SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES and MERVYN CURRAN

[2003] AATA 550

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] 550

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/1078

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And MERVYN CURRAN

Respondent

DECISION

Tribunal Mr B J McCabe, Member

Date13 June 2003

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

(Sgd) B J McCabe
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – whether respondent living in a marriage-like relationship

Social Security Act 1991

REASONS FOR DECISION

13 June 2003 Mr B J McCabe, Member  

Introduction

1.      Mr Mervyn Curran received a number of social security benefits between August 1992 and May 2000. His entitlement was assessed on the basis he was a single man. The Secretary says he was actually involved in a marriage-like relationship with Ms Fiona Strichen at times during that period. If the Secretary is right, Mr Curran’s entitlement to receive benefits would be affected. He would be required to repay the amount of the overpayment he received.

2. Mr Curran succeeded in his appeal before the Social Security Appeals Tribunal (“the SSAT”). The SSAT concluded Mr Curran and Ms Strichen were not members of a couple because they did not have a marriage-like relationship within the meaning of s 4 of the Social Security Act 1991.. The Secretary has now appealed to the Tribunal for a review of that decision.

The Material Before the Tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. It was also provided with photographs of the respondent’s current residence to illustrate his living arrangements. The Tribunal heard oral evidence from Mr Curran and Ms Strichen.

4.      The respondent was represented at the hearing by Mr Williams of counsel. Ms Wallis-Dunn represented the applicant.

The Facts

5.      The respondent met Ms Strichen in a bar in Darwin in the late 1980s. He was in the process of establishing a smash repair business in Darwin at the time, and he was looking for a business partner as well as a social relationship. There appeared to be no dispute that Ms Strichen invested money in the business and gave the respondent the benefit of her commercial expertise when the business commenced in 1989. There was a joint bank account for the business, but their affairs were not otherwise intermingled. Ms Strichen and the respondent also had a romantic relationship, although they did not live together. Ms Strichen lived with her mother, and Mr Curran lived on his boat. Mr Curran said Ms Strichen did not like coming onto the boat. He said he was hopeful of a long-term relationship, but Ms Strichen never allowed things to go that far.

6.      The business venture was not a success and it was sold in 1992. Mr Curran owed Ms Strichen money as a result of the circumstances of the sale. She left Darwin to work at an Aboriginal settlement; he followed her there briefly in order to help her out, he says, as he was unemployed. They lived together at the settlement but they were unable to get along. He lasted six weeks before he returned to Darwin. It was clear from Ms Strichen’s evidence that the romantic relationship was well and truly over at that point. Mr Curran said he still owed Ms Strichen money, which necessitated ongoing contact. She returned to Darwin after three or four months. Relations were apparently cordial: they would bump into each other in the street, but they were no longer close.

7.      Mr Curran was looking for the opportunity to move away from Darwin during this period so he could start a new life. He had limited resources. His only asset was his boat, the Skippy. He was investigating the possibility of swapping his boat for an interest in a property. He says he bumped into Ms Strichen one day and mentioned the plan.  She expressed an interest in being involved. He said she wanted to leave the home she shared with her mother. The discussion between the respondent and Ms Strichen proceeded on the basis they would seek out a property with two dwellings – one for the respondent and one for Ms Strichen. Ms Strichen was prepared to use her money and borrowing potential to fund the purchase.

8.      The pair identified a property in northern New South Wales that suited their requirements in 1994. Ms Strichen funded the purchase, partly through a loan. The property was located on Busby Flat Road. It had a house and a large shed. Mr Curran moved into the shed soon after the purchase, and Ms Strichen moved into the house in 1995. A picture of the house and the adjacent shed were tendered in evidence. The picture shows a bus that was converted into a campervan. It belonged to Mr Curran. He lives in the bus at present.

9.      The pair did not reside under the same roof. Mr Curran made it clear that he had all of his own facilities – kitchen, toilet, television and so forth – in the shed, which he fixed up as a home. He occasionally used the phone in the house, but he paid for all the calls. His electricity was metered and paid for separately. While the respondent and Ms Strichen agreed he would sometimes come to the house for a meal or to watch television, they did not live together. Ms Strichen had a boarder in the house during some of the period in question.

10.     The pair resided on the property alongside each other intermittently since after 1994. Mr Curran would occasionally leave the property in his campervan on extended trips. He returned to Darwin in 1998 and remained there looking for work until March 2000. Ms Strichen was also in Darwin at the time, but both insisted they were not involved in a close relationship of any kind. They both returned to Busby Flat independently during 2000.

11.     In the meantime the respondent had bought a property at Bundarra using his boat as equity. That property was sold in 2002 and the surplus was paid to Ms Strichen in reduction of the debt he owed her in respect of his share of the Busby Flat property. It was clear from the evidence that Ms Strichen was careful to keep a detailed account of her financial dealings with Mr Curran. She has been generous in her dealings with him, to be sure. But I am not satisfied Ms Strichen regarded her occasional support for Mr Curran as an incident of some kind of spousal duty. She recorded his debts and expects him to repay them. Mr Curran looks after Ms Strichen in return. She has been very ill, and he drives her to hospital for treatment and collects her medicine. He also drove her to work on a regular basis when she was employed in Casino.

