Mould and Department of Family and Community Services

[2001] AATA 388

DECISION AND REASONS FOR DECISION [2001] AATA 388

ADMINISTRATIVE APPEALS TRIBUNAL      )

)  No Q00/953, Q00/975

GENERAL ADMINISTRATIVE  DIVISION       )       
           Re      ALVAR MOULD and PAMELA MOULD           
  Applicant
           And    SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES        
  Respondent

DECISION

Tribunal       Dr EK Christie, Member    

Date26 April 2001

PlaceSouthport

Decision      The Tribunal affirms the decision under review.  This means the application by Alvar and Pamela Mould is unsuccessful.        

(Sgd)   EK CHRISTIE
  MEMBER
CATCHWORDS
SOCIAL SECURITY – whether in a marriage-like relationship – specified criteria for forming an opinion about relationship – Secretary to have regard to circumstances of the relationship – meaning of "to have regard to" – whether relationship likely to continue indefinitely.
Social Security Act 1991 ss 4(2), 4(3), 4(3A)
Department of Defence v Fox (1997) 24 AAR 171
Queensland Medical Laboratories & Ors v Blewett & Ors (1988) 84 ALR 615
R v Toohey & Anor Ex Parte Meneling Station & Ors (1982) 158 CLR 327

REASONS FOR DECISION

26 April 2001 Dr EK Christie, Member                

1. This is an appeal by Alvar and Pamela Mould to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 6 September 2000 to treat Mr and Mrs Mould as a couple for the purposes of paying newstart allowance to Mr and Mrs Mould for the periods 25 January to 28 February 2000 and 1 February to 6 June 2000, respectively.  The SSAT decision affirmed the decision of an Authorised Review Officer (Document T58, 8 June 2000 and Document T59, 8 June 2000).

2. The Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975, the "T" Documents (Exhibit 1).

3. Mr Alvar Mould represented himself and Pamela Mould at the hearing.  The respondent was represented by Mr R McQuinlan, Departmental Advocate.
   Issues before the Tribunal

4. The only issue for the Tribunal to decide was whether Alvar Mould and Pamela Mould were a member of a couple for the purposes of the Social Security Act 1991 ("the Act").

Facts

1. The SSAT made the following findings of fact on the basis of the evidence before it:

• Mr and Mrs Mould were married in 1965, had three children, and were divorced in the United Kingdom in 1997.

• Mr and Mrs Mould have not lived apart either before or after their divorce.

• Mr and Mrs Mould own a home which they purchased as joint tenants in February 2000.

• Mr and Mrs Mould own some furnishings jointly, and jointly share most costs of daily living associated with running the house.

• Mr and Mrs Mould share some household duties and generally eat together when they are at home (Document T3 Folios 7 and 8).

The Law

1. A person is a member of a couple for the purposes of the Act if that person meets the requirements of subsection 4(2) of the Act. In the present circumstances, subsection 4(2)(b)(iii) is relevant:

   "4(2)    Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
   (a)       …..; or
   (b)       all of the following conditions are met:
             …..

   (iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship."

1. Subjection 4(3) of the Act sets out the matters to be considered when forming an opinion as to whether a person is in a marriage-like 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."

1. Under subsection 4(3) of the Act, in forming an opinion about the relationship between two people for the purposes of sub-paragraph (2)(b)(iii) of the Act, the Secretary is required to "have regard to all of the circumstances of the relationship". The Act then particularises specific matters. The phrase "have regard to" has been considered judicially on many occasions.

• It requires [the Commissioner] to take those matters into account and give weight to them as a fundamental element in making his recommendation:  per Gibbs CJ in R v Toohey & Anor Ex Parte Meneling Station Pty Ltd & Ors (1982) 158 CLR 327 at 333.

• The mere assertion that [the Committee] had acted would not be conclusive if it were demonstrated that regard had not been had to those matters in any real sense:  per Gummow J in Qld Medical Laboratory & Ors v Blewett & Ors (1988) 84 ALR 615.

• There would be a failure [by the Authority] to have regard to matters nominated in the statute if the regard was not adequate or not sufficient:  per O'Loughlin J in Department of Defence v Fox (1997) 24 AAR 171.

Contentions and Submissions of the Parties

1. Mr Mould's view was that a marriage-like relationship equalled unity between two people where the life of one was subjugated to the desires and wishes of the other.  Such a relationship did not exist in their circumstances and they were not in a marriage-like relationship.

