Stead and Anor and Secretary, Department of Families, Community Services and Indigenous Affairs

[2006] AATA 292

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 292

ADMINISTRATIVE APPEALS TRIBUNAL      )

)       No Q2005/138 & Q2005/139

GENERAL ADMINISTRATIVE DIVISION		)
Re		CATHERINE STEAD & SEAN PATRICK LYNN

Applicants

And SECRETARY, DEPARTMENT
OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date31 March 2006  

PlaceBrisbane

Decision The Tribunal affirms the decision under review

..........[Sgd]...........

RG Kenny
  Member

CATCHWORDS

SOCIAL SECURITY - benefits and entitlements - member of a couple at the relevant time - parenting payment - disability support pension – marriage like relationship.

Social Security Act 1991 ss 4

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

Kinnane and Department of Social Security (1997) AATA 12275

REASONS FOR DECISION

31 March 2006   Mr RG Kenny, Member   

1.      Catherine Stead and Sean Lynn have been in receipt of social security payments in accordance with the Social Security Act 1991 (the Act).  Ms Stead received various forms of payment including, since April 1999, the disability support pension because of anxiety and depression.  Mr Lynn also received various forms of payment including a parenting payment.  From April 1993 until 1 December 2004, these were made on the basis that Ms Stead and Mr Lynn were not members of a couple but, on that date, it was determined that they were living in a marriage-like relationship and, therefore, the rate of payment of their respective benefits was reduced.  That decision was affirmed by an authorised review officer on 16 December 2004 and, in turn, by the Social Security Appeals Tribunal on 8 February 2005.  On 9 March 2005, Ms Stead and Mr Lynn applied for review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Hearing

2.      Both Ms Stead and Mr Lynn attended the hearing which commenced on 20 September 2005 and was completed on 19 and 20 February 2006.  Ms Stead was represented by Mr B Wesling-Smith of counsel.  Mr Lynn was represented by Mr R Watson, solicitor.  The Secretary, Department of Family and Community Services (the respondent) was represented by Ms S Oliver, departmental advocate.

3. The material taken into evidence included the documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975.

Issues and Legislation

4.      It is not disputed that Ms Stead and Mr Lynn meet the qualifying criteria for the respective income support payments they received.  The rate of those payments is reduced while they are living as members of a couple.  Where recipients are not legally married to each other, the criteria for determining the existence of such a relationship are set out in paragraph 4(2)(b) of the Act and the only aspect of that provision which is in dispute is whether, in accordance with subsection 4(3) of the Act, they were in a marriage-like relationship on 1 December 2004 when the initial decision under review was made.  That provision, in so far as relevant,  reads:

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

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

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

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

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

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

(b)       the nature of the household, including:

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

(ii)       the living arrangements of the people; and

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

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

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

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

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

(d)       any sexual relationship between the people;

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

(i)        the length of the relationship; and

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

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

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

Evidence

Ms Stead and Mr Lynn

5.      Ms Stead and Mr Lynn met in 1992 when they were aged 17 and 18 years, respectively.  Ms Stead had a difficult childhood including violent interludes with her father who was, when she met Mr Lynn, in jail.  She believed her father was to be released from prison and did not wish to remain living in the family home.  Ms Stead and Mr Lynn had been keeping company for some weeks and she accepted his invitation to live with him at his parents’ place at Acacia Ridge.  In July 1992, Ms Stead made an application for the young homeless allowance and she and Mr Lynn’s living arrangements were assessed by the respondent.  Ms Stead represented herself and Mr Lynn, at that time, as “girlfriend/boyfriend” and said they planned to live together in their own premises in the future.  The respondent assessed her as living in a marriage-like relationship at that time and this continued until April 1993 when Ms Stead advised the respondent that she and Mr Lynn were no longer in a relationship.

6.      Because Mr Lynn’s parents were not comfortable with them living at their house, Ms Stead and Mr Lynn moved out and then lived in a series of six or seven houses in the company of friends or Mr Lynn’s relatives at Acacia Ridge and Coopers Plains.  On one occasion, Ms Stead was the victim of a home invasion and she moved to North Maclean to stay with a friend of her mother.  Ms Stead and Mr Lynn saw each other during that period because they had a close association through a group of common friends who were involved in car-racing at Archerfield speedway.  In August 1996, Ms Stead moved to Mt Gravatt where she lived with friends, including one whose mother obtained employment for her as a cleaner.  However, she argued with her flatmate and, as a result, lost her job.  She then moved to Pinelands Road, Sunnybank Hills, in late 1996.

