Jean Kisfali and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs - [2013] AATA 159

[2013] AATA 159

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/3783
Re	Jean Kisfali
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Ms A F Cunningham (Senior Member)
Date	22 March 2013
Place	Hobart

Decision The Tribunal sets aside the decision under review and substitutes the decision that:

1. Ms Kisfali was not a member of a couple for the period under review.

2. The matter is remitted to the Secretary for assessment in accordance with this decision.

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

Ms A F Cunningham (Senior Member)

CATCHWORDS

Social Security - widow's pension - age pension - member of a couple - factors relevant to assessing marriage-like relationship - living in jointly owned property from 1980 - mutual trust with respect to finances and purchase of jointly owned property - limited social interactions and joint holidays - domestic living arrangements - long term relationship - absence of emotional attachment - decision under review set aside

LEGISLATION

Social Security Act 1991

Social Security Act 1947

Social Security Act (Administration) Act 1999

CASES

Lynam v Director-General of Social Security (1938) 52 ALR 128

Lambe v Director-General of Social Security (1981) 57 FLR 262
Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27
Secretary, Department of Family and Community Services v WAP (2000)
Secretary, Department of Family and Community Services v Bell (2000) AATA 252
Pelka v Secretary, Department of and Community Services (2006) FCA 735
VYG v SDSS (1993) AATA 189
Secretary to the Department of Social Security and Villani (1990) AATA 68; (1990) 20 ALD 49
Tang v DGSS (1981)
Waterford v DGSS (1980)

Roberts v SDSS (1987) 12 ALD 723

REASONS FOR DECISION

Ms A F Cunningham (Senior Member)

The applicant, Jean Kisfali first made a claim and was granted a widows pension from 18 May 1987. On 23 May 2001 Ms Kisfali was automatically transferred to age pension as a single person. Ms Kisfali‘s age pension was subsequently cancelled on 25 November 2010, upon a finding made by a Centrelink officer that she had been living as a member of a couple with Mr Henry Hosking since 28 May 1987.
Consequent upon the Centrelink officers finding, the following overpayments were raised:
(i)a widows pension debt of $81,676.50 for the period 28 May 1987 to 30 April 1998; and
(ii)an age pension debt of $160,023.27 for the period 14 May 1998 to 23 November 2010.
A Centrelink authorised review officer (ARO) affirmed this decision on 24 February 2011. On 18 February the Social Security Appeals Tribunal (SSAT) affirmed the decision. Ms Kisfali now seeks a review of the decision by the Administrative Appeals Tribunal (AAT).

ISSUES

The issues for the Tribunal to determine are:
(i)Was Ms Kisfali living with Mr Hosking as his wife on a bona fide domestic basis although not legally married to him from 28 May 1987 to 1 July 1991 (1947 Act) and as a member of a couple from 1 July 1991 (1991 Act) and if so;
(ii)Was Ms Kisfali paid social security payments (wife pension and age pension) that she was not qualified or entitled to receive.
Ms Tiang who appeared on behalf of Ms Kisfali, submitted that the relationship between Ms Kisfali and Mr Hosking should be described as one of friendship and mutual support or that of carer/caree and not a marriage-like relationship. Ms Tiang further submitted that there had been little change in the nature of the relationship during the relevant period.
In the event that the Tribunal finds that Ms Kisfali was living as a member of a couple and therefore not qualified or entitled to receive social security payments, Ms Tiang advised that she had no instructions to dispute the quantum of the debt raised against her client or to contend that the debt should not be recovered or that there were special circumstances to justify a waiver of the debt.

LEGISLATION

Widow pension-28 May 1987 to 30 April 1998

Between 28 May 1987 and 1 July 1991 Ms Kisfali was paid widow pension pursuant to the provisions of the Social Security Act 1947 (the 1947 Act) and from 2 July 1991 until 30 April 1998 under the 1991 Social Security Act (the Act) when she was transferred to age pension.
Section 60 of the 1947 Act sets out the qualification requirements for widow pension including the requirement that the person be a widow. The term “widow” is defined in section 59 as not including "a woman who is living with a man as his wife on a bona fide domestic basis although not legally married to him". The term "bona fide domestic basis" is not defined but its meaning has been considered in several decisions. After referring to a number of decisions which were decided in accordance with the provisions of the 1947 Act, French J. noted at paragraph 40 in Pelka v Secretary, Department of Family and Community Services (2006) FCA 735:
“In determining whether a marriage-like relationship exists under the present Act, the nature of the exercise is much the same as that required under the statutory formula in use in the cases cited above.”
Whilst the language used has changed, the principles established under the 1947 Act remain relevant as was recognised by the Tribunal in re VYG and SDSS (1993) AATA 189 at paragraph 12; in Re Secretary to the Department of Social Security and Villani (1990) AATA 68; (1990) 20 ALD 49 at 56 the Tribunal found that section 3A did no more than codify the law existing before its enactment. In a number of decisions prior to the enactment of that provision, the Federal Court and the Tribunal considered the expression “living with a man as his wife on a bona fide domestic basis although not legally married”, and similar expressions formerly found in the 1947 Act. Those expressions have been effectively replaced since the enactment of the Amendment Act, by the expression “a marriage-like relationship”. However, it is only the name, and not the essential concept which has changed, and the earlier decisions are thus still relevant.
Age pension 30 April 1998 to 23 November 2010
The qualification requirements for age pension are set out in section 43 of the 1991 Act. Section 55 provides that the rate of age pension is calculated using pension rate calculator A at the end of section 1064.
On turning age pension age on 14 May 1998 Ms Kisfali qualified for this payment and was paid on the basis that she was a single person. The rate paid to a member of a couple under pension rate calculator A is less than a single person and the income and assets of a person’s partner are taken into account in assessing the rate having regard to the income and assets tests. It is not disputed that if Ms Kisfali is found to be a member of a couple with Mr Hosking, the combined value of his assets would have excluded any payment of age pension to Ms Kisfali during the relevant period.
Section 44 (1) states that age pension is not payable to a person if the person’s age pension rate would be nil. Section 80 of the Social Security (Administration) Act 1999 provides that where the Secretary is satisfied that a social security payment, which includes age pension, is being paid to a person who is not qualified, or to whom the payment was not payable, the Secretary is to determine that the payment is to be cancelled or suspended.
It is generally accepted that the determination as to whether a woman is living with a man as his wife on a bona fide domestic basis under the 1947 Act is to be made in accordance with the provisions in the 1991 Act referable to a “member of a couple”.
Sub-paragraph 4 (2)(b) of the 1991 Act is relevant as Ms Kisfali and Mr Hosking were not legally married to one another. The criteria for determining whether a person is a member of a couple are set out in subsection 4 (3) which states:
“ In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with , 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 or a de facto relationship”.

