Re Jeffrey WOODAnd Secretary, Department Of Education, Employment and Workplace Relations

[2011] AATA 846

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 846

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/6168

GENERAL ADMINISTRATIVE DIVISION		)
Re		JEFFREY WOOD

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms J Redfern, Senior Member

Date              30 November 2011

PlaceSydney

Decision The decision under review is set aside.

..................[sgd]..................

Ms J Redfern
   Senior Member

CATCHWORDS

SOCIAL SECURITY – whether Applicant is a member of a couple – “marriage-like” relationship – consideration of all of the circumstances of the relationship – decision under review set aside.

Social Security Act 1991 ss 4, 593, 1063

Kaluza v Repatriation Commission [2011] FCAFC 97

Martyniak v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5

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

Lynam v Director-General of Social Security (1983) 52 ALR 128

Re Pelka v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546

REASONS FOR DECISION

30 November 2011 Ms J Redfern, Senior Member      

BACKGROUND

1.      Mr Jeffrey Wood and Ms Giorgi lived together from about April 1999 in Ms Giorgi’s house in Paddington until about 25 February 2010.  A child was born from this relationship in June 2002.

2.      On 1 May 2007, Mr Wood made an application to Centrelink for newstart allowance. His application was rejected on 7 June 2007 on the basis that Ms Giorgi’s assets exceeded the relevant assets test limits. Centrelink treated Mr Wood and Ms Giorgi as a partnered for the purposes of assessing entitlements under the social security law.  This also had an effect on Ms Giorgi’s claim for single parenting payments.  Mr Wood and Ms Giorgi sought review of these decisions by the Social Security Appeals Tribunal (SSAT), which affirmed the decision on 25 November 2008. Both sought reviews of these decisions to this Tribunal and the matters were heard together. On 17 March 2010, the Tribunal set aside the decision in relation to Mr Wood and remitted the decision to the Secretary for determination in accordance with the reasons. The Tribunal determined that Mr Wood had not exceeded the relevant assets test threshold, based on the value of Ms Giorgi’s properties, but still found that Mr Wood and Ms Giorgi were partnered.

3.      Mr Wood appealed this decision to the Federal Court of Australia and by consent orders made on 24 August 2010 by Perram J the decision of the Tribunal, insofar as it related to Mr Wood, was set aside and remitted to the Tribunal for re-determination. There were no submissions or findings that the remittal should be limited. Both parties accepted the findings about the relevant assets test threshold and the issue for determination was whether Mr Wood should be treated as a “member of a couple” for the purposes of assessing his claim for newstart allowance made on 1 May 2007. The Secretary accepted that from 25 February 2010 Mr Wood and Ms Giorgi ceased being members of a couple for the purposes of assessing their entitlements under the social security law.

4.      The basis of the appeal to the Federal Court was that the Tribunal, as previously constituted, had wrongly failed to take into account certain documents at the hearing. It was agreed by the parties that a transcript of the evidence in the previous proceedings should be evidence in these proceedings.

ISSUES BEFORE THE TRIBUNAL

5. The issue for determination was whether Mr Wood was a “member of a couple” as defined in section 4 of the Social Security Act 1991 for the purposes of calculating his entitlement to the newstart allowance as at 1 May 2007.

6.      Mr Wood contended that he was not a “member of a couple” at the relevant time and that he and Ms Giorgi were friends who supported each other and had a common interest in providing care for their daughter. While there was mutual support and a feeling of obligation on the part of Mr Wood, this did not mean they were in a marriage-like relationship. Mr Wood conceded he and Ms Giorgi were in a form of “partnership” from 1999 to 2006 but from late 2006, and at least by 1 May 2007, they were no longer a couple. The Secretary contended that when the nature of the relationship between Mr Wood and Ms Giorgi was objectively considered against the legislative criteria, the correct and preferable decision was that Mr Wood was a “member of a couple” at the relevant time.

7.      A preliminary issue arose before the hearing.  Mr Wood made an application for recusal on the basis that I had previously heard and determined his matter with Mr Peter Taylor SC, Senior Member, and we had formed the view on the evidence available at that time that Mr Wood was a “member of a couple’.  This was the very issue that had been remitted for consideration. Mr Wood’s application was based on his mistaken understanding that my role in hearing this matter would be to reconsider the previous decision. As the issue remitted was whether Mr Wood was a “member of a couple” at the relevant time, namely from 1 May 2007, this required a fresh consideration of the matter. The Tribunal was not limited to the evidence said to be improperly excluded and it was open to Mr Wood and the Secretary to rely on new evidence.  This is consistent with the decision of the Full Court (McKerracher, Perram and Robertson JJ) in Kaluza v Repatriation Commission [2011] FCAFC 97 and was accepted by the Secretary.

8.      Accordingly, directions were made about the previous evidence and any new evidence, including evidence based on the evidence that had been previously rejected. Mr Wood withdrew his application and the matter proceeded in the normal course.  Ms Giorgi was not a party to these proceedings nor did she participate in the hearing, although the transcript of her evidence in the previous proceedings was taken into account.  Mr Wood gave evidence and it is relevant to note that Mr Wood raised new matters, that had not been fully articulated or argued in the previous proceedings, and was cross examined extensively on those matters.

