Inkster and Anor; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 2019

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2019

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No    W200600055

GENERAL ADMINISTRATIVE DIVISION		)                   W200600056   W200600056   W200600056
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And

GRAHAM INKSTER

CATERINA IELASI

Respondents

DECISION

Tribunal Ms L R Tovey, Member

Date              5 December 2007

PlacePerth

Decision The Tribunal affirms the decision under review.

…....(Sgd. L R Tovey)................

Member

CATCHWORDS

SOCIAL SECURITY – newstart allowance – whether Respondents were living in a marriage-like relationship

Social Security Act 1991 (Cth), s 4(2), 4(3).

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.

REASONS FOR DECISION

5 December 2007 Ms LR Tovey, Member

BACKGROUND

1.      This is an application by the Secretary, Department of Employment and Workplace Relations ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 24 January 2006 in relation to the recovery of newstart allowance made to Mr Graham Inkster and Ms Caterina Ielasi ("the Respondents").

2.      The decision of the SSAT relates to payments of newstart allowance received by Mr Inkster between 19 October 2000 and 30 November 2001, and received by Ms Ielasi between 24 October 2000 and 16 July 2002.  During these periods the Respondents received newstart allowance at the single rate.

3.      On 27 August 2002 a Centrelink officer decided to raise and recover overpayments of $2,261.09 from Mr Inkster and $14,105.60 from Ms Ielasi in respect of the relevant periods.  This decision was taken on the basis that the Respondents were members of a couple for the relevant periods and should have been paid at the partnered, rather than the single, rate.

4.      The decision was notified to Ms Ielasi by letters dated 27 and 28 August 2002.  It may well have been notified to Mr Inkster at that time as well, however Centrelink has since lost Mr Inkster's papers for this period.  Copies of correspondence with Mr Inkster at this time have not been provided to the Tribunal.

5.      On 2 June 2005 the Respondents requested a review of the decision of the Centrelink officer referred to above.  On 11 October 2005 an Authorised Review Officer of the Applicant ("the ARO") affirmed the decision of the Centrelink officer to raise and recover these debts.

6.      On 30 November 2005 the Respondents requested a review of the ARO's decision by the SSAT.  On 24 January 2006 the SSAT set aside the decision of the ARO and substituted a decision that the Respondents were not members of a couple during the period 24 October 2000 to 16 July 2002 and were each entitled to receive newstart allowance at the single rate.

7.      On 23 February 2006 the Applicant sought a further review of the SSAT's decision by this Tribunal.

ISSUES AND LEGISLATION

8.      It is not in dispute that the Respondents were entitled to receive newstart allowance during the periods identified above.  I note that the commencement of the relevant period for each Respondent is different.  The Applicant's delegates decided, in effect, that Ms Ielsai was a member of a couple from 24 October 2000, but that Mr Inkster was a member of the same couple from 19 October 2000.  Counsel for the Applicant accepted that, if I should decide to set aside the decision of the SSAT, the beginning of each relevant period should be 24 October 2000.

9. Newstart allowance is provided for by Part 2.12 of the Social Security Act 1991 (Cth) ("the Act"). Section 643 of the Act provides that a person's newstart allowance rate is to be worked out using Benefit Rate Calculator B at the end of s 1068 of the Act. The rates provided for in that section vary according to whether or not the person is a "member of a couple" or "partnered", with a higher rate being paid to a person who is not a member of a couple.

10. Subsections 4(2) and 4(3) of the Act define when a person is a member of a couple in the following terms:

"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.

Member of a couple—criteria for forming opinion about relationship

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.

4(3A) 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."

11. Section 4(11)(a) of the Act provides that a person is "partnered" for the purposes of the Act if the person is a member of a couple.

12. It is common ground between the parties that Mr Inkster and Ms Ielasi had a relationship with each other during the relevant period, but were not legally married to each other. Both Respondents were over the relevant age of consent, and were not within a prohibited relationship for the purposes of s 23B of the Marriage Act 1961. The requirements of s 4(2)(b)(i), (ii), (iv) and (v) of the Act were satisfied. The Respondents will therefore have been members of a couple if during the relevant periods, or part thereof, their relationship was, in my opinion, a "marriage-like relationship". In forming that opinion I am required to have regard to the matters specified in s 4(3) of the Act, and I am subject to the limitation identified in s 4(3A) of the Act.

13.     It was also common ground before me that, by the time of the hearing of the matter by this Tribunal, the Respondents' relationship had developed to a point where it was "marriage-like".  The Respondents denied that their relationship had reached that stage prior to the end of 2004.

14. The critical issue for my determination is therefore whether, in my opinion, (formed as mentioned in s 4(3) and (3A) of the Act) the relationship between the Respondents was a marriage-like relationship between 24 October 2000 and 30 November 2001 (in the case of Mr Inkster) and 24 October 2000 and 16 July 2002 (in the case of Ms Ielasi) ("the relevant periods").

