Kopacz and Secretary, Department of Family and Community Services
[2004] AATA 966
•15 September 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 966
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2004/6
GENERAL ADMINISTRATIVE DIVISION ) Re BREANNA KOPACZ Applicant
And
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr Murray Allen, Member Date15 September 2004
PlacePerth
Decision The decision of the Tribunal is that:
(a) The decision made on 19 June 2003 to cancel the Youth Allowance benefit of the applicant is set aside;
(b) The matter is remitted to the respondent for reconsideration with the direction that the applicant was not living in a marriage-like relationship.
...........(sgd M Allen)…......
Member
CATCHWORDS
SOCIAL SECURITY - youth allowance – application made on basis that applicant was an independent person because of a de facto relationship of not less than 12 months – relationship commenced when parties travelling overseas and continued on return to Australia – allowance granted on independent basis – allowance immediately cancelled having regard to partner’s income – observation that there had not been a marriage-like relationship for 12 months prior to grant of the allowance – conclusion that at time of cancellation there was not a marriage–like relationship – cancellation decision set aside.
Social Security Act 1991 ss 4, 540, 547, 547C, 1067A, 1067C, 1067G
Freeman v Secretary, Department of Social Security (1988) 15 AD 671
McDonald v Director General of Social Security (1984) 1FCR 354
Re Hodgson and Secretary, Department of Social Security (1988) AAT 4279.
Re Pearce and Director General of Social Security 1983 (5 ALN N104)
Re Tang and Director General of Social Services (1981) 3 ALN N83
Re Ward and Secretary, Department of Social Security (1985) 7 ALN N66
REASONS FOR DECISION
15 September 2004 Mr Murray Allen, Member 1. This is an application by Ms Kopacz (“the applicant”) for review of a decision of the Social Security Appeals Tribunal (“SSAT”) made on 11 December 2003. In that decision the SSAT decided to affirm what it described as “a decision made by a Centrelink officer on 19 June 2003 to regard [the applicant] as being a member of a couple living with Mr Peter Damjanovich-Napoleon and not to pay Youth Allowance because of Mr Damjanovich-Napoleon’s level of income”. I will refer at para [11] below to what I consider to be the precise nature of the decision made by the respondent’s delegate that was reviewed and affirmed by the SSAT. In these reasons I will refer to Mr Damjanovich-Napoleon as “Peter”.
2. At the hearing of the application the applicant represented herself and gave oral evidence. The respondent was represented by Ms Bradley, a Centrelink officer. The Tribunal received into evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act, 1975 as well as Exhibits A1 and A2 tendered by the applicant.
Statutory framework
3. Section 540 of the Social Security Act 1991 (“the Act”) sets out the requirements that must be satisfied if a person is to be “qualified” for Youth Allowance (“YA”). There has never been any dispute that the applicant was qualified for YA in the relevant period. However, s 547 of the Act provides that YA is not “payable” to a person if the rate of payment would be nil. Section 556 of the Act relevantly provides that the rate of YA payable to a person is to be worked out in accordance with a rate calculator in s 1067G of the Act. Whether or not a person is “independent” (as defined in s1067A of the Act) will affect the amount of assets that a person may have under the assets test provisions set out in s 547C of the Act and will also affect the maximum basic rates of YA that may be payable under s 1067G. Section 1067A sets out the various circumstances in which a person is to be regarded as independent, some of which are that the person is a “member of a YA couple”, is over the age of 25 years, or is a “self-supporting” person as defined in s 1067A(10).
4. Section 1067C defines the circumstances in which a person is a “member of a YA couple”. So far as is relevant to the present case, a person will be a member of a YA couple if the person has a relationship with a person of the opposite sex to whom the person is not legally married, and the relationship has existed for a continuous period of at least 12 months, and in the Secretary’s opinion the relationship has for that period been “a marriage-like relationship”. Section 1067C(3) relevantly provides that in forming an opinion about the relationship between two people the Secretary is to have regard “to all the circumstances of the relationship including, in particular, the matters referred to in subsection 4(3)” of the Act. I will refer to the provisions of that subsection below. Pursuant to s1067G, it will also be relevant in the calculation of the rate of YA payable to a person if the person is a “member of a couple” – in which case the ordinary income of the person’s partner is to be taken into account in the ways specified in s1067G when calculating the rate of YA payable to the person.