Member of a couple

This subsection directs the Secretary to have regard to all of the circumstances of a relationship and sets out the number of relevant matters to consider. It is clear from the wording of the subsection and as a number of authorities have noted, this list of circumstances is not exhaustive and the existence or absence of any one factor is not conclusive. French J in Pelka v Secretary Department of Family and Community Services (2006) FCA 735 stated at paragraph 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 :
financial cooperation;
cohabitation;
a sexual relationship;
cooperative household arrangements;
mutual commitment.”

Fitzgerald J in Lynam v Director-General of Social Security (1938) 52 ALR 128 after considering the Full Court's decision in Lambe v Director-General of Social Services (1981) 57 FLR 262 said at paragraph 131:
"Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.”
The matters set out in subsection 4 (3) of the Act are expressed in terms of circumstances which suggest a marriage-like relationship. It is clear that regard should be had to all of the circumstances of the relationship. The Federal Court in its decision Staunton- Smith v Secretary, Department of Social Security (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. Nor is equal weight to be given to each of the listed criteria, for this will depend on the particular circumstances of each individual’s relationship.
The Financial Aspects of the Relationship
As the Full Federal Court recognised in the Lambe decision at paragraph 271:
"… the question of the financial support which (the man) 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 characterising, as required by the definition, the nature of the relationship…"
It has also been noted that financial independence in a marriage is not unusual in current times where both partners may rely exclusively on their own financial means and share expenses (see re SDFACS and WAP (2000) and re STDFACS and Bell (2000).
The evidence was that Ms Kisfali first met Mr Hosking in approximately 1978 when he was receiving piano lessons from Ms Kisfali's sister-in-law. In his statutory declaration Mr Hosking stated that he was living alone at the time and suffering from depression following the death of his son. In order to occupy his mind he commenced piano lessons and it was his piano teacher, Jenny Eiszele who mentioned that her sister-in-law, Jean Kisfali was a nice person and that they might "hit it off". Mr Hosking said that he started communicating with Ms Kisfali and found that they got along well together. In her statutory declaration Ms Kisfali states that she "felt sorry and full of sympathy" for Mr Hosking who was "very down and depressed" at the time.
Both Ms Kisfali and Mr Hosking agreed that it was Mr Hosking who suggested that they jointly purchase the property at 429 Brooker Highway, Moonah (the Brooker Highway property) in about 1980. At the time Ms Kisfali owned and lived at 24 Montague Street New Norfolk with her son, Paul Kisfali. Her daughter, Carol Clements lived at Rosetta and Ms Kisfali worked as a shop assistant in Sandy Bay. It suited her to move closer to her daughter and her place of work. Mr Hosking was residing at a property he owned at 12 Oldham Avenue Newtown. He operated a milk run at the time and needed somewhere to park his milk truck.
The Brooker Highway property was purchased on 23 May 1980 and registered in the joint names of Ms Kisfali and Mr Hosking as joint tenants. The entire purchase price was paid by Mr Hosking as Ms Kisfali did not have sufficient funds to contribute towards her one half of the purchase price.
It was Ms Kisfali’s evidence as recorded in her statutory declaration, that she had an arrangement with Mr Hosking to "pay him off gradually until I sold my property at new Norfolk. Paul has helped me by giving me some money to repay Mr Hosking. I used to record every payment in a little book but I destroyed it when I paid off my debt." Following finalisation of the purchase Ms Kisfali moved into the Brooker Highway property with her son Paul. She stated that Mr Hosking moved some of his belongings to the Brooker Highway property and utilised the parking area to park his milk truck and initially "would just come and go and stay in the house for some nights. I cannot remember when Mr Hosking moved in completely."
In Mr Hosking's statutory declaration he stated that he bought the Brooker Highway property in 1980 for approximately $43,000. Ms Kisfali did not contribute financially towards the purchase of the Brooker Highway property because she had no financial capacity at the time. However there was an arrangement whereby Ms Kisfali would become a co-owner by paying him monthly instalments until she paid one half of the purchased value. Mr Hosking stated that he could not remember in which year he moved into the property but initially paid $50 per week to cover his portion of household expenses. He lived in a double room at the rear of the house which he continues to occupy. Ms Kisfali and her son occupied two bedrooms located at the front of the house. Paul left the Brooker Highway property some time ago when he partnered.
In his oral evidence to the Tribunal Mr Hosking said that he understood that the property was initially registered in his sole name but that the rates and taxes were billed in both names. Mr Hosking agreed that the property was registered in their joint names and held as joint tenants until it was transferred into Ms Kisfali's sole name on 4 December 1986. Mr Hosking’s evidence regarding the repayment arrangement with Ms Kisfali with respect to her interest in the property was quite confused. Despite the statements in his statutory declaration referred to above, he said that he believed that Ms Kisfali had initially paid him a lump sum of $21,000 for her one half share in the property and a further sum of $25,000 when the property was transferred into her sole name. He did not recall any periodic payments but believed that the payments were instead made in two lump sums. Mr Hosking said that he did not know the source of the first payment of $21,000 and that he believes that he deposited the money into his bank account upon receipt.
It was Mr Hosking’s evidence that he only commenced contributing $50 towards expenses when the property was transferred into Ms Kisfali’s sole name. Prior to that Ms Kisfali was meeting all expenses including food, hydro and rates because she was working then. He stated “as I supply the property, I wouldn't have to pay that much". Mr Hosking said that he is currently contributing $100 per week towards rates and taxes, insurance, electricity, telephone and food.
The SSAT recorded in its decision at page 9 that the Brooker Highway property was purchased for $42,000 and because Ms Kisfali wanted the security of the property title in her own name, Mr Hosking transferred the property into Ms Kisfali’s sole name after she paid him $21,000 which she had obtained from the sale of the new Norfolk property. The SSAT noted that "he said she paid no other money for the property." The SSAT also recorded that Mr Hosking moved his belongings from Oldham Street into the property immediately after purchase and that it took him about six months to complete the move whereas Ms Kisfali moved in a few months later.
In his evidence to this Tribunal Mr Hosking said that the total sum paid by Ms Kisfali for her interest in the Brooker Avenue property was $46,000 which included a lump sum of $21,000 and $25,000 from the sale of her new Norfolk property. He also said that he recalled that it was Ms Kisfali who had first moved into the Brooker Avenue property and that they were both living in the property from sometime in 1980. Despite the fact that Mr Hosking had initially contributed the entire purchase price of the Brooker Highway property, he agreed that he had not required Ms Kisfali to enter into any lease or other contractual arrangement with respect to payment of her share in the property. He also understood the implications of holding the property as joint tenants and said that Ms Kisfali was a person who he could trust.

