Re Secretary, Department of Family and Community Services and Bell - [2000] AATA 252

DECISION AND REASONS FOR DECISION [2000] AATA 252

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/1074

GENERAL ADMINISTRATIVE   DIVISION     )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    SALLY LOUISE BELL
  Respondent

DECISION

Tribunal Dr EK Christie, Member

Date3 April 2000
PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution therefor decides that Ms Bell was a member of a couple.

(Sgd) EK CHRISTIE
MEMBER
CATCHWORDS
SOCIAL SECURITY - whether in a marriage-like relationship - specified criteria for forming an opinion about relationship - Secretary to have regard to circumstances of the relationship - meaning of "to have regard to" - whether relationship likely to continue indefinitely - meaning of "likely".
Social Security Act 1991 ss 4(2), 4(3)
Boughey v R (1986) 161 CLR 10
Department of Defence v Fox (1997) 24 AAR 171
Queensland Medical Laboratories & Ors v Blewett & Ors (1988) 84 ALR 615
R v Toohey & Anor Ex Parte Meneling Station & Ors (1982) 158 CLR 327
Secretary, Department of Family and Community Services and WAP [2000] AATA 7
Waugh v Kippen (1986) 64 ALR 195

REASONS FOR DECISION

3 April 2000 Dr EK Christie, Member

This is an application by the Secretary, Department of Family and Community Services ("the Department") to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 27 August 1999 which set aside a decision of an Authorised Review Officer of Centrelink made on 18 June 1999. The SSAT substituted a new decision, viz. that Ms Bell was not a member of a couple.
In discussing the application of the law, the SSAT concluded:
"37. In the Tribunal's opinion the relationship lacks the long term commitment and attachment that may be said to define a marriage. The parties, particularly Ms Bell consider themselves to be independent of the other, particularly financially but also in other ways. They consider for example that their future does not necessarily lie together. Indeed it seemed to the Tribunal that on balance the parties were more likely to go their own ways in future than to remain together. The decision would not be made for some time and depended on the parties then circumstances." [Document T2 Folio 10]
The applicant now seeks to have the decision of the SSAT reviewed because "The SSAT erred in finding that Ms Bell was not in a marriage-like relationship for the purposes of the Social Security Act 1991" [Document T1 Folio 1].
At the hearing the applicant was represented by Mr N Foster, a Departmental Advocate. The respondent, Ms Bell, represented herself.
At the hearing the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975, the "T" Documents (Exhibit 1).
Issues before the Tribunal
The only issue for the Tribunal to decide was whether Ms Bell was in a marriage-like relationship and therefore a member of a couple for the purpose of the income test set out in Section 1067G-H of the Social Security Act 1991("the Act").
The Law
A person is a member of a couple for the purposes of the Act if that person meets the requirements of subsection 4(2) of the Act. In Ms Bell's circumstances, subsection 4(2)(b) is relevant:
"4.(2)   Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)       ….; or
(b)       all of the following conditions are met:
(i)if 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; [Tribunal emphasis]
(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."

It is not in dispute that Ms Bell meets the requirements of paragraphs (i), (ii), (iv) and (v). Only paragraph (iii) is in issue.

Subsection 4(3) of the Act sets out the matters to be considered when forming an opinion as to whether a person is in a marriage-like relationship.
"4(3)    In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)       the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day-to-day household expenses;
(b)       the nature of the household, including:
(i)        any joint responsibility for providing care or support of children; and
(ii)       the living arrangements of the people; and
(iii)      the basis on which responsibility for housework is distributed;
(c)       the social aspects of the relationship, including:
(i)        whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make place 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."
Under subsection 4(3) of the Act, in forming an opinion about the relationship between two people for the purposes of sub-paragraph (2)(b)(iii) of the Act, the Secretary is required to "have regard to all of the circumstances of the relationship". The Act then particularises specific matters. The phrase "have regard to" has been considered judicially on many occasions:

It requires [the Commissioner] to take those matters into account and give weight to them as a fundamental element in making his recommendation: per Gibbs CJ in R v Toohey & Anor Ex Parte Meneling Station Pty Ltd & Ors (1982) 158 CLR 327 at 333;
The mere assertion that [the Committee] had acted would not be conclusive if it were demonstrated that regard had not been had to those matters in any real sense: per Gummow J in Qld Medical Laboratory & Ors v Blewett & Ors (1988) 84 ALR 615; and
There would be a failure [by the Authority] to have regard to matters nominated in the statute if the regard was not adequate or not sufficient: per O'Loughlin J in Department of Defence v Fox (1997) 24 AAR 171.