5. Section 4(2) of the Act specifies that, subject to s 4(3), a person is a “member of a couple” if the person has a relationship with a person of the opposite sex to whom the person is not legally married and the relationship is, in the Secretary’s opinion, having regard to the matters referred to in s 4(3), a marriage-like relationship.
6. Section 4(3) of the Act specifies that when forming an opinion about whether a relationship is a “marriage-like relationship” 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.
background
7. The undisputed background to the matter is that for approximately 2 years prior to April 2003 the applicant lived outside Australia. During that time she met and commenced a relationship with Peter and they returned to Australia together in April 2003. The applicant applied for YA in April 2003, intending to study on a fulltime basis until the end of September 2003 and to satisfy the activity test relating to YA in that way. At the same time Peter applied for a Newstart Allowance and began to look for work.
8. As can be seen from the statutory provisions referred to above, at the time she applied for YA it would have been relevant to the applicant whether she was considered to be independent and whether she was considered to be a member of a couple. In her YA application form (T10) the applicant informed Centrelink that she had a partner with whom she was currently living and described Peter as her “de facto” (Tp38). In other parts of the application form she described Peter as her “boyfriend” and his parents as her “boyfriend’s father and mother” (Tp 41 and 44). I will refer later to other documents lodged by the applicant with Centrelink in support of her claim. However, at this point it is sufficient to note that the processing of the applicant’s YA application was delayed whilst Peter’s application for Newstart was processed. On 17 June 2003 the applicant informed Centrelink that Peter had found work and what his weekly income was (T38).
9. Two days later, on 19 June 2003, Centrelink made two decisions:
(a)to grant the applicant YA with effect from 29 April 2003, payable at the independent rate; and
(b)to cancel the applicant’s YA with effect from 3 May 2003 because of the impact on her rate of payment of Peter’s income.
10. By making these decisions Centrelink must be taken to have concluded that the applicant was a “member of a YA couple” (i.e. had been living in a marriage-like relationship with Peter for a continuous period of at least 12 months) and that she was at the date of cancellation a “member of a couple” (i.e. was living in a marriage-like relationship with Peter at the time of cancellation). A letter dated 19 June 2003 to the applicant informed her of both the grant of YA and the cancellation because her partner’s income was above the allowable limit (T42).
11. The applicant sought internal review. Her letter requesting that (T46) questioned why Peter’s income was to be taken into account. It was, in the context, seeking review of the cancellation decision referred to at para 9(b) above. The original decision-maker and an authorised review officer (“ARO”) affirmed the decision and the applicant applied to the SSAT for further review. The SSAT examined the history of the relationship and concluded that in April 2003 the applicant was living in a marriage-like relationship with Peter and was a member of a couple at that time and continued to be so for the purposes of the Act. Although the SSAT found as a fact that there had been a relationship between the applicant and Peter since 12 January 2002, the SSAT decision was only in relation to whether or not the applicant was a member of a couple in April 2003 for the purposes of the cancellation decision. What was not in issue before the SSAT, nor is it in issue before this Tribunal, is the decision by Centrelink to grant YA to the applicant as an independent person because of a marriage-like relationship that had existed for at least 12 months at the time of her YA application. As will be apparent, however, the history and nature of the relationship must be examined in order to arrive at a conclusion about its nature at the relevant point in time i.e. at the time of the cancellation decision.
history of the relationship
12. I should say at the outset that I found the applicant to be a very credible witness. In giving her evidence and answering questions she was frank and realistic about the relationship and I accept her evidence in all material respects.
13. The applicant and Peter first met in June 2001 when they were both living in the same hostel in London with about 20 other young people. They were just friends and not in any kind of relationship at that time. In December 2001 the applicant decided to go to Scotland for a few months for a bus tour and to work. She was to go with a couple of other friends but at the last minute Peter decided to come as well. At the completion of the bus tour the applicant found a place to live with another friend and invited Peter to join them to share expenses. It was during January 2002 that the applicant and Peter commenced a relationship.
14. The applicant and Peter continued to share the accommodation in Scotland until July 2002 when the applicant returned to Australia for her sister’s wedding, returning to London after about a month where she again met up with Peter. The two of them stayed with friends in London for about a week and then together travelled to Croatia for a few days to meet Peter’s parents, who were visiting that country at that time. The applicant and Peter returned to London and again stayed with other friends, sharing a bed on the floor of the living room of the house in which they all lived.
