Langford and Anor; Secretary, Department of Family and Community Services

[2004] AATA 337

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 337

ADMINISTRATIVE APPEALS TRIBUNAL      )

)               N2003/610 &

GENERAL ADMINISTRATIVE DIVISION		)             N2003/611
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And

1. EILEEN LANGFORD

2. THOMAS TEARLE

Respondent

DECISION

Tribunal Ms N Bell, Member

Date1 April 2003

PlaceSydney

Decision  The decision under review is affirmed.

[Sgd] Ms N Bell
  Member

CATCHWORDS

SOCIAL SECURITY - members of a couple – whether Respondents are living in a marriage like relationship – financial aspects of the relationship – Respondents jointly hold principal place of residence – holistic assessment of living arrangements by Tribunal – decision affirmed

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

Social Security Act 1991 - s4(3)

REASONS FOR DECISION

1 April 2003   Ms N Bell, Member           

1.      The decision under review in this application is the decision of the Social Security Appeals Tribunal (“the SSAT”) dated 4 March 2003 which set aside the decisions reviewed by it and substituted a new decision that Mrs Eileen Langford and Mr Thomas Tearle (‘the Respondents”) are not members of a couple.  The Applicant is the Secretary, Department of Family and Community Services whose delegate decided, on 6 December 2002, that the Respondents are in fact members of a couple.

background

2.      The following facts are not in dispute:

§  In 1972 Mrs Langford moved into Department of Housing premises at 30 O’Dell Street, Armidale. She lived there with her children and later with her mother until her mother died in 1990.  After her mother died the Department of Housing advised Mrs Langford that she would have to move into a unit or share the house with someone else. Mrs Langford did not want to leave the premises and so invited Mr Tearle, who was then living in a caravan park, to live in the house with her. He accepted.  Mr Tearle was registered as a tenant and Centrelink was notified.

§  In 1995 Mr Tearle decided to buy the house. It was a condition of purchase that Mrs Langford be a party to the transaction, being the Department of Housing’s tenant, and so the house was purchased in both names as joint tenants.  Mrs Langford continued to pay the same rent after the sale but paid that rent to Mr Tearle rather than to the Department of Housing.

§  In November 2002 Mr Tearle applied for Newstart allowance when his fruit picking work ceased and he had exhausted his savings. In assessing his application Centrelink decided to treat Mr Tearle and Mrs Langford as members of a couple.  Mrs Langford’s pension was reduced as a result of the decision. A few weeks later Mr Tearle found work again.

·     Mr Tearle and Mrs Langford have separate bedrooms and do not have a sexual relationship.

·     Mr Tearle and Mrs Langford do not have joint bank accounts.

·     Mr Tearle and Mrs Langford each have their own cars.

·     Mrs Langford’s children treat Mr Tearle as a friend of the family.

·     Mr Tearle is estranged from his siblings, has no children and does not want his family to benefit from his estate.

·     Mrs Langford is 16 years Mr Tearle’s senior and has no desire to be married again.

Mrs Langford’s evidence

3.      Mrs Langford confirmed the evidence she had given to the SSAT, as summarised by the SSAT in its Statement of Reasons and also gave oral evidence to the Tribunal.  Her evidence can be summarised as follows.

4.      Mrs Langford was married between 1959 and 1970. She had three children, one daughter and two sons, born in 1960, 1962 and 1964. She separated from her husband in 1969 or 1970 after an extremely violent marriage and went into Department of Housing accommodation with her three children after initially staying with her sister.  She is now 66 years old.

5.      At one stage Mrs Langford’s grand-daughter Tammy lived with her from about the age of 10 and then after she and Mrs Langford’s other children had moved out her mother commenced living with her.

6.      Mrs Langford has a number of medical problems including a “diseased spine” and high blood pressure.  Her spinal problems arise from her husband having kicked her in the back and from lifting a heavy milk drum at work. She has never been compensated for this injury.

7.      When Mrs Langford gets bad pain she is unable to rise from bed but looks after herself unless she is “really, really” bad and then she will call her daughter, Wendy Fuller (“Ms Fuller”).

8.      When her mother died Mrs Langford was contacted by the Department of Housing to see whether she wished to remain in the house or move to a single unit. The Housing Officer told Mrs Langford that to stay in the house she would have to share the house with someone. As Mrs Langford did not want to live alone anyway, the Housing Officer suggested that she take in a student boarder but Mrs Langford did not want live with someone she did not know.  It occurred to her that Mr Tearle, who was at the time living in a caravan park, might wish to become a boarder in her house. She told the Housing Officer about Mr Tearle and she arranged a meeting with him.  Centrelink was notified of this.