7.      In the period from April 1996 to July 1996, Mr Lynn was in jail for various offences and, on release, was required to live with his parents in home detention for several months.  He was not allowed to leave the premises and was visited often by friends including Ms Stead.  She also visited him on two or three occasions whilst he was in prison.  On completing his home detention, Mr Lynn also moved to the Pinelands Road at the end of 1996 as an approved tenant in the house which had been leased by Ms Stead.

8.      There were times when Mr Lynn would not stay at Pinelands Road.  He lived in a sexual relationship with another woman at Dinmore for several months in 1999.  The woman fell pregnant to Mr Lynn.  Before the child was born, Mr Lynn discovered that the woman had been in a continuing sexual relationship with another man so he left and went back to Pinelands Road.  Ty was born on 21 August 2000 and the mother declared that Mr Lynn could have responsibility for him.  Family Court consent orders were drawn up on 6 September 2000 with the nominated residence being that of Mr Lynn at Pinelands Road.  Ms Stead wanted to provide a stable environment for Mr Lynn and was willing for him and Ty to live with her at Pinelands Road.  She described him as a “stay at home dad” thereafter. 

9.      When Ms Stead and Mr Lynn shared premises after leaving the home of Mr Lynn’s parents, Ms Stead said that the living arrangements were separate in that they had their own rooms in those premises.  However, Mr Lynn’s evidence was that they were in separate rooms at times but that, on other occasions, they lived together.  Both Ms Stead and Mr Lynn said that there was no continuing sexual relationship between them whilst living at Pinelands Road or thereafter. However, on one occasion when they were both intoxicated, they had sexual intercourse and this resulted in Ms Stead becoming pregnant and the birth, on 21 July 2001, of their daughter, Shauna.  Each of them described this as a mistake.  Ms Stead said that she did not believe in abortion and she was determined to keep the child.  Ms Stead and Mr Lynn and the two children have shared premises since then. 

10.     After receiving notice that the house at Pinelands Road was to be sold, Ms Stead and Mr Lynn made arrangements to move to the house adjacent to that of Mr Lynn’s parents at Acacia Ridge.  They said that they maintained separate bedrooms with Mr Lynn and Ty living downstairs and Ms Stead living upstairs with Shauna.  After a few months, they learned that this house was to be sold so they moved to Longford Crescent, Acacia Ridge, where they remained for approximately 18 months.  They then moved to their present address at Springwater Place, Algester in August 2004.  The leases at Longford Crescent and Springwater Place were taken out in both names and they needed to borrow money for the bond.  In each case, a bond loan was taken out in joint names.  They said this was a requirement because both names were on the lease.  Ms Stead said that, when leasing the properties, she described herself and Mr Lynn as “housemates”. 

11.      The homes at Longford Crescent and Springwater Place each had four bedrooms with an ensuite.  Ms Stead and Mr Lynn each had their own bedroom as did the two children.  They retained separation in their use of bathroom facilities except that, on occasions, the two children would bathe together.  They said that they maintained separation with their food supplies and that, whilst they went shopping together, they independently purchased their own food.  Ms Stead said that she and Mr Lynn cook their meals separately but that they eat meals together.  They each have their own refrigerator to store their own food separately.  They share cleaning duties for the common areas of the house and assume individual responsibility for their own sleeping and bathroom areas.  Ms Stead said that, when visitors come, she might cook for everybody on those occasions although very often would arrange to have take-away meals.  She said that Mr Lynn would do the cooking if there was a barbeque on occasions such as the children’s birthdays.  Ms Stead said that, in the evenings, they usually sit together and watch television and Mr Lynn said that they rarely see each other during the day because she goes to work.  