When Ms Kisfali’s evidence that she was repaying her share in the property by instalments from the time she moved in was put to him, Mr Hosking said "well, I don't recollect that". It was put to Mr Hosking in cross-examination that Ms Kisfali had said that she recorded the payments in a little book, Mr Hosking agreed that she did have a book which he believed was a green one.
Mr Hosking said that Ms Kisfali agreed to purchase his one half share in the Brooker Avenue property when an income tax debt had been raised against him in the approximate sum of $50,000 as a result of errors in his tax returns. At paragraph 23 of his statutory declaration Mr Hosking stated "I remember Jean sold her property at New Norfolk (cannot remember which year) and she paid me approximately $25,000. Jean continued to pay me the other half value she owed me at that time. At paragraph 24 he stated "In approximately 1986, Jean had fully repaid her debt to me; I then arranged to have Brooker Highway transferred into Jean’s name solely".
The evidence was that Ms Kisfali and Mr Hosking both consulted the legal firm Murdoch Clarke. There was a letter on file regarding the purchase of the Brooker Avenue property addressed to Mr and Mrs Hosking. There was correspondence from Murdoch Clarke suggesting that this had been a mistake.
There was no evidence that Ms Kisfali and Mr Hosking shared a joint bank account or were jointly responsible for any loans. Their evidence was to the contrary. There was evidence that on occasions Mr Hosking paid some household accounts and travel expenses on behalf of Ms Kisfali because she did not have her own cheque account or may not have had funds available at the time. Mr Hosking said that Ms Kisfali always repaid any outstanding monies.
Tendered in evidence were copies of the wills of Ms Kisfali and Mr Hosking. The evidence was that Mr Hosking’s assets were not insignificant. In his will dated 23 February 2010 Mr Hosking bequeaths his estate to Ms Kisfali and in the event that she pre-deceases him, to her grandson Tyson Clements. Ms Kisfali said in evidence that she had only recently learnt of the terms of Mr Hosking's will. In her own will Ms Kisfali provides for Mr Hosking to have a life interest in the principal residence owned and occupied by her at the date of her death provided that he remains single and does not cohabit with any other person. The residue of her estate is bequeathed to her daughter Carol Jean Clements and her son Paul Alex Kisfali in equal shares. In her will Ms Kisfali also provides for her share in the business known as Tassie Craft to be bequeathed to her daughter Carol Jean Clements and her granddaughter Kirby Elisha Clements in equal shares.
It was Ms Kisfali’s evidence that she no longer has any involvement or holds an interest in the business known as Tassie Craft. In a written statement made by Ms Kisfali she claimed that she has maintained a collection of opals for many years and in order to ensure that they passed to her children on her death, she named her hobby, “Tassie Crafts”. In her evidence to the Tribunal Ms Kisfali claimed that some of the jewellery in her house had been entrusted to her care by her daughter whilst she was in New Zealand. Ms Kisfali maintained that her interest in the Tassie Crafts and Gems business was purely in a supportive role for her daughter Carol and that she only became a director to support her daughter in any decisions made with Mr Hosking.
Ms Kisfali disputed that she held any shares in the business despite being shown a copy of Centrelink’s Private Company Form which she completed on 16 June 2005 which names her as one of the directors of Tassie Crafts and Gems Pty Ltd as well as one of three shareholders. The Form (at T 12) nominates Carol Batt, Garrott & Ball Pty Ltd as the Company’s tax agent/accountant. A number of documents which included invoices and letters with respect to Tassie Crafts and Gems were contained in the T documents and shown to Ms Kisfali during the course of her evidence. There are two letters from "Maureen" regarding sales of opals, one of which is dated 27 August 1992. Ms Kisfali agreed that Maureen took some opals with her to Canada to sell but was unsuccessful. There are a number of copies of invoices in the T documents dated as recently as March 2006, for Tassie Craft and Gems which include the ABN number and contain detailed lists of gems, mainly opals in the form of pendants.
At T 38 there is a letter from "Jean and Harry" addressed to Maureen which includes the following "If you want to get rid of the opals take out something for selling the doublets and for postage as I think you sent the full money for doublet before. Don't worry yourself trying to sell them, as they are getting hard to get over here now… Many thanks lots of love Jean and Harry".
In her evidence to the Tribunal Ms Kisfali maintained that she had nothing to do with the business and her interest was purely in the form of a hobby of cutting and polishing opals. At T 38 pages 504 to 505, there is a copy of a letter from Maureen in which it is stated "I'm willing to keep selling whatever suits you.…" and at page 506 in a letter dated 3 January 1992 the same writer states "as long as you're not in a rush, I'll hang on to them and patiently, steadily sell. If you prefer different, let me know and we'll arrange something. I'm still wondering how you made out at the casino in your plan. Any good results? Any closer to seeing your merchandise." In another letter at T 38 page 509 Maureen writes "I am so glad to have met and known a lady who I can trust and who trusts me. We'll be in touch just as soon as these gems are sold.…"
At T8 are copies of translations from letters addressed by Ms Kisfali to Mr Hubert with respect to the payment of $850 for an opal purchased by him during a stopover in Hobart whilst a passenger on the German ship "Europa". In the correspondence Ms Kisfali states that she has been unable to cash Mr Hubert's cheque. In one of the letters Ms Kisfali states ”I polished opals at home as my business. I have no other income. I had to take out a large loan for the purchase of the rocks. I am missing the money.…"
In her oral evidence to the Tribunal Ms Kisfali maintained that her involvement in the opal selling business was merely to assist her daughter and that she had given any money received to her daughter Carol. She described her presence at the Salamanca market stall as an outing in order to meet people.
Ms Kisfali was asked how Mr Hosking became involved in the Tassie Gems business and she explained that after giving up the bus run, Mr Hosking was feeling rather down and wanted something to do and decided to set up a stall next door to Ms Kisfali’s daughter Carol’s stall at Salamanca. Following a visit with Ms Kisfali to Coober Pedy, Mr Hosking purchased some opals and was shown by her how to cut them. Ms Kisfali explained that she introduced her daughter Carol to the opal business and gave her some of her gems.
During cross-examination Ms Kisfali was asked to account for a number of large withdrawals from her bank account in 2009 of several thousand dollars within the space of six weeks. It was Ms Kisfali's recollection that she received $40,000 from her brother's estate some of which she used to pay legal bills on account of her grandson. Some of the bills had been paid from Mr Hosking's cheque account and the funds were reimbursed by Ms Kisfali.
Ms Kisfali agreed that she and Mr Hosking had joint car insurance with Shannon's. She maintained that this company offered car insurance at a cheaper rate than Mr Hosking had previously been able to obtain and that despite her request not to do so, the insurance company continued to issue renewal notices in their joint names.
In approximately 2000 Mr Hosking bought a property at Dowsing’s Point from the Commonwealth Government as an investment. He asked Ms Kisfali’s grandson, Tyson to refurbish the property. Due to difficulties with the title Mr Hosking asked Tyson whether he would like to take over the property and pay rent to the Commonwealth Government. The property was transferred back to Mr Hosking when Tyson separated from his partner and later returned to Tyson who had carried out suitable works on the property. At T 38 page 435 there is a photocopy of a note which appears to be signed by Mr Hosking in the following terms "Jean Kisfali paid H Hosking $10,000 dep and extra for 31 Dowsing Avenue".