12.     Ms Wallis-Dunn, for the applicant, referred to a number of documents in which Mr Curran identified Ms Strichen as his de facto partner. His 1992 income tax return and a Jobsearch application form dated 14 August 1992 suggest Ms Strichen is a partner. Mr Curran said the reference to partnership in the tax return was as mistake: he was referring to a business partnership. He also completed a statement, provided to the applicant on 5 December 1994 (T13 at p64), in which he said he anticipated he and Ms Strichen – with whom he had never lived as a married couple – would soon commence a permanent de facto relationship. A loan application (T37) suggested the pair were a married couple, but Mr Curran said he didn’t read the document before he signed it. I believe him. There were also records of an interview conducted with Mr Curran (at T68).

13.     I acknowledge that Mr Curran has said things that indicate he is involved in a de facto relationship with Ms Strichen. After hearing from him and Ms Strichen in the witness box, I am satisfied I should not place any weight on those contradictory statements. They are, in my view, the product of wishful thinking. Mr Curran is clearly attached to Ms Strichen and would gladly commence a relationship with her if she were at all interested. She made it clear she is not, and apart from a brief, not very intense affair with him, she has never been involved in a romantic relationship with the respondent. They are friends who have ended up together through circumstances. They look after each other. They also annoy each other to some extent. When asked whether she would ever have a child with Mr Curran, Ms Strichen replied “God no!”. But there is clearly an enduring bond of friendship and mutual assistance. When it suits them to do so, they have socialised together – albeit rarely. Ms Strichen acknowledges that on at least one occasion she informed her then employer that she was partnered with Mr Curran – but she explained that she did it in order to forestall her supervisor from making inappropriate advances towards her.

14.     I think Mr Curran showed some insight when he described the relationship in these terms in 1998 in an Assessment of Living Arrangements form submitted to the applicant (T19 at p 122):

“Our relationship is two older people who’s lives have been disrupted, pooling resources, to achieve a reasonable home for our old age.”

15.     This close relationship is reflected in the understanding with respect to the Busby Flat property. The respondent and Ms Strichen own it as joint tenants. She accepts that if she dies, it will pass to Mr Curran. She says that is fair enough because she has no other family, and Mr Curran should not be turned out of his home.

The Legislation

16. The entitlement of a person seeking benefits will be affected if he or she is a member of a couple. Section 4 of the Act says a person will be a member of a couple if, inter alia, the person is not married but nonetheless lives in a marriage like relationship: s 4(2)(b). Section 4(3) says the Secretary must have regard to all the circumstances of the relationship when considering whether or not a marriage-like relationship exists, including a number of matters set out in s 4(3)(a)-(e).

17. Having regard to all the circumstances, including the matters referred to in s 4(3)(a)-(e), I am satisfied the respondent and Ms Strichen were not in a marriage-like relationship at any point after they ended their liaison in 1992. Indeed, I am not satisfied they were in a marriage-like relationship at that point, either: they were simply going out and doing business together. That falls short of a marriage-like relationship.

18.     I acknowledge there is a close bond of friendship between the two, and that they have provided mutual support for each other in a material sense. They share chores, and do things for one another occasionally (Ms Strichen cooks him the occasional meal, while he drives her to doctors’ appointments). They also do things together, like the shopping – but that is hardly surprising, given they live some way out of town and shopping expeditions are necessarily carefully-planned affairs. They have socialised together in a limited way on occasions, but that is usually for the sake of appearances. While they live on the same property, Ms Strichen in particular made it clear they did not live together. There is clearly no sexual relationship. There has been some pooling of financial resources, but Ms Strichen keeps careful count of the balance owing.

19. The factors set out in s 4(3)(a)-(e) are indicia of a relationship. The Tribunal is required to consider all those matters in light of all the circumstances. I am ultimately persuaded by the evidence of Ms Strichen, in particular, that the relationship lacked the essential emotional and physical proximity one expects from a marriage-like relationship. The relationship was never like that. She makes it clear (and the respondent’s evidence confirms) that she and Mr Curran are nothing more than old friends who are pursuing an unconventional, long-term friendship because it is mutually convenient to do so. Mr Curran has from time to time enjoyed support of various kinds from his friend, but there is nothing in the relationship that suggests it was anything more than an act of goodwill from Ms Strichen.

Conclusion

20.     I am unable to fault the reasoning of the SSAT. The decision is affirmed.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr B J McCabe, Member

Signed:         Sarah Oliver
  Associate

Date of Hearing  21 February 2003
Date of Decision  13 June 2003
Solicitor for the Applicant          Ms Wallis-Dunn, Departmental Advocate
Counsel for the Respondent     Mr D Williams
Solicitor for the Respondent     Welfare Rights Centre