12.     Ms Stead and Mr Lynn each said that they would look after both of the children from time to time if the other was engaged in some other activity.  Ms Stead had casual employment and, before 2006 on the days when she was not able to take Shauna to kindergarten, Mr Lynn assumed those responsibilities.  At the resumption of his evidence in February 2006, Mr Lynn said that the living arrangements had remained the same as they had been in September 2005.  Ty was now in grade one at school and Shauna was in pre-school.  Mr Lynn currently takes Ty to and from school and also does this for Shauna at pre-school except for Wednesdays when Ms Stead does not go to work.  He said that Ms Stead was working longer hours now than she had been in the previous year and was rostered most days except Wednesdays and sometimes on the weekend.  Mr Lynn said that there have been times when he has been away from the home and he recalled one occasion when this was for two days. He said that, during those periods, Ms Stead looked after both Ty and Shauna.

13.     Each of them was responsible for sharing the cost of rental, phone and electricity supply until the decision was made to reduce their payment.  Since then, Mr Lynn has not been able to pay his way and Ms Stead has made payments on his behalf.  In September 2005, Ms Stead said that she has kept a record of this and that Mr Lynn owed her more than $4,000 at that time.  In February 2006, Mr Lynn said that this arrangement had continued.  Each said that they treated this as a debt which will need to be repaid in the future.  Mr Lynn said that Ms Stead had given him money from time to time for food and for cigarettes.  He also said that he had used food vouchers on two occasions.  Mr Lynn does not have a motor vehicle in operating order.  He borrows Ms Stead’s car from time to time and contributed to fuel costs until his payments were reduced.  Ms Stead said that, in the event that they are to be treated as a couple, Mr Lynn would need to move out of the house because she could not continue to subsidise his living arrangements.  She said that he is required to pay child support for Shauna of $21.67 a month and that this had also built up as a debt.

14.     Ms Stead borrowed money from various institutions including Better Loans and Finance at Brown’s Plains in the amount of $500 on 30 August 2003 and from GE, Upper Mt Gravatt on 25 September 2002 in the amount of $1,500. Mr Lynn also borrowed money from those two institutions in the amount of $400 on 1 September 2003 and $1,500 on 25 September 2002.  They said that this was not a joint endeavour.  Once Ms Stead realised she was able to borrow money, she shared that information with Mr Lynn who then made his loan applications.  Initially, Mr Lynn was unsuccessful in his application because he had been required to provide security and, in particular, was asked whether Ms Stead would allow him to use her vehicle as security.  He said that he had not asked her but knew that she would not agree and Ms Stead’s evidence was that she would not have consented. 

15.     On 26 February 2004, both Ms Stead and Mr Lynn entered into voluntary bankruptcy.  They were each having financial difficulties at the time but said they had not agreed to enter into the arrangement together.  Ms Stead said that she had received financial advice and that, when she advised Mr Lynn that she would be going into bankruptcy, he also spoke with the same agent that she was dealing with and his documentation was completed at the same time.  She said that a representative of “Debt Cutters” had come to their house at her request and that, during discussions with him, Mr Lynn advised the representative that he was also having financial difficulties.  At that stage, further arrangements were made for him and documentation, with the same date, was signed by each of them. 

16.     Ms Stead said that she trusted Mr Lynn in a way that she was unable to trust other men because of her experiences as a child.  Mr Lynn also said that he was able to trust Ms Stead because he knew that, when he paid rent monies to her, she would always apply them to the proper usage.  They said that the only reason they live together is to provide a stable environment for the two children.  Because they are half-brother and sister, they considered that it was important that they stay together as a family unit. They said that Ty calls Ms Stead “mum” at various times and that, when he does, he is corrected and advised that she is not his mother.  He also calls her “Cathy” or “Aunty Cathy”.  Mr Lynn said that Ty considers Ms Stead’s parents to be his grandparents and uses the term “nanna” in relation to Ms Stead’s mother.

17.     Shauna has epilepsy and Ms Stead said that she had no previous experience with that condition.  However, she also said that, as the condition had been present in Mr Lynn’s family, he had experience in dealing with the condition and she found great comfort in this because he knew what to do when problems arose.

18.     Mr Lynn said that Ms Stead was in receipt of a disability support pension because of an anxiety state.  He said that she needed support to get through the day and that this was provided by her friends and those at work and also himself.  He said that he doesn’t routinely remind her about her medication but has, from time to time, asked her whether she has been taking it. 