2. In terms of the statutory criteria for a marriage-like relationship, Mr Mould, whilst acknowledging that he and Pamela Mould owned property as joint tenants [criterion (a)(i)] and the length of their relationship [criterion (e)(i)], made the following submissions:

• that the tie-up of their finances in property was a business venture and superior to a bank investment;

• that there were no legal obligations between them;

• that there was a sharing of household expenses as they "basically pay for what they use";

• that they share facilities and living arrangements;

• that there was no absolute responsibility for housework but they shared some essential household maintenance tasks in order to avoid costs;

• that they could not name an independent source to assess the nature of their relationship, given they had only recently returned to Australia from the United Kingdom;

• that they may engage in some joint social activities in order to reduce costs (eg travel to Brisbane to visit their children);

• that, in effect, they do not do anything together and provide no emotional support for each other.  Mr Mould's basic attitude to his wife was to help someone if you can;

• that they regard each other as friends; and

• that their travel arrangements were a matter of convenience.

1. Mr McQuinlan, the Departmental Advocate, made the following submissions to support the Department's position that Alvar and Pamela Mould were in a marriage-like relationship.

• the Moulds were divorced in 1997 but "do not consider themselves to be living in a marriage-like relationship …. Despite continuing to live with one another since their divorce in 1997";

• amongst the factors which suggest that Alvar and Pamela Mould were not in a marriage-like relationship were the following:  they divorced in 1997.  They do not have joint finances.  They are financially independent from one another.  They have separate bedrooms.  They do not have a sexual relationship nor do they share social or leisure activities;

• amongst the factors which suggested Alvar and Pamela Mould were living in a marriage-like relationship were the following:  They have shared the same accommodation at 4 addresses since divorcing in 1997 and continue to do so now.  They both moved to Australia together.  While maintaining that they are financially independent of one another, they purchased a home together as "joint tenants".  There is a level of commitment to one another evidenced by these decisions quite contrary to any notion of their being only friends or flatmates;

• the Department's view was that Alvar and Pamela Mould were not merely two divorced people who have decided to share accommodation for the time being.  The purchase of a home as joint tenants suggests that there is a long term commitment between them.  They have pooled their resources to purchase a home together and did so in a fashion that should one die, the other inherited their share of the property;

• that it was relevant that Alvar and Pamela Mould not only continued to reside together in the United Kingdom after separating in 1997 but then emigrated to Australia and lived at several addresses together before purchasing a home as joint tenants.  This characteristic strongly suggests their relationship was more than merely that of good friends bearing no animosity to each other (see Document T56, Folio 157); and

• the weight of evidence supports the formation of an opinion that Alvar and Pamela Mould were living in a marriage-like relationship at the time of their claims for newstart allowance on 28 January 2000.

Consideration of the Issues

1. The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.

2. This application for review raises somewhat an unusual issue for the Tribunal to decide.  Alvar and Pamela Mould are a divorced couple.  The question of law central to the outcome is whether in the totality of their circumstances, they are in a marriage-like relationship, according to the meaning given in the Social Security Act 1991 (Tribunal emphasis).  In forming its opinion whether a marriage-like relationship exists in Alvar and Pamela Mould's fact situation, the Tribunal has carefully considered all of the information and evidence before it and has applied the common law authorities (paragraph 8) in attaching weight to the following conclusions:

• that Alvar and Pamela Mould have not lived apart either before or after their divorce;

• that Alvar and Pamela Mould own a home that they purchased as joint tenants in February 2000.  They have actively pooled financial resources in such a way that the asset would not leave ownership of the surviving partner following the death of the other partner;

• that they own some furnishings jointly;

• that they share financial responsibilities for matters associated with maintaining the property and jointly share some of the costs of daily living; and

• that whilst Alvar and Pamela Mould may not socialise together, nor have a sexual relationship, they continue to live together and exist in a similar manner as they did when they were married.

1. Based on the above conclusions, the Tribunal decides that Alvar and Pamela Mould are in a marriage-like relationship in accordance with the prescribed meaning in the Social Security Act  for the purposes of paying newstart allowance over the period 25 January to 8 June 2000.

2. The Tribunal affirms the decision under review.  This means Alvar and Pamela Mould's application for review is unsuccessful.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         Emma Oettinger
  Associate

Date/s of Hearing  26.4.01
Date of Decision  26.4.01

Solicitor for the Applicant         Mr A Mould represented himself and Pamela Mould

Solicitor for the Respondent    Mr R McQuinlan, Departmental Advocate