LEGISLATIVE FRAMEWORK

9.      The relevant legislation in this matter is the Social Security Act 1991 (the Act). The eligibility to a newstart allowance arises under s 593 of the Act. The rules relating to the rates to be paid for allowances, pensions and other payments under the Act are set out in Chapter 3. Relevantly, s 1063 provides that certain rates are to be applied when the claimant is a “member of a couple” or “partnered”.

10. Where a person is not married, s 4(2) of the Act nonetheless provides that the person is a “member of a couple” as follows:

(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.

(Original Emphasis)

11.     In determining whether a person is a “member of a couple” s 4(3) provides that “all of the circumstances of a relationship” must be considered, including the following:

(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, 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;

(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 or a de facto relationship.

CONSIDERATION OF THE EVIDENCE

12. In order to make the correct and preferable decision regarding whether Mr Wood was a “member of a couple” in the relevant period, the Tribunal must assess the totality of the circumstances surrounding the relationship between Mr Wood and Ms Giorgi. While the indicia in s 4(3) of the Act must be addressed, they are not exhaustive nor intended to operate like a mechanical checklist. The indicia provide a benchmark for what was considered by the legislature, no doubt by reference to community standards, to be the essence of a “marriage-like” relationship. These factors are objective indicators but ultimately how they are assessed in their totality will be a matter of impression. As stated by Senior Member Creyke in Martyniak v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 5 at 64, these are matters of fact and degree.

13.     In Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, O’Loughlin J, when determining whether a husband and wife were “living separately and apart”, referred to a list of factors he considered might be relevant based on the statutory indicia in s 4(3) but stated at 170:

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.

14. The factors set out in s 4(3) provide guidance to decision makers in forming a view about whether a relationship is marriage-like. However, in many cases the analysis will be complex and challenging, as are many relationships, and it is useful to draw on the observations of Fitzgerald J in Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other.  What must be looked at is the composite picture.  Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.  The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration.  In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

15. These observations should be taken into account when considering the evidence in the application of s 4(3) of the Act.

BACKGROUND FACTS

16.     Mr Wood and Ms Giorgi met each other in about 1996 and commenced a sexual relationship soon after.  In April 1999 Mr Wood moved into Ms Giorgi’s home in Paddington and Mr Wood claims that he did so under an agreement between Mr Wood and Ms Giorgi dated 7 April 1999 which was called a “Rental Agreement”. The agreement had no time limit, although it could be terminated on two weeks’ notice by Ms Giorgi, and Mr Wood was required to pay rent of $120 per week.

17.     Ms Giorgi had an extended holiday overseas during 2001 while Mr Wood remained living in her home.  Both gave evidence in the previous proceedings that their relationship ended before Ms Giorgi travelled overseas.  Notwithstanding this, there was a sexual liaison when Ms Giorgi returned in September 2001(both say this was an isolated incident) and in June 2002 their daughter was born.

18.     In July 2002 Ms Giorgi changed their daughter's birth certificate to add another name without consultation with Mr Wood, which Mr Wood did not discover until later (although there is some dispute as to when this was). It was Mr Wood's evidence that he considered this to be a “breach of trust” that led to ongoing friction between them.  However, Mr Wood and Ms Giorgi continued to live together and Mr Wood had an active role in the care and upbringing of their daughter while they were living together.

19.     Mr Wood suffered a work injury to his back in 2001 and received workers’ compensation payments from 2002 until about January 2006, when payments were terminated.  Mr Wood subsequently challenged this and these entitlements were reinstated in February 2008. It is clear that the termination of workers’ compensation and lack of income from a business Mr Wood attempted to operate resulted in Mr Wood making application for the newstart allowance on 1 May 2007.

20.     Ms Giorgi has a history of depression and anxiety resulting from an assault by her former partner in 1994, which was exacerbated by injuries to her leg and back from an accident in 1996 as a pedestrian.  She received the disability support pension until 28 August 2006, when her pension was cancelled.  Ms Giorgi made an application to review the decision to cancel her pension, albeit very late, and her application was ultimately successful.  She also made a fresh application for the disability support pension, which was also successful, but the Secretary only allowed her pension at the partnered rate.  This decision was made on 16 April 2008.

21.     Given this history, it appears that there was a period from about August 2006 until February 2008 when neither Mr Wood nor Ms Giorgi received income or benefits. There were also extended periods where only one income was being received into the Paddington household. It was common ground that Mr Wood was under financial pressure from at least 2001, when he became incapacitated from his work injury and was no longer receiving a regular income.  Since the previous proceedings, Mr Wood has received part payment of a lump sum settlement for his injury and expects a further payment after January 2012. 

22.     Both Mr Wood and Ms Giorgi gave evidence in the previous proceedings that they supported each other during the time they were living together, both financially and emotionally, although there was ongoing tension in their relationship. The nature of their relationship is at the heart of this dispute and is analysed in more detail below.