19.     Ms Stead said that she gets on well with Mr Lynn’s family and has been “best friends” with his sister.  

20.     Ms Stead and Mr Lynn said that they did not go out socially and can recall only two times when this occurred.  This was when the Epileptic Society gave her tickets for a movie and they all attended.  She said that Mr Lynn takes Ty to various places and that she also takes Shauna to various places.  She said that, on occasions such as Christmas and the children’s’ birthdays, they usually went together as a group to visit their parents.

21.     As to the future, Ms Stead said that if things continue to go well between them they would probably remain living in the same premises.  She said that her daughter can be a bit mischievous at times and that it was useful to have Mr Lynn there to ensure that she does what she is told.  Nevertheless, she considers that she is the parent of Shauna and capable of looking after her on her own.  Mr Lynn said that he has changed his ways since he has been a father and that he has settled down.  Mr Lynn said that he had discussed the future with Ms Stead and had made it clear that, if he left, he would be applying for custody of Shauna.  Ms Stead said that, if they separated, she would not surrender Shauna to Mr Lynn but would allow him to have liberal access visits with her. 

Robin Purvis

22.     Ms Purvis is a child and family therapist.  She interviewed Ms Stead and Mr Lynn in July 2005 for the purposes of preparing reports, dated 5 August 2005, in this matter.  Ms Purvis said that she was aware of Ms Stead’s troubled childhood and considered that this played a large part in her need for security which was provided by living in the same house as Mr Lynn.  She also said that Ms Stead had revealed the need for Shauna to grow up with a responsible male figure so as to avoid the problems that she had faced as a child.

23.     Ms  Purvis said that there was a compatibility between Ms Stead and Mr Lynn and believed that the relationship between them existed because of the children and that it would continue to provide a family structure as long as it worked for them.  She described it as being between two friends or perhaps between a brother and sister.  She said that, in their relationship, each of them knew their territory, their contribution and their reliability and that these factors provided a platform for them so that they were able to maintain independent living arrangements.  Ms Purvis agreed that there was an emotional attachment between them in the sense that, with a family, there is no need to continually renegotiate the limits between members all of the time.  Nevertheless, she said that they presented differently from two people who were in a marriage-like relationship.  She said that they were maximising their capacity to live in society in a manner which was best for the children and themselves and that, although this provided them with one level of being in a marriage-like relationship, other levels of such a relationship were missing.

Rachael Baxter

24.     Ms Baxter works with Ms Stead and has known her since Christmas 2004.  She sometimes drives her to and from work.  She said that she has met Mr Lynn and she knew about the parenthood of the two children.  She said that Ms Stead had told her about her troubled childhood and her need for stability in her life which was provided by Mr Lynn.  She also said that she had been told by Ms Stead that she wanted to keep the children together.  She said that she had been inside their house and observed the living arrangements and was aware that each of them had separate rooms.  She said she had not seen the two of them acting in any way which she would described as intimate and she did not think they were in a relationship.  She said that she had heard Ty calling Ms Stead “mum” and also “Cathy” and she said, on occasions, he would correct himself when he called her “mum”.

Rebecca Holmes

25.     Ms Holmes befriended Ms Stead in 2003 when she was a neighbour in Longford Crescent.  She learned that Mr Lynn was the father of the two children and, initially, she thought Ms Stead and Mr Lynn were in a relationship.  She was told by them that this was not the case.  Ms Stead told that she had known him since her school days and had a brief sexual encounter with him and that Shauna had been born as a result of an isolated sexual liaison when both of them were affected by alcohol.  She said that she hadn’t been aware that Mr Lynn had been living in the same premises as Ms Stead for seven months before the child was born. She said that she had been into their house and had noted that each of them had their own bedroom and that each kept their food in separate refrigerators.

26.     Ms Holmes said that Mr Lynn left with Ty on one occasion but that, he returned by midnight because Ty wanted to be back with Shauna.  Ms Holmes said that she believed that they stayed together for the sake of the children and thought that they would probably go their separate ways when the children got older.