15. In approximately October or November of 2002 Peter and a friend, Mark, began to plan a trip to South Africa to watch cricket in January 2003. The applicant’s visa was coming to an end and so she decided to join them on the trip. However, in December 2002 Peter, without explanation, withdrew from the relationship for a period of approximately 3 weeks, although the applicant and Peter continued to reside in the same house with their other friends.
16. After the resumption of the relationship the applicant travelled with Peter and Mark to South Africa, where they travelled together until all 3 of them travelled to Australia at the beginning of April 2003. All 3 of them moved into Peter’s parents house on their arrival and Mark stayed at that house for about a month until he found other accommodation.
17. The applicant said that when she applied for YA later in April, when she was about to commence a training course, she did so on the basis that she was independent by virtue of being in a de facto relationship with Peter, rather than as a person who had a history of being self-supporting, because she did not have easy access to all the records that would have been needed to demonstrate her employment history - either in Australia before her departure for the United Kingdom or in the United Kingdom. Prior to going to the United Kingdom the applicant lived with her mother in Cairns in Queensland.
the section 4(3) factors
18. It is convenient to set out at this point the evidence given by the applicant and the information that can be gleaned from the documentary material regarding the factors identified in s 4(3).
Financial aspects of the relationship
19. The applicant said that at no time had she and Peter jointly owned any real estate or other assets and nor did they have any joint liabilities. They had not at any time pooled financial resources, either in the United Kingdom or in Australia. The applicant had at all times maintained her own bank accounts and had earned money from employment to support herself. At no time has one accepted any legal obligation in respect of the other. When they shared accommodation in the United Kingdom they usually bought their own food and cooked it individually because, for most of the time, they were working different shifts - which meant that they frequently were not home together.
20. The applicant produced (Exhibit A1) her banking records for the period from July 2002 to illustrate that she had not relied on any financial assistance from Peter after their arrival in Australia. She drew attention to deposits made to her account after April 2003 from depositors in Victoria and Queensland, which she said represented loans or gifts made by her grandmother in Victoria and parents in Queensland. She had relied on that money plus money that she was able to earn from a part-time job, to support herself.
21. The applicant was paying initially $50 per week as board to Peter’s parents and subsequently paid $100 per week. At the time of the hearing of the proceedings the applicant said Peter was also paying his mother $100 per week board.
22. The applicant drew attention to the fact that the SSAT (at [26] of its decision) referred to the board paid by the applicant ($50 per week and subsequently $100 per week) as being “quite nominal amounts” and, therefore, representing a benefit to the applicant. The applicant produced Exhibit A2, which were 3 advertisements taken from the internet in May 2004 for furnished rooms in shared houses suitable for students. The advertised prices ranged from $65 to $80 per week and the applicant said that it would be quite possible for her to rent a room and provide herself with food at a standard appropriate for a student for approximately $100 per week and that, consequently, the board paid by her to Peter’s mother of $100 per week represented a realistic and arms-length figure.
The nature of the household
23. The applicant said that she and Peter had no joint responsibility for providing care or support for children or any other person. They share a bedroom in the home of Peter’s parents and, in essence, all the cooking and household tasks are done by Peter’s mother, although the applicant and Peter do jobs around the house as required.
Social aspects of the relationship
24. The applicant said that she and Peter do not hold themselves out as “a couple”. They see themselves as being “boyfriend and girlfriend” who happen to be sharing accommodation with his parents. So far as the applicant could gather, their friends do not see them as a couple in the sense of being akin to a married couple given that the applicant and Peter still live with his parents. The applicant and Peter have some common friends but the each also has his/her own friends.
25. It is appropriate to note at this point that when the applicant applied for YA her claim was supported by statements from her mother (Tp84) and Peter’s father (Tp18). The statement made by the applicant’s mother was that the applicant “has been living with [Peter] since 12/01/02”. The statement by Peter’s father was that “I am writing to confirm the independence of [the applicant]. [She] and my son, Peter, have been living in a de facto relationship since 12 January 2002”.