23.     Mr Wood has a son from a previous marriage and his son often stayed with Mr Wood at Paddington. Mr Wood was previously married but separated in about 1996 and was divorced in 2004.  He is an artist and maintains a studio at Marrickville, which he rents.  Since moving out of the house at Paddington Mr Wood has been living in his studio or with friends. At the time of the rehearing, he was a full time student.

24.     In their dealings with Centrelink from 2000 until about December 2007, Mr Wood and Ms Giorgi consistently referred to themselves as “de facto” or “partners”.  There was a change in this position after December 2007, when Mr Wood and Ms Giorgi completed “Assessment of Living Arrangements” forms in respect of Mr Wood’s application for newstart denying that they were in a de facto relationship or were partners. Both maintained this position in all subsequent communications with Centrelink.

25.     The Secretary rejected Mr Wood's application for newstart allowance on 7 June 2007.  Mr Wood and Ms Giorgi made applications for internal reviews of the decisions of 7 June 2007 and 16 April 2008 and after those reviews failed, they applied to the SSAT for review.  Given the issue in dispute that was common to both applications was whether Mr Wood and Ms Giorgi were partnered, their matters were heard together. Both applications failed and they applied to this Tribunal for review.  Mr Wood was substantially successful as his matter was remitted to the Secretary for further assessment and he was paid his newstart allowance effective from 1 May 2007, albeit at the partnered rate.  Ms Giorgi did not appeal. 

financial aspects of the relationship

26.      The financial dealings between two people and how they treat their assets, liabilities and obligations is an important, although not determinative, indicia of whether they are a “member of a couple” or in a marriage-like relationship.

27.     Mr Wood and Ms Giorgi do not, and have never, jointly owned any real estate or other assets.  Mr Wood makes no claim against Ms Giorgi’s assets and they have never shared any liabilities.  Ms Giorgi owns the Paddington property, which she purchased in 1979. She also owns two residential properties in Burrill Lake which she purchased with her aunt.  These properties are modest and are used as holiday houses.  Mr Wood has rented a studio in Marrickville for a number of years, from which he works and occasionally stays.

28.     Mr Wood and Ms Giorgi maintain separate bank accounts and have always done so.  While there was evidence that the original intention was that Mr Wood and Ms Giorgi should share expenses, Ms Giorgi has paid the majority of the household expenses and the expenses for her daughter's education and extra-curricular activities throughout most of the period.  Mr Wood has not paid rent under the Rental Agreement since 2000 but both Ms Giorgi and Mr Wood gave evidence that Mr Wood contributed by undertaking handyman and maintenance work at the Paddington and Burrill Lake properties.

29.     Mr Wood conceded that Ms Giorgi paid more household and living expenses than him and this was an issue of concern to him, as evidenced by comments made to treating specialists and doctors as referred to below. While there was no formal loan agreement between Mr Wood and Ms Giorgi, Mr Wood said he had promised to repay Ms Giorgi when he was able and he paid her $5,500 after receiving part payment of his workers’ compensation settlement in March 2011. He said he proposed to make a further payment after January 2012 when the balance of the lump sum settlement is paid. These amounts did not represent an “agreed” repayment of a loan but rather amounts that Mr Wood considered he owed to Ms Giorgi for the financial support she had provided over the years. While these payments were made nearly four years after the relevant period, the fact of the payment sheds some light on nature of the relationship between Mr Wood and Ms Giorgi at this time.

30.     There was no formal “accounting” between Mr Wood and Ms Giorgi but Mr Wood said that Ms Giorgi recorded amounts owing in her diaries.  Ms Giorgi also referred to these entries at the previous proceedings but the diaries were never produced. Mr Wood said he did not understand why these diaries would be relevant and therefore did not ask Ms Giorgi if she could make them available for the rehearing.  

31.     In the previous proceedings and in Centrelink documents lodged by them after December 2007, Mr Wood and Ms Giorgi sought to characterise their relationship as “landlord and tenant”.  This is disingenuous.  Their relationship could not be properly described as an “arms length” commercial arrangement. The preponderance of evidence is that there was significant flexibility and financial support between them over the years, primarily to Mr Wood’s benefit because of his less favourable financial circumstances.

32.     On the other hand, there is evidence from both, as also evidenced in their various responses to Centrelink application forms, that Mr Wood and Ms Giorgi considered their resources as separate and distinct.  In the disability support pension application form dated 24 December 2007, Ms Giorgi states that she paid household expenses but Mr Wood “will always attempt to pay his half if he’s able” and that his parents were proposing to lend him money so he could “repay” her.  Even though no written records were produced to substantiate the informal accounting, I accept the evidence of Mr Wood that they operated on the basis of “quid pro quo”. While Ms Giorgi supported Mr Wood by providing accommodation rent free and other expenses, both considered that Mr Wood had an obligation to contribute and, in Mr Wood’s case, to repay a reasonable contribution towards these expenses.