APPLICABLE PRINCIPLES

15.     In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 555-6, [46] French J, summarised the approach required of the Tribunal when considering whether two persons were in a marriage-like relationship in the following terms:

"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; and

(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; or

(e)       mutual commitment."

16.     As French J also noted, the judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of “marriage-like”, will be attended by a degree of uncertainty.  His Honour recognised that it may be that different decision-makers on the same facts could quite reasonably come up with different answers.

17.     Also in Pelka, at 544, [39], French J endorsed the statement of O'Loughlin J in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 173 that:

"… it is not sufficient to merely note that a couple are sharing accommodation, nor is it 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."

18.     In Pelka, at pages 556-7, [52], French J expressed the view that the reference to "pooling" in s 4(3)(a)(iii) of the Act was to the putting of resources into a common stock or fund, sharing in common and combining for the common benefit. It involved something more than financial cooperation or separate contributions to different elements of household expense. In relation to cooperation, French J stated at 557, [53]:

"Cooperation is not identified as a specific factor in s 4(3) of the Act. That is not to say cooperative behaviour may not be taken into account for the matters listed in s 4(3) are not exhaustive. But cooperation of itself does not take a relationship very far down the path towards characterisation as 'marriage-like'. Cooperation is an indispensable feature of human society and of a multiplicity of different kinds of relationships within human society including the purely commercial. The same may be said of 'mutual benefit' which attaches to a large range of arrangements between people."

19.Later, French J stated at 559, [61]:

"A decision-maker in applying the matters set out in s 4(3) should acknowledge that they are non-exhaustive and at least indicate that consideration has been given to whether there might be any other factors relevant to the difficult judgment of whether a 'marriage-like' relationship exists. Each of the individual matters listed in s 4(3) is accompanied by a non-exhaustive list of factors. Again, the decision-maker in each case should consider whether there are any other factors relevant to the particular matter listed."

20.     The decision in Pelka identifies the approach which I am bound to take in considering whether Mr Inkster and Ms Ielasi were in a marriage-like relationship during the relevant periods.

CONSIDERATION OF THE EVIDENCE

Evidence before me

21.     The Applicant's case was documentary.  That documentary evidence consisted of the "T-documents" filed by the Applicant in each matter, two bundles of supplementary documents common to each matter and the documentary exhibits tendered at the hearing.  The Applicant sought to draw a number of inferences as to the nature of the Respondents' relationship from this documentary material.

22.     Mr Inkster, who was not represented, gave evidence in the proceedings before me.  He appeared to me to be attempting to honestly answer the questions put to him in a straightforward manner, doing so in an environment that was clearly unfamiliar to him.  Understandably, given the period which had passed since the relevant events at the date of the hearing, his recollection of dates was not very good.  He also appeared to be at a disadvantage when dealing with documents.  I have taken these matters into account in assessing Mr Inkster's evidence, and in general terms found him to be a truthful witness whose reliability in relation to dates and documents was limited by the above considerations.

23.     Ms Ielasi did not give evidence before me, although she did give evidence before the SSAT and did appear, without representation, at the hearing of the present review application.  From the reaction of Ms Ielasi when I asked her if she wanted to give evidence, it appeared clear that Ms Ielasi simply found the Tribunal process to be overwhelming.  I advised her of the difficulty which could be created for her own case if she did not give evidence, and gave her an opportunity to consider her position overnight at the end of the first day's hearing.  On the morning of the second day of the hearing Ms Ielasi maintained her position that she would not give evidence before me.

24.     I find that the reason why Ms Ielasi did not give evidence was because she felt unable to cope with the Tribunal process.  I do not draw the inference that the reason she did not give evidence was that her evidence would not have assisted her case.  However, her failure to give evidence also means that I do not have the benefit of her explanation for documents from which the Applicant would seek to draw adverse inferences against her.

25.     I note that Ms Ielasi did give an account before the SSAT which explained various documents in a manner that was not consistent with the inferences which the Applicant would have me draw from them.  However, there is a limit to the weight I can give to that material in circumstances where Ms Ielasi's evidence has not been on oath, or tested by cross-examination, before me.

26.     I make the following findings of fact based upon the documents produced to me by the Applicant, and inferences which I draw from those documents, together with the oral evidence of Mr Inkster given before me.

Receipt of Newstart Allowance

27.     The Centrelink documents tendered before me indicate, and I find, that Ms Ielasi received newstart allowance at the single rate for the whole of the period between 24 October 2000 and 16 July 2002.  Mr Inkster was paid newstart allowance at the single rate intermittently during the period between 24 October 2000 and 30 November 2001.