9.      Some years later Mr Tearle received lump sum compensation from a work injury. He asked Mrs Langford if he could buy the house and she agreed as long as she could stay there until he “got a woman or got married”.  She had no money to contribute to the purchase. They went to see the Housing Officer who said that, because Mr Tearle was not a tenant, he could not buy it unless Mrs Langford’s name also appeared on the title.

10.     After the house was purchased as joint tenants Mr Tearle told Mrs Langford that she didn’t have to pay any rent but she insisted and paid him $80 per fortnight. She continues to do so, even though the loan has been paid off.  She has a book which records her payments and which Mr Tearle signs each time a payment is made.

11.     Mrs Langford said that the services such as electricity, gas and telephone remain in her name, having been connected before Mr Tearle’s arrival.  The costs of these are shared, taking into account any rebates Mrs Langford is entitled to as a pensioner. They share the cost of the rates but Mr Tearle pays the building and contents insurance.  They own no furniture in common, Mrs Langford’s own furniture being in her bedroom and Mr Tearle having the use of her daughter’s bedroom furniture in what used to be her daughter’s room. Mr Tearle owns the fridge, TV, DVD and stereo, the dining table and chairs and the dryer and washing machine. All other furniture is Mrs Langford’s.

12.     They generally do not eat together, Mr Tearle liking spicy food and Mrs Langford preferring plainer food. Until recently, due to work commitments, Mr Tearle has arrived home later than the time at which Mrs Langford eats her dinner and so they generally do not eat together.

13.     In relation to housework, Mrs Langford does what she can but cannot vacuum. Mr Tearle vacuums and does the outside work as well as cleaning his own room. They each do their own washing and ironing and Mr Tearle washes his own dishes.

14.     Mrs Langford goes to bingo on Tuesday’s and Friday’s at the Bowling Club. Mr Tearle sometimes goes to the Bowling Club with her on Tuesday nights unless he is late home and she has already left.  They do not go anywhere else together. She generally introduces him as a friend and some people have said, “Is that your son?”  She said he is like a son to her. She said that having Mr Tearle living in the house means that she is not frightened at night and that in an emergency he would go and get a prescription for her.

15.     Mrs Langford has a television in her own room and will generally watch it there unless there is a movie on that both she and Mr Tearle want to watch in which case she will watch with him while she sits at the table knitting.

16.     On weekends Mr Tearle goes to the TAB, mows the lawn and watches sport on TV.

17.     They each do their own shopping but may sometimes buy bread and milk for the both of them. Mr Tearle never gives her any money.

18.     At Christmas Mrs Langford either has her family at her house or she goes to her daughter Ms Fuller’s house.  She stays from one to three weeks when she visits her daughter at Christmas and Mr Tearle comes for a few days but then returns home to go back to work. Mr Tearle is not on good terms with his family and does not see them. When Ms Fuller comes to Mrs Langford’s house for Christmas she stays two to three weeks.

19.     When Ms Fuller gets depressed or stressed Mrs Langford goes to her house until she is back on her feet. Mr Tearle does not accompany her, as Ms Fuller is not his daughter.

20.     Mrs Langford cared for Ms Fuller’s daughters when they were little and Mr Tearle took no part in that.

21.     Mrs Langford has nominated her daughter as her next of kin and if not her, then one of her sons. She was not aware that Mr Tearle had nominated her as his emergency contact and said she does not know what that is about.  She said she does not know why Mr Tearle has left everything to her and her children in his will except that he has told her that he has no one else. She understands that her will says that Mr Tearle can stay in the house until he dies and that it then goes to her children.

22.     Mrs Langford said that she is not aware of anyone ever thinking or saying she was in a relationship with Mr Tearle. She met Mr Tearle’s parents a long time ago but did not know him while she was married.  She first met him when he came to her house with her younger cousin Pam, who is her daughter’s age, and her boyfriend when Pam and her boyfriend got engaged.

Mr Tearle’s Evidence

23.     Mr Tearle also adopted the evidence he had given to the SSAT as summarised by the SSAT and gave oral evidence to the Tribunal. His evidence can be summarised as follows.

24.     Mr Tearle is 51 years old.  He left school in his third year of high school and is a groundsman, having generally worked on the land.  He was married and divorced and has no children.  He has two sisters and one brother whom he has not seen for some years.  Up until recently he worked very long hours, leaving the house before Mrs Langford rose and not arriving home until after dark.  He now works five days per week from 7.30am to 3pm. 