The nature of the household

It was the evidence of Ms Kisfali and Mr Hosking that they each occupied separate bedrooms at the Brooker Avenue property with Mr Hosking's bedroom being located at the rear of the house and Ms Kisfali's bedroom towards the front. Ms Kisfali’a son Paul confirmed that these were the living arrangements during his occupation of the property.
The only evidence which suggested that Ms Kisfali may have shared a bedroom with Mr Hosking came from the search under warrant by Centrelink officers which included Federal Agents from the Australian Federal police.
The search was conducted on 23 November 2010 and statutory declarations were subsequently provided. In a statement made by Mark William Slingo, an investigator with Centrelink he stated that a search of the rear bedroom found multiple tubes of nail, handcream and moisturising cream and a pair of Ms Kisfali’s shoes under the drawers. In a box on the floor in another bedroom Christmas cards addressed to Mr and Mrs Hosking were found . Various letters, photos, notes, motor vehicle documents and street plans were found and seized. Statements by other officers detailed the officers’ observations and the location of property found in the house. Following the search, Ms Kisfali was told of the property removed by the officers and that her social security payments would be suspended. The SSAT concluded that the physical evidence found in the search suggested that Ms Kisfali and Mr Hosking shared a bedroom.
It was Ms Kisfali’s evidence that the hand and nail cream located in Mr Hosking’s bedroom was for his use as he suffers from dry skin. Ms Kisfali initially thought that the shoes found under the bed belonged to her as she owns a similar pair. She had thought that her great grandson had worn her shoes and left them in Mr Hosking’s room which could also explain the presence of the photo of a child with a handwritten note stating “to nanna love from Mitchell”. It was Mr Hosking’s evidence that he had purchased the shoes at the market for $5.00. The tax invoice for the herbal medication was in Ms Kisfali’s name because she had purchased the medication on Mr Hosking’s behalf.
It was Ms Kisfali and Mr Hosking’s evidence that they had never had a sexual relationship. Mr Hosking's explanation for the absence of a sexual relationship was his medically induced impotence. I accept this evidence and am not persuaded that Ms Kisfali and Mr Hosking currently share a bedroom in the Brooker Avenue house or have done so in the past. I accept the explanations of Ms Kisfali and Mr Hosking for the location of the various personal possessions found in each of the bedrooms and the evidence of Ms Kisfali's son Paul that they did not share a bedroom.
Another relevant issue in the assessment of the nature of the household is the basis upon which responsibility for house work is distributed. It was the evidence of Ms Kisfali and Mr Hosking which I accept, that Ms Kisfali took responsibility for household duties that involved the home such as cooking and cleaning whereas Mr Hosking undertook minor repairs, some painting, mowing the lawn and general gardening.
It was the evidence of both Ms Kisfali and Mr Hosking that Mr Hosking would often eat a meal prepared by Ms Kisfali who would also undertake the food shopping. In his statutory declaration Mr Hosking stated at paragraph 27 "Jean would do the cleaning, washing or maintenance inside of the house because I do not want to do it, I just like to stay in my room alone and do nothing or go to the casino. But, I would sometimes provide maintenance on the outside of the house such as mowing the lawn, painting, clean the swimming pool etc”. Mr Hosking said that he cleans his own room but agreed that Ms Kisfali did all of the household duties inside the house which included cooking and cleaning and laundry.
When Paul Kisfali was asked whether his mother and Mr Hosking used to sit down and watch television together he replied that they would sit down at the table and have meals and that sort of thing and then Mr Hosking would go back to his room when he was finished or whatever he wanted to do. In her evidence to the Tribunal however, Ms Kisfali maintained that while she provided Mr Hosking with a meal, they did not eat their meals together and that he would often eat a meal at the casino.