33.     It is not in dispute that Ms Giorgi has provided financial support to Mr Wood from time to time but the evidence suggests that both viewed this financial support as something that would be repaid in kind or when Mr Wood was able and this is what in fact happened.  This was not “pooling of resources”.

34.     In my view, the financial aspects of the relationship between Mr Wood and Ms Giorgi do not suggest their relationship was marriage-like.

nature of the household

35.     The undisputed evidence is that from about January 2006 Mr Wood and Ms Giorgi slept in separate bedrooms, Ms Giorgi had exclusive use of a studio and drum room but they otherwise shared the common living areas in the house.  Sometimes they would cook for each other and share meals with their daughter but it was more common for them to prepare and eat their evening meals independently.  Mr Wood would usually work in his studio during the day and sometimes not return home until late in the evening.  Ms Giorgi took their daughter to school but otherwise Mr Wood and Ms Giorgi shared equally in contributing to their daughter's care and wellbeing. This was not disputed.

36.     Ms Giorgi did the shopping, although there was also evidence that Mr Wood and Ms Giorgi shopped independently for some items.  Ms Giorgi did most of the domestic work around the house and Mr Wood undertook the handyman work and attended to the rubbish.  There was no evidence about the basis of the distribution of the housework between Mr Wood and Ms Giorgi, other than their ability to perform the various tasks. 

37.     While Mr Wood and Ms Giorgi were sleeping in separate rooms and living more independently than most couples, they functioned like a family in so far as their daughter was concerned.  This tends to support the view that their relationship was marriage-like, although on the facts of this case, this was not a strong indication.  The evidence from Mr Wood, which I accept, is that but for their daughter, it is unlikely that he and Ms Giorgi would not have remained together all these years.

social aspects of the relationship

38.     Mr Wood and Ms Giorgi gave evidence that they would usually attend parent-teacher interviews, school activities and other activities that involved their daughter together.  Ms Giorgi took their daughter to dance classes and Mr Wood took her to tae kwon do, scootering and to the park.  Mr Wood and Ms Giorgi spent time together with their daughter on Christmas Day and Easter and would regularly holiday together at Burrell Lake with their daughter and Mr Wood’s son, although they also took separate holidays.  Both gave evidence that they did not socialise as a couple, had different interests and friends and did not hold themselves out as a couple at the relevant time.

39.     Mr Wood relied on letters from friends and associates about their relationship which Ms Giorgi had sought to tender in the previous proceedings. The Secretary had objected to the tender of the evidence without the authors being available for cross examination and the tender was rejected.  This evidence was tendered at the rehearing without objection or cross-examination. The evidence is summarised below. 

40.     Ms Melinda McTaggart stated in her letter dated 25 November 2009 that she had known Mr Wood and Ms Giorgi for four years.  Their children were friends and she had become friendly with Ms Giorgi.  Ms McTaggart wrote the following,

In the whole time I have known these two I have never quite thought of them as a family.  I have never seen [Ms Giorgi] or Jeff behave affectionately towards one another, although they revolve around [their daughter].  Both parents love this daughter very much and seem to live harmoniously (most of the time) to support the same goal of giving her a stable, supportive home.

41.     Ms Sarah Reilly, a friend of Ms Giorgi, provided an undated letter which was presumably created just prior to the previous proceedings.  Ms Reilly has known Ms Giorgi since 2004.  Their children are very close and she considers Ms Giorgi to be a close friend.  She stated that she had not understood that Mr Wood and Ms Giorgi were in a de facto relationship and, from discussions she had with Ms Giorgi from time to time, understood that they were not in a relationship but Mr Wood continued to live with Ms Giorgi because he has “no other alternative living arrangements, and this is a positive” for their daughter.

42.     Ms Rebecca Rosenberg, a neighbour who has known Ms Giorgi since July 2006, stated in her letter dated 26 November 2009 that she had become close friends with Ms Giorgi and “found it surprising” that Mr Wood and Ms Giorgi were considered by Centrelink to be de facto couple as “the two of them did not appear to be in a relationship since I've known them”.  She also stated that it was not for “some time” that she discovered Mr Wood was living in the same house as Ms Giorgi.

43.     There was also evidence from Mrs Ann Giorgi, Ms Giorgi’s mother, which was consistent with the above.

44.     The Secretary relied on reports and written notes from Mr Wood’s general practitioner and treating specialists, which contained descriptions of the relationship between Mr Wood and Ms Giorgi.  These references in the reports are summarised as follows:

(a)Ms Agnes Rappaport, Senior Clinical Psychologist, referred to Mr Wood’s relationship with Ms Giorgi as his “second marriage” in her report of 9 December 2002.

(b)In a report from Dr John Mahoney, Consultant Orthopedic Surgeon, dated 15 August 2003, he noted that Mr Wood “lives in a de facto situation.  His partner is not employed.  They have two children aged 14 months and 8 years”.

