QX03-4 and Secretary, Department of Family and Community Services

[2003] AATA 1173

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1173

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/532

GENERAL ADMINISTRATIVE DIVISION		)
Re		QX03-4

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date21 November 2002 

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

(Sgd)          O Rinaudo
  Member

CATCHWORDS

SOCIAL SECURITY – whether marriage like relationship – specified criteria for forming opinion about relationship – Secretary to have regard to all the circumstances of the relationship - meaning of “to have regard to”.

Social Security Act 1991 (Cth) ss 4, 24

Du Pelle and Secretary, Department of Family and Community Services [2002] AATA 186

R v Toohey & Anor Ex Parte Meneling Station Pty Ltd Ors (1982) 158 CLR 327

REASONS FOR DECISION

21 November 2002 Mr O Rinaudo, Member    

1.      The applicant seeks a review of the decision of Centrelink made on 8 January 2003 to treat her as a member of a couple with her partner.  This decision was affirmed by an Authorised Review Officer on 15 April 2003 and further affirmed by the Social Security Appeals Tribunal on 19 June 2003.

Issues

2.      The issues for the Tribunal is whether the applicant and her partner were living in a marriage-like relationship, whether she should be regarded as a member of a couple for the purpose of the Social Security Act 1991 (Cth) (the Act), and whether the applicant is entitled to payment of Newstart Allowance.

Legislation

3. The legislation applicable to this review is contained in sections 4 and 24 of the Act.

4.(2)  Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b)       all of the following conditions are met:

(i)the person has a relationship with a person of the opposite sex (in this paragraph called the "partner");

(ii)the person is not legally married to the partner;

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

(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v)the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

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

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

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

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

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

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

(b)       the nature of the household, including:

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

(ii)       the living arrangements of the people; and

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

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

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

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

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

(d)       any sexual relationship between the people;

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

(i)the length of the relationship; and

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

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

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

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

24.(2)  Where:

(a)       a person has a relationship with a person of the opposite sex (the "partner"); and

(b)       the person is not legally married to the partner; and

(c)the relationship between the person and the partner is a marriage-like relationship; and

(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.

Evidence

4.      The applicant gave evidence at the hearing.  Ms Hoskin, assessor for Centrelink, also gave evidence. 

5.      In addition to this oral evidence documentary evidence tendered at the hearing was as follows:

§  Exhibit 1              T Documents

§  Exhibit 2              S Documents

§  Exhibit 3              Living Arrangements dated 11 December 2002

6.      The applicant gave evidence that she regarded herself as being a completely honest person.  With regard to notifying Centrelink about her living arrangements she said that she told Centrelink “when I got in told Centrelink when I finished – I told Centrelink and when I moved I told Centrelink”.  

7.      The applicant said she and her partner did share the purchase of food although after 20 December 2002 there was no sexual relationship between them.  She said that everybody in the caravan park in which they were living knew they were not together.  She said that her partner was repaying a favour to her in helping her. The applicant’s partner has previously resided in the house with the applicant and her former husband prior to that house being sold and her moving into a bus parked at a caravan park/nudist colony. 

8.      The applicant said that her partner knew how to drive a bus and she did not.  She said that her partner was often verbally aggressive.  She said that he did not get along with his previous partners when in a relationship.  She said that the sexual relationship between them ended on 20 December 2002.  She noted that they shared finances half and half.

9.      When the applicant’s partner was not working she provided money for food and household expenses.  She said she also did most of this when he was working. 

10.     The applicant said that they lived at the nudist camp and used to socialise often but now only occasionally.  She said they had made a commitment to each other in June or July in 1999 but this had ended in July 2003.

11.     The applicant said her partner was a person who “kept his head in the sand”.. She said that he was a private person and did not consider that he needed any help.  She said she had told people they had stopped living as a couple.  She stated that since July 2003 she was on Newstart and Sickness Benefits. 

12.     The applicant said she used her share of the money from the sale of the house, that she resided in with her former husband, to purchase the bus and a bike and pay insurance and living expenses.  She said she received $30,000 in November 2002. 

13.     Her partner was working for a time converting buses to mobile homes. 

14.     In October of 2001 the applicant notified Centrelink that she was residing in a relationship with her partner.  She said her payments then ceased. 

15.     In February 2002 in a Disability Support Pension application the applicant advised that she and her partner had separated.  She stated they had separated on 4 February 2002 although he still resided with her “in the spare room” at her house.  She advised her partner did not pay rent as he was not working but helped with electricity and telephone expenses.  On 30 December 2002 in a face-to-face interview with Ms Hoskin, the applicant stated she was in a sexual relationship with her partner who was sharing a bedroom with her and that she was supporting him emotionally and financially as he was unemployed.  On 8 January 2003 Centrelink determined that the applicant and her partner were living in a marriage-like relationship as at 30 December 2002.  On 12 March 2003 the applicant made application to Centrelink for payment of Newstart Allowance for the period 19 December 2002 to 12 March 2003 advising that she was not married or living in a de facto relationship with her partner. 

16.     As a consequence of her partner’s income of $550 per week and the determination of Centrelink that the applicant was living in a marriage-like relationship, the applicant’s Newstart Allowance was cancelled. 

17.     The applicant said that her partner obtained a job as a truck driver and that during the period he was driving he was only home one night in ten. 

