Schou and Secretary, Department of Family and Community Services
[2003] AATA 930
•24 July 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 930
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/353
GENERAL ADMINISTRATIVE DIVISION ) Re GARY SCHOU Applicant
And
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Ms SM Bullock, Senior Member Date24 July 2003
PlaceSydney
Decision For the reasons given orally at the conclusion of the hearing, the Tribunal affirms the decision under review.
……………………….
Ms SM Bullock
Senior Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension –Whether Member of a Couple - Marriage-Like Relationship
Social Security Act 1991 (Cth) s 4
Re SRSSS and Secretary, Department of Family and Community Services (2002) 70 ALD 281
Re SRCC and Secretary, Department of Family and Community Services (2001) 67 ALD 202
Re Needer and Secretary, Department of Social Security (1993) 74 SSR 1074
Re Ambrose and Repatriation Commission (1989) 19 ALD 546; (AAT 5849, 5 April 1990)
Re Dunbar and Repatriation Commission (AAT 6293, 19 October 1990)
REASONS FOR DECISION
24 July 2003 Ms SM Bullock, Senior Member 1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
2. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page is a true copy of the decision and reasons for decision herein of Ms SM Bullock, Senior Member.
Signed:
Associate
Date of Hearing 23 July 2003
Date of Decision 24 July 2003
Representative for Applicant Self-represented
Representative for Respondent Mr John Kenny
DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2003/353
By MS S.M. BULLOCK, Senior Member
GARY SCHOU and SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
SYDNEY, THURSDAY, 24 JULY 20031. This is an application for review to the Administrative Appeals Tribunal (“the Tribunal”). The Applicant is Mr Gary Schou and the Respondent is the Secretary, Department of Family and Community Services. The Tribunal file reference is N2003/353. Mr Schou made an application for review to the Tribunal of a decision made by the Social Security Appeals Tribunal (“the SSAT”) on 31 January 2003 and that is found in the set of T Documents at T2.
2. The SSAT decided that Mr Schou is a member of a couple and that that was the situation on 5 August 2002 when he claimed Disability Support Pension. The SSAT decision affirmed a decision of an Authorised Review Officer (“ARO”) made on 12 November 2002 that it was correct to treat Mr Schou as a member of a couple and to assess Ms Kristine Noy's income and assets in determining Mr Schou's rate of Disability Support Pension. That decision of the ARO is found at T27. The ARO’s decision in turn affirmed a decision of the original decision-maker made on 8 October 2002, that Mr Schou and Ms Noy were members of a couple.
3. At a hearing which was held before the Tribunal in Sydney on 23 July 2003, Mr Schou was self-represented and provided oral evidence to the Tribunal. Evidence was also provided by telephone by Ms Kristine Noy. The Respondent in this matter, the Secretary, Department of Family and Community Services, was represented by Mr J Kenny, who is a Departmental Advocate. Documents were lodged and taken into evidence pursuant to section 37 of the Administrative Appeals Tribunal Act1975. Those document were contained in the T Documents, T1 through to T42. There was one Exhibit, Exhibit R1, which was the Secretary's Statement of Facts and Contentions, dated 8 July 2003.
4. The issue in this matter is whether or not on 5 August 2002, the date that Mr Schou lodged his claim for Disability Support Pension, he and Ms Christine Noy were members of a couple. In making a determination in this matter I must consider the Social Security Act 1991 which I will hereafter refer to as “the Act”. Specifically, the issue to be determined in this matter falls under section 4 of the Act, which deals with family relationships definitions concerning couples.
5. There was a discussion of the legislative requirements contained within the SSAT decision. Briefly, subsection 4(2) of the Act states that::
“4(2)Subject to subsection (3) a person is a member of a couple for the purposes of the 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.
…”
6. Also of relevance to my determination, and as dealt with in the SSAT decision, and referred to by Mr Kenny in his Statement of Facts and Contentions, is subsection 4(3) of the Act, which deals with the aspects of a relationship which must be considered. The Act says that all the circumstances must be considered, but there are some specific issues. Thus, subsection 4(3) states:
“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…”
7. I will paraphrase those for ease of reference but the legislation is set out at page 7 of the T Documents. The issues that I must take into account are the financial aspects of the relationship including: any joint ownership of real estate or other major assets and any joint liabilities; any significant pooling of financial resources especially in relation to major financial commitments; any legal obligations owed by one person in respect of the other person; and, the basis of any sharing of day to day household expenses. The natures of the household have to be considered including: any joint responsibility for providing care or support of the children; looking at the living arrangements of the people; and, the basis on which responsibility for housework is distributed.