26. As noted at [8] above, the applicant described Peter in her application for YA as both her de facto partner and boyfriend. At the same time Peter provided a “partner details” form to Centrelink in which he described his relationship to the applicant as a de facto partner and identified 12 January 2002 as the date that they started to live together (Tp70). In May 2003 the applicant provided Centrelink with an income and investments form in which Peter was again described as her partner. Also in May 2003 the applicant provided a statement to Centrelink as evidence of how she and Peter had supported themselves up to that time. In that statement (Tp26) the applicant described Peter as her boyfriend. I note that T34 is a record made by a Centrelink officer of a telephone conversation with the applicant on 26 May 2003 in which the applicant inquired about progress in the processing of her claim for YA and in which she advised Centrelink that she was “in financial hardship”.
27. In September 2003 the applicant and Peter both completed “living arrangements” forms for Centrelink at the time that the ARO was reviewing the decision to cancel the applicant’s YA (Tpp139-162). In her form the applicant described Peter as her boyfriend and in answer to the question of whether she had claimed she and Peter were a de facto couple for any purpose the applicant wrote that “I originally thought that we were de facto simply because we lived in the same house, but have realised that this is not the case as we do not share any income or possessions, but simply live in the same house. He is my boyfriend but we are simply living in the same house due to the convenience of it being his parents house, and are not ready to make the commitment of sharing our own house at this stage” (Tp149). She described their relationship as “he is my boyfriend; but all possessions, money matters etc are completely separate. We are 2 individual people that happen to live in the same house due to convenience” (Tp151). The applicant described the circumstances in which she and Peter began to share the accommodation and how long she intends to continue to do so as follows: “I returned back to Perth with him from overseas (my family is from Qld) and decided to stay for a while; … I am planning to return to Cairns to my family early in the new year”.
28. In his form Peter described the applicant as his girlfriend and described how and why they had started sharing the accommodation as: “because it is my parent’s house and I had no money and neither did she so we stayed here because it is cheaper and I am not going to make her spend a lot more money somewhere else”. He said that he intended to share the accommodation with the applicant “until she goes back to Cairns” (Tp154). Peter said that he and the applicant had never lived as if married on a de facto basis and had never claimed that he or the applicant were a de facto couple for any purpose. In response to the question of how he would describe their relationship Peter said that “she is my girlfriend, she is still travelling, seeing Perth, I like her, we do not own anything together, share money matters, or are ready to commit completely to this relationship yet. We live together only because it is the easy and convenient option. She will be going back to Cairns soon so see how it goes”.
Any sexual relationship
29. The applicant said that she and Peter had had a sexual relationship since January 2002 and which had continued thereafter, apart from the period when she had returned to Australia in the middle of 2002 and for the period in December 2002 when Peter had withdrawn from the relationship for a period of time.
The nature of the commitment to each other
30. The applicant said that so far as she was concerned the relationship had, up until April 2003, been one of companionship when travelling. There had been no particular emotional problems during the relationship (apart from the period of separation at the end of 2002) so there had been no great need for emotional support from either of them to the other. The applicant hoped that the relationship would continue. The applicant said that in April 2003 she certainly did not see her relationship with Peter as a marriage-like relationship. As far as she was concerned the decision to live with his parents when they arrived in Perth was just a reflection of the continuation of the companionable relationship that they had had up until that time. She was not sure at that time whether she would stay in Perth when her six-month course finished. The applicant said that, for her, the things that would indicate a marriage-like relationship for she and Peter would be if they chose to move away from his parents house and set up their own household together with a pooling of financial resources and the making of joint plans for the future. None of that had happened by April or May of 2003. The applicant said that the relationship between she and Peter had changed somewhat over the course of 2003 from her point of view. When she finished her course at the end of September 2003 she had decided to stay in Perth. One of her reasons for doing that was that she thought the relationship between she and Peter was stronger than it had been previously with a stronger degree of commitment to each other. Nevertheless, she did not regard the relationship at that later stage as being a marriage-like relationship.
consideration
31. As noted at para [11] above, the decision under review is the decision made on 19 June 2003 to cancel the applicant’s YA benefit with effect from 2 May 2003. Being a cancellation decision, it is the facts and circumstances at the date of cancellation that are determinative of the issue. Subsequent events that might indicate a subsequent entitlement or lack of entitlement to the benefit in question are not relevant to such a cancellation decision: Freeman v Secretary, Department of Social Security (1988) 15 AD 671 per Davies J.