Previous Investigation of Mr Inkster

28.     Centrelink documents produced before me indicate that Mr Inkster has been in receipt of unemployment benefits intermittently since 1992.  They also show that during 1994 to 1996 Mr Inkster's living arrangements were assessed by Centrelink officers in Queensland and Tasmania, to consider whether he was living as a couple with a woman, who was not Ms Ielasi.  The conclusion of the Centrelink officers on each of these occasions was that Mr Inkster was not living in a marriage-like relationship.

29.     I do not find these documents to be of any significant assistance in resolving the present matter.  They indicate that Mr Inkster should have been aware of the significance, for his rate of social security benefits, of living as a member of a couple.  However, that does not assist me in characterising the Respondents' relationship during the relevant periods.  There was a suggestion by the Applicant's counsel that there were "some modus operandi similarities in answers to those questions that were posed in that investigation and this one".  However, a similarity in the answers given may simply be indicative of the similar nature of the relevant relationships.  The Applicant accepted that Mr Inkster was not living in a marriage-like relationship at that time, and there is no evidence before me that this conclusion was incorrect.

Living Arrangements in South Australia

30.     The Applicant has produced to me a rent assistance questionnaire completed by Ms Ielasi and received by Centrelink on 20 September 2000.  In that form Ms Ielasi indicates that she is living at an address in Port Augusta, and commenced living at that address in May to June.  The person to whom rent was paid was noted as EJ Arthurs.  A question as to whether the accommodation was shared received a negative answer, however there is then listed the names of Mr Inkster, noted as being a cousin, and Elaine Arthurs, said to be a "friend".

31.     The Applicant points to the fact, admitted in Mr Inkster's evidence, that Mr Inkster is not Ms Ielasi's cousin, and that Ms Arthurs is Mr Inkster's mother.

Living Arrangements during the Relevant Periods

-          Documentary Evidence

32.     I find, based on the document produced before me, that on 24 October 2000 Ms Ielasi signed an application for residential tenancy of a unit in "Leander Villas" at Dawson Avenue in Dongara, Western Australia.  The application form indicated that Mr Inkster was a second applicant for the tenancy.  The present address of both Respondents was given as a premises in Money Street, Port Denison, Western Australia.  Port Denison is located south of Dongara.  In the case of both Respondents, the reason given for leaving Money Street was "privacy" and, in Ms Ielsai's case, a flea infestation.  Each Respondent's name was give as the other's "next of kin", although the question "how related" was in each case answered "friend".  The form indicated the previous addresses of the Respondents were separate premises in South Australia, and that in each case the reason for vacation of the premises was to pursue work interstate.  The form indicated that Ms Ielasi was working as a barperson/waitress at the Dongara motor hotel and that Mr Inkster had not yet started employment as a factory hand with "Kailis".

33.     I also find, based on the document produced before me, that on 2 August 2001, Ms Ielasi signed an application for residential tenancy of a property at Carnarvon Street, Port Denison.  On this occasion, Ms Ielasi was named as the only applicant, although it was indicated that two adults would occupy the premises.  The reason for leaving the unit at Dawson Avenue was given as "cannot have pets".  The form indicated that Ms Ielasi was then unemployed.  Mr Inkster was named as her next of kin and the relationship described as "fiancee".

34.     Centrelink records indicate that on 7 December 2001 a Centrelink officer called at the Money Street address for an interview with Mr Inkster.  At that time a female occupant of the premises told the Centrelink officer that Mr Inkster did not live there, and that she was annoyed that Mr Inkster had been using her address for his mail.  The woman told the Centrelink officer that Mr Inkster was living at his girlfriend's place at Carnarvon Street.  The note indicates that the Centrelink officer then called at the Carnarvon Street address and spoke to a woman who identified herself as Ms Ielasi.  Initially, the woman indicated that Mr Inkster had "got a days work".  When asked if Mr Inkster lived there, the woman said that he lived at the Money Street address.  The woman indicated that she and Mr Inkster were not a couple, but were just friends.

35.     Following the visit by the Centrelink officer to the Carnarvon Street premises in December 2001, Centrelink wrote to Ms Ielasi on 9 January 2002 asking her to complete an "assessment of living arrangements" form.  Forms signed by the Respondents on 25 January 2002 indicated that Mr Inkster had being staying at the Carnarvon Street premises only since 15 December 2001, that he paid $30 per week for a separate room and that the Respondents were only friends.

36.     In a subsequent statement of Ms Ielasi signed on 8 April 2002, produced to me by the Applicant, Ms Ielasi said of this arrangement:

"I am aware of a Centrelink review which has been looking at my relationship with Graham Inkster.  Our relationship began shortly after we arrived in Dongara from Port Augusta.  Before this we were friends.  Graham lived at Dawson Street and I moved in with him from my address in Money Street.  The lease was in both our names and was signed on 9/11/00.  I didn’t actually move in until the lease was renewed in Feb 01.  The relationship lasted until about May 01.  Graham moved into … Money Street and I maintained the lease in my name.  In Aug 01 I rented … Carnarvon Street.