Michelle Lynn

27.     Mr Lynn’s mother said that she first met Ms Stead when Mr Lynn asked if she could live in the family home because of problems with Ms Stead’s father.  She described them as boyfriend/girlfriend at that time.  She said that she was aware that he had had several girlfriends over the years and that he had lived in various places.  Mrs Lynn said that Mr Lynn and Ty had not been able to move in with her in her house because, at the time when Ty was born, she had no spare rooms.  She said that she had visited him in his current house a few times and noted that he and Ms Stead had separate bedrooms and bathrooms.  She said that Mr Lynn regularly visits her with the two children with him but not commonly with Ms Stead.

28.     Mrs Lynn believed that all of the cleaning of the household was done by Mr Lynn, that Ms Stead pays the rent and that Mr Lynn makes do with what money he has.  She described their relationship as volatile as they argue a lot.  She wasn’t able to say whether they were supportive of each other and she said that Mr Lynn was responsible for transporting the children to and from school.  She believed that if Mr Lynn could get custody of Shauna, he would leave the relationship.

Rebecca Lynn

29.     Mr Lynn’s sister first met Ms Stead when she came to live at Mrs Lynn’s house.  She was aware of their current living arrangements and described Ms Stead and her brother as having separate bedrooms and bathrooms.  She visits their home about once a week and said that Mr Lynn is usually there with the children but not Ms Stead.  She described the children as being very close and almost like twins.  She said that she had a meal at their house in recent times and that Ms Stead was not there but Mr Lynn had done the cooking for both of the children.  She said that he sometimes visits her and that he will always have Ty with him and sometimes Shauna and Ty but that Ms Stead did not often visit.  She said that Ms Stead and Mr Lynn “loved to hate each other” and would continually argue with each other.  She believed that he was not emotionally supportive of Ms Stead but did look after Shauna.  Mrs Lynn said that she had a spare room in her house and would like Mr Lynn to move in with Ty but said that he is not prepared to move without Shauna.  She said that they were living together now only because of the children. 

Helen Crowther

30.     Ms Crowther is the manager of the real estate agency which is responsible for renting the premises to Ms Stead and Mr Lynn.  She said the house was occupied by two adults and two children and that routine inspections were conducted from time to time, for which seven days notice was given.  She said that it was reported that each of the four bedrooms in the premises was occupied.  She said that she had no knowledge of either Mr Lynn or Ms Stead in any social sense but that she had been told by them that they were “not a couple”.

John Vezos

31.     Mr Vezos said that he had known Ms Stead and Mr Lynn since 1994 when he owned the Village Convenience Store at Rocklea.  He now owns Pitlane Snacks.  He describes them both as his friends but said that he never sees them together.  Each would drop in at the shop from time to time separately.  He said that he believed that Mr Lynn had many girlfriends over the years.  He believed they shared premises for the sake of the children and considered they are not in a marriage like relationship.

Tina Stead

32.     Ms Stead’s sister is very close to Ms Stead and they visit each other often.  She said that Ms Stead would visit her with Shauna and occasionally Ty but that Mr Lynn did not accompany them very often.  She said that Ms Stead and Mr Lynn lived in separate bedrooms.  She thought that they mainly looked after their own cooking arrangements but was aware that, now and then, Ms Stead would cook for them all.  She said that Mr Lynn would often drop the children off at school and pick them up if Ms Stead was not there.  She believed that, if it were not for Shauna, her sister and Mr Lynn would not be living together.  She said that they had attempted to provide the children with what she and Ms Stead had missed out on as children and to have a father figure for Shauna.  However, she said that they often argued.

33.     Ms Stead said that she was aware her sister had an anxiety state and that she received support from herself and their mother.  However, she said that, if Mr Lynn was there and she needed assistance, he would provide it.

34.     She said that Ms Stead and Mr Lynn had a lot of mutual friends from their life together over the years.  She said that Ty called her “aunty Tina” and that she was comfortable with both of the children using that same form of address.

Dr Cole Weatherall

35.     Dr Weatherall is the general medical practitioner for Ms Stead and Mr Lynn.  He said that most of the consultations with them were in respect of the children.  He said that Ms Stead usually brought Shauna in although sometimes she brought Ty as well.  He said that he did not think that Ms Stead and Mr Lynn were in a relationship and he gleamed this from information that they had given him.