Social aspects of the relationship

There was evidence that particularly during the early years when Mr Hosking and Ms Kisfali commenced living in the Brooker Avenue residence, they enjoyed a few social interactions which included some joint holidays and visits to the casino. Mr Hosking agreed that initially he enjoyed a good relationship with members of Ms Kisfali’s family.
It was my observation that Ms Kisfali tried to downplay her social interactions with Mr Hosking. When asked whether she had socialised with members of Mr Hosking's family, Ms Kisfali replied only once when they went to Penguin. Whereas it was Mr Hosking’s evidence that they regularly visited Devonport, in fact, as often as once per month, when he went to undertake maintenance on his property.
When asked what she had told her friends about the nature of her relationship with Mr Hosking, Ms Kisfali replied that she cared for him when he was ill and that they each go their separate ways.
In her statement of support with respect to her Widow’s Pension Claim signed on 22 May 1987 Ms Kisfali stated:
"I live at the above address where I owned the house in my name. Mr Henry Hosking stays at the house most evenings as I am scared of staying in the house by myself. Previously the house was in joint names with Mr Hosking as the other party. However he wanted to buy another house in Devonport where he will eventually go to live. I bought his share in November last year. He owns another house in Newtown which is left vacant most of the time. Mr Hosking is a distant cousin of mine. He stays in the bed sitting room at the back of the house. I pay the power and hydro bills, Mr Hosking only ever stays overnight. I very rarely cook his meals or do washing for him, usually he eats out and he washes his own clothes."
Ms Kisfali agreed that she had taken Mr Hosking to the doctor and recalled one occasion, following a fall.
Ms Kisfali maintained that Mr Hosking had a gambling problem which he had tried to hide by using her card. She said that she would occasionally accompany him to the casino but in recent times he used his own card.
Tendered in evidence and contained in the T documents at T 38 are numerous letters and cards addressed jointly to Ms Kisfali and Mr Hosking. The various salutations include Christmas cards addressed to “Jean and Harry Hosking”, “dear Jean and Harry and family”, “Mr and Mrs H Kisfali”, “dear Harry and Jean”, “Mr and Mrs H J Hosking” and “Nanna and Poppy. There is a wedding invitation addressed to “Jean and Harry” to attend a marriage ceremony on 6 April 1991 and an invitation addressed to “Nanna and Poppy” to attend the christening of Ms Kisfali's grandson followed by lunch to celebrate his first birthday There are also cards from Mr Hosking’s sister, May, and her husband Jim addressed to “Jean and Harry” and cards from Ms Kisfali’s grandchildren addressing Mr Hosking as “Poppy”. When asked to explain these references, Ms Kisfali replied that these people did not really understand the nature of the relationship and that she had never bothered to correct their understanding.
Included at T 38 page 434, is a copy of a photograph of Mr Hosking and Ms Kisfali with friends sharing drinks on a social occasion. At T 38 page 478 is a photocopy of a photograph of Ms Kisfali and Mr Hosking on the Island Queen Showboat on the Gold Coast.
On a number of occasions Ms Kisfali and Mr Hosking travelled to the mainland and stayed at accommodation offered and paid for by the Star City Casino. Despite the fact that they occupied only one bedroom, they maintain that they slept in separate beds. Ms Kisfali said that she accompanied Mr Hosking because he required constant supervision with his medications for anger outbursts and physical ailments. She said that this has often been a "tiresome task" but she knows that there is no one else willing to help. The evidence was that in recent times Mr Hosking has travelled on his own to the mainland to stay at casinos.
Reference was made to a number of hospital admission forms contained in the T documents. At T29 page 339 the Calvary Hospital recorded eight admissions for Mr Hosking between 7 June 1991 and 14 May 2010. It is stated that for the five earlier admissions between June 1991 and September 1995 Mr Hosking had nominated "Jean Hosking (wife)" as his emergency contact or next of kin. On each of these occasions it is recorded that he was married and that (Mrs) Jean Hosking was his partner. In the admission forms dated 20 to December 2009, 25 March 2010 and 14 May 2010 Mr Hosking had nominated Mrs Jean Kisfali (friend) as his emergency contact or next of kin and listed his marital statement status as single.
A number of witnesses were called to give evidence on behalf of Ms Kisfali. Her general practitioner, Dr Karen Sargent said that Ms Kisfali had referred to Mr Hosking as ‘Harry” and she understood that he shared Ms Kisfali's residence as a boarder because she never spoke of him in an affectionate way. She believed that he had health problems and understood that they had "a business like relationship" but that she also acted as his carer. Dr Sargent also said that she understood that Ms Kisfali regularly travelled to the mainland for business purposes on account of her "part-time hobby".
It was the evidence of Julie Ann Geeves that she first met Ms Kisfali and Mr Hosking some eight to nine years ago. Her husband and Mr Hosking were then playing golf together. She said at first she assumed that Ms Kisfali and Mr Hosking "were a couple". They would share a drink together each Christmas and she sent them Christmas cards which were addressed to Jean and Harry. In November 2009 she sent a postcard from Victoria addressed to Mr and Mrs Hosking because she assumed that they were married. A copy of the postcard appeared in the T documents (T 38 page 511) together with copies of a Christmas card sent in 2009 addressed to "dear Jean and Harry and family" (T 38 page 513). Ms Geeves said that she visits Ms Kisfali's home approximately once a fortnight and has observed a friendly rather than a loving relationship between Ms Kisfali and Mr Hosking. She understands that Mr Hosking occupies a bedroom at the back of the house and Ms Kisfali has a separate bedroom. She said that Ms Kisfali does a lot for Mr Hosking because of his ill-health and that he does a bit of gardening. She described Mr Hosking as a friendly man who was quite funny and joked a bit although a little strange at times. She had never observed him "in a rage". It was her evidence that between 2006 and 2010 she visited Ms Kisfali approximately six times but that in the last two years her visits became more regular approximately, once every three weeks. In a statutory declaration Ms Geeves said that she had held market stalls and garage sales jointly with Ms Kisfali and always found her to be friendly, honest and caring.
Pamela Bartulovic first met Ms Kisfali in 1994 at Salamanca market where she and her husband operated a stall. At first she understood that Ms Kisfali’s adjacent market stall belonged to her daughter Carol and her husband but was informed by Carol that the stall belonged to her and Mr Hosking. She observed Mr Hosking as a sad, quiet, elderly gentleman and was informed that he had a mental infirmity due to the death of his only child in a car accident. She noted that he was very fond of Ms Kisfali’s grandchildren and that his face would light up whenever they arrived at the market. Ms Bartulovic only visited Ms Kisfali’s home on one occasion at Christmas time. Mr Bartulovic described Ms Kisfali as a caring, gentle person. She was an inpatient in hospital at the same time as Mr Hosking when Ms Kisfali visited them both.