My name appeared on the lease but Graham was described as my fiancé & next of kin.  This was not true & I did this to make sure I would get the house."

37.     In this statement Ms Ielasi then explained that, as a result of the inquiries, Mr Inkster had moved out of the Carnarvon Street premises in February 2002.

38.     The Applicant also produced a statement of Christine Lindley of the Money Street address.  She stated that the Respondents lived with her at the Money Street address, in Mr Inkster's case from about August to October 2000 and in Ms Ielasi's case until February 2001.  She said that Mr Inkster stayed in her caravan and Ms Ielasi stayed in her spare bedroom.  She said that her impression of the relationship between the Respondents at this time was that they were just good friends.  This written statement seems to contradict what she told the Centrelink officer who attended her property on 7 December 2001.  The written statement was not dated, but it was in response to a request from Centrelink dated 19 April 2002.  That is, the written statement was made after the verbal information was given to the Centrelink officer who attended the Money Street property on 7 December 2001.  Further, the later written statement notes that there are penalties for deliberately giving false or misleading information, so that Ms Lindley is more likely to have given a true account on that later occasion.

39.     While the Applicant sought to rely on Ms Lindley's earlier verbal statement, it did not call her as a witness.  In those circumstances, and in the face of a later inconsistent written statement which indicated the penalties for giving false information, I am not prepared to give any weight to the earlier verbal statement made to the Centrelink officer on 7 December 2001.  While, in the face of inconsistent statements any indication of Ms Lindley's must be treated with caution, I consider it more likely that her later written statement is correct.

40.     The Applicant also produced a statement of Natasha Shute, who said she had known Ms Ielasi for 2 ½ years, first as an employer and now as a friend.  Ms Shute said she did not know Mr Inkster and that, for as long as she had known Ms Ielasi, she had never known Ms Ielasi to be in a relationship.

41.     In contrast to this, a statement of Brian Palmer of the Dongara Motor Hotel, dated 18 June 2002, indicates that Ms Ielasi was employed by him between 19 September 2000 and 13 February 2002, and that during this period she represented herself as being in a defacto relationship with "Graham".  It may be noted that he did not correctly give Ms Ielasi's address, and so his statement does not assist in determining where the Respondents were living during the relevant period.  Mr Palmer was not called as a witness before me, which also significantly reduces the weight that can be given to his statement.

42.     On 1 August 2003 Centrelink Dongara received completed rent assistance questionnaires from both Respondents.  Both forms indicated that the Respondents had been living at the Carnarvon Street premises from August 2001, although only Mr Inkster's form is signed.  The forms bear different dates beneath the signature panel.  The documentary evidence does not make clear the circumstances in which these forms were completed, the person who completed the forms or the basis on which the commencement date of the lease at the Carnarvon Street premises was ascertained.

43.     Mr Inkster gave evidence before me that he did not move into the Carnarvon Street premises in August 2001, and had wrongly guessed the date when completing the form.  He told me that the date of the tenancy had stuck in his mind.  He said that he in fact started paying rent in December sometime.

44.     In light of the absence of any other evidence as to how this form was completed, I accept the evidence of Mr Inkster that he made a mistake in his rent assistance questionnaire as to the date when he commenced paying rental at the Carnarvon Street premises.  As I have noted, Mr Inkster indicated that he was not very good with dates, and this form was completed some two years after the date indicated on it as the commencement of the tenancy.

45.     The address histories held by Centrelink are as follows:

(a)Ms Ielasi is shown as living at the Dawson Avenue premises from 20 September 2000 to 14 February 2001.  Mr Inkster is shown as living at an unidentified Dongara address on 21 September 2000, and at the Dawson Avenue address from 9 November 2000 to 8 October 2001.

(b)Ms Ielasi is shown as living at the Money Street address from 14 February to 8 May 2001.  Mr Inskter is shown as living at the Money Street address from 19 October 2001 to 20 July 2002.

(c)From 8 May 2001 to 13 August 2001 Ms Ielasi is shown as living at the Dawson Avenue address.

(d)From 13 August 2001 to the end of the relevant periods Ms Ielasi is shown as living at the Carnarvon Street address.  Mr Inkster is shown as living at the Carnarvon Street address from 6 December 2002 until the end of the relevant period.

46.     It is difficult to marry up this address history with any of the other evidence as to the times when the Respondents' changed addresses.  There is no evidence as to the manner in which the lists were compiled or the sources of information relied upon.  In the end I did not find this list to be helpful in determining the dates on which the Respondents changed addresses.

