Kanters and Secretary, Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2002] AATA 1206

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D2001/35

GENERAL ADMINISTRATIVE DIVISION       )
           Re      ANN MARIE KANTERS
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Respondent

DECISION

Tribunal Deputy President Don Muller

Date22 November 2002
PlaceBrisbane

Decision The Tribunal varies the decision under review and determines that Ann Marie Kanters has been a "member of a couple" with Barry James Sharpe, for the purposes of the Social Security Act 1991, since November 1996.

.............(Signed).................................
D.W. MULLER
DEPUTY PRESIDENT

CATCHWORDS
SOCIAL SECURITY – marriage-like relationship
Social Security Act 1991: s.4(2)(3)

REASONS FOR DECISION

Deputy President Don Muller

This is an application to review a decision made on 15 September 1999, subsequently affirmed by the Social Security Appeals Tribunal on 18 May 2001, that Ann Marie Kanters has been living as a member of a couple in a marriage-like relationship with Barry James Sharpe since 27 November 1991.
The consequences of the Decision were that:
(i)Ms. Kanters' Disability Support Pension was to be reduced to the "married" rate with Mr. Sharpe's earnings to be taken into account in the assessment of the rate of payment; and
(ii)Ms. Kanters was liable to repay an overpayment of benefits from 1991, in the order of $30,000.
Ms. Kanters has been in receipt of Disability Support Pension (DSP) at the single rate since 1977 when she received serious injuries in an accident. She originally resided at Dunedoo, New South Wales.
On 27 November 1991 she wrote to the Social Security office in nearby Dubbo informing them that she had sold her property at Lot 18 Patrick Road, Dunedoo and would be residing temporarily at Lot 8 Patrick Road. She confirmed these details on a review form lodged with Social Security on 8 January 1992, describing her marital status as "single". A note of an interview with her on 14 January 1992 states that she told Centrelink that she had withdrawn $4,000 from the sale proceeds to pay for a dam "on the property she has purchased a half share in".
In April 1999, Centrelink began an investigation into the affairs of Ms. Kanters as they related to her relationship with Mr. Sharpe. During the course of that investigation:
(i)an officer of Centrelink interviewed Ms. Kanters on 26 August 1999;
(ii)title checks at the Australian Valuation Office revealed that Ms. Kanters and Mr. Sharpe jointly owned lots 44 and 51 Larrimah, respectively purchased on 1 June 1998 and 7 January 1998 for $6,000.00 and $6,500.00; and
(iii)Centrelink made inquiries of various bodies such as banks, Australian Taxation Office and the Australian Valuation Office, the Power and Water Authority, Telstra, the motor vehicle registry and Ms. Kanters and her alleged partner's employers.
As a result of the investigations, the Decision was made and conveyed to Ms. Kanters on 29 November 1999.
Section 4 of the Social Security Act 1991 (the Act), defines, for the purposes of the Act, who is a "member of a couple". The relevant parts of section 4 are:
"4.(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)       ….
(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 subsection s(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.
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."
At the hearing Ms. Kanters and Mr. Sharpe tendered statements about the history and details of their relationship. They also presented themselves for cross-examination by Mr. Foster, advocate for the respondent. Those parts of the evidence which the Tribunal found helpful in determining this matter were:
(i)At the end of 1990, Ms. Kanters was residing at Dunedoo in the State of New South Wales. She had just separated from her then defacto husband and felt insecure in her home as it was in an isolated area of the town. Her former partner would return to her home now and then and this concerned her, as he had been violent towards her in the past.
(ii)Ms. Kanters was also being harassed by male persons who would call into her house late at night and demand sexual favours from her. She mentioned these concerns to Mr. Sharpe, who had been a friend of reasonably long standing, and he suggested that she might like to move into his residence. Mr. Sharpe lived with his stepfather and his residence was close to her home. She thought that arrangement would be more secure. She moved into that residence for that reason and not as a defacto wife.
(iii)A couple of months after Ms. Kanters moved into Mr. Sharpe's house, they decided to go on a trip to Cooktown in far north Queensland. On this holiday they had sexual intercourse on perhaps two occasions. Ms. Kanters did not feel romantically inclined towards Mr. Sharpe nor was there any commitment between them. This was the last time that they had sexual intercourse.
(iv)When they were residing at Dunedoo, they both had their own separate rooms.
(v)When Ms. Kanters returned from Cooktown in about May 1991, she placed her property at Dunedoo on the market, as she could not look after it by herself.
(vi)In the middle of 1991, Mr. Sharpe obtained employment in the Granite Gold mine in the Tanami desert. He asked Ms. Kanters if she would like to go there. As she had not travelled much she decided to go. It would mean that she would be living in Alice Springs.
(vii)Ms. Kanters moved to Alice Springs and rented a small art studio in the Arulean Centre. Mr. Sharpe would work for six weeks at the gold mine and then had two weeks off. In this break they would travel around the area and do some sightseeing.