8. Also to be considered are the social aspects of the relationship including: whether the people hold themselves out as married to each other; the assessment of friends and regular associates of the people about the nature of their relationship; and, the basis on which the people make plans for or engage in joint social activities. Also to be considered is any sexual relationship between the people and the nature of the people’s commitment to each other including: the length of the relationship; the nature of any companionship and emotional support that the people provide to each other; whether the people consider that the relationship is likely to continue indefinitely; and, whether the people see their relationship as a marriage-like relationship.
9. Turning to the background in this matter, Mr Gary Schou claimed Disability Support Pension on 5 August 2002 and that is found at T5. The health conditions causing Mr Schou to claim Disability Support Pension are that he suffers from Parkinson's disease and also osteoarthritis. He ceased work as a maintenance fitter for Bankstown District Sports Club in about July 2002. That seems to be when Mr Schou last received any payment from his work. I note that in June 2000 Mr Schou had a right knee replacement and details of that are contained throughout the documents but specifically medically referred to at T7, page 55. The knee replacement was occasioned because of severe arthritis in that right knee. Mr Schou takes the medication “Sinemet” and “Artane” for Parkinson’s disease and that is referenced at T32. He also takes “Voltaren” for the arthritis, which is referenced at T7, page 55.
10. Mr Schou told the Tribunal that he claimed pension when there was no more money coming in from his employment. Mr Schou told the Tribunal that he commenced a relationship with Ms Kristine Noy in about 1992. They had both left unhappy relationships and were initially just friends, but the relationship developed and Mr Schou described himself and Ms Noy as being lovers. Mr Schou and Ms Noy purchased a home at Glenfield in 1993 where they both currently reside. The property was purchased in joint names and the mortgage repayments were jointly and equally paid. The mortgage repayments were initially $600.00 per month, but approximately 18 months ago increased to $700.00 per month. The reason for the increase was to try and more quickly pay the property off. Mr Schou described the Glenfield property as modest. It would be worth in his estimation, approximately $240,000.00 and there is approximately $60,000.00 still owing on the property.
11. The arrangement financially and initially in the relationship between Mr Schou and Ms Noy and still in place, is that all the bills are paid 50/50. It used to be that these bills were paid on a weekly basis on a Friday and the bills would be sorted out and equally shared. Mr Schou's wages and Ms Noy's wages were deposited into a joint bank account which was then used to deal with any expenditure arising. The evidence from Mr Schou was that Ms Noy has always managed the household finances and that she continues to do so, although now this is undertaken on a monthly basis.
12. At the end of February 2003, the joint account was closed and by March 2003, separate accounts were organised for the individuals, Mr Schou and Ms Noy. This change in financial arrangement occurred after the SSAT decision which was made on 31 January 2003. Mr Schou noted that after the SSAT decision, things got "nasty" with Ms Noy, in that he found it more difficult to communicate and this was particularly in relation to financial matters.
13. Mr Schou told the Tribunal that there is a credit card and it is in Ms Noy's name. There was also a personal loan, which is recorded in the documents, for $3000.00. While Mr Schou was not sure as to what that loan related to, he was sure that it had been paid off. Neither Mr Schou or Ms Noy have private health insurance, the Tribunal was informed. There is a car which was purchased approximately 18 months ago. Mr Schou thought that the car was bought in both names. He was not sure about this. He is firmly of the view that the car has been paid off.
14. Ms Noy was known to Mr Schou's family, including his two brothers, two sisters and his mother and father. She was known as his partner. Mr Schou is known to Ms Noy's adult children as her partner. He also has had and it seems from evidence, continues to have, some relationship with the grandchildren of Ms Noy. Mr Schou stated that he found out about his Parkinson’s disease in about 2000 and things started to change around that time, but not drastically. There was subtle changes. He noted that his libido has decreased and their sexual relationship had certainly ceased by August 2002. Mr Schou and Ms Noy sleep in separate bedrooms. In August 2002, Ms Noy was going out more with her friends, Mr Schou noted. He also stated that he did not feel the same about the relationship and he often felt frustrated.