18.     Ms Hoskin gave evidence relating to the face-to-face discussion which she had with the applicant on 30 December 2002.  Ms Hoskin’s evidence was that the applicant had told her that she and her partner were intimate; that she was providing financial support; that there was only one bedroom in the bus; that they had had a long term relationship that had been on and off.  She stated that the applicant said that she was supporting her partner as he had already lost his job at that time. 

19.     Ms Hoskin confirmed that her note on page 34, T8 of Exhibit 1 was correct as it was an accurate record of the conversation: it was “a life event” interview.  By this Ms Hoskin meant that it was extremely important and would have an effect on the applicant’s entitlement to pension. 

Discussion and Decision

20. Section 4(3) of the Act requires that in forming an opinion about the relationship between two people for the purposes of sub-section 2(b)(iii) of the Act, the Secretary is required to “have regard to all of the circumstances of the relationship”.  Dr Christie, Member, in Du Pelle and Secretary, Department of Family and Community Services [2002] AATA 186 (21 March 2002) referring to the judgment of Gibbs CJ in R v Toohey & Anor Ex Parte Meneling Station Pty Ltd Ors (1982) 158 CLR 327 at 333 noted that to have regard to “requires [the Commission] to take those matters into account and give weight to them as a fundamental element in making his recommendation”.  In this regard it should be noted that the Social Security Appeals Tribunal found, as a fact, the following:

(i)      the applicant lives in a bus converted to a home;

(ii)     the bus is shared with her partner;

(iii)her partner is a long term friend and the applicant has previously shared a sexual relationship with him;

(iv)the applicant has previously supported her partner whilst he has been unemployed and her partner now supports the applicant;

(v)the applicant’s partner uses her vehicle to travel to and from work and to shop;

(vi)the applicant cooks most meals for herself and her partner; and

(vii)the applicant and her partner share social activities as members of a nudist club.

21. The evidence contained in the Exhibits and of the applicant support these findings. Having regard to the matters set out in section 4 (3) of the Act the applicant’s evidence did not vary significantly from the evidence presented by Centrelink. The evidence was consistent with respect to the financial aspects of the relationship with the pooling of resources and financial commitment, the nature of the household, the social aspects of the relationship and the nature of the peoples’ commitment to each other. The only significant difference was with regard to the existence of a sexual relationship between the applicant and her partner where the applicant says the sexual relationship ceased on 20 December 2002.

22.     Unfortunately the applicant misunderstands the nature and effect of the legislation and in particular the limited emphasis placed on the existence of a sexual relationship.  It is only one factor in determining whether persons of the opposite sex are living as a couple.

23.     The applicant continually stated that she and her partner were only friends and only did what friends would be expected to do.  She said that if she was living with a female they would not be regarded as a couple. 

24. This is correct as the provisions set out in section 4(2) of the Act and in particular sub-paragraph (i) says that a person must have a relationship with a person of the opposite sex.

25.     There is no doubt on the evidence provided by the applicant that she and her partner shared financial resources, although they did have separate bank accounts.  During her period of unemployment he financially assisted her and during his period of unemployment she financially assisted him.  They shared day to day household expenses including the payment of electricity and telephone expenses as well as the purchase of food. 

26.     It would appear that the applicant did most of the household chores although her evidence was that her partner did provide some assistance. 

27.     With respect to the social aspects of their relationship, it would appear that to some extent their relationship was “rocky”.  However, overall she and her partner were living in a bus in a nudist camp and shared this experience.  Her evidence was that they socialised regularly at the beginning of their relationship although this subsequently reduced and she would go out and her partner would not. 

28.     Although the applicant says that people in the nudist colony knew they were not married or were not a couple this cannot be accepted.  It is clear they were living in the bus together and were sharing daily aspects of life together including socialising. 

29.     The applicant’s emphasis on the existence of a sexual relationship as being the only determiner of whether she was in a marriage-like relationship with her partner or not is incorrect.  Again it matters little, whether given the overall circumstances of the case they ceased a sexual relationship in December 2002 or not.

30.     The applicant said that her partner had proposed to her.  There was clearly an emotional attachment between them.  They supported each other when each was unemployed and shared the common interest in the nudist camp.  Accordingly, the Tribunal is satisfied that, as submitted by the respondent, the weight of the evidence including the nature of their financial and emotional commitment to each other, the nature of the household, the amount of practical and emotional support provided to each other and the desire to continue to reside together and continue their relationship with or without a continuing sexual relationship points to the inference that the applicant was living in a marriage-like relationship with her partner, at least as at the 30 December 2002.

31.     It appears that her partner has now vacated the bus altogether and the applicant is receiving benefits on and from 1 July 2003. 

32.     Clearly if the applicant is now residing alone she would be entitled to such benefit as is appropriate to her circumstances.

33.     At the conclusion of the hearing the applicant asked for time to provide a further submission to the Tribunal.  A further submission dated 29 October 2003 was received.  The Tribunal has had regard to the matters set out in that submission but does not consider that it contained any fresh materials or that any matters set out in the submission would warrant a change in the determination as set out above.

34.     Accordingly, the Tribunal affirms the decision under review and dismisses the application.

I certify that the 34 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed:         Denise Burton
  Administrative Assistant

Date/s of Hearing  27 October 2003
Date of Decision  21 November 2003

The Applicant appeared in person
For the Respondent                  Ms J Dwyer, Departmental Advocate