-          Evidence of Mr Inkster

47.     The evidence of Mr Inkster before me was that he arrived in Dongara some time before the fishing season started in November 2000.  When he arrived, he stayed in a caravan at the Money Street premises of Ms Lindley, while Ms Ielasi stayed in a spare room in the house.  Mr Inkster told me that he stayed in the caravan for about 8 weeks, and then stayed at an address with a male friend at another Dongara address over the period from around Christmas 2000 to January 2001.  Ms Ielsai did not stay at Mr Inkster's friend's house, as by that time she had moved into the Dawson Avenue address.  Mr Inkster said that he then went to stay at the Dawson Avenue house rented by Ms Ielasi for a few weeks.  However, he said that "that didn’t work out", so he moved back to the Money Street address of Ms Lindley.  He then was living in a few places, but staying at least a couple of nights a week at the Money Street premises.

48.     Mr Inkster said that in Christmas of 2001 he moved into the Carnarvon Street house which had been rented by Ms Ielasi.  He told me he signed a lease as co-tenant so Ms Ielasi could get the house, but he wasn't there all the time and didn’t pay a share of the rent until he was staying at that house full time, which was sometime after Christmas.  At that time Mr Inkster and Ms Ielasi kept separate bedrooms, and maintained that arrangement until late 2004.  Mr Inkster described the Respondents' relationship at this time as one of friends who had occasional sex.  He said that both Respondents were seeing other people at this time.

49.     Mr Inkster said that over the period after he moved into the Carnarvon Street premises on a full-time basis, he and Ms Ielasi shared household chores, but that this occurred on the basis that "we were just like friends, you know, like as if she was a bloke.  You pull your weight".

50.     Mr Inkster told me that the Respondents didn't socialise as a couple until he took Ms Ielsai to a "police night" in late 2004.  While they had been for drinks at the pub and similar outings, he did not regard that as going out as a couple.

51.     Mr Inkster also told me that Ms Ielasi's grandfather died in 2002 or 2003 and Ms Ielasi's friends found out before he did.  However, in the last 6 months he lived at Carnarvon Street, which was outside the relevant periods, the Respondents became more committed to each other and became a couple.  Prior to that Mr Inkster said that he would have said that he was "seeing her".

52.     For the reasons I have given above, I do not regard Mr Inkster's account as necessarily inconsistent with the documentary evidence relied on by the Applicant.  I note that the Applicant also sought to rely on statements made by the Respondents in "MOD P" forms which they completed on 24 July 2003.  However, neither form was put to Mr Inkster when he gave evidence, and in my view it was incumbent on counsel for the Applicant to do so if the Applicant seeks to have me draw inferences from these documents.  In the course of submissions, Mr Inkster sought to offer an explanation as to the contents of the "MOD P" forms, but did not do so in his own evidence.  The Applicant's counsel objected to the Tribunal taking account of this explanation, which was not on oath and not subject to testing by cross-examination.  However, the reason why the explanation was not offered in evidence was that the documents were not put to Mr Inkster in the course of his evidence, as in my view they should have been.  In the above circumstances, I am not prepared to attach any significant weight to either the "MOD P" forms or Mr Inkster's explanation of them.

-Finding of Facts in Relation to Living Arrangements during the Relevant Periods

53.     For the above reasons, I generally accept the evidence of Mr Inkster as to the state of the relationship, the living arrangements and nature of the Respondents' relationship during the relevant periods.  However, his evidence as to the dates on which events occurred must be viewed with caution, as Mr Inkster, by his own admission, had only a very vague recollection of the precise dates on which events occurred at the time he gave evidence before me.  The documentary evidence as to dates is rather inconsistent, although I infer that this is because of a lack of attention to dates by the Respondents when completing forms rather than an attempt at subterfuge.

54.     Taking all of the above evidence into account, I make the following findings as to the living arrangements during the relevant periods.

55.     I find that at the time when Ms Ielasi signed the application to lease the Dawson Avenue premises, on 24 October 2000, both Respondents were living at the Money Street premises of Ms Lindley.  At that time Mr Inkster was sleeping in a caravan at the premises and Ms Ielasi was sleeping in the spare bedroom in the house.  I make this finding based on the evidence of Mr Inkster before me, the application form which indicates the Respondents' address and the earlier statement of Ms Lindley.

56.     I find that Ms Ielasi moved into the Dawson Avenue premises in around October or November 2000.  At this time Mr Inkster was living something of an itinerant existence.  During the end of 2000 and the beginning of 2001 he was probably staying on occasions at the Money Street premises, the Dawson Avenue premises and at another address of a friend. I find that Mr Inkster did move into the Dawson Avenue premises for a period of a few weeks sometime in the first half of 2001, but that this did not work out and he returned to stay principally at the Money Street premises of Ms Lindley.  I make these findings principally from the evidence of Mr Inkster.