(c)Ms Rosie Barr, Consultant Psychologist, noted that Mr Wood “lives with his long-term partner [Ms Giorgi] and three year old daughter” in her report dated 13 October 2005.

(d)In his report dated 17 December 2007, Mr Matthew Evans, Consultant Psychologist, noted, when referring to Mr Wood’s diagnosis, “the financial problems he faces as a husband and father unable to provide for his family are the major contributing factors to the development and maintenance of his condition”. Mr Evans was obviously approached by Mr Wood after the previous proceedings and he provided an email to the Tribunal dated 14 December 2009, which was relied on by Mr Wood without objection, to the following effect:

I now realise that to the best of my knowledge that Mr Wood was not married at the time nor to my knowledge was he in a de facto relationship.  I believe that I misunderstood the nature of Mr Woods and [Ms Giorgi's] relationship status; this may be due to the fact that they are committed to the shared raising of their offspring.

(e)In typewritten notes from the files of Dr Carol Fenton-Lee, Mr Wood’s general practitioner, she refers to an incident on 11 May 2007 when Mr Wood’s “de facto rang crisis team then police”.  On 13 March 2008 it is recorded that Mr Wood was “worried about ability to support partner and their daughter together.”  Notwithstanding these file notes, Dr Fenton-Lee wrote a letter to the Tribunal dated 26 September 2009 stating that she was “under the impression that their [Mr Wood and Ms Giorgi] relationship is platonic and that they co-parent but are not partners”.

(f)In a report dated 12 December 2008, Dr Peter Klug, Psychiatrist, states that Mr Wood is “currently in a long-term relationship and has a daughter aged 6 from it.  His partner Alex is a student.” 

45.     The Secretary contended that these reports and notes record information told to each of them by Mr Wood and are evidence that Mr Wood has held himself out as a member of a couple with Ms Giorgi from as early as December 2002 and as late as December 2008. Mr Wood said that Ms Giorgi and he grew apart from each other, stayed together for their daughter and because of their particular difficult circumstances but by 2006, after he had discovered the undisclosed change in his daughter’s name, tension between them increased. He maintains they were separated by 2007.  While the early reports may be correct, Mr Wood contended that the references in the reports of Mr Evans, Dr Klug and Dr Fenton-Lee are not based on information provided by Mr Wood but rather their misunderstanding or incorrect assumptions about the relationship between Mr Wood and Ms Giorgi. The authors of the reports did not give evidence so it was not possible to test this issue, although the subsequent communications from Dr Fenton-Lee and Mr Evans appear to support this contention.  The Secretary did not seek to cross examine either on these statements.

46.     There is evidence Mr Wood and Ms Giorgi did not socialise together, other than when they were engaged in joint activities with their daughter.  There is evidence from those who were close to Ms Giorgi and knew both of them that they did not socialise together or hold themselves out as a couple.  Against this, there is evidence that Mr Wood held himself out as being in a marriage-like relationship when providing his history to doctors and treating specialists, although it is also possible these references were assumptions based on previous reports or statements made by Mr Wood about concerns he had about Ms Giorgi and his daughter.

47. Mr Wood and Ms Giorgi had an unusual relationship from the outset and for this reason analysing the nature of the relationship between Mr Wood and Ms Giorgi against this factor is confusing and contradictory. It is difficult to distinguish between this factor and the indicia in s 4(3)(e) as how Mr Wood and Ms Giorgi represented themselves to others was influenced by their commitment to each other and the basis of this commitment, which appeared to change over time.

any sexual relationship between the people

48. In considering, section 4(3)(d) of the Act, I accept the evidence of both Mr Wood and Ms Giorgi that they have not had a sexual relationship with each other for many years. This is not in itself determinative of whether a person is a “member of a couple” in terms of the legislation.

nature of the people’s commitment to each other

49. On balance, the evidence about the other indicia set out in s 4(3) suggests that Mr Wood and Ms Giorgi were not in a marriage-like relationship. They did not have joint assets or liabilities and did not pool resources, they did not socialise outside the joint pursuits with their daughter, they shared accommodation but lived more independently than most couples and they have not had a sexual relationship for many years. Yet they were more than landlord and tenant or flatmates. Mr Wood and Ms Giorgi are parents of a much loved child and they share, and have always shared, her care.

50. In the circumstances of this case, the nature of the commitment between Mr Wood and Ms Giorgi is therefore an important consideration on whether Mr Wood and Ms Giorgi were members of a couple during the relevant period. According to s 4(3)(e), this commitment is to be assessed by the length of the relationship, the nature of any companionship and emotional support that they provided to each other during the relevant period, whether Mr Wood and Ms Giorgi considered that the relationship was likely to continue indefinitely and whether Mr Wood and Ms Giorgi saw their relationship as a marriage-like relationship or a de facto relationship during the relevant period.

51.     In Re Pelka v Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92, at [27] their Honours stated:

The tribunal [the AAT] was satisfied that … Ms Pelka and Mr Kuhl displayed a special commitment to each other, both physically and emotionally, which was qualitatively different from the commitment that either had to any other person.