25.     In 1990, when he was asked by Mrs Langford to move into her Department of Housing house, he was living in a caravan park and so it was an attractive offer.  He had known Mrs Langford for about 16 years and she had met his parents. He understood that Mrs Langford wanted to do what she had done with her mother in sharing the bills and expenses.  Because Mr Tearle was working he had to pay the Department of Housing more rent than did Mrs Langford.

26.     Mr Tearle received lump sum compensation in relation to an accident at work and was later medically retired and received another lump sum.  He became aware that one could buy a Housing Commission house and was told by the Department of Housing that he could not buy the house on his own because Mrs Langford was the tenant and not he.  He was advised by the Department of Housing that Mrs Langford had to be one of the buyers.  Mr Tearle said that he knows that there are two ways in which two people may own a property, as either joint tenants or tenants in common, but cannot tell which is which.

27.     Initially the mortgage of some $20,000 was paid out of Mr Tearle’s bank account and all payments came from him.  Mrs Langford gave him $80 per fortnight and he used it to buy things for the house.  At one stage he was working away from home and arranged for Mrs Langford’s $80 per fortnight to go direct to the mortgage as an extra or additional payment. The loan was paid off in February of 2003 but Mrs Langford insists on continuing to pay $80 per fortnight “because she is independent”.  That amount simply goes into Mr Tearle’s bank account.

28.     Mr Tearle said that he has never claimed the dependent spouse rebate in relation to Mrs Langford (see Exhibit R4, 1993 and 1992 Income Tax Returns).  He also never nominated Mrs Langford as a beneficiary of his superannuation fund (see Exhibit R3, Client Benefit Statement).

29.     Mr Tearle buys his own clothes and toiletries and cooks his own meals. In his old job he would get home too late to eat with Mrs Langford.  He does his own dishes and laundry and grocery shopping.  He shares the cost of the electricity and gas bills and because Mrs Langford gets a rebate they split the bill and then deduct the amount of the rebate.  The accounts are held in her name.  The rates are charged in both their names because the house is in both their names.  They have no jointly owned household items. Mr Tearle does the vacuuming when Mrs Langford’s back is hurting her; he cleans his own room and mows the lawn and chops wood.  He goes to bingo with her sometimes on a Tuesday night and he goes alone to the TAB on Saturdays.  He confirmed Mrs Langford’s evidence in relation to Christmas visits to Ms Fuller’s house and said that he has never been to help or visit Ms Fuller when she has been depressed or stressed.  When Mrs Langford is sick Ms Fuller stays at the house to look after her. He has never cared for Mrs Langford when she has been sick.

30.     Mr Tearle and Mrs Langford might talk about current events and have general conversation but that is the extent of their communication.  He sees himself and Mrs Langford as dear friends who can rely on and trust each other with each other’s possessions.

31.     Mr Tearle has made Mrs Langford and her children beneficiaries of his will because he has no family other than two sisters and a brother who he sees very rarely and does not wish to see more often.  The circumstances of his parents’ deaths estranged him from his family and he is determined that none of them will benefit from his estate.

32.     On one or two occasions people he and Mrs Langford have seen only now and then have thought that they were in a relationship.  He and Mrs Langford put them straight immediately.

33.     Mr Tearle considers that he and Mrs Langford have been able to live together for so long because they do not interfere in each other’s lives. 

Ms Fuller’s Evidence

34.     Ms Fuller provided a statement to the Tribunal and gave oral evidence.  She confirmed that Mr Tearle began living with her mother as a lodger and that she observed that when he was around, which was rare, he did his own washing and ironing and mostly ate by himself. 

35.     She said that last year she went to live with her mother for about six months from July to December and stayed in the spare bedroom. She said Mr Tearle was at work most of the time and would leave without having breakfast and would come back late, generally after she and her mother had had dinner. He would come home, eat and go to sleep on the lounge.  Only occasionally did he come home early enough to have dinner with them.  On his days off he would do his chores like washing and ironing or would go out shopping by himself.  The only time she saw Mr Tearle socialise with her mother was when they both went to bingo.

36.     Ms Fuller said that she is divorced with four daughters born in 1981, 1984, 1986 and 1987.  One of her daughters lived with her mother from the age of 10 or 11 and has done so again in the last year or two. 