Facts

On the basis of the evidence before it, the SSAT made the following findings of facts:

Mrs Bell claimed youth allowance on 1 February 1999.
She was paid at the independent rate and then at the partnered rate.
Her payments ceased on 13 May 1999 when she failed to return the required form.
Ms Bell and Mr Chick shared accommodation from 13 September 1998 until about two weeks prior to the hearing of this application [12 August 1999].
Ms Bell and Mr Chick are financially independent.
The housework is divided equally.
They do not hold themselves out as married to each other.
There is a sexual relationship.
They provide companionship and emotional support to each other.
They have no long-term commitment to each other.

Contentions and Submissions of the Parties

Mr Foster, the Departmental Advocate, contended that the relevant time to consider whether Ms Bell was living in a marriage-like relationship was April 1999. At this time, Ms Bell and her partner had each completed the Assessment of Living Arrangement Form (Document T15, T16; 27 April 1999).
In terms of the "Financial Aspects of the Relationship" provision of the Act, Mr Foster submitted:
· "The fact that there was no joint property is not unusual given the Respondent's young age. The Respondent and Mr Chick nonetheless shared the payment of rent, which is the alternative in the circumstances to owning joint property.
· The Respondent's expressed desire to be financially independent of Mr Chick does not mean their relationship was not marriage-like. Financial independence is a common feature of modern marriages, as was noted by the AAT in Secretary, Department of Family & Community Services and WAP, [2000] AATA 7, at paragraph 18:

That in a marriage both partners rely exclusively on their own financial means and share expenses would not necessarily be unusual today, especially as more and more women are gaining valuable qualifications and earning incomes of their own. It is easy to understand in a number of circumstances where both partners of the relationship would insist on financial independence and this may persist at least until there are dependant children of the partnership."

In relation to the "Nature of the Household" provision of the Act, Mr Foster submitted that Ms Bell and her partner lived in a house owned by her parents, shared the same bedroom and shared housework on an equal basis. On the balance of probabilities, the social aspects of the relationship were of the nature of a marriage-like relationship.
In relation to the "Social Aspects of the Relationship" provision of the Act, Mr Foster contended that Ms Bell and her partner were seen as a couple who lived together – rather than flatmates.
It was Mr Foster's contention that the SSAT approach to the "Nature of the Commitment" provision of the Act was "a view as to the future" with a "focus on the permanence of the relationship" – notwithstanding that Ms Bell and her partner were together at the relevant date. Mr Foster submitted that:

"the evidence supports the conclusion that, at the relevant time, the Respondent's relationship with Mr Chick was likely to continue indefinitely, e.g.:
the Respondent indicated on forms lodged with the Applicant that she would live with Mr Chick indefinitely – See T13, p92; T15, p97;
likewise, Mr Chick indicated to the Applicant that he would live with the Respondent indefinitely – see T14, p94; T16, p105;
a relationship which will continue until a couple break ups is clearly, in the circumstances, indefinite – see WAP, at paragraph 17.
"the Respondent indicated on her claim forms for newstart allowance and youth allowance that Mr Chick was her partner and that she was in a de facto relationship"; and
the question of commitment could not be addressed solely by considering the future of the relationship but also warranted consideration of the emotional and financial bond.

