes urged the Tribunal to place greater weight on the documentary evidence presented which he contended suggests a different relationship to that described by Ms Iles and Mr Weeding and their witnesses.

39.     The documentary evidence referred to included the acknowledgement provided to Centrelink that Ms Iles is the sole beneficiary of Mr Weeding’s superannuation policy.  Mr Weeding’s evidence as to the circumstances of this nomination have been discussed above.  Whilst the statement refers to Ms Iles as his wife he disputes that he gave this information and it is notable that it is recorded by a third party.

40.     Ms Iles was asked why she had not disclosed to Centrelink the fact that Mr Weeding was residing at her residence.  Ms Iles was referred to a copy of her DSP claim form which she signed on 1 July 2002 in which she answered ‘no’ to question 15 ‘Do any people of the opposite sex regularly stay at your address’.  Her response in cross-examination was that she understood the question to mean ‘do I have a male companion that sleeps in the same bed as me.’  Despite the fact that Mr Weeding had been living in her home for approximately 13 years at that stage she did not understand that the question related to this arrangement.  Whilst the question clearly requires an applicant to disclose the presence of any male persons who stay on a regular basis for two or three nights per week, the Tribunal understands Ms Iles’ explanation as to how she interpreted the question.  It was her strong conviction that she was not living in a marriage-like relationship with Mr Weeding and therefore she felt that she did not need to disclose his presence at her residence. This understanding was wrong but does not lead the Tribunal to conclude that Ms Iles was living in a marriage-like relationship with Mr Weeding.

41.     Ms Iles was asked why the Rehabilitation Consultant had stated in her Work Capacity/Participation Assessment Report which was completed on 20 February 2004 that ‘Ms Iles lives alone, cares for her mother and employs workmen to do lawn mowing and gardening.’ 

42.     Ms Iles agreed that at the time Mr Weeding was living at Crosby Road and stated in cross-examination ‘okay he might live there, but he lives his life and I live my life and as far as I am concerned I live alone.  I don’t – he might be there, but he’s not there.  He’s not there as a companion to me.  He’s not there as – he’s – its like he’s out the door and I’m in here.’

43.     Whilst the statement that Ms Iles lived alone in February 2004 is not correct, the Tribunal accepts her explanation as to her understanding of the term ‘living alone’.  Ms Iles’ failure to disclose the fact that Mr Weeding was living in her residence at the time could be because she wanted to avoid the possibility of Centrelink concluding that she was living in a marriage-like relationship with Mr Weeding.  Ms Iles’ failure to disclose does not therefore lead to a finding that she was trying to conceal a marriage-like relationship but rather that she was wary of Centrelink concluding that such a relationship existed.  The Tribunal accepts Ms Iles’ explanation that she had informed the Rehabilitation Consultant that the workman undertaking the lawn mowing and gardening were employed by her mother.  The sentence is capable of this interpretation.

44.     Included in the T-documents is Ms Iles’ patient record form dated 25 October 2001 in which Mr Weeding is nominated as her next of kin.  It was Mr Weeding’s evidence that he had no knowledge of this nomination.  Ms Iles said in evidence that at the time of admission she was very ill and under the effect of strong medication.  Mr Weeding had taken her into hospital and she had no other person to nominate as her next of kin.  Her niece was addicted to marijuana at the time and because of a previous occasion when her brother had failed to take care of her, she did not want to nominate him as her next of kin.  The Tribunal accepts Ms Iles’ explanation and is not persuaded that these nominations are suggestive of a marriage-like relationship in this case but are consistent with the nature of the friendship enjoyed by Ms Iles and Mr Weeding.

SEXUAL RELATIONSHIP BETWEEN THE COUPLE

45.     Mr Sparkes submitted that the only suggestion that there is no sexual relationship between the parties is based on their own evidence.  Due to the nature of this evidence, this would generally be the case.  There is however other evidence that supports the evidence of Ms Iles and Mr Weeding.  Namely the evidence that they have been observed to occupy separate bedrooms.  It was Ms Alison Iles-Fyfe’s evidence that during a recent visit to her aunt’s residence, she had occasion to open her wardrobe and observed that only her aunt’s clothes occupied the wardrobe.  There is no evidence suggestive of a sexual relationship between the parties.  No witness gave any evidence of any display of affection between them.