15. In August 2002, Mr Schou’s Disability Support Pension and Ms Noy's wages were still being deposited into the joint bank account. It has always been the case, Mr Schou told the Tribunal, that Ms Noy's wages were greater than his and that includes even when they were both working. They have not had a great social life in the sense that they did not go out a great deal when their relationship first commenced and Mr Schou noted that they went out less as the relationship progressed. Furthermore, Mr Schou explained that Ms Noy worked shift work and that complicated any social activity and often precluded it.
16. In terms of housework, Mr Schou told the Tribunal that they share that, but in more recent times because of his disability, Ms Noy does more of the work. For example, she now mows the lawns, does the edges and takes the garbage out. Ms Noy vacuums the house which she does in its entirety including in the bedrooms. Ms Noy and Mr Schou have meals together from time to time. This seemed to result if they were at home at the same time and this obviously was reflected in terms of Ms Noy's work commitments. If they are there together, Ms Noy will cook a meal for Mr Schou. Mr Schou stated that it was perhaps last week when they were at home together and Ms Noy cooked a roast, which they both ate together..
17. In terms of washing, Mr Schou was able to do the washing as does Ms Noy. They do each other's washing, whoever seems to be placed with time to do it will do it and there is a communal washing basket into which dirty clothes are deposited. At the time of the claim for pension and currently, Mr Schou stated that he has no will. At the time of the pension claim he had described Ms Noy as his defacto partner and he agreed that he thought that she was his defacto partner, noting that this meant to him that they were living under the same roof.
18. A statement which deals with Mr Schou's superannuation entitlement as at 31 December 2002, indicated that Ms Noy was the sole beneficiary - it is referred to as the 100 per cent beneficiary - should he demise, and that document is found at T31. As I have noted, since the end of February 2003, there is no joint account and they have their separate accounts. At the end of each month, the expenses are divvyed up and Mr Schou told the Tribunal that he and Ms Noy contribute equally $1000.00 to cover any expenses. The main expense at this stage is the repayment of the mortgage. Ms Noy physically pays the bills because Mr Schou is not able, because of his disability, to get out and do that as he may have done in the past.
19. Mr Schou told the Tribunal that about two months ago, he became aware that Ms Noy has a boyfriend. He stated that she will stay away from the home from time to time and will be away for two or three days at a time. He told the Tribunal that he had noticed something around about that time, but stated - "I did not want to believe it". Mr Schou was referred to his form, which is entitled “Separation details”, found at T9, page 66, which he signed on 13 August 2002, in which he noted that it was differences of opinion that led him to separate under the one roof from Ms Noy. Mr Schou explained to the Tribunal that by this he meant that Ms Noy made me feel stupid and not knowing what was really going on. He had the feeling that he was being treated with contempt. He noted that he is a quiet person, that there were never great arguments or raised words and that nothing really happened which he could call an estrangement. He stated that he and Ms Noy are still friends and they still communicate to and with each other.
20. Mr Schou was also referred to a Centrelink form entitled “Assessment of Living Arrangements” completed on 19 September 2002 by Mr Schou. This is at T13 and specifically, at page 92, Mr Schou recorded that his relationship with Ms Noy was different to a married couple because they were like brother and sister. He told the Tribunal that he shared the loyalty of a brother and sister with Ms Noy. He was using this analogy to distinguish the absence of a sexual relationship, which he was very forthright in explaining to the Tribunal that no longer existed. There was loyalty and there was affection. There had been rarely a kiss or a cuddle in their relationship and certainly that was the case in September 2002. Mr Schou had hoped that Ms Noy and himself would grow old together and look after each other. This contrasted with his notation in the claim form T5, page 15, and I am right that there are two page 15s and I refer to the second page 15, in which he described Ms Noy as his de facto partner since 6 June 1992.
21. Mr Schou agreed that he was happy for his pension to go into the joint account that he held with Ms Noy and that he was also happy, and had advised Centrelink that he was happy, for Ms Noy to be advised of details by Centrelink in relation to any matters concerning his Disability Support Pension. He had confirmed this when he had a discussion with the ARO. In November 2002 he was also happy for Ms Noy to inherit his estate upon his death.
22. The Tribunal noted, however, that Mr Schou's evidence is that he is no longer happy for this to occur. He told the Tribunal that he saw it as urgent to arrange his affairs so that this does not occur and that he would wish to have his estate left to his brothers. He believed that Ms Noy's estate would go to her children and he also believed that Ms Noy's children have been told about the changed relationship between himself and their mother. Mr Schou is of the belief that two of Ms Noy's children have actually met her new boyfriend.
