Neilian Toms and Secretary, Department of Social Services - [2014] AATA 285

[2014] AATA 285

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/4248

Re

Neilian Toms

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr P Wulf, Member

Date 9 May 2014

Place Brisbane
The Tribunal sets aside the decision under review and substitutes the decision that the applicant was not a member of a couple at 29 October 2012. The decision is remitted to the respondent for the payment of carer payment.

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Mr P Wulf, Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Carer payment – Applicant applied for carer payment to assist mother – Respondent refused applicant’s request for carer payment as she is considered member of a couple - Applicant not in marriage-like or de facto relationship due to financial independence and open nature of relationship – Applicant entitled to be paid carer payment – Decision under review set aside and substituted
LEGISLATION
Acts Interpretation Act 1901(Cth), ss 2D, 2F
Family Law Act 1975 (Cth) ss 4AA, 90SB
Social Security Act 1991 (Cth) ss 4, 1067C
CASES
Alirezai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 655
Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135
REASONS FOR DECISION
Mr P Wulf, Member
9 May 2014
INTRODUCTION

Ms Neilian Toms[1] seeks review of decisions made by Centrelink on 4 January 2013[2] and 18 January 2013[3] that Ms Toms was a member of a couple and therefore could not receive carer payment in relation to her mother. On 5 March 2013, Centrelink further stated that Ms Toms could not be paid carer payment as her supposed partner, Mr D,[4] had failed to provide his income and asset details.[5]
[1] Exhibit 1, pp 1-2.
[2] Exhibit 1, pp 102-103.
[3] Exhibit 1, pp 123-124.
[4] Shortened for anonymity.
[5] Exhibit 1, pp 125.
An authorised review officer (“ARO”) affirmed the decision of 1 May 2013.[6] The

ARO’s decisions were affirmed by the Social Security Appeals Tribunal (“SSAT”) on

25 July 2013.[7] On 26 August 2013, the applicant applied to the Tribunal for review of the SSAT’s decision.
[6] Exhibit 1, pp 126-134.
[7] Exhibit 1, pp 3-9.
For the reasons that follow, the Tribunal finds that Ms Toms was not a member of a marriage-like or de facto relationship on 29 October 2012; accordingly the decision is set aside and substituted allowing for payment of carer payment.
ISSUES FOR THE TRIBUNAL
The issue for the Tribunal to determine is whether Ms Toms was a member of a couple with Mr D.
LEGISLATION
Section 4(2)(b) of the Social Security Act 1991 (Cth) (“the Act”) sets out the criteria for determining when a person, who is not married, is a member of a couple for the purpose of receipt of Centrelink benefits. The section states:
(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…
(b)       all of the following conditions are met:
(i)      the person has a relationship with another person, whether of the same sex or a different 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 subsections (3) and (3A)), a de facto 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.
Pursuant to s 4(2)(b)(iii) of the Act, when forming an opinion about whether a person is in a de facto relationship, the Secretary must have regard to all the circumstances of the relationship as defined in s 4(3). These include:
(3) …
(b)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;
(c)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;
(d)the social aspects of the relationship, including:
(i)      whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii)     the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)    the basis on which the people make plans for, or engage in, joint social activities;
(e)any sexual relationship between the people;
(f)the nature of the people's commitment to each other, including:
(i)      the length of the relationship; and
(ii)     the nature of any companionship and emotional support that the people provide to each other; and
(iii)    whether the people consider that the relationship is likely to continue indefinitely; and
(iv)     whether the people see their relationship as a marriage-like relationship or a de facto relationship.
In relation to carer payment, the Act is of little assistance as to what length of time that two people need to reside together to be determined as being in a de facto relationship. There is some discussion about a period of at least twelve months and even in special circumstances only six months, but this only relates to youth allowance.[8] Further,

ss 2D and 2F of the Acts Interpretation Act 1901 (Cth) do not provide any indication as to the length of time two people must be residing together for the purpose of being considered in a de facto relationship.
[8] See generally s 1067C of the Act: Member of a YA Couple.
A de facto relationship is defined in s 4AA of the Family Law Act 1975 (Cth)
(“Family Law Act”). Specifically, under s 90SB of the Family Law Act, which is headed “When this Division applies—length of relationship etc.”, a court may make an order under ss 90SE, 90SG or 90SM, or a declaration under s 90SL, in relation to a de facto relationship if the court is satisfied that a de facto relationship has existed for least

two years.
ANALYSIS AND FINDINGS
Background
Ms Toms is a 46 year old woman. Ms Toms advised the Tribunal she had two previous seven-year relationships, the last of which ended in 2007. Following that separation,