Mr Foster concluded with the submission that the SSAT had erred in its application of the subsection 4(3) criteria of the Act as it had not given "equal weight" to all factors. Rather, it had placed an undue weight on one factor alone, i.e., long term commitment. He contended that, in so doing, the SSAT had not properly considered the "totality of the circumstances of the relationship". Accordingly, the SSAT approach was inconsistent with the reasoning by this Tribunal in Re Davis and Director-General of Social Security (1982-1984) 6 ALN N332:
"Couples living together on a bona fide domestic basis though not legally married, should not be placed in a better position for pension or benefit purposes than if they were legally married. One effect of this is that the financial resources, if any, of a de facto spouse are included in the calculation of his or her partner's entitlement to pension or benefit."
Ms Bell made the following submissions in response. In relation to the "Financial Aspects of the Relationship" provision of the Act, Ms Bell said that she had been forced into the situation of financial dependency. She contended that a marriage-like situation did not arise when a person sought assurance in order to have a place to live and food to eat. Moreover, both she and her partner had demonstrated that they wanted to be financially independent – to the point where she had moved out to gain such independence, shortly after gaining part-time employment in August 1998.
With respect to the "Nature of the Household" provision of the Act, Ms Bell acknowledged that she shared a bedroom with her partner, lived in a house owned by her parents and that she shared housework on an equal basis with her partner. However, it was her contention that such a situation existed whenever a number of people shared a flat – regardless of gender.
In terms of the "Social Aspects of the Relationship" provision of the Act, Ms Bell acknowledged that she and her partner were in a relationship and that they did things together. However, she submitted that the criteria used in this provision of the Act created "much doubt" when applied to the meaning of a marriage-like relationship.
With respect to the "Nature of the Commitment to each other" provision of the Act, Ms Bell said that at the time of the application, the length of the relationship was one year. Furthermore, she submitted that their relationship was purely a day by day commitment where she and her partner both worked towards their own goals while enjoying each others company by living together. A long term commitment, at the relevant date, was inappropriate and remained inappropriate. Moreover, she contended that if their "commitment was of any great significance, I certainly wouldn't have moved out to gain a government benefit".
Ms Bell referred to the Departmental Advocate's specific submissions that her relationship with her partner was likely to continue indefinitely (see paragraph 15). Ms Bell provided the following plain meaning for the term "indefinite" (source: (n-df-nt)
adj. Abbr. Indef.
1.        Not definite, especially:
          a.        Unclear, vague.
          b.        Lacking precise limits: an indefinite leave of absence.
          c.        Uncertain; undecided: indefinite about their plans."

Applying the meaning of this definition, Ms Bell contended that the term 'indefinite' "lacked any regard for commitment. Furthermore, partners in a marriage-like situation would have more of an idea of how long they would like to continue living together".

Ms Bell acknowledged that she had answered a question on Departmental forms for newstart allowance and youth allowance that she and her partner were in a "defacto" relationship because she considered that this term loosely described a man and woman living together in a relationship. However, following her review of the subsection 4(3) provisions of the Act she submitted that her situation with her partner was not that of a marriage-like relationship because of the independent nature of their relationship – especially the financial aspects.
Consideration of the Issues
The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.
In applying the common law interpretation of the phrase "to have regard to" (see paragraph 9), the Tribunal has used the following approach in its consideration of the criteria specified in subsection 4(3) of the Act in order to form an opinion whether a marriage-like relationship existed:

To give regard to the specified criteria in a real sense, i.e. to ensure sufficient and adequate regard is given to all the specified criteria; and
To take the criteria specified by the statute into account and to give weight to them as a fundamental element in the decision-making process.

Accordingly, in forming its opinion about the nature of Ms Bell's relationship – in the context of her particular fact situation, the Tribunal has given weight to the following specified criteria:

Financial aspects of the relationship: In this regard, the Tribunal accepts the reasoning adopted in WAP's case (see paragraph 12) with respect to financial independence in modern marriage and concludes that the Tribunal's reasoning is applicable to Ms Bell's circumstances.
Nature of the household: The Tribunal concludes that Ms Bell's fact situation, on balance, is indicative of a marriage-like relationship.
Sexual relationship: This issue was not in dispute and the Tribunal concludes that it represents an element contributing to forming an opinion about a marriage-like relationship; and
Nature of the commitment: The Tribunal acknowledges the SSAT finding of fact that Ms Bell and her partner "provide companionship and emotional support to each other". In addition, the Tribunal considers that with respect to whether "the relationship is likely to continue indefinitely", sufficient regard has not been given to the meaning of "likely". In relation to Occupational and Health Safety legislation, it has been held to mean "something less than a probability but more than a remote possibility": Waugh v Kippen (1986) 64 ALR 195. The High Court has adopted the same approach in relation to criminal law: Boughey v R (1986) 161 CLR 10 at 21. Accordingly, applying the common law construction of "likely", the Tribunal concludes that, at the relevant date, Ms Bell's relationship with her partner was one which would be "likely" to continue indefinitely.

In forming its opinion whether a marriage-like relationship existed in the content of Ms Bell's fact situation, the Tribunal attaches weight to its conclusions made in paragraph 25. The Tribunal finds that Ms Bell and her partner were in a marriage-like relationship.
The Tribunal sets aside the decision under review and in substitution therefor decides that Ms Bell was a member of a couple.
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed:         Emma Oettinger
  Associate
Date/s of Hearing  7.3.00
Date of Decision  3.4.00
Counsel for the Applicant
Solicitor for the Applicant         Mr N Foster, Departmental Advocate
Counsel for the Respondent
Rep. for Respondent                The respondent appeared in person