23. Mr Schou has not changed his superannuation beneficiary details nor, as I have mentioned, has he changed his will but he does see it as a priority to do so. Because of his inability to work and his relationship with Ms Noy his pension has reduced to approximately $71.21 per fortnight at the time of the SSAT decision. He considers and finds it extremely difficult to cope financially with this amount of money and as a consequence has had to borrow money from a number of sources. He borrowed approximately $12,000.00 from Ms Noy in order to pay for his right knee replacement operation. Mr Schou stated that in the last six or seven months he has also borrowed approximately $5000.00 from each of his friends, Mr Bruce Holden and Mr Roland. He stated that he intends to pay these amounts back to the respective people and will use his superannuation benefit, which he believes is approximately $22,800.00. Mr Schou has told the Tribunal that he is waiting for the outcome of the Tribunal hearing before making any specific inquiries about whether or not he is able to obtain his superannuation prior to its natural maturity date.
24. Mr Schou stated that in the two months since he has learned of Ms Noy's involvement with a new boyfriend there have been tentative discussions about his and Ms Noy's future. Mr Schou stated that there are no definite plans at this stage. He stated, and I quote, “I think she wants to sell up and do something”. Furthermore, Mr Schou stated that he cannot go anywhere and he wants to stay in the Glenfield property. Ms Noy has suggested to him that he go and live with his mother and while he does not wish to do that as an ideal situation Mr Schou stated that he might have to do so. Mr Schou stated that he has asked Ms Noy to ask her boyfriend what are his intentions. Certainly Mr Schou has noted that particularly since learning of this new romantic interest of Ms Noy she is abrupt with him and he feels that she resents him making inquiries about future arrangements. He believes that Ms Noy resents there being any intrusion into her private affairs.
25. Mr Schou stated that he does not want to be bought out from the Glenfield property because he believes that he would only achieve $90,000.00 from such an arrangement and this would not be enough for him to secure his future, particularly noting his declining wealth. While he notes that Ms Noy can earn income he stated that he has $6.00 to his name and desperately wants to hang on in Glenfield where he is. Mr Schou stated throughout his evidence that he and Ms Noy are like brother and sister and again emphasised that there is no sexual relationship.
26. In August 2002, Mr Schou stated that they would still have gone out but it was a very rare event particularly because of her work arrangements and his illness. At the commencement of their relationship in the first two years or so they would go out but not on many occasions. The next four or five years they would perhaps go out together once a month and in the last two years it would be once or twice per year. It was about ten months since they had gone out together and had dinner at a club.
27. Mr Schou stated that he has previously referred to being in a de facto relationship and he thought that that was being honest and describing what was happening with him and Ms Noy living under the one roof. In recent times, Mr Schou's brothers, Rod and Chris, had become aware of there being a change in the relationship between himself and Miss Noy and that it was more platonic. There are statements from both those brothers at T38 and T39, although the dates of the statements are not on either of those documents. Mr Schou stated that his father has dementia and is being cared for in a nursing home. He has not told his mother of any change in the relationship because he does not wish to upset her. He is aware that his mother likes Ms Noy very much. As I have mentioned, Ms Noy's children know of the change in the relationship and Mr Schou stated that he gets on well with her children and their grandchildren.
28. Mr Schou will visit or be visited by relatives every two to three months, he estimated. Most of Ms Noy's relatives, apart from her children are in Ireland. At Christmas time he was on his own and Ms Noy was working. He did not give Ms Noy a present, nor did she provide him with a present. It was previously the case that he and Ms Noy would spend Christmas together. On this most recent occasion Ms Noy stated, "Why would we make such a deal about Christmas?".
29. Mr Schou told the Tribunal that he was provided with a farewell gift from his work and that this is a computer. He is learning how to use it, hoping that this might, in the future, assist him to provide some small income. Ms Noy has set up the internet and has an internet email address. Mr Schou could not recall the address but thought it included reference to both their names. He is happy to be able to use the computer and is attempting to increase his skills.
30. I now turn to the evidence of Ms Noy. Ms Noy told the Tribunal that she commenced a de facto relationship with Mr Schou in 1992 and that they subsequently purchased a home together at Glenfield which is held in both names and for which both continue to contribute equally to the mortgage. There is a car which has been paid off. Ms Noy was not sure but believed the car loan was in her name. She later stated that the car was held in both names. Ms Noy acknowledged that she is the money manager and that she has always been.