32. In a case of this kind it is necessary to take into account all facets of the interpersonal relationship of the two people concerned and to have regard and give sufficient weight to those factors set out in s 4(3) and any other factors that are relevant. That assessment must take place in a context that is inherently difficult – because of the extremely imprecise nature of what is a marriage-like relationship. As the Tribunal observed as long ago as 1981 in Re Tang and Director General of Social Services (1981) 3 ALN N83at [14] “…the difficulties inherent in approaching the problem are obvious, for it involves a comparison of a relationship with a very imprecise standard, namely marriage. The day has long passed (if it in fact ever existed) when one could safely generalise about what constituted a typical marriage.” What emerges clearly from the authorities is that no single factor that might point towards or away from the existence of a marriage-like relationship will be conclusive in isolation.
33. Having regard to my favourable view of the applicant as a credible witness I make the following findings of fact as at the time of the cancellation decision:
(a) The applicant and Peter are persons of the opposite sex who are not legally married to each other and who are both over the relevant age of consent. They have had a relationship since January 2002.
(b) The applicant and Peter did not jointly own any real estate or any other assets or have any joint liabilities; they did not pool any financial resources to any significant degree – and not at all in relation to major financial commitments. There were no legal obligations owed by either of them in respect of the other. They each paid board to Peter’s mother of $100 per week, which is a realistic amount and comparable to the cost of living in shared accommodation of a standard appropriate to their age and lifestyle. They do not otherwise share day-to-day household expenses.
(c) The applicant and Peter have no joint responsibility for providing care or support of children or any other person. They share a bedroom at a home owned by Peter’s parents and otherwise live with his parents. The applicant and Peter make a minor contribution to the housework of the household in which they live in accordance with the wishes of Peter’s parents but they do not otherwise distribute or share responsibility for housework.
(d) The applicant and Peter have never held themselves out to any person as being legally married to one another. However, they have held themselves out as being de facto partners to Centrelink, commencing in January 2002. The assessment of friends and regular associates of the nature of their relationship is that they are girlfriend and boyfriend who live together – but the applicant’s mother and Peter’s father supported the applicant’s claim for YA with statements that were indicative of a de facto relationship. The applicant and Peter engage in joint social activities but make no particular plans of a long term nature regarding that aspect of their time together.
(e) The applicant and Peter have had a sexual relationship since January 2002 with the exception of a period of approximately one month in the middle of 2002 and a period of approximately 3 weeks in December 2002.
(f) The applicant and Peter provide companionship to one another and a degree of emotional support, although the circumstances have never arisen in which the latter has been tested to any significant degree. The applicant and Peter have no particular plans in relation to the continuation of the relationship but expect it to continue for the time being. The applicant and Peter expressed contradictory views about whether their relationship was a marriage-like-one at and following the making of the applicant’s application for YA.
34. As I explained at [11] above, it is not my task in these proceedings to determine whether the applicant was (at the time of her YA application) a “member of a YA couple” in the sense of having been in a marriage-like relationship for a continuous period of at least 12 months for the purpose of the applicant being assessed as an independent person in relation to YA benefits. Had that been my task I would have concluded that she was not such a person.
35. I have reached that conclusion having regard to the history of the relationship, the evidence given by the applicant and the documentary material, and my findings of fact set out above. In January 2002, when the relationship commenced, the applicant and Peter were 19 and 21 years of age respectively. Like many young Australians they were travelling overseas and, like many such young Australians, they formed relationships for reasons of convenience, friendship and for economic reasons. Frequently such relationships involve the sharing of accommodation – often basic in nature – and not infrequently involve a sexual component. These relationships frequently involve the sharing of some household duties and expenses and, at times when travelling, the sharing of some food and accommodation expenses.
36. In my opinion the relationship between the applicant and Peter during the period that they lived and travelled together in Europe and South Africa was a relationship of the kind I have described above and is not a relationship that in my opinion contains the necessary ingredients for a marriage-like relationship.
37. However, the issue that I must determine is whether the applicant was at the time of cancellation of her YA benefit a person who was a member of a couple for the purposes of s 4(2) of the Act having regard to the factors set out in s 4(3) and any other relevant factors.