Eilen Howard has known Ms Kisfali’s family for over 30 years but it has only been in the last few years that she has had regular contact with Ms Kisfali either on the telephone or at the Salamanca market. It was her observation that Ms Kisfali and Mr Hosking occupied separate bedrooms in the house at Brooker Avenue. On occasions they have shared a coffee with Mr Hosking at the home and on other occasions he would be out. She said that she has borrowed tools from Mr Hosking and understands that he does chores in the garden. She said that although he does as much as he can around the house, Ms Howard understands that Mr Hosking has problems with his health. In a statutory declaration she stated that "Jean has always given him a room in the house and looked after him and vice versa. He looks after her as well. They are not an item but they do look after each other and always have done”. When asked what she meant by "an item", Ms Howard said she meant a husband-and-wife relationship. Ms Howard understands that they do not share a bedroom and that Mr Hosking pays board and that Ms Kisfali does the cooking and washing.
Eileen Augustaitis said that she has known Ms Kisfali for about 25 years and initially visited her at her home weekly or fortnightly. As she no longer drives she has not visited in the last eight years. She recalled that Mr Hosking occupied a bedsitting room in the back of his house and that Ms Kisfali's bedroom was located towards the front of the house. She understood that Mr Hosking did not enjoy good health but was unaware of the nature of his health problems. When asked to describe the relationship, Ms Augustaitis said that as far as she knew "they were friends. He was boarding. She was caring for him." She said that she had been away with Ms Kisfali on occasions to visit friends without Mr Hosking. Ms Augustaitis became quite emotional at one point during her evidence and said "I mean, she is just a caring person and I love her. It's not fair." Ms Augustaitis said that she had never observed any affectionate interaction between Ms Kisfali and Mr Hosking.
In a statutory declaration Ms Augustaitis said that "I know that Jean received rent from Harry to stay." In cross-examination she agreed that she had observed money left in the kitchen and assumed that it was rent money. When asked why she had assumed that Ms Kisfali was Mr Hosking's carer she said, because she did care for him and when she went out she had always left prepared food for him. With respect to her reference in her statutory declaration that she had noticed many times that "Harry would make a play for other women in Jean’s company when I was there although he was never successful", Ms Augustaitis said that she had seen him make a joke to another woman who had called in to see Jean at her home at Brooker Avenue.
It was the evidence of Paul Kisfali, Ms Kisfali’s son that he moved into 429 Brooker Avenue with his mother from their home at New Norfolk. He occupied the bedroom on the driveway side and his mother had the bedroom next to his. When Mr Hosking moved into the house he occupied the rear room off the kitchen at the back of the house. In his statutory declaration Paul Kisfali stated that the rates, hydro and insurances were paid by Ms Kisfali and Paul Kisfali would give her money weekly "to help her pay off the loan to Harry Hosking." He stated that upon the sale of the house at New Norfolk, Mr Hosking was given a cheque for about $25,000. Paul Kisfali lived in the Brooker Avenue home for over 10 years. He described the relationship between his mother and Mr Hosking as one of friends and did not observe any affection between them. It was his evidence that the amount he paid his mother was approximately $30 per week and that he was not really aware of the repayment arrangements between his mother and Mr Hosking with respect to the house.
Carol Clements, the daughter of Ms Kisfali, described Mr Hosking as a very remote depressed fellow who was in need of care. She believed that her mother felt sorry for him. Ms Clements asked Mr Hosking to share Christmas with them on one occasion but he declined. She explained that the reason her children referred to him as pop or poppy was out of respect because she did not think it was correct for them to call him by his first name when they were young. Ms Clements said that initially her relationship with Mr Hosking regarding the Salamanca stall business was good for the first year and a half, after which he became aggressive towards her. She wondered whether he was jealous of her ambition. It was at this time in March 2004, that she arranged for her mother to be appointed a director of the company.
Ms Clements recalled that Mr Hosking joined them on a family trip to Coober Pedy. She also agreed that she had travelled with her mother and Mr Hosking to Devonport to lend a hand to clean out a house. Although she stated that she would visit her mother between two and three occasions a week, she said in cross-examination that she was not aware of how often her mother would travel with Mr Hosking for instance to Devonport or interstate. She could only recall the trips to Cooper Pedy. She later recalled an occasion when Ms Kisfali and Mr Hosking took one of her children, Kirby on holiday to the Gold Coast and that they had visited a theme park. During later questioning from the Tribunal Ms Clements said that during her regular visits to her mother she recalled her saying that she would be off to Devonport at the end of the week but that she had forgotten to say this in the course of her earlier evidence to the Tribunal. Ms Clements also stated that she had "seen him painting the house and doing the lawns and that sort of thing…"
In her statutory declaration Ms Clements stated that she understood that Mr Hosking paid a weekly amount to her mother for his food and contributed nothing further. She said that she did not have a great deal of contact with Mr Hosking initially as she was preoccupied with her own growing family.
At paragraph 23 of her statutory declaration Ms Clements stated, "I now see from recent understanding of the situation that the role of "carer" may well have been more fitting to the circumstances. She was not thought of (sic) seeking compensation for the role of carer and was content to run her own life in her home as a separate individual to that of Mr Hosking's affairs." In response to a question from the Tribunal Ms Clements said "well, I picked up this carer thing, talking - I forget who I spoke to now - and someone must have said to me that, you know, it sounds more like a carer /caree thing".
Ms Kisfali's grandson Tyson Clements said that he had known Mr Hosking for his entire life. He was born in 1979. His earliest recollection of being at the Brooker Avenue property was when he was four years of age. He said that he regularly stayed overnight sometimes up to three times a month until he was around eighteen years of age. During this time he said he never witnessed any displays of affection between Ms Kisfali and Mr Hosking. He slept in the spare bedroom, Mr Hosking had his own room and his grandmother slept in another bedroom in the house.
Approximately 13 years ago Tyson Clements purchased a property at Dowsing Point from Mr Hosking. It was his evidence that the vacant block of land was originally owned by the Commonwealth Government and before it could be developed it was required to be rezoned residential. Mr Hosking asked Tyson whether he wanted to take over the sale and he originally rented the land from the Commonwealth Government at a peppercorn rent of one dollar per month. Mr Hosking had paid a deposit upon signing the contract which was later assigned to Mr Clements. He said that he could not recall the amount of money that he paid to Mr Hosking in consideration for the transfer. Mr Clements said that approximately five years ago, Mr Hosking offered to take over the purchase when Mr Clements separated from his former partner and was concerned that she would claim an interest in the property. Subsequently Mr Hosking became reluctant to return the property to Mr Clements and although the transfer did eventually take place, his relationship with Mr Hosking was never the same.

Any sexual relationship between the people

There was no evidence that Ms Kisfali and Mr Hosking had a sexual relationship. Ms Kisfali strongly denied any sexual relationship. It was Mr Hosking’s evidence that the reason for this was his impotency.
The nature of the people's commitment to each other
Mr Hosking maintained that the relationship between himself and Ms Kisfali was "not lovey dovey or anything like that. Just friendship." In her evidence to the Tribunal Ms Kisfali described her relationship with Mr Hosking as one of carer/caree. She maintained that Mr Hosking was a person in need of care, that he suffered from a mental illness and had frequent temper outbursts. Ms Kisfali said that she helps Mr Hosking when he needs help and he helps her.
Mr Hosking spoke about the time in his life following the death of his son when he was depressed and his sexual life had finished due to his impotency. He said that he was living alone when he "happened to get in contact with Jean and we started this relationship. It was only because of her, she saved me.… and I am just living from month to month, week to week and Jean was so good to fall in with. So that's why there's no sexual relations with us.…" He said that otherwise he was pretty healthy at the time as he had been doing a milk round for 20 years.
In response to a question from Mr Sparks as to why Ms Kisfali did not ask Mr Hosking to leave her residence as his presence was preventing her from receiving a social security pension, she responded that at least she was still receiving his $100.
The relationship between Ms Kisfali and Mr Hosking is long-standing. They first met in the late 1970s and moved in to their jointly purchased property at Brooker Avenue during 1980. They have continued to live under the one roof at the Brooker Avenue property since that date.
Ms Kisfali has stated that she would be happy for Mr Hosking to leave the residence if he found somewhere else to live and someone else to care for him. Mr Hosking did not indicate that he had any intention or desire to leave the Brooker Avenue property or to discontinue the current arrangements.
Mr Hosking’s will provides for his entire estate to be left to Ms Kisfali and in the event of her pre-deceasing him, to her grandson Tyson Clements. The evidence was that Mr Hosking has been estranged from his family for many years. Ms Kisfali’s will provides for Mr Hosking to have a life interest in the principal residence owned and occupied by her at the date of her death provided that he remains single and does not cohabit with another person. The residue of her estate is to be divided between her daughter Carol Clements and her son Paul Kisfali in equal shares.
Both Ms Kisfali and Mr Hosking said in evidence that they did not view their relationship as a marriage-like relationship. Mr Hosking described the relationship as one of friendship whereas Ms Kisfali said that she had felt sorry for Mr Hosking and saw him as a person in need of care. Ms Kisfali portrayed Mr Hosking as a difficult and at times ill-tempered and lonely individual rather than someone that she feels close to or for whom she felt any real affection.
Ms Kisfali and Mr Hosking appear to provide each other with companionship. They acknowledged that on occasions they went to the casino together, enjoyed some joint celebrations for example, New Year’s Eve at the casino and a few holidays. Ms Kisfali also accompanied Mr Hosking on regular trips to the north-west coast and took one of her grandchildren with her on one occasion. They received post cards, Christmas cards and invitations which were addressed to them jointly.
It was Ms Kisfali’s evidence that people had wrongly assumed that they were in a marriage-like relationship. With respect to the hospital’s notations that she was Mr Hosking's wife, Ms Kisfali said that the hospital must have assumed this because she had accompanied Mr Hosking to the hospital.