37.     Ms Fuller stayed with her mother for six months in 2003 because she has schizophrenia and her mother helps her with difficult times.  She confirmed that at Christmas when her mother visits her Mr Tearle accompanies her but stays only a couple of nights rather than the two or three weeks her mother stays.  She said that her mother visits her a few times a year and when she is sick. She confirmed that her mother has medical problems and she assists her mother when she is sick.  She called the contention that Mrs Langford and Mr Tearle are in a marriage-like relationship “ridiculous”.  She said her mother does not want a relationship, having been married to a very violent man.  She said she has seen her mother with a broken jaw, ribs and nose.  She saw her father pull a rifle on her mother and described him as a violent drunk.

38.     She said that Mr Tearle is simply a friend and that she does not rely on him for any support and nor does her mother.  When her mother visits her, a few times a year for two for three weeks each time, Mr Tearle never accompanies her.

39.     She confirmed that Mrs Langford and Mr Tearle have very different taste in food and that they rarely eat together.

40.     She said that the main reason that Mr Tearle moved in was because she, her brothers and her mother, asked him to so that her mother would not be alone at night.  She said that the reason why their arrangement works so well and has lasted for so long is because Mr Tearle leaves her mother alone, he does “his thing” and never oversteps the mark.

Consideration

41.     In considering this application I have taken into account the matters put forward by the representative for the Applicant and Counsel for the Respondent.  I was referred to a number of decisions of the Federal Court and of the Tribunal.  In particular, I had regard to the decision of the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 in which the Court, after listing a number of matters relevant to the question of whether a married couple are living separately and apart, made the following comments:

“19.  In para 19 of its reasons, the tribunal made particular reference to Tang's case, supra listing the 10 subject matters that had been identified in that case by counsel for the applicant as matters against which a relationship should be evaluated.  In Tang's case the tribunal had said that it found the list "helpful in a general way" but it did not endorse it "as being either a necessary or an exhaustive list".  I consider, with respect, that those comments were appropriate. Each of the 10 matters touches upon an important subject but they were compiled for the purpose of determining whether the applicant in Tang's case was "a woman who (was) living with a man as his wife on a bona fide domestic basis although not legally married to him".  As the test to be applied in this case in whether Mrs Staunton-Smith was living separately and apart from Mr Staunton-Smith, I would prefer to have regard to the subject matters that were mentioned in Tang's case, but to recast them in the following fashion:

(1)What are the living, eating and sleeping arrangements in the household between the applicant and the other party?

(2)       Do the applicant and the other party have a sexual relationship?

(3)       Do the applicant and the other party have a social relationship?

(4)What third parties (particularly children) are residing in the house and what is the relationship between each third party and the applicant and the other party?

(5)What are the financial arrangements between the applicant and the other party?  For example, are resources within the household pooled and household expenses shared?

(6)Do the applicant and the other party hold themselves out as living separately and apart?

(7)Do the applicant and the other party have a genuine belief that they are living separately and apart?

(8)Does the existing relationship give rise to any moral, social or legal rights between the applicant and the other party?

(9)Finally, what is the relationship between the applicant and the other party and does it contain any degree of permanence?

20. It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case.  It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators.  The tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

21.  It should, of course, be clearly understood that no tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list.  The personal circumstances of people vary substantially.  The responsibility of the tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations.  If the tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.”

42. With the Federal Court’s comments in mind, I turned to the provisions of section 4(3) of the Social Security Act 1991 (“the Act”) which provides:

“Member of a couple—criteria for forming opinion about relationship

4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a) the financial aspects of the relationship, including:

(i)any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)any significant pooling of financial resources especially in relation to major financial commitments; and

(iii)any legal obligations owed by one person in respect of the other person; and

(iv)      the basis of any sharing of day-to-day household expenses;

(b) the nature of the household, including:

(i)any joint responsibility for providing care or support of children; and

(ii)       the living arrangements of the people; and

(iii)      the basis on which responsibility for housework is distributed;

(c) the social aspects of the relationship, including:

(i)whether the people hold themselves out as married to each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d) any sexual relationship between the people;

(e) the nature of the people's commitment to each other, including:

(i)        the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see their relationship as a marriage-like relationship.

4(3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”

43. Prior to reaching my conclusion on the “totality of the evidence”, I will examine the evidence relevant to the “indicators” listed in section 4(3).

44.     In relation to the financial aspects of the relationship, I note that the only joint asset of the Respondents is the house in which they live.  While this is a significant asset and ordinarily indicative of a close connection between two persons, I am mindful of the manner in which and the reasons why it was acquired jointly. I accept the evidence of the Respondents that the reason for Mrs Langford’s joint ownership with Mr Tearle is the Department of Housing’s requirement that she be on the title to the property given that it was she who was that department’s tenant.  I am also mindful of the manner in which Mrs Langford contributed to the purchase of the property and continues to make payments in the nature of rent and I accept the Respondents’ evidence in that regard.