38. I accept the applicant’s evidence that she chose to stay in Perth on her return to Australia rather than return to her home in Queensland because it was part of her overall tourist experience and that she regarded the relationship with Peter at that point in time as little more than a continuation of the relationship that they had had during their time together overseas. I accept that the decision to live with Peter’s parents was made by the applicant and Peter for reasons of convenience and economy. The fact that their friend Mark also stayed with Peter’s parents for about a month reinforces that view.
39. There are, however, several aspects of the relationship as it existed at the time of the YA application that point towards a marriage-like relationship at that time, even if it did not require a conclusion that the marriage-like relationship had been in existence since January 2002. I refer to the facts that the applicant and Peter chose to live together and continue a sexual relationship, and the fact that they represented to Centrelink that they were, and had been, de facto partners for some time. Reinforcing that claim was of course the supporting statements made by the applicant’s mother and Peter’s father, although the statement by the applicant’s mother was more equivocal than that of Peter’s father.
40. I do not believe that the applicant attempted to mislead Centrelink in making her application on the basis that she did. I accept the applicant’s evidence that she was primarily concerned with establishing independence and that it was convenient to attempt to do it by way of asserting a de facto relationship than by attempting to gather up the financial information that would be needed to establish self-sufficiency by virtue of employment and income histories. I accept that she, incorrectly, did not take into account the consequences of having a partner from the point of view of taking the partner’s income into account when calculating the rate of benefit. It is recognised that, given the complexities of the concept of a marriage-like relationship, a person may wrongly believe that he or she is or is not in such a relationship: see Re Pearce and Director General of Social Security 1983 (5 ALN N104). However, as the Tribunal observed in Re Ward and Secretary, Department of Social Security (1985) 7 ALN N66, the fact that 2 people live together, sharing a bed and having a sexual relationship, would usually mean that they were living in a marriage-like relationship or a de facto relationship. It remains the case, however, that this Tribunal regularly deals with cases in which two people assert (no doubt entirely genuinely) that they are (or are not) in a marriage-like relationship and Centrelink takes the opposite view. The assessment by the parties of the nature of the relationship is relevant, but by no means determinative.
41. Taken overall, I am left with the situation where, at the time of cancellation, the applicant and Peter had a history of a sexual relationship and they shared a bedroom. They had not intermingled their financial affairs and neither accepted any legal or financial responsibility to the other. They had a limited degree of commitment to one another although I accept the applicant’s evidence that she believes that commitment increased in the following months - to the extent that by September 2003, when she completed her course, she decided to stay on in Perth. That, in my opinion, suggests that the relationship may have developed into a marriage-like one by about September.
42. It seems to me that the factors weighing in favour of a marriage-like relationship and against such a relationship are fairly evenly balanced in this case. Because the decision under review is a cancellation decision, I must be satisfied on the balance of probabilities that the circumstances that justified the cancellation existed. That would be so only if, standing in the shoes of the decision-maker under s 4(2), I can be satisfied that the relationship in question is a marriage-like one. Although there is no onus of proof on the parties, if on all the material before me it is not possible to be satisfied that the relationship is of that kind then the applicant would be entitled to have her benefit calculated on the basis that she was not in a marriage-like relationship: see McDonald v Director General of Social Security (1984) 1FCR 354 and Re Hodgson and Secretary, Department of Social Security (1988) AAT 4279.
43. However, in the present case and on all the material before me, I am satisfied on the balance of probabilities that the relationship between the applicant and Peter as at the time of the cancellation decision was not one that had the attributes needed to justify a conclusion that it was a marriage-like relationship, even if it may have developed into such a relationship in the months that followed. The existence of the sexual aspects of the relationship and the prior statements of the parties that they were in such a relationship do not, in my opinion, justify such a weight that they more than balance out what I consider to be indications that there is no marriage-like relationship. In my opinion this was a relationship between 2 young people for convenience with limited emotional commitment. The relationship was not a marriage-like one at the time of the cancellation decision and the decision under review is set aside. The matter is remitted to the respondent with a direction that, at the date of cancellation, the applicant was not in a marriage-like relationship.
I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Murray Allen, Member
Signed: ...............(sgd V Wong)...................................
AssociateDate/s of Hearing 24 May 2004
Date of Decision 15 September 2004
Counsel for the Applicant In person
Counsel for the Respondent Ms R Bradley
Solicitor for the Respondent Service Recovery Team, Centrelink
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