57.     I find that in August 2001 Ms Ielasi obtained a lease of the premises at Carnarvon Street and moved in to that house.  While she named Mr Inkster as her fiancee on the lease application, she did so only in order to obtain the lease and Mr Inkster did not move in with her at this time.  However, Mr Inkster did stay with Ms Ielasi on occasions during the last half of 2001, and moved into the Carnarvon Street premises on a full time basis in mid to late December 2001.  At that time the Respondents were sleeping in separate bedrooms, and regarded themselves as friends only.  I again make this finding principally from the evidence of Mr Inkster, which is consistent with the written statements obtained from Ms Ielasi and Ms Lindley.

58.     I find that Mr Inkster remained at the Carnarvon Street premises until the end of the last of the relevant periods in July 2002.  Although there was a statement from Ms Ielasi, noted above, that Mr Inkster moved out of the Carnarvon Street premises in February 2002, there was no evidence from Mr Inkster to that effect.

59.     I find that, while he remained at Carnarvon Street during the relevant period, Mr Inkster generally slept in a separate room from Ms Ielasi.  While they had occasional sex during this time, the sexual relationship was not exclusive.  The Respondents each did their share of domestic chores, but did not generally socialise together, or provide principal emotional support to each other.  Subsequently, their relationship grew and developed, but I find that this occurred after the relevant periods.  The above findings are made on the evidence of Mr Inkster to that effect.

Bank Accounts

60.     Bank records produced before me indicate that Mr Inkster held the following bank accounts:

(a)An account with Challenge Bank in Dongara in which transactions are recorded, during the relevant periods, between January 2001 and July 2002;

(b)An account with Powerstate Credit Union in Adelaide in which transactions are recorded between 1 July 2000 and 31 May 2002.

61.     Bank records produced before me also indicate that Ms Ielasi held an account with a Perth branch of Challenge Bank, which was active between March and September 2001.

62.     Withdrawal slips from Challenge Bank show that on 2 February 2001, 8 August 2001, 6 September 2001 and 6 June 2002 money was withdrawn at a Perth branch of the Challenge Bank from Mr Inkster's account.  The withdrawals were made with a withdrawal slip purportedly signed by Mr Inkster.  The Applicant points to deposits made shortly before each such withdrawal, and withdrawals using a card in Dongara on 8 August 2001, 6 September 2001 and 6 June 2002.  The Applicant says that I should infer from this evidence that someone who is not in Dongara and didn’t have the card has used a withdraw slip to withdraw money.  I am able to make that inference.  However, I am unable to find any proper basis for drawing the further inferences suggested by the Applicant, that the person who made the withdrawals in Perth was Ms Ielasi.

63.     The Applicant also pointed to a withdrawal of $3,000 from Mr Inkster's Challenge Bank account on 13 August 2001, and the absence of any significant withdrawal of funds from any of Ms Ielasi's bank accounts at about the same time.  The Applicant invited me to infer that the withdrawal was for the purpose of paying the bond for the lease of the Carnarvon Street premises.  Mr Inkster denied this in his evidence, and said that he understood Ms Ielasi's bond was rolled over from her previous rental address.  The Applicant has not adduced any evidence from the rental agent or the lessor as to the source of any bond payment.  In those circumstances, and in the face of the denial by Mr Inkster, I do not draw the inference sought by the Applicant.

Motor Vehicle Registration

64.     The Applicant obtained information as to the vehicles registered to the Respondents during the relevant periods, and the addresses given by the Respondents, which indicates that:

(a)Ms Ielasi had a Toyota van registered, and had given the Carnarvon Street premises as her address between 13 August 2001 and 17 January 2005; and

(b)Mr Inkster had a Ford sedan registered, and had given the Carnarvon Street premises as his address between 11 January 2001 and 25 May 2005.  He is also shown in the report as having lived at the Dawson Avenue address until 11 June 2002.

65.     Counsel for the Applicant noted that application for a residential tenancy of the Dawson Avenue premises referred only to Mr Inkster's Ford as the car which would be parked at that premises.  However, I do not consider that to have any significance for my resolution of this matter and note that, as Mr Inkster was recorded as a joint applicant on that form, it is not surprising that his vehicle should be on the form.

Information given by Mr Inkster after the Relevant Periods

66.     In August 2003 Mr Inkster lodged a claim for newstart allowance with the Geraldton Centrelink office.  One of the application forms, signed by Mr Inkster on 22 July 2003, indicated that Ms Ielasi was Mr Inkster's de facto partner and that they both lived at the Carnarvon Street address.  A Rent Assistance Questionnaire signed by Mr Inkster on the same date indicated that Mr Inkster was living at the Carnarvon Street premises at this time.  Similar paperwork was completed by Mr Inkster in August 2004.