And at [30]:

The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other.  It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person.  The fact that the commitment that Ms Pelka had to Mr Kuhl was qualitatively different from the commitment that Ms Pelka had to any other person is clearly relevant to the nature of her commitment to Mr Kuhl.  The same reasoning applies in relation to the commitment of Mr Kuhl to Ms Pelka.  The Tribunal, as the decision maker, had regard to precisely the matter to which it was required to have regard, namely, the nature of the commitment of Ms Pelka and Mr Kuhl to each other. 

52.     The relationship between Mr Wood and Ms Giorgi has been enduring and is over 10 years old.  While neither may have expected the relationship to last, it has. In the previous proceedings, Mr Wood gave evidence about the nature of the relationship between he and Ms Giorgi as follows:

It is a giving and taking relationship.  And we’re specifically individual persons that have come together out of circumstances, have stayed together because of certain circumstances, of a child particularly and other issues, but at the end of the day we're still two individually separate people with two separate financial arrangements.  We have social networks that are distinct from one another.

And later, in response to a question from Ms Giorgi:

Ms Giorgi: So it was never intended to be a thing for years and years and years as it has turned out? 

Mr Wood: No, no.  If we didn’t – if you weren’t injured, if I didn’t break my back, certainly the relationship would have changed much sooner.  The consequences of when you became pregnant changed the dynamics of that in some ways because I then had a moral obligation to ensure that both are safe, and I don’t consider that to be a norm of any marriage today.  I think that extends to me and my faith.

53.     At the rehearing, Mr Wood gave evidence that he had originally moved into the Paddington house with Ms Giorgi because of the difficulties she had experienced with a previous relationship.  It was also convenient because the house presented a stable home for his son, who was still quite young at that time.  The birth of their daughter in 2002 provided a further reason for Mr Wood and Ms Giorgi to stay together. At the rehearing Mr Wood gave the following evidence:

We were not married, but we did decide that for the best interests of [our daughter], myself and Ms Giorgi, it was -- and for Alex as well that we would remain in a - together for the purpose of looking after the kids.  And either of us had the financial difficulties.  We had the injuries and a reduced capacity to be able to improve our situation.  And, of course, there was real affection between us.  After 2005, after I had my surgery, we were still together.  Our sexual relationship had -- had primarily ceased not that long after 2003.  In 2006, when I had learnt of Ms Giorgi and her mother changing [our daughter’s] name behind my back, that did have a -- a significant ...

54.     In the previous proceedings, Ms Giorgi’s evidence was that she did not believe in marriage and did not consider she and Mr Wood to be in a marriage-like relationship during any time that they lived together, although it should be noted that this was inconsistent with the documents she completed for Centrelink where she described them as “partners” or their relationship as “de facto”. In response to a question from the Tribunal about whether Ms Giorgi would agree to Mr Wood continuing to live in the house at Paddington “as long as it was feasible to do so”, Ms Giorgi replied:

Well, look, I would have no objection if we were given permission to stay in the house, even though Jeff and I have really quite a lot of differences now.  I would have no objection, if we could do something with anger management, then that would be fine.  I think that would benefit [our daughter].  I mean, my life is quite curtailed in many ways by pain and fear.  I still manage to have my friends and things, but it all fits within the thing of parents and friends.  And so it doesn't really make very much difference to me in one sense, if he is there or he's not there, but I think for her -- and with all my friends that I have discussed it with, I mean, that's the overriding thing.  I’d feel a bit stupid if we gone through all this pain and aggravation to keep her father around, and then all of a sudden, you know, he just disappears.

55.     The common theme is that Mr Wood and Ms Giorgi stayed together for their daughter and to support each other’s needs.  In Mr Wood’s case, this was primarily because of his financial predicament and in Ms Giorgi’s case it was primarily because of her physical and mental disabilities and the assistance she occasionally required. 

56.     Regardless of how Mr Wood and Ms Giorgi characterised their relationship when giving evidence in the proceedings before the Tribunal, from 2000 and until about December 2007, they consistently described themselves as “de facto” or “partners” in Centrelink forms completed and signed by them.  In the previous proceedings, Mr Wood and Ms Giorgi gave evidence that they did not understand the meaning of “de facto” or the effect this would have on their entitlements.  However, in a number of the Centrelink forms both also referred to each other as their “partner”.  This term is not ambiguous and the view of Mr Wood and Ms Giorgi about their relationship, at least as recorded by Ms Giorgi in an updated pension form dated 17 May 2006, suggests that the nature of the relationship was more marriage-like than mere friendship at that stage. Ms Giorgi wrote as follows:

Partner + I now separated but still living in my house.  He has moved into spare room (since January 2006) but we are not yet formally separated – as we are attempting a reconciliation.

57.     There is also evidence that Ms Giorgi spoke to Centrelink staff on or about 1 September 2006 and told them that she and Mr Wood were now separated.