Mrs Toms decided to “enjoy her life.” In doing this, she met men for physical companionship through a website.
Ms Toms shared a house with Mr B[9] following the breakup of her marriage. The evidence was that Ms Toms and Mr B had some form of a casual non-monogamous relationship until she left the property in or about October 2010. The evidence was that Ms Toms moved out of the property as the property she and Mr B were sharing was to be sold; and she had decided that she no longer wished to share a property with Mr B due to what Ms Toms’ considered were hygiene issues.
[9] Shortened for anonymity.
In or about April 2009, one of the men Ms Toms met was Mr D. She subsequently commenced a physical relationship with Mr D sometime around December 2009. Following the sale of the property that she was living in with Mr B, Ms Toms sought separate accommodation and moved in with Mr D. Mr D is a 49 year old divorced man with three children. When Ms Toms and he moved in together, they rented a

four bedroom house so the children from Mr D’s prior marriage (ages 20, 19 and 13) could come and stay with him. Two of the children regularly stay with Mr D on a fortnightly basis.[10] The co-habitation arrangements appear to be that Ms Toms and Mr D share a bedroom. Ms Toms then has her own room and the other two rooms are used by Mr D’s children. Discussion on this aspect is specifically made below.
[10] Exhibit 1, pp. 140-142.
In July 2012, Ms Toms’ mother’s health deteriorated to a point where she needed care beyond that could be provided by Ms Toms’ father alone. In about August 2012, the parents moved to Queensland and efforts were made to find suitable accommodation.

At the time, two houses adjacent to each other were found and Ms Toms’ parents moved in to one and Ms Toms and Mr D moved into a second property they rented together in late September 2012. Ms Toms indicated that the purpose of obtaining adjacent properties was so she could care for her mother while at the same time having somewhere to enjoy her solitude.
The new property appears similar with respect to the living arrangements in that

Ms Toms and Mr D shared a bedroom and the other rooms were similar in nature for the children to stay. Ms Toms indicated that it was not common now for her and Mr D to share dinner together and he had “his” area of the house and she had “her” area of the house.
Ms Toms and her parents bought a property in Bellmere near where Ms Toms currently lives. The property was purchased in mid to late 2013 and needed substantial renovations to make it suitable for occupancy by Ms Tom’s mother. As soon as the property is completed, Ms Toms will move into it with her parents. Mr D will maintain his own property.
Centrelink Forms
In the vast majority of Centrelink forms, Ms Toms has indicated that Mr D was her partner. When completing her original application, Ms Toms indicated that she was a member of a couple.[11] Based on this, it is quite understandable how both the SSAT and Centrelink came to the conclusion that Mr D and Ms Toms were members of a couple. However, when making her original application for the carer payment, Ms Toms also made it clear on her form that her relationship with Mr D was “friends with benefits” rather than a couple.[12] Further, it is clear that Centrelink did not have the benefit of the statement from Mr D that is now before this Tribunal.[13] Based on the above, there is significant conflicting evidence that could, in the Tribunal’s opinion, be misinterpreted by a decision-maker without having the opportunity to hear oral evidence and question people about that evidence.
[11] Exhibit 1, pp 18-42 (see specifically p 20, Question 1).
[12] Exhibit 1, pp 18-42 (see specifically p 20, Question 1).
[13] Exhibit 1, pp 140-142.
Commencement Date of Living Together
Firstly, there is some inconsistency as to when Ms Toms and Mr D began renting a property together. This is a critically important matter in determining whether Ms Toms and Mr D were in a de facto relationship at the time of Ms Toms submitting the application.
Ms Toms indicated on her application form for carer payment that she commenced sharing the property with Mr D on 1 October 2010. The SSAT therefore found that they commenced renting the property in October 2010. Unfortunately, the Tribunal can only rely on the SSAT decision as the copy of the lease provided within the s 37 documents was of little assistance as it was dated to commence on 21 September 2012 and end on

21 September 2012 (same date).[14] By contrast, the respondent in its evidence indicated that Ms Toms and Mr D began renting a property together in about mid-December 2010 based on notes listed by a Centrelink staff member when determining aspects of a Newstart Allowance application by Ms Toms.[15]
[14] Exhibit 1, pp 88-99.
[15] Exhibit 4, Attachment A.
For the purposes of this matter, the Tribunal considers that Ms Toms and Mr D commenced residing in the same property in October 2010. Had the Tribunal determined that they had commenced residing together in December 2010 as per Exhibit 4, then for the purposes of this matter, Ms Toms and Mr D could not be considered a de facto couple as at the date of making the application, as they would not have been in a de facto relationship for a period of at least two years consistent with the Family Law Act.
Section 4(3)(a) - the financial aspects of the relationship
When making an assessment of the financial aspects of the relationship under s 4(3)(a) of the Act, the Tribunal notes that Ms Toms and Mr D are wholly financially independent of one another. This is clear from the evidence presented to the SSAT. The parties have no joint assets of any kind. The only financial relationship appears to be the paying of bills together for the purpose of renting the property and shopping. They maintain totally separate bank accounts. Importantly, it was noted that at no time did Mr D support

Ms Toms,[16] and the oral evidence from Ms Toms was that this was particularly so when she was out of work. In this regard, the evidence supports a finding that the parties are not members of a couple with respect to financial matters as they are totally separate.