67.     The above documents tend to show that Mr Inkster regarded himself as being in a de facto relationship in August 2003 and August 2004.  However, they do not establish the manner in which Mr Inkster would have characterised the relationship during the relevant periods.  Nor do they provide me with any significant assistance in determining the actual character of the relationship, as opposed to the manner in which it was viewed by Mr Inkster, during the relevant periods.

Circumstances in which a Review of the Decision was Sought

68.     Centrelink records produced before me indicate that on 27 May 2005 Mr Inkster telephoned Centrelink in relation to a debt raised against Ms Ielasi.  The Centrelink officer's file note indicates that Mr Inkster "did not dispute the MLR apparently, but thinks we have used his income and averaged it over the whole period which is why his partner's debt is so large".  I take the reference to "MLR" to be to a marriage-like relationship.

69.     The Centrelink records indicate that a further telephone conversation with Mr Inkster took place on 2 June 2005, in which it was explained to Mr Inkster that his income had not been averaged.  The Centrelink officer's file note then indicates that Mr Inkster "then started to dispute the MLR decision rather than the debt".  Mr Inkster was noted as stating that "he does not see why he has to support his partner financially" as they "have no joint finances and no children and he therefore thinks they have no ties."  The Centrelink record indicates that it was during this telephone conversation that Mr Inkster first requested a review of the decision that he and Ms Ielasi were members of a couple during the relevant periods.

70.     Mr Inkster's evidence before me was that he attempted to contact Centrelink on a number of occasions after the decision to recover the debt was made in 2002.  He says that he saw a lawyer in the Port Hedland Legal Aid office in early 2005, and then appreciated that he could have the decision reviewed.  Mr Inkster denied that the Centrelink officer's file note accurately reflected what he said.

71.     Based on the above evidence I find that the reason why the Respondents did not seek a review in 2002 was that they did not appreciate the existence and extent of the right of review, rather than because they accepted the decision that they were living in a marriage-like relationship at that time.

Interview with the ARO

72.     Counsel for the Applicant referred me to the ARO's notes of his telephone conversations with Mr Inkster on 30 September 2005 and with Ms Ielasi on 11 October 2005.  I did not find these notes to be of significant assistance for determining the present matter as they relate to a discussion of the position in late 2005.  Further, neither the ARO nor Ms Ielasi gave evidence before me in relation to this discussion.  While, based on the answers to the questions posed by the ARO at that time, it may be open to conclude that the Respondents were in a marriage-like relationship in late 2005, that is not the issue which I am required to consider.

73.     I note that Ms Ielasi is recorded as indicating, on 11 October 2005, that she and Mr Inkster had known each other for 5-6 years and that the relationship between them did not eventuate straight away.  At that time Ms Ielasi is recorded as saying that she and Mr Inkster had been in a relationship for approximately 4 years and it is likely to continue indefinitely.  That response, if it correctly reflects the answers which Ms Ielasi gave at that time, is suggestive of a relationship which has developed over time.  However, it does not provide me with any substantial assistance in assessing the stage at which the relationship had reached during the relevant periods.

CONSIDERATION OF THE ISSUES

74. I will firstly consider the particular matters identified in s 4(3)(a)-(e) of the Act, before turning to consider the facts established by the evidence more generally.

Financial Aspects of the Relationship

75.     Based on the evidence and findings of fact indicated above, I find that the Respondents maintained entirely separate finances throughout the relevant periods.  They did not jointly own any real estate or other major assets, although the significance of this aspect is reduced by the absence of any evidence that the Respondents held any real estate or other major assets.  Further, the submissions of the Applicant did not identify any joint liabilities.

76.     Also, the Respondents maintained separate bank accounts and there was no significant pooling of financial resources during the relevant period, or legal obligations owed by one of the Respondents in respect of the other.  There is no evidence to support a finding that the Respondents' respective contributions towards rental and household expenses exceeded the fair share of each Respondent.

77.     In summary, the evidence shows that, during the relevant periods, the Respondents maintained entirely separate finances.  That is a factor which counts against the existence of a marriage-like relationship.

Nature of the Household

78.     As I have found, the Respondents lived principally at the same address for the following times during the relevant periods:

(a)In the last half of 2000, when both stayed at the Money Street premises;

(b)A few weeks in the first half of 2001, when both stayed at the Dawson Avenue premises; and

(c)From mid to late December 2001 to the end of the relevant periods, when both stayed at the Carnarvon Street premises.

79.     During all of the above periods the Respondents generally slept in separate bedrooms, and shared responsibilities for household chores in the manner of housemates.  There is no evidence that one of the Respondents looked after the other, in the sense of one assuming the role of performing more than their fair share of domestic duties.  This also counts against the existence of a marriage-like relationship.