FINDINGS

It is clear from the authorities cited above that the criteria listed in subsection 4 (3) of the Act are not exhaustive nor should equal weight be given to each of the criteria (Staunton-Smith v SDSS (1991). As French J said in Pelka v Secretary, Department of Family and Community Services (2006) in considering whether a particular relationship is a "marriage-like relationship" not only is regard to be had to the matters listed in subsection 4 (3) of the Act but regard should also be had to the interpersonal relationship as a whole.
It was submitted by Mr Sparkes that the description of a carer /caree relationship is implausible, arguably of late invention and not supported by the evidence. The Tribunal agrees that this is not an accurate description of the nature of the relationship between Ms Kisfali and Mr Hosking. The evidence was, which the Tribunal accepts, that when they first met, Mr Hosking was suffering from depression having recently lost his only child in a motor vehicle accident. The Tribunal accepts that Ms Kisfali felt sorry for him. It was the evidence of a number of Ms Kisfali’s friends who were called to give evidence on her behalf that she is a caring, trusting and gentle person. It would therefore be natural for her to assume a caring attachment to Mr Hosking in the circumstances. It was submitted by Mr Sparkes that at the time when they first met and for a number of years after they moved into the Brooker Avenue residence, Mr Hosking continued to work, operating first a milk run and then a bus run and played golf. He did not appear to be a person in need of a carer. The Tribunal considers however, that the care then offered by Ms Kisfali and that she continues to offer, is not physical but emotional care and companionship for which Mr Hosking has been extremely grateful. The Tribunal further accepts that Ms Kisfali did feel sorry for Mr Hosking given his recent grief, his state of depression, his estrangement from his wife and family and the fact that he was living alone.
The Tribunal considers that Ms Kisfali has had difficulty in accurately describing the nature of their relationship and has been anxious to avoid the impression that it is in any way a marriage-like relationship. The contents of her statement dated 22 May 1987 written in support of her application for a social security benefit are in many ways misleading, the Tribunal considers, for this reason. For instance her statement that Mr Hosking stays in the house because she is scared of staying alone and that Mr Hosking is a distant cousin and will eventually move to Devonport. Ms Kisfali further stated that she rarely cooks his meals or does his washing and Mr Hosking usually eats out. This may have been the case in the early years of their occupation of the Brooker Avenue house when Mr Hosking was working and spent a lot of his time at the casino. The Tribunal accepts the evidence of Paul Kisfali who lived in the Brooker Avenue residence for a number of years, that they did not share a meal together as a family or spend time together in the evenings as a matter of routine. The evidence was that Mr Hosking would occasionally share a meal with Ms Kisfali and Paul but would then generally retire to his own room where he would spend the rest of the evening.
It was Mr Hosking who suggested that they jointly purchase the property at Brooker Avenue because he wanted a place to park his milk truck and Ms Kisfali was keen to move closer to town. Because Ms Kisfali did not have the funds to purchase a one half interest, Mr Hosking agreed to purchase the house with his funds until Ms Kisfali was able to sell her house at new Norfolk. The Tribunal accepts that initially Ms Kisfali paid all expenses and gave Mr Hosking periodic payments in reduction of the monies owed to him for her one half interest in the house. Mr Hosking said that he did not recall this arrangement and thought that Ms Kisfali had paid him in the form of a lump sum of $21,000. Mr Hosking's evidence in this regard was confused however the Tribunal accepts him as a credible witness who was unable to recall the details of the arrangement. It could be that he was so grateful to have the companionship of Ms Kisfali and trusted her to pay him for a one half share when she was able to do so. On the other hand Ms Kisfali was adamant that she paid Mr Hosking by instalments and recorded each of the payments in a little book. Mr Hosking did have some recollection of a little notebook which he thought was green.
Many married couples operate separate financial accounts and each pay a one half share of all outgoings. The provision of financial support between persons while significant, is not determinative in itself of the nature of a relationship (Lambe v DGSS (1981), Tang and DGSS (1981), Waterford and the DGSS (1980) 3 ALD 63. The absence of financial dependence is also not determinative: SDFACS v Bell (2000) AATA 252. It is notable however that Ms Kisfali maintained single private health insurance cover. They owned their own cars which were registered in their separate names and were each responsible for their own car insurance. Although on occasions Mr Hosking may have paid Ms Kisfali’s car insurance, the Tribunal accepts his evidence that the monies were always reimbursed by Ms Kisfali.
Ms Kisfali assumed sole ownership of the Brooker Avenue property in 1986 and since that date they have not jointly owned any property or assets nor have they ever had any joint loans or joint bank accounts. There appears to be no dispute that Ms Kisfali paid Mr Hosking $25,000 for his one half share in the property with the proceeds of sale from her property at New Norfolk. There were a number of occasions when Mr Hosking lent Ms Kisfali money to pay accounts which included legal bills on account of her grandson but it is accepted that Ms Kisfali always repaid the loans to Mr Hosking when she had the funds to do so. This is evidence of mutual trust and friendship but not necessarily a marriage-like relationship.
Since Ms Kisfali assumed sole ownership of the Brooker Avenue property, Mr Hosking has paid money which is currently in the sum of $100.00 each week as a contribution towards living and household expenses. Ms Kisfali and Mr Hosking have a convenient arrangement whereby Ms Kisfali undertakes the domestic responsibilities of cooking, shopping and cleaning whereas Mr Hosking attends to the maintenance, painting and gardening. Their domestic arrangement is a common one where a man and a woman live under the one roof and is not of itself suggestive of a marriage-like relationship.
The Tribunal accepts the evidence of Ms Kisfali, Mr Hosking and more tellingly from Paul Kisfali that at no time did they share a bedroom in the Brooker Avenue property. Paul Kisfali lived in the house for a number of years and described their relationship as one of friendship. He said at no time did he witness any displays of affection between his mother and Mr Hosking.
The Tribunal does not consider that there is any evidence of a strong and enduring commitment between Ms Kisfali and Mr Hosking. Nor is there evidence of a loving relationship or the intimate feelings of warmth and affection usually present in a marriage-like relationship. Ms Kisfali has been married on a previous occasion and the evidence was that this was a loving relationship.
The Tribunal accepts that neither Ms Kisfali or Mr Hosking see their relationship as marriage-like. The parties’ subjective perceptions of the nature of their relationship even if genuinely held, are not determinative but the actual objective circumstances must be considered. (re Roberts and SDSS (1987) 12ALD 723.
Ms Kisfali and Mr Hosking have enjoyed a long term friendship and there is no suggestion that this will not continue for years to come. Whilst each has made provision for the other in their wills, neither has appointed the other as trustee or executor of their wills. Mr Hosking is estranged from his family and in recognition of the friendship, care and companionship that he has received from Ms Kisfali he has made her his sole beneficiary. Ms Kisfali has made provision for Mr Hosking to have a life interest in the Brooker Avenue property which she would not have owned without his initial assistance. The Tribunal accepts her explanation that she wanted to ensure that Mr Hosking would continue to have a roof over his head in familiar surroundings into his old age. The residue of Ms Kisfali’s estate is left to her children.