46.     It was Ms Iles’ evidence that gynaecological health issues prevent her from having a sexual relationship.  This evidence was confirmed by her mother in her statutory declaration.  It was Ms Iles’ evidence that she had only had one prior sexual relationship and that was some years ago.

47.     The Tribunal is satisfied on the evidence presented that there is no sexual relationship between the parties.  This is however, not a determinative factor but one of the relevant aspects to which regard is to be had in assessing the nature of the parties relationship.

THE NATURE OF THE PEOPLES COMMITMENT TO EACH OTHER

48.     Mr Sparkes submits that the length of the relationship is long standing.  The evidence was that Ms Iles and Mr Weeding have been living in the same residence for some 18 years and that this arrangement is ongoing.  Ms Iles said that Mr Weeding is free to leave at anytime and has indeed done so on occasions due to work commitments.  It was Ms Iles’ evidence that Mr Weeding has left on various occasions and has not told her where he was going or when he would return.  This evidence was confirmed by her niece.  There was also a period of six months when Ms Iles worked in Burnie and Mr Weeding continued to reside in her unit.  She did not expect him to care for her niece who resided with her grandmother during this period.

49.     Each of the witnesses distinguished the nature of the relationship between Ms Iles and Mr Weeding from a marriage-like relationship by the absence of displays of affection, a closeness and connection between them and a sharing of activities.

50.     In the Tribunal’s opinion the relationship is best described as a friendship where there is a mutually co-operative and convenient arrangement.  Whilst this arrangement has existed for a number of years, the evidence is that Ms Iles and Mr Weeding lead quite separate and independent lives.  Although there is mutual support, there is no ongoing commitment.  The circumstances of the arrangement are somewhat unusual and comprise a high degree of trust.  The Tribunal accepts that this is part of Ms Iles’ generous and trusting nature, offering help to those in need.  These are the very circumstances in which Ms Iles invited Mr Weeding to live at her house following his difficult marriage separation.  The Tribunal accepts the evidence of Faye Iles where she describes her daughter as having a generous and helpful nature.  This is evidenced by her willingness to look after and house her niece for some 10 years, her ongoing devotion to her mother and offer to Mr Weeding of a place to live at a time of need.  Further evidence of Ms Iles’ generous nature is her willingness to make payments on behalf of her friends and relatives from her cheque account. 

51.     Ms Iles’ has consistently disputed that she shares a marriage-like relationship with Mr Weeding.  She presented as a credible and honest witness and it is not accepted that she was trying to conceal the truth from the Tribunal.  The answers to questions put to her were spontaneous and consistent.  None of the witnesses who gave corroborative evidence were shaken under cross-examination.  Whilst they are all friends of Ms Iles, they could not have had a vested interest in giving confirmatory evidence of the nature of the relationship as described by Ms Iles.

52.     The nature of Ms Iles and Mr Weeding’s relationship is in the Tribunal’s view quite distinctive from that enjoyed by Mr McKenzie and Ms Ward in the decision of McKenzie and Secretary DFACS (2006) AATA 92 who jointly owned the home in which they lived and shared a joint bank account into which Mr McKenzie’s superannuation was paid.  They also shared all living expenses and Mrs Ward considered that she had a moral obligation to care for Mr McKenzie.  What social life they enjoyed was undertaken together.  The parties had excluded all family members from their wills and appointed each other as sole executor and beneficiary.  Mrs Ward was also the sole beneficiary of Mr McKenzie’s superannuation.  They were invited out together as a couple.  They ate together and shared domestic tasks.  Few if any of these elements are present in the current situation.

53.     Whilst the Tribunal found in Gordon and Secretary DEWR (2006) AATA 792 that the fact that the parties no longer shared a sexual relationship was not conclusive of a finding that they were not in a marriage-like relationship, the other factors evidenced a co-operative and sharing relationship including financial and other responsibilities as well as joint decision making and an element of commitment.