31. She also stated that until early 2003 Mr Schou's and her salaries were deposited into a single joint account and that following Mr Schou's commencement on the Disability Support Pension, his pension would also be deposited into that single joint account. Now, since March 2003, Mr Schou and Ms Noy have separate bank accounts with the joint account being closed by the end of February 2003. Mr Schou continues to provide Ms Noy with his equal contribution to the household expenses and this is done at the end of the month. Ms Noy denied that it was the SSAT decision made on 31 January 2003, that caused the financial arrangements to change. She also denied it was Mr Schou's illness that caused the relationship to change.
32. Ms Noy stated that for her part the relationship had been cooling off for some years and that this occurred before Mr Schou became ill. Ms Noy described Mr Schou and herself as being like brother and sister. She acknowledged that she felt loyalty and friendship for Mr Schou. She admitted that financially it was very difficult to cope since Mr Schou's illness. She stated that arguments do occur in relation to discussions about financial arrangements. Ms Noy stated, however, that for her part the relationship would have expired even if Mr Schou had not become ill. She referred to Mr Schou as a “wonderful bloke” and she would like to see him happy. Furthermore, Ms Noy described Mr Schou as a decent honest person and that she trusted him. She would assist him if he was sick and if her work commitments enabled her to visit him in hospital or look after him, she would do that.
33. Ms Noy acknowledged that she had lent Mr Schou $12,000.00 for his knee operation and told the Tribunal that he had repaid her most of the money, but she believed there may be $2000.00 or $3000.00 remaining. Ms Noy was also aware that Mr Schou had borrowed money from other friends.
34. Ms Noy stated that she does not have a will. She presumed that if she died, her share of any joint assets would go to her family. She trusted Mr Schou to arrange that. Ms Noy also presumed that Mr Schou's assets would go to Mr Schou's family. She was, however, unaware or unsure of Mr Schou's arrangements. If his assets came her way of course, Ms Noy stated, she would be grateful.
35. Ms Noy stated that there is no sexual relationship between herself and Mr Schou and that this was the case she believed at least two years before Mr Schou's illness. Ms Noy told the Tribunal that she now has a new romantic interest, a friend she has known for some years. In recent times that friendship has changed to that of their being a romantic involvement and that this occurred a few months ago. Ms Noy's family knew of this boyfriend, as does Mr Schou. Ms Noy stated that she has her own life to lead and Mr Schou has his life. Whether or not she had a boyfriend she would still want to have her own life. She had been going out with her girlfriends before starting her new relationship. Ms Noy was not prepared to discuss any details of her new relationship and Mr Schou stated that he did not want to know.
36. Ms Noy stated that since their separation they, that is Mr Schou and Ms Noy, had got on better with no arguments. This was her explanation for her notation in September 2002 in her living arrangements form, which is contained at T17, specifically pages 102 and 107. Ms Noy stated that she does most of the housework, including the vacuuming of Mr Schou's bedroom. She has a meal with Mr Schou if she is home. Their social relationships outside themselves are not great and never have been. They used to go out about once per month, she estimated. It declined in later years, that is, the social activity, mostly because of her work commitments, she stated. Ms Noy told the Tribunal that she has not seen Mr Schou's mother or family for about 18 months, though she may have spoken to Mr Schou's mother on the telephone when his mother phoned. They last had a holiday together perhaps four years ago, but holidays were not a great feature of their life together.
37. Ms Noy confirmed that she does have an internet address using Mr Schou's computer and that the internet address contains her name only. She requires the internet email address because of requirements of her work. Ms Noy stated that it was entirely up to Mr Schou what he did with his share of the assets. She noted that at Christmas 2002 they did not exchange gifts and she recalled Mr Schou asked her where his present was. Ms Noy noted that her grandchildren gave Mr Schou a Christmas present.
38. Ms Noy told the Tribunal that for the future she cannot see their situation continuing. She believed that their relationship finished three years ago, but told the Tribunal that she does not know if Mr Schou thought that, or indeed, knew that. She believes that Mr Schou's family knows that the relationship has changed. She was not sure when this might have been but thought it could have been that they realised 18 months ago.
39. That is the evidence. I will now turn to the submissions. Mr Schou stated that he has the feeling that he is not believed about his relationship changes. He stated that he has worked for 41 years and never had any government financial assistance. Now when he needs it, he is unable to obtain it. Mr Schou stated that he would not say anything bad about Ms Noy. It was not in his nature. He does not know how he is going to look after himself for the next few years. He indicated that there is no relationship in terms of a couple.