45.     As to the nature of the bequests made by each in their wills, I consider that Mrs Langford’s provision in her will for a life estate for Mr Tearle runs somewhat short of the usual bequest made by a person to her partner in life.  Mr Tearle’s bequest to Mrs Langford is, I note and accept, made in the context of estrangement from his family and the absence of a wife.  I accept that he has not named Mrs Langford as a beneficiary of his superannuation nor has he ever claimed a deduction in relation to her in his tax returns.

46.     I accept that household expenses and recurrent bills are split down the middle by the Respondents, taking into account any rebates that Mrs Langford is entitled to as a pensioner and notwithstanding the discrepancy in their incomes and that Mr Tearle pays for most items of a house maintenance nature.

47.     The nature of the household appears to be one of two people co-operating in sharing a house but maintaining their independence from each other.  I have no reason to doubt the evidence of the Respondents in this regard.  They have both separate and shared space within the house but appear to rarely occupy the shared space, eg. the lounge room or kitchen, at the same time.  Housework is, as described by the Respondents, divided along traditional male and female lines, taking into account Mrs Langford’s back pain, with each taking responsibility for his or her own separate room, laundry and meals. 

48.     There is no doubt that the Respondents do not hold themselves out as married to each other and I accept Mr Tearle’s evidence that on the rare occasion when a person has assumed that he and Mrs Langford are in a marriage like relationship he has corrected them.  I also accept the evidence of Ms Fuller in so far as to her observations of the Respondents.  The only joint social activity engaged in by the Respondents appears to be the odd Tuesday night bingo session, although I note that neither of the Respondents appear to engage in extensive social activities.  I note Mrs Langford’s description of Mr Tearle as being “like a son to her” and I consider the context in which she met him to be of some significance, that is, in the company of a young relative and her fiance.  In the context of the 16 year age difference between them, I consider that it may have set the tone of their relationship through the years, reflecting a generational difference.  I accept Mr Tearle’s candid evidence that Mrs Langford is a “dear friend” whom he trusts.

49.     I note as significant, and accept the Respondents’ and Ms Fuller’s evidence, that Mr Tearle has never joined in the care of Ms Fuller nor her children, notwithstanding that, according to her evidence, she has over the years required significant support.

50.     There is no question of a sexual relationship between the Respondents, either now or at any time in the past.

51.     The nature of the commitment between the Respondents is significant, on their own evidence.  The relationship is an enduring one albeit somewhat arms length.  Neither gave evidence of any intention to cease the arrangement, although I note that Mrs Langford stated her expectation to be that she continue to live in the house until Mr Tearle marries or “gets a woman”.  However, I accept that neither sees the relationship as “marriage like”.  There does not appear to be any element of intimacy between the Respondents nor any degree of emotional support.  They appear rather to give each other some degree of security and respect.  The companionship they afford each other appears to be minimal.

52.     I accept Mrs Langford’s and Ms Fuller’s evidence of the violent nature of the marriage Mrs Langford experienced and I accept that this has greatly influenced her view of marriage and relationships with men.  Mr Tearle appeared to be somewhat of a loner.

53.     The totality of the evidence points to an enduring association born out of Mrs Langford’s need, both financial and in terms of her personal security, for a person to share her accommodation and Mr Tearle’s need for better accommodation.  There is trust and respect in the relationship but no intimacy, now or in the past, and each of the Respondents is independent of the other.  The companionship afforded to each by the relationship is no more than would be expected of two people co-operating in the running of a shared household.  The generational difference between them, while not determinative, is significant and has influenced the nature of the relationship making it more familial than it might have otherwise been.  I do not doubt that Mr Tearle is “like a son” to Mrs Langford and Mr Tearle appears to regard Mrs Langford with some warmth expressed by him in the protective gestures he made with respect to the purchase of the house and in taking responsibility for its maintenance.

54.     For these reasons, I do not consider that the relationship between the Respondents is “marriage like”.

Decision

55.     The decision under review is affirmed.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Member

Signed:         A. Krilis
  Associate

Date/s of Hearing  25, 26 February 2004
Date of Decision  1 April 2003
Representative for the Applicant    Mr George Lozynsky
Counsel for the Respondent          Mr Mark Vincent
Solicitor for the Respondent          Ms Fiona McMullen