(viii)Whilst Ms. Kanters was residing in Alice Springs she undertook voluntary work. The studio was equipped with plenty of accommodation and she would have people staying with her. Mr. Sharpe would also stay there when they were not travelling or he was not at the mine.
(ix)In late 1991, Ms. Kanters' property at Dunedoo was sold. She purchased a four-wheel drive from the proceeds of the sale. They returned to Dunedoo in December 1991.
(x)As at 1991, 1992 they were just good friends. They enjoyed each other's company and enjoyed outings and travelling together. They shared an interest in birdwatching and bushwalking and enjoyed those activities together. They maintained separate finances and did not have a sexual relationship.
(xi)When they returned to Dunedoo in December 1991, Ms. Kanters suggested to Mr. Sharpe that he breed birds. It was her intention to buy some birds of her own, put them in aviaries and have a small business selling the birds. In addition, she had put some money into Mr. Sharpe's property by helping to pay for the dams. She thinks that she put several thousand dollars into the place. She did not itemise the amounts but they had an understanding that if the property was sold she would be reimbursed her contribution. Mr. Sharpe's property was mortgaged to his brother, who had paid his ex wife for the property settlement when they had divorced.
(xii)Ms. Kanters and Mr. Sharpe had plans to convert the property into a tourist attraction displaying birds. They were unable to do this due to State Regulations. Ms. Kanters sold hand-reared birds to pet shops. It was a joint venture as they shared the same premises but kept their birds separate. They also kept any monies that they received individually from the sale of their birds. Ms. Kanters maintained that small business for a number of years.
(xiii)During the years when Ms. Kanters was selling birds, Mr. Sharpe would often leave Dunedoo for months at a time. Sometimes he would go off by himself and sometimes with his friends. Whilst he was away he would rarely keep in touch with Ms. Kanters. She would not usually hear from him until he returned.
(xiv)On returning from one of his trips, Mr. Sharpe informed Ms. Kanters that he was thinking of selling his property at Dunedoo. He said that he wanted to move to the Northern Territory. Ms. Kanters told Mr. Sharpe that she would like to go there too. They decided they should go to the Northern Territory to have a look. They travelled to the Northern Territory and went to Larrimah. They liked it there and decided to stay.
(xv)They relocated to Larrimah in about November, 1996. Ms. Kanters had not been to the Territory since she left Alice Springs in 1991.
(xvi)Larrimah is a very small community with not much accommodation to choose from. As a result they have resided in the same house for most of their stay, but with separate rooms.
(xvii)When they first arrived in Larrimah, they rented a house in Railway Terrace. They then moved to 12 Mahoney Street. This residence is owned by the Larrimah Progress Association for whom they worked for a while. At 12 Mahony Street they did not share a bedroom.
(xviii)When they relocated to the Northern Territory Mr. Sharpe placed his Dunedoo property on the market. The property was sold in early 1998 and the proceeds of the sale were placed in Ms. Kanter's bank account. Mr. Sharpe did not have an account in the Northern Territory that he could access at that time. With part of the proceeds of sale from the Dunedoo property they purchased two properties at Larrimah in joint names. The properties were purchased in joint names as repayment for the monies Ms. Kanters had put into the Dunedoo property.
(xix)They continued to pay their own personal bills and the joint bills.
(xx)One of the properties at Larrimah, Lot 44, is a dwelling house with two bedrooms. They currently live there and each have their own bedroom. For a short while they lived in Elliott but moved back to Larrimah in November 1999. They have not slept together at any time either in Elliott or Larrimah.
(xxi)The other property at Larrimah is Lot 51. Mr. Sharpe is developing this property as a workshop from which he can run a business. He also works part time for Mataranka Council. It is his plan to eventually build a house for himself on this lot.
(xxii)It is Mr. Sharpe's intention to move out from their present residence when he builds on lot 51. When this happens, lot 44 will be transferred into Ms. Kanter's name solely and Mr. Sharpe will have lot 51 solely. Mr. Sharpe spends more and more time at lot 51 now.
(xxiii)They have both worked for the LPA in Larrimah. When Ms. Kanters first arrived she did secretarial duties. When a new group of residents took over the LPA she decided to leave. There was a degree of upset at this time within the LPA that made Ms. Kanters feel uncomfortable. As a result they moved to Elliott. Mr. Sharpe moved first in February 1999 and Ms. Kanters moved her belongings into 44 Railway Terrace. She then moved to Elliott in or about March or April in 1999.
(xxiv)When Ms. Kanters moved to Elliott she resided in a very small unit together with Mr. Sharpe. She was only there for a short time and then she moved into the Elliott Hotel. She remained at the Elliott Hotel for a couple of months. In August 1999 she was at Elliott when she was interviewed by an investigating officer. After a while Mr. Sharpe was rehoused in a three bedroom property known as the Sports House and Ms. Kanters then moved there too. She had her own separate bedroom. She obtained some work for a period of a few weeks at Elliott Council until she resigned in April 1999.
(xxv)Whilst they resided in Elliott, they would return to Larrimah on weekends and holidays to work on their properties. Whilst in Larrimah, Mr. Sharpe would go to the hotel on his own and Ms. Kanters would go to the library. They did not socialise together very often.