Mr D provided a statement as to this matter.[17]
[16] Exhibit 1, pp 140-142.
[17] Exhibit 1, pp 140-142.
It is also noted that Mr D refused to provide Centrelink with information regarding

his income and assets as required under the carer payment application if he and Ms Toms were a couple. Ms Toms indicated in her correspondence to Centrelink of 26 December 2012 that he refused to complete the form.[18] This refusal could be seen in two ways.
[18] Exhibit 1, p 73.
Firstly, Ms Toms could be trying to hide the fact that Mr D was her partner and accordingly, Mr D could be complicit by not providing the information. This could potentially result in attempted fraud of the Commonwealth. In the alternative, the failure of Mr D to provide this information could be considered as being consistent with

Ms Toms’ submissions that they are not a couple. This submission is supported in that all references to “and/or your partner” have been crossed out in the Income and Assets form.[19]
[19] Exhibit 1, pp 104-122.
The Tribunal notes the respondent’s submissions as to the pooling of resources as discussed in Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[20] (“Phillip”). In that matter, Mr Philip indicated that while he and Ms Price were not married, they considered themselves to be a couple, and their families and friends recognise them as a couple. Mr Philip indicated that other than sharing household expenses equally, they are financially independent of each other.[21]
[20] [2013] AATA 135.
[21] Phillip and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 135 at [14]-[16].
In Phillip [22] Mr Philip and Ms Price provided information about their respective financial affairs including Ms Price’s income. By contrast, in this matter, Mr D has refused to provide any financial information on the grounds that he is not in a de facto relationship with Ms Toms.
Accordingly, the Tribunal does not find that Ms Toms and Mr D are in a de facto relationship for the purpose of s 4(3)(a) of the Act.
Section 4(3)(b) - the nature of the household
With respect to the nature of the household under s 4(3)(b) of the Act, the parties have no children together although it is noted that Mr D has three children from a prior marriage. Mr D undertakes all activities related to his children.
With respect to other aspects of the household, Ms Toms provided the Tribunal with evidence as to the living arrangements. Ms Toms indicated that she predominantly used the main lounge room of the house while Mr D had a small separate lounge room he would use. However, they share all other areas of the house and on this basis, could either be considered as being in a relationship, or in the alternative, being housemates.
Accordingly, the Tribunal is neutral as to whether Ms Toms and Mr D are in a de facto relationship for the purpose of s 4(3)(b) of the Act, although it is specifically noted that Mr D looks after his own children.
Section 4(3)(c) - the social aspects of the relationship
With respect to s 4(3)(c) of the Act, the section reflects on the social aspects of the relationship, including whether the parties hold themselves out as being married to each other; the assessment of friends and regular associates about the nature of their relationship; and the basis on which they make plans for, or engage in, joint social activities.
The evidence would suggest that the only real social engagement was that Ms Toms and Mr D had been on a four day holiday together. Other than that, the evidence is that they undertake very little, if any, social engagements together. Ms Tom’s parents initially considered that Mrs Toms and Mr D were in a full-time relationship. This would confer for example, with the information Ms Toms placed on her original application form.[23]
[23] Exhibit 1, pp 18-42 (see specifically p 20, Question 1).
Ms Toms’ parents provided the Tribunal with a statement as to what they understood the relationship to now be following advice from Ms Toms. While the Tribunal puts little weight on the actual description of the relationship made by Ms Toms’ parents, their evidence was that Mr D did not undertake social activities with Ms Toms and them including for example, coming to dinner.[24] Mr D also indicated in his statement that

Ms Toms does not socialise with any of his friends and acquaintances.[25] It would also appear from the evidence that they do not associate extensively while in their own house.
[24] Exhibit 1, pp 139.
[25] Exhibit 1, pp 140-142.
The above suggests that while there may be something more than housemates, there is no evidence to say that this extends to what would normally be considered a couple. Accordingly, the Tribunal does not find that Ms Toms and Mr D are in a de facto relationship for the purpose of s 4(3)(c) of the Act.
Section 4(3)(d) - any sexual relationship between the people
The primary area as to the respondent’s determination that Ms Toms was a member of a couple appears to rely upon the sexual nature of the relationship. In relation to s 4(3)(d) of the Act, Ms Toms and Mr D are clearly involved in a form of sexual relationship.