40. Turning to Mr Kenny's submissions, Mr Kenny relied on his written submissions, which are contained at Exhibit R1, and also made some oral submissions at hearing. In his written submissions, Mr Kenny noted that paragraph 4(2)(b) of the Act provides that a person is a member of a couple if the person has a relationship with a person of the opposite sex, called “the partner”, the person is not legally married to the partner, and, in the Secretary's opinion, that is the Secretary of the Department of Family and Community Services, the relationship between the person and the partner is a marriage-like relationship. The Secretary's opinion is to be formed in accordance with all the circumstances of the relationship having regard, in particular, to five broad matters which are set out in the Act in subsection 4(3).
41. Dealing with those matters, Mr Kenny noted that, in terms of the financial aspects of the relationship, Mr Schou and Ms Noy jointly own their home and their car. They have been jointly paying off the mortgage, the car loan, the rates, utilities and other household running expenses. For this purpose, Mr Kenny noted that Mr Schou and Ms Noy maintained a joint bank account into which both their wages were paid and that Mr Schou had his pension paid into that account until after he got his own bank account on 12 February 2003, which is detailed at T34, page 145 of the T Documents. At that point the joint account was closed. The joint account closure did not occur until 4 March 2003, several months after claiming the Disability Support Pension. Ms Noy and Mr Schou contributed equally to household expenses, until Mr Schou's reduced income thwarted this arrangement.
42. It was noted by Mr Kenny that, in talking to the SSAT, Mr Schou assumed Ms Noy would inherit his share of the house, even though he has no will. He evidently preferred this, Mr Kenny noted, to leaving his share to his mother and his siblings. As indicated by both the superannuation statement and evidence to the SSAT, Ms Noy is the 100 per cent beneficiary of Mr Schou's superannuation. Mr Kenny noted that although there was evidence at the hearing that Mr Schou has changed his view in terms of his estate, there have been no moves to put such changes in his attitude into action. Mr Kenny submitted that the evidence indicates a continuing relationship, although he noted that it has changed and that these changes have been slowly occurring.
43. There have been changes indeed in 2003 but Mr Kenny urged the Tribunal to look at the relationship at the time of the claim, that is, in August 2002. Looking at the other aspects of the relationship as the SSAT Tribunal found, Mr Schou and Ms Noy still continue to share the common areas of the house but have separate bedrooms. The household duties are distributed according to the abilities of the partners to perform them and this continues to be the case, Mr Kenny submitted.
44. Looking at the social aspects of the relationship, Mr Kenny submitted that the SSAT correctly concluded that the relationship used to be one of social activities lessening as Mr Schou's illness progressed and has remained in existence despite this lessening. Mr Kenny noted that the couple still have meals together on occasion when both are home. In relation to the sexual relationship between Mr Schou and Ms Noy, the evidence is that the relationship did have a normal sexual component until a loss of libido on Mr Schou's part stopped sexual activity. Even so, Mr Kenny noted that a sexual relationship is but one indicia of a relationship in the terms of a marital relationship.
45. Mr Kenny noted Mr Schou's reaction to not wanting to know or to have Ms Noy discuss her new relationship. In terms of the nature of the commitment between Ms Noy and Mr Schou Mr Kenny noted that the relationship has been in existence for over a decade. Despite Mr Schou's physical deterioration, Ms Noy continues to support him through his illness and financially. Ms Noy will not let Mr Schou down and she reiterated that at a hearing. They continue to communicate and get on well in the main. There is no estrangement, Mr Kenny submitted. The only apparent reason for the description of their relationship as being like brother and sister or being platonic is, in Mr Kenny's submission, the absence of a sexual relationship, a situation which Mr Kenny submitted had come about for medical reasons. Mr Schou called Ms Noy his partner in his Disability Support Pension claim and permitted her to inquire about his payments. This matter, Mr Kenny submitted, falls to be decided according to the objective situation at the date of claim for Disability Support Pension, rather than in the light of efforts to alter presentation, for example, as a result of rejection by the three previous decision-makers.
46. Mr Kenny noted that there is still mutual respect, care and loyalty present in the relationship. Furthermore, Mr Kenny concluded that the SSAT correctly discerned that the relationship has retained a real closeness. While in recent times there may be plans to make changes to the relationship, for example, making wills, no such action has occurred to bring the relationship to an end or to publicly indicate that the relationship has ended. It is Mr Kenny's submission that Mr Schou's illness and reduced financial capacity have not destroyed the relationship.