Ms Kisfali downplayed her involvement in the business, Tassie Craft and Gems. The Tribunal accepts that the business which started initially as a hobby, was shared with her daughter and later involved Mr Hosking. The Tribunal does not however consider that the evidence in relation to this business is of much assistance in determining the nature of the relationship between Ms Kisfali and Mr Hosking.
The Tribunal accepts the explanations of Ms Kisfali and Mr Hosking regarding the next of kin notifications in Mr Hosking’s medical admission forms. This was because Ms Kisfali accompanied him to hospital, it was assumed that she was his wife. It is most unlikely that Mr Hosking would have advised that Ms Kisfali was his wife when he was not married to her, instead he could have described her as his partner. She is later recorded in the forms as his friend.
The evidence was that Ms Kisfali and Mr Hosking enjoyed a New Year's Eve party together at the casino in the early years of their friendship. There is no evidence that they went out to dinner together as a couple or attended functions together as a couple. Mr Hosking was invited to share a Christmas meal with Ms Kisfali's daughter and her family on one occasion but he declined. He was also invited to a family christening and wedding but it was his evidence that he did not attend those events. There is no evidence of any other joint invitations. The Tribunal accepts Ms Kisfali's explanation for the Christmas cards that were addressed to them jointly and that people had originally assumed that they lived together as a couple. The Tribunal accepts that they received the cards as friends of the senders and does not consider that this evidence of itself is suggestive of a marriage-like relationship.
All of the witnesses called to give evidence described their understanding of the relationship between Ms Kisfali and Mr Hosking as one of a caring friendship. None of the witnesses had ever seen any displays of affection between Ms Kisfali and Mr Hosking. Although it is true that all of the witnesses called were either close family members or friends of Ms Kisfali, the Tribunal found them to be credible witnesses.
The Tribunal had the benefit of observing each of the witnesses who gave evidence and took particular note of the manner in which Ms Kisfali spoke of the nature of her relationship and her feelings towards Mr Hosking. Despite the length of the relationship, the companionship that Ms Kisfali and Mr Hosking obviously enjoyed, and the witnesses’ description of her as a kind and caring person, Ms Kisfali spoke about Mr Hosking in a somewhat detached manner. There was no indication of any warmth or affection or indeed any acceptance or suggestion of a responsibility to provide emotional support or protection. Although Mr Hosking spoke of Ms Kisfali as a long term friend who had provided him with care and support, it was not evident that he felt emotionally or financially responsible for her. It was his expectation that any funds that he had recently advanced to Ms Kisfali since her pension was stopped, would be repaid by her when she was in a financial position to do so.
The evidence, particularly with respect to the purchase and financial arrangements regarding the Brooker Avenue property, is indicative of significant trust particularly on the part of Mr Hosking. He had advanced the total purchase monies but was prepared to register the property in their joint names on the basis that Ms Kisfali would pay him when she was able to do so, i.e. on the sale of her New Norfolk property, which she did. Whilst there is evidence of a few jointly enjoyed social functions, this is not surprising given their friendship, the length of the relationship and the companionship that they provided to each other. Their holidays and trips away were either associated with the gem business or they were provided with free accommodation by the casino.
Although a number of discrepancies in the evidence were evident, for the above reasons the Tribunal does not consider that when considered either singularly or cumulatively, that they were significant enough to justify a finding of a marriage-like relationship. The Tribunal found Mr Hosking to be a credible and honest witness and although a little vague and confused at times, this was likely to be on account of his depression and general state of health. Where he was unable to recall events and certain details, Mr Hosking advised the Tribunal accordingly. On occasions Ms Kisfali’s evidence was misleading and confusing. The Tribunal however does not consider that she was necessarily untruthful but that she was anxious to avoid an impression that she was living with Mr Hosking as a member of a couple, because she was not.
In conclusion the Tribunal finds that the weight of the evidence is supportive of a finding of a relationship of mutual companionship and friendship which lacks the emotional attachment and shared responsibilities of a marriage-like relationship.
For these reasons the Tribunal determines that the applicant is not a member of a couple with Mr Hosking for the purpose of section 4 of the Act and has not been a member of a couple with Mr Hosking at any time from 18 May 1987. The decision under review is accordingly set aside and the matter remitted to the Secretary for assessment in accordance with this decision.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated

Dates of hearing	26, 27, 28 November 2012 and 15 January 2013
Solicitors for the Respondent	Mr B Sparkes, Program Litigation and Review Branch
Solicitors for the Applicant	Ms Irene Tiang, Hobart Community Legal Centre