58.     The evidence of Mr Wood at the rehearing was that their relationship had changed after he found out about the change in his daughter’s name in 2006 and that by 2007 there was an “emotional detachment”.  Mr Wood was cross examined about his discovery of the change in name and apparent inconsistencies with his evidence in the previous proceedings.  Mr Wood’s evidence in both hearings was that he had become aware of the change of name when he went to the Medicare office to have his daughter’s name added to his card. He gave evidence at the rehearing that this was not until 2006. In the first hearing he suggested this was in 2002 but when cross examined on this issue Mr Wood said he was previously mistaken as it was his recollection that he did not find out about the change until sometime later.

59.     Without reviewing other evidence about when the change was made to Mr Wood’s Medicare card, which was not available, it was not possible to resolve this issue definitively, although Mr Wood was clear in his evidence that he discovered the change sometime later. Mr Wood said that this was not the only reason for the detachment by 2007 but it was one of the factors. I accept the evidence of Mr Wood that this event was more likely to have occurred in 2006 than in 2002 and that he made a mistake in his previous evidence. I also note that this evidence is consistent with the communications from Ms Giorgi to Centrelink in May and September 2006.

60.     While there may have been tensions between them from 2006, when Mr Wood made his application for newstart allowance on 1 May 2007, he signed a Centrelink form noting his marital status as “de facto”. It appears that this reference may not have been inserted by Mr Wood as it was on a form already recording personal particulars which he may have simply signed. However, in other forms completed at this time in support of the application Ms Giorgi and Mr Wood referred to each other as “partners”. Moreover, in June and July 2007, Mr Wood made an application for hardship on the basis that he was not entitled to make any claim on his partner’s assets. This claim was ultimately rejected.

61.     It was not until after late 2007 that Mr Wood and Ms Giorgi formally denied they were partners or in a de facto relationship when completing Centrelink forms.  

62.     When completing the “Assessment of Living Arrangements” form dated 24 December 2007 in respect of Mr Wood’s application for newstart and in answer to the question “How long do you intend to share accommodation?” Ms Giorgi noted, “We are not married but we are definitely a family so who knows.” In response to a question, “Do you have relatives, friends or associates who don’t believe you are separated?” Ms Giorgi wrote, “We were never married so this is not relevant.” She also responded:

“The only people who have claimed [we] were married/de facto are Centrelink!”

As we were never a ‘formal’ couple this is not relevant.

We were lovers – we are now good friends + co parents of our 5½ year old [daughter] and his son who is 12.  We are both however quite unwell.

63.     In the “Living Arrangements” form completed by Mr Wood on 27 December 2007, he identified Ms Giorgi as a “carer/co parent” and described his relationship with Ms Giorgi as a “friend”. In a document headed “Questionnaire and statutory declaration” signed on 7 March 2008, Mr Wood states that he is not married or living in a de facto relationship.  This document is stated to be “Additional information” in relation to “Q3 Dependants” but it was not clear to what form the document referred.  In any event, Mr Wood completed a further document on 20 April 2008 headed “Assessment of Living Arrangements – separated under one roof” and in response to a question as to how his relationship had changed since he separated, he wrote, “Non-physical, separate sleeping quarters, more time spent pursuit (sic) of individual activities and leisure or sports”.

64.     There was no clear evidence to explain why there was a change in how Mr Wood and Ms Giorgi came to characterise their relationship in Centrelink documents from December 2007.  Ms Giorgi said they were never in a de facto relationship and if she had stated this previously, this was in error.  On the other hand, Mr Wood appeared to agree they had a de facto relationship based on real affection and their co-parenting roles but that they had grown apart by 2007 and were living separate lives, even though they were still living under one roof. I do not accept Ms Giorgi’s explanation as it is inconsistent with her repeated references to “my partner” in the various Centrelink forms she completed prior to December 2007 but, more significantly, it is at odds with the handwritten notation she made on 17 May 2006 and the information provided to Centrelink on or about 1 September 2006. Mr Wood’s explanation is more plausible.  

65. There is no evidence as to whether Mr Wood and Ms Giorgi appreciated the effect of being assessed as partnered would have on their entitlements when they completed the Centrelink forms on 10 and 11 May 2007 but it is clear that they described each other as “partner”. This is difficult to understand given their subsequent denials and it does not seem likely that they were confused by or misunderstood the question which clearly stated, “Your partner is your husband, wife or de facto”. Both gave evidence they did not really understand the meaning of “de facto” and it is possible that Mr Wood and Ms Giorgi did not properly turn their minds to the question until they were required to complete the “Living Assessment” document, which is a detailed questionnaire based on the indicia set out in s 4(3).

66.     Neither provided a satisfactory explanation about this, although I accept they genuinely believed their relationship was not marriage-like by at least 2007. I am of the view that Mr Wood and Ms Giorgi considered themselves to be partners but did not interpret this as a marriage-like relationship and may not have appreciated that “de facto” was intended to convey such a relationship.  While this seems to be contradictory, it was symptomatic of their unconventional approach.