47. Mr Kenny noted that there is a discrepancy in relation to the evidence provided by Ms Noy and Mr Schou in terms of money owed and money repaid and specifically Mr Kenny noted that Ms Noy's evidence was that there was only $2000.00 or $3000.00 remaining for Mr Schou to repay to Ms Noy for the operation, whereas Mr Schou indicated in his evidence that there was a great deal more to be repaid and it seemed to be that he was indicating that the whole amount of $12,000.00 was required for repayment to Ms Noy. Taking all of the matters into consideration, Mr Kenny noted that, despite the evidence of changes to circumstances in 2003, the decision which was made by the SSAT should be affirmed.
48. I turn now to my findings in this matter. In making a decision I have taken into account the evidence, the legislation and the case law. I find that Mr Schou and Ms Noy provided evidence to the best of their ability, though I noted some discrepancy in the detail as to what Mr Schou may or may not owe to various people. It is important, I believe, that decision-makers making decisions about human relationships must reflect on the diversity and complexity of such relationships. It is always important to look at all of the circumstances which include evidence about what people say characterises their relationship and including what people do and how they act in those relationships.
49. It is important for Mr Schou to understand that the nature of his relationship with Ms Noy is being assessed at the time of his claim for Disability Support Pension in August 2002. Referring as I did at the commencement of this decision to the relevant legislation, all of the circumstances of two people must be taken into account, including those specific indicia or criteria of relationship which are referred to in the legislation.
50. The Tribunal finds that Mr Schou and Ms Noy commenced a de facto relationship or marital-like relationship in 1992. They purchased a home together in 1993 in which they still live. They still jointly own that Glenfield property and jointly contribute to the mortgage. The mortgage repayment is currently $700.00 per month and this changed about 18 months ago increasing from a repayment of $600.00 per month. There have been in recent times in 2003, discussions about altering the arrangements in relation to the inheritance of this property if either Mr Schou or Ms Noy dies. There has, however, been no action taken to alter the arrangements or the title of the Glenfield property and certainly that was the case at the time of the Disability Support Pension claim. Mr Schou and Ms Noy jointly own a car. They have had a joint bank account into which Mr Schou and Ms Noy's wages, and more recently Mr Schou's Disability Support Pension, were deposited. It has been changed, however, by March 2003, in that separate accounts are now a feature of this relationship.
51. There is still, on the Tribunal's understanding of the evidence at the time of August 2002, a pooling of resources and maintaining household duties and expenses. There is in this regard a pooling of resources in the form of $1000.00 each per month. The couple have no wills. At the time of the claim Mr Schou trusted Ms Noy to have knowledge of his Centrelink matters and she trusted him. While there are now plans on Mr Schou's part to draw up a will and make his intentions clear as to his assets going to his brothers, this was not the case in August 2002.
52. There was in August 2002, a sharing of day to day household activities limited by Mr Schou's illness and Ms Noy's work commitments. There are no children of the relationship. Certainly in August 2002 Mr Schou and Ms Noy were not conducting an active social life, however, this does not reflect a breakup of the relationship. It was clear from the evidence from both Mr Schou and Ms Noy that they had never enjoyed a particularly active social life be that going out or going on holidays. It is clear that Mr Schou's brothers now are aware of a definite change in the nature of the relationship, but it is not clear when they became aware of this or of the extent of their knowledge of that change. Ms Noy's friends may have known of the change of relationship, but again it is not clear when they or indeed her own family knew of a definite change, or in her view, separation.
53. Ms Noy has commenced a romantic relationship with another man some months ago. Mr Schou stated that he knew of this relationship approximately two months ago but really did not want to know. That was his clear evidence. He also found it difficult dealing with this and did not want to know anything at the Tribunal concerning the details of Ms Noy's new relationship. It is clear to the Tribunal by Mr Schou's evidence and demeanour at hearing that up until two months ago while he acknowledged that the relationship had changed he was not of the view, certainly as at August 2003, that the relationship was truly over. In this regard the Tribunal must look at his actions in terms of a number of factors including the household arrangements and the financial arrangements, which were joint responsibilities. While the Tribunal notes that there has been no sexual relationship for some time and certainly there was none at August 2002, this is but one of the indicia of two people being a couple.