54.     The parties in the Gordon decision had once enjoyed a sexual relationship as distinct from the current circumstances where Ms Iles and Mr Weeding have never had a sexual relationship.

55.     Whilst the Tribunal found that the parties enjoyed a bona fide domestic relationship constituted by a ‘necessity of interdependence’ in Re Salter and Wilkinson and SDSS (1987) 12 ALD 495 and in Re Stopper and Palombo and SDSS (1987) 12 ALD 763, this did not necessarily satisfy the test for a defacto relationship.  The relationship in Re  Stopper and Palombo was one where the woman undertook household duties in exchange for board in the man’s house.  A similar situation existed in Re  Salter and Wilkinson but there was the additional interdependence between the parties arising from their mutual need to care for each other because of ill health.

56.     It is clear from the authorities that whilst there are circumstances which may initially suggest the existence of a marriage-like relationship, other evidence for instance, a lack of commitment and independence is capable of giving rise to a conclusion that there is in fact no marriage-like relationship.  Whilst Ms Iles and Mr Weeding have lived under the same roof for a considerable period of time and there is no suggestion that this arrangement is unlikely to change in the near future, there is no evidence that there is any specific ongoing commitment between them.  Rather the arrangement appears to be one of mutual convenience.  As Ms Iles stated, Mr Weeding is free to leave at any time.  During the period that he has lived at her residence he has left on various occasions for destinations unknown to Ms Iles and for varying periods of time.  Ms Iles also left for an extended period of time when she worked in Burnie for 6 months.  There is no evidence of any contact between Ms Iles and Mr Weeding during these periods of absence. 

57.     There is no evidence of any companionship or emotional support between Ms Iles and Mr Weeding.  There is no evidence that they socialise together.  Their only regular outing together is when Ms Iles’ drives Mr Weeding to her mother’s home on Sunday afternoons for the purpose of attending to the pet bird.  The Tribunal has previously referred to the evidence with respect to this aspect.

58.     Despite the fact that neither Ms Iles or Mr Weeding view their relationship as ‘marriage-like’, the relevant legislation provides an objective test as to whether a marriage-like relationship exists.

59. The Tribunal was referred to various authorities where the Courts and Tribunals had addressed the Section 4(3) criteria and it is clear that the weight to be attached varies from case to case. As the Tribunal stated in Re  Peck and SDSS (1992) 76 SSR 1107 ‘Section 4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a marriage-like relationship exists … and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship’.

60.     The absence of commitment and emotional involvement were critical factors in the Tribunal’s finding in Re  Reid and SDSS (1985) AATA 10463 that the couple lived separately and apart even although they continued to share the same bed and had sexual intercourse on a regular basis as well as a continuing financial inter-relationship.

61.     After examining all the circumstances of this case in detail as outlined above, the Tribunal concludes that there is no persuasive evidence upon which a finding could be made on the balance of probabilities that Ms Iles is living in a marriage-like relationship with Mr Weeding.  There is an absence of any joint financial obligation, no sexual relationship or displays of intimacy, little evidence of any interaction or emotional support, no commitment to each other other than mutual support in the form of friendship, no common social life, or a holding out to the community that they are members of a couple.  The Tribunal accepts Ms Iles’ explanation for any statements recorded in documentation suggesting a marriage-like relationship and concludes that some of the entries have been incorrectly recorded.

62.     For the above reasons the Tribunal determines to affirm the decision of the Social Security Appeals Tribunal.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Ann Cunningham (Part-Time Member)

Signed:   H Healy (Administrative Assistant)

Date/s of Hearing  7 June 2007
Date of Decision  16 August 2007
Counsel for the Applicant          Mr B Bartl and Mr S Christensen
Solicitor for the Applicant           Hobart Community Legal Service
Counsel for the Respondent     Mr  B Sparkes
Solicitor for the Respondent      Centrelink Legal Services