Ms Toms was very open with the Tribunal as to the physical relationship and for the purpose of this decision it does not need to be repeated here.
However, from the evidence of both Ms Toms and Mr D, it would appear that the relationship is not in any way monogamous, in fact, it is quite the opposite. Ms Toms again was quite open about her promiscuity and indicated that she was trying to live her life to the fullest and one of the ways she was doing that was to have physical relations with a number of different men.
In Alirezai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[26] the Tribunal found that while two individuals may share a bed together, the lack of other aspects of the relationship as defined by s 4(3) of the Act could result in a conclusion that the parties were “friends with benefits”, meaning that the parties were friends but had a physical relationship.[27]
[26] [2011] AATA 655.
[27] Alirezai and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 655 at [17]-[18].
While there is no doubt that that Ms Toms and Mr D have a physical sexual relationship, in that they are physical and share a bed, there is a significant question as to the intimacy of their relationship. Ms Toms provided evidence regarding her needs since separating from her ex-partner of seven years. Ms Toms further advised that Mr D was not her only sexual partner and that she would see other people outside of the home they rented.

Ms Toms indicated that she would not bring other men into the home, which could add to the consideration that there was more to the relationship; however the openness of the relationship, if one exists other than sharing a bed, would suggest that sex outside the relationship was the norm. When considering a normal de facto relationship it would be unusual, in the Tribunal’s opinion, for such actions to occur with such regularity. On this basis, the Tribunal does not find that Ms Toms and Mr D are in a de facto relationship for the purpose of s 4(3)(d) of the Act.
Section 4(3)(e) - the nature of the people's commitment to each other

In the Tribunal’s opinion, a de facto relationship requires a form of commitment to each other. This commitment would include but is not limited to having a monogamous relationship where the parties to the relationship acted as if they were a couple.

The Tribunal suggests that this would mean the members of the relationship undertook social activities together and had some form of financial commitment to each other, including supporting the other party when in need both financially and non-financially.
The nature of the commitment between Ms Toms and Mr D is less than what the Tribunal believes constitutes a de facto relationship. Ms Tom, for example, is leaving the so-called relationship to live with her parents once the home her parents have purchased is renovated. There appears to be nothing in the nature of the commitment other than one of a sexual nature; and both Ms Toms and Mr D have multiple partners. In the Tribunal’s opinion, for those reasons it is clear that there is not a true commitment to each other.
The only real commitment to each other appears on the face to be a commitment to reduce the other party’s financial outlays, this being the sharing of household expenses to reduce what each other would have to pay as individuals. There is no commitment to a monogamous relationship, and no ongoing commitment to live with each other, as

Ms Toms will soon reside with her parents and Mr D will not move with her to the new property. This is very much different to that considered in Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs,[28] which involved a couple who had lived together and owned a joint bank account for many years.
[28] Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92.
Section 4(3) – cumulative assessment
The Tribunal notes the decisions referred to by the respondent including Hartley and Secretary, Department of Education, Employment and Workplace Relations[29] and decisions referred within, which requires a decision-maker to assess the totality of the evidence. Based on the evidence presented to the Tribunal, the weight of evidence suggests that no financial relationship existed, and that the aspects of the non-financial relationship were more akin to two people sharing a property.
[29] Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470.
The respondent relies upon the fact that besides a sexual relationship, there is evidence of a true commitment between Ms Toms and Mr D. The respondent has suggested that the sexual nature of the relationship demonstrates this true commitment. In the opinion of the Tribunal, this factor is not established. The fact that both Ms Toms and Mr D are not committed monogamously to each other in relation to their sexual relationship suggests that, in combination with the remainder of the evidence, they are not in a marriage-like or de facto relationship under s 4(2) of the Act. Further, the fact that Mr D has provided no support while Ms Toms has been caring for her mother further supports the conclusion that Ms Toms and Mr D are not in a marriage-like or de facto relationship under s 4(2) of the Act.
DECISION
For the reasons set out above, the Tribunal sets aside the decision under review and substitutes the decision that the applicant was not a member of a couple at

29 October 2012. The decision is remitted to the respondent for the payment of carer payment.

I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of
Mr P Wulf, Member
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Associate
Dated 9 May 2014

Date of hearing 12 March 2014

Applicant In person

Solicitors for the Respondent Donna Smith, Department of Human Services

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/4248
Re	Neilian Toms
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr P Wulf, Member
Date	9 May 2014
Place	Brisbane

Date of hearing	12 March 2014
Applicant	In person
Solicitors for the Respondent	Donna Smith, Department of Human Services