80.     I note that neither Respondent was responsible for the care of any children during the relevant periods.

Social Aspects of the Relationship

81.     There is no evidence that the Respondents ever held themselves out as married to each other.  That is a factor counting against the existence of a marriage-like relationship.

82.     I note that Ms Ielasi did hold herself out at the fiancee of Mr Inkster in her application for the lease of the Carnarvon Street premises.  However, I find, based on the written statement of Ms Ielasi and the oral evidence of Mr Inkster, that she did so in order to obtain a lease of the property.  I do not consider that this fact points significantly towards the existence of a marriage-like relationship.

83.     The evidence before me does not enable any conclusion to be drawn as to how the Respondents' friends and regular associates assessed their relationship during the relevant period.  Mr Palmer's was the only written statement which suggested that the Respondents were regarded as, or held themselves out as, being in a de facto relationship.  However, based on Mr Inkster's evidence and the fact that the statement of Mr Palmer indicates that he was unaware of Mr Inkster's surname, I find that Mr Palmer did not really know Mr Inkster.  Further, the fact that Mr Palmer gave a wrong address for Ms Ielasi suggests he did not know her, or her domestic arrangements, well.  Mr Palmer was not called as a witness, and the basis on which he made his assessment of the Respondents' relationship is unknown.  In those circumstances, I do not give any significant weight to his written statement, and regard the evidence as to the assessment of the nature of the Respondents' relationship by others to be, as a whole, neutral.

84.     The Respondents did not, during the relevant period, plan or engage in social activities together in the manner of a couple.  That they may have occasionally gone to the pub for a drink does no more than suggest that they were friends with each other.  This is a factor that counts against the existence of a marriage-like relationship.

Sexual Relationship

85.     The fact that there was a sexual relationship between the Respondents at some times during the relevant period does count towards the existence of a marriage-like relationship.  However, the occasional and non-exclusive nature of the sexual relationship counts against the existence of such a relationship.  Taken as a whole, I regard the nature and extent of the Respondents' sexual relationship as counting against the existence of a marriage-like relationship.

Nature of the Respondents' Commitment to each other

86.     The Respondents regarded each other as either friends or boyfriend and girlfriend, but not as married or de facto partners, during the relevant period.  The relationship had developed from a friendship which arose in South Australia in 2000, and progressed to a point, probably within the relevant periods, when the Respondents could be regarded as boyfriend and girlfriend.

87.     However, based on the evidence of Mr Inkster, I find that, even in the latter part of the relevant periods, the Respondents were not each other's primary source of companionship and emotional support to each other.  Nor is there any evidence that the Respondents, during the relevant period, considered that their relationship was likely to endure indefinitely.

88.     The evidence as to the nature of the Respondents' emotional commitment to each other during the relevant periods counts against the existence of a marriage-like relationship.

Overview of the Relationship

89.     Taking all of the above matters and the facts I have found into account, I am unable to form the opinion that the Respondents were in a marriage-like relationship during the relevant periods.  Rather, I consider that theirs was a slowly and progressively developing relationship, which began as a friendship in South Australia and developed into a relationship of girlfriend and boyfriend.  At the time of the hearing of this matter it was most likely that the Respondents' relationship was marriage-like.  However, I do not consider that their relationship had reached that stage by the end of the relevant periods.

90.     Throughout the relevant periods the Respondents lived either in separate houses or in separate bedrooms.  While they had an occasional sexual relationship, it was not exclusive.  Their finances remained entirely independent, and their arrangements for sharing of domestic expenses and work reflected no more than a fair sharing of their separate responsibilities.  The Respondents did not regard themselves as a married or de facto couple.  While none of these factors is themselves decisive, taken together they paint a picture which does not, in my view, reflect a marriage-like relationship.

91. In reaching this conclusion, I have considered the composite picture of the relationship between the Respondents at the relevant time. While I have had regard to the particular matters identified in s 4(3) of the Act in the manner described above, I have recognised that those matters, and the list of factors relating to each matter, are non-exclusive. In respect of each of those matters and factors I have considered whether there are any other factors relevant to the judgment I am required to make and, where I have concluded that there are other factors, had regard to them in the manner described above.

92. For these reasons I am unable to form the opinion (formed as mentioned in s 4(3) and (3A) of the Act) that the relationship between the Respondents was, during the relevant periods, a marriage-like relationship.

DECISION

93.For the above reasons, the decision under review is affirmed.

I certify that the ninety three [93] preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member

Signed:         ..............(Sgd. R Riberi)......................
  Associate

Dates of Hearing:  11 - 12 July 2007

Date of Decision  4 December 2007

Counsel for the Applicant  Ms N Owen-Conway and Ms S Oliver

Solicitors for the Applicant  Australian Government Solicitor

Representatives for the Respondent       Self Represented