54. The Tribunal notes that marital relationships do change over time and even couples who have been together and continue to be together will report, and it is reported in the literature, that there are changes to the sexual relationship yet there are still strong bonds indicated by other factors such as jointly held financial responsibilities and assets. The Tribunal considers that this is something that is applicable to Mr Schou and Ms Noy's relationship. I refer in discussing such matters to cases which have provided some guidance. In this regard, I refer to the Tribunal case of Re SRSSS and Secretary, Department of Family and Community Services (2002) 70 ALD 281, and another case Re SRCC and Secretary, Department of Family and Community Services (2001) 67 ALD 202.
55. The fact that there were no holidays together in August 2002, or no social outings or very few is in the Tribunal's view a product not of a cooling of the relationship but a product of Mr Schou's illness and the work arrangements. Furthermore, it is true the Tribunal finds that the relationship has changed over time and that there was a change in the relationship in August 2002 as compared to 1992 but that there was still very strong and public indications of some commitment. It is also the Tribunal's finding that while Ms Noy may have believed the relationship had ended years ago on the evidence provided at hearing and in the documents it is clear that in reality and in fact Mr Schou had not come to that realisation. It is part and parcel of making some decision about these matters that the mutual arrangements must be considered.
56. Ms Noy was very clear that she still felt affection, loyalty and friendship for Mr Schou. She is content to have the arrangements remain jointly in terms of assets and in terms of financial responsibilities. This may change and indeed the Tribunal is of the view that it will change. While Mr Schou notes the change in the relationship over time he had not come, as I must reiterate, to the realisation of a cessation, given his actions. There was still emotional support between Ms Noy and Mr Schou at the time of the claim and he was happy for the relationship to continue.
57. It is the Tribunal's view that a true change in the relationship occurred in 2003, probably at the time the bank accounts were changed but most certainly when Mr Schou became aware and understood and accepted Ms Noy's new romantic interest. Mr Schou's own evidence was that he did not want to have to come to this knowledge. When he did that is when, in my view as the Tribunal, his understanding of the relationship irrevocably changed. Although Mr Schou has not been able to practically make arrangements to reflect his knowledge, understanding and acceptance of the ending of the relationship, this should not detract from the Tribunal's understanding of the evidence that in fact by March 2003 and May 2003 at the latest the relationship can be considered to have ended..
58. This is not a situation, in Mr Schou's circumstances, such as reflected in the Tribunal decision of Re Needer and Secretary, Department of Social Security (1993) 74 SSR 1074, where that Tribunal found that there was no marriage-like relationship existing because two people apart from their friendship were leading very independent lives. Mr Schou and Ms Noy as at August 2002 had their affairs very clearly intertwined, with significant joint investments and financial commitments and assets. Even where there is no sexual relationship, as is the situation with Mr Schou and Ms Noy, it is the Tribunal's view that the indicia of a marriage, as I have outlined, were present in the form of a comfortable, compatible and marital-like relationship.
59. In this regard I obtained some guidance from a Tribunal case Re Ambrose and Repatriation Commission (1989) 19 ALD 546; (AAT 5849, 5 April 1990) and also in another case Re Dunbar and Repatriation Commission (AAT 6293, 19 October 1990). It is important in such matters to reflect that marital relationships change over time. That goes for marriage-like relationships. Mr Schou's relationship with Ms Noy and hers with him changed because of a number of factors, including time together, aging, illness and financial pressures. Despite this, however, it is my firm finding that the indicia of a marriage-like relationship as a whole were present in August 2002.
60. Accordingly, for all the reasons that I have expressed, I as the Tribunal affirm the decision under review that at the time of the claim for Disability Support Pension Mr Schou was a member of a couple. In making this finding I must emphasise as I have said earlier that I do not consider that Mr Schou and Ms Noy are presently members of a couple. I have stated that this occurred by March 2003 with a change most definitely in the financial arrangements and certainly by May 2003 with Mr Schou's knowledge and most importantly acceptance of a new romantic interest and an irrevocable change in their relationship, that is, the relationship between Mr Schou and Ms Noy. This is reflected in Mr Schou’s discussions about his future plans, his plans to alter his arrangements for his superannuation and in terms of making a will, that is, matters to do with the disposal of his assets.
61. I encourage Mr Schou to inform Centrelink, as was discussed at the hearing, of the changes to his relationship which have most definitely occurred in 2003. The Tribunal strongly recommends to Centrelink that once it is informed of Mr Schou's changed circumstances that the discussion of the evidence and the Tribunal's findings be referred to the decision-maker so that the decision-maker has the fullest opportunity to understand Mr Schou's circumstances which I, as a senior member of the Administrative Appeals Tribunal, have accepted as being truthful.
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