67.     One of the issues raised in the previous proceedings was whether Mr Wood had an intention to move out of the Paddington house.  His previous evidence was that he intended to move out when his daughter was a year or two older.  He was concerned about what he considered to be a “duty of care” to support Ms Giorgi and his daughter but was also mindful of the increasing tension between him and Ms Giorgi. Ms Giorgi’s evidence in the previous proceedings was that she would find it difficult to manage on her own and would “have no objection” to him staying for the sake of their daughter.

68.     Mr Wood said he had moved out of the Paddington house in February 2010, primarily because Ms Giorgi’s payments were being reduced (or rather had already been reduced) to the partnered rate and she was therefore “unable to look after her own interests”. He had moved out “to make it clear that we were separated”, even though he asserted they had not been in a relationship since 2007. If it was accepted by the Secretary that he and Ms Giorgi were not a member of a couple, he said he would return to Paddington temporarily to provide care and stability for the children and to “share the load” while looking for his own place.  He was now in a position to do this because of the part payment he had received during 2011 and the further sum he is to receive early in 2012.

69.     This evidence suggests that Mr Wood did not consider the relationship would continue indefinitely and while Ms Giorgi's view on this matter was not entirely clear, the inference was that she considered the relationship would continue until their daughter had grown up or Mr Wood had found alternative living arrangements that would allow him to have an active role in the upbringing of their daughter.  Both parties had the view that much would depend on Mr Wood’s financial circumstances.

70.     Having regard to the evidence I accept that, as at May 2007:

(a)Mr Wood and Ms Giorgi were living together, primarily because they had the common purpose of providing care and support for their daughter but also because of Mr Wood’s financial circumstances;

(b)Mr Wood and Ms Giorgi provided financial and emotional support to each other from time to time but not necessarily companionship;

(c)Their relationship had been enduring and they had lived together for over 10 years;

(d)There was real affection at one stage but an emotional detachment from about 2006 as a result of increasing tensions between them;

(e)They did not consider that their relationship would continue indefinitely but nor had they discussed or agreed when Mr Wood would move out ; and,

(f)Both Mr Wood and Ms Giorgi considered that they were partners but did not necessarily interpret their relationship as being “marriage-like”.

71.     There were aspects of Mr Wood and Ms Giorgi’s commitment to each other at the relevant time that were marriage-like, particularly their own description of their relationship in Centrelink documents until December 2007. However, this description must not of itself be determinative as there would be no need for the other factors to be considered.  As observed by Senior Member Creyke in Martyniak at [27]:

While the parties’ view of their relationship is important, the opinion of the Secretary must take account of that subjective belief in light of objective indicators of the nature of the relationship. 

72.     When the other factors about their commitment are also taken into account, the nature of their commitment to each other tends to be more marriage-like than not, but certainly not strongly so.

CONCLUSIONS

73. In reviewing the indicia in s 4(3) of the Act, I must consider the totality of the relationship and the weight to be accorded to each of the factors. As noted by Fitzgerald J in Lynam, “each element of a relationship draws its colour and its significance from the other elements”. The evidence in relation to s 4(3)(a) to (d) of the Act is relevant to and informed by the evidence in respect of the matters in s 4(3)(e). It is not a case of simply listing the factors for and against and deciding in favour of the majority. The indicia in s 4(3) of the Act are intended to capture the essence of a marriage-like relationship but it is the overall impression of the relationship, when considering all of those factors, which will lead a decision-maker to a conclusion. As French J stated in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at [47]:

The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of “marriage like” will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.

74.     On reviewing the totality of the evidence, I have come to the view that Mr Wood was not a “member of a couple” at the relevant time. The facts of this case made the assessment difficult, primarily because Mr Wood and Ms Giorgi maintained a civil and at times caring, albeit unconventional, relationship after the birth of their daughter. This relationship was based on the importance of their joint parenting and was also influenced by their difficult financial circumstances and respective illnesses.

75.     No doubt some marriages and “marriage-like” relationships are based on such foundations.  However, in this case I formed the view that there was an emotional detachment by both Mr Wood and Ms Giorgi from each other that seemed to start from early 2006.  I accept the evidence of Mr Wood that he and Ms Giorgi grew apart and that their commitment to each other was based on convenience rather than genuine affection. This was supported by the evidence they gave in both proceedings, which was corroborated by friends. It was also consistent with a number of the documents they lodged with Centrelink in 2006, 2007 and 2008.  While Mr Wood and Ms Giorgi described themselves as “partners” and in some cases as “de facto”, in my view, this is not determinative for the reasons I have set out above.  They did not pool their resources or jointly own assets and this was a conscious decision by both.  They did not socialise, other than in connection with their daughter, and lived relatively independently of each other, even though they were living under the same roof.

DECISION

76.     I therefore set aside the decision under review.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision of Ms J Redfern, Senior Member.

Signed: ..................[sgd]............................................................
  Casey Comans, Associate

Date of Hearing  9 & 10 May 2011
Date of Decision  30 November 2011
Applicant   Self Represented
Respondent   Ms D Watson & Ms L Buchanan
  Australian Government Solicitor