(xxvi)Ms. Kanters moved back to Larrimah in November 1999. She has not been in employment but has performed voluntary work promoting Birdhams historical heritage site. She plants fruit trees such as paw paws and improves the garden area of Lot 44. She also assists Mr. Sharpe in developing an aviary and garden in the workshop property where they are building a barbecue area.
(xxvii)Mr. Sharpe gets his own breakfast of a morning and his own lunch. In relation to other meals it depends on which one of them feels like cooking. Mr. Sharpe attends to his own washing and sometimes Ms. Kanters helps.
(xxviii)Ms. Kanters cleans the common rooms of the house and looks after her room. Mr. Sharpe cleans his own room.
(xxix)Neither Mr. Sharpe nor Ms. Kanters holds themselves out as members of a couple.
(xxx)They do things together. They have both worked on the Tidy Towns project and have done voluntary work together. They are both involved in the Railway project. They do this together because it is a joint interest and they are friends.
(xxxi)Mr. Sharpe goes to the local hotel for a drink. Most times this is without Ms. Kanters. They have not been fishing together for more than two years. Fishing was something they enjoyed doing together in the past.
(xxxii)Ms. Kanters claims that she has not had sexual intercourse since 1991 because she finds it painful and she has lost interest in it.
(xxxiii)Ms. Kanters is fond of Mr. Sharpe and would be prepared to support him and care for him if he was ill. It is unclear whether Mr. Sharpe reciprocates those feelings.
(xxxiv)They currently do not see as much of each other as they used to. Ms. Kanters believes that they are not as close as they were in the past. She still thinks of him as a good friend.
(xxxv)They each made wills about ten years ago. Ms. Kanters left her estate "jointly" to her daughter and Mr. Sharpe. Mr. Sharpe left his estate "jointly" to his family and to Ms. Kanters.
(xxxvi)They have agreed that if they "separate" their assets will be divided equally between them.
(xxxvii)Ms. Kanters denies that she ever designated Mr. Sharpe as her "de facto" on a superannuation form at the Elliott Council. She claims that the personnel manager urged her to put the word "de facto" on the form to "put in the relationship" but she refused to do so.
(xxxviii)To sum up, they claim to have been good friends for the past ten years or so but are not in a defacto relationship, nor are they living in a marriage-like relationship. They choose to reside together for economic and companionship reasons.
Before the Tribunal could make a finding that during the relevant time Ms. Kanters has been a "member of a couple", it would have to be satisfied that all of the conditions of s.4(2)(b) have been met. The only condition in contention in this matter is s.4(2)(b)(iii), that is, whether or not the relationship between Ms. Kanters and Mr. Sharpe is, and has been, a marriage-like relationship.
In forming an opinion about the relationship between Ms. Kanters and Mr. Sharpe the Tribunal is required to have regard to all of the circumstances of the relationship including, in particular, the matters in s.4(3) (set out above).
Ms. Kanters and Mr. Sharpe have denied that there has been an ongoing sexual relationship between them. The respondent has very properly declined to attempt to obtain any evidence to the contrary which would probably have required a very intrusive investigation. Consequently, for the purpose of this review, the Tribunal accepts that there has been no ongoing sexual relation between Ms. Kanters and Mr. Sharpe. Nevertheless, that fact alone is not determinative of the matter in issue.
The Tribunal accepts that in the initial phases of the relationship, Ms. Kanters was seeking from Mr. Sharpe, protection, security and a place to stay. The Tribunal also accepts that during the holiday in Cooktown, the sojourn in Alice Springs and the period in Dunedoo when Mr. Sharpe was away for long periods, Ms. Kanters and Mr. Sharpe were no more than good friends who enjoyed the company of each other and enjoyed the same hobbies.
However, the Tribunal takes the view that they stepped over the line from mere friendship to that of a marriage-like relationship when they returned to the Northern Territory in November 1996. The following circumstances point to a marriage-like relationship:
(i)Ms. Kanters followed Mr. Sharpe to Larrimah where they set up house together.
(ii)Ms. Kanters followed Mr. Sharpe to Elliott.
(iii)Ms. Kanters named Mr. Sharpe as a beneficiary of her superannuation, in the event of her death on her superannuation application from when she worked for the Elliott Council in March 1999.
(iv)They have made provisions in their wills for each to receive half of the estate of the other in the event of the death of either of them.
(v)They jointly own property at Larrimah.
(vi)They have lived together at the same address for many years.
(vii)They have travelled widely together.
(viii)They share common interests such as fishing and bird-watching.
(ix)They have been involved together in various community activities at Larrimah.
The Tribunal varies the decision under review and determines that Ms. Kanters has been a member of a couple with Mr. Sharpe, for the purposes of the Social Security Act 1991, since they arrived together in Larrimah in November 1996.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed:         .....................................................................................
  Associate
Date/s of Hearing  24 April 2002
Date of Decision  22 November 2002
Solicitor for the Applicant         Mr. Baker
Respondent  Mr. N. Foster, departmental advocate

[2002] AATA 1206

22 November 2002

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act

Marriage-like Relationship