Submissions

36.     Mr Watson submitted that there were no assets jointly owned between Ms Stead and Mr Lynn, no legal obligations between them and no sexual relationship since the conception of Shauna.  He submitted that there was no companionship provided from one to the other and no emotional support between them.  He submitted that all the characteristics which go to make up a relationship should be considered globally and that, when this was done, a marriage like relationship was not evident between Ms Stead and Mr Lynn.

37.     Mr Wessling-Smith also submitted that evidence did not point to a marriage-like relationship between Ms Stead and Mr Lynn.  He noted that the respondent had conducted several reviews of their association since 1993 and that, until December 2004, it had always found that they were not living in such a relationship.  He described the minor inconsistencies in their evidence as not unusual given the length of time they had been together and indicative of noncollusion.  He submitted that the evidence of those who know Ms Stead and Mr Lynn consistently described an absence of a marriage-like relationship between them and one which was designed to ensure that the children stayed together. 

38.     Mr Wessling-Smith submitted that they had kept their finances separate until the time came for Mr Lynn to rely upon Ms Stead because of his reduced payments.  Moreover, he referred to their evidence that the amounts were being recorded as a debt that Mr Lynn owed to Ms Stead and he submitted that, in the future, this would need to be repaid.  He submitted that there had never been any joint ownership of assets and that Ms Stead’s unwillingness to allow Mr Lynn to use her vehicle as security to obtain a loan was significant.  He conceded that there was a joint liability in respect of the rental bond for the Longford Crescent house and their current house which had been obtained by way of a loan but submitted that this had been a requirement to obtain the lease.  He referred to borrowings from the same organisation by each of them and said this had been explained in the evidence that, when Ms Stead had been successful in obtaining a loan, she shared that information with Mr Lynn who then made application for a loan from the same place.  He submitted that this did not amount to any linking of financial arrangements.  He referred to their entry into bankruptcy and submitted that these were independent actions which coincidently occurred at the same time.

39.     As to the nature of the household, Mr Wessling-Smith submitted that there was separation of living arrangements as far as sleeping and bathroom facilities were concerned although there was sharing of the lounge room and kitchen facilities except that each maintained a separate refrigerator.  He submitted that Mr Lynn primarily cares for himself and Ty and that Ms Stead primarily cares for herself and Shauna.  He noted that Mr Lynn has increased responsibility because of Ms Stead’s absence at work and submitted that this was not unusual as he was the father of each of the children.  He said there had been generally a separation in cleaning and cooking arrangements but that this had changed in more recent times, in part, to save costs.  He submitted that Ms Stead and Mr Lynn were together for no more than about three hours a day because of Ms Stead’s work commitments. 

40.     In relation to the social aspects, he submitted that there was no holding out by them as being a couple.  Indeed, he submitted that if anyone assumed that they were, this assumption was corrected.  He conceded that they had mutual friends but submitted that they rarely socialised together and that, whilst there are occasional visits by all of them to family members, it is more often the case that they do this individually.

41.     He submitted that the evidence is that there has been no sexual relationship between them since Shauna’s conception.  He submitted that, whilst there was evidence that there may have been occasions since they were initially in a relationship when sexual intercourse had occurred between them, this had to be considered in the context of a very long period of time in which they had shared premises.

42.     As for commitment to each other, he submitted that this was really only manifested in a wish to keep the children together.  He submitted that there was no evidence of any companionship or emotional support between them and he considered there was a lack of trust in the relationship.  He referred to the psychiatric condition from which Ms Stead suffered and described her emotional support as mainly coming from her mother or from her sister.

43.     Ms Oliver submitted that there was a significant financial benefit to Ms Stead and to Mr Lynn because of their joint living arrangements.  This enabled them to live in a comfortable family home which neither of them could do separately.  She also considered that there was a significant level of financial interdependence as demonstrated by joint loans being taken out and bankruptcy being entered into at common times.  She submitted that this reflected a much greater level of interrelationship than was usually the case with flatmates. 

44.     Ms Oliver referred to the willingness of Ms Stead’s family to allow Ty to embrace them as family members by using terms such as “nanna” and “aunty” which were not technically correct but, nevertheless, permitted. 

45.     Socially, she described them as having the same circle of friends gathered over many years of knowing each other and she referred to inconsistencies in the evidence given in September with that given in February.  Earlier, there was reference to going to the movies and to taking the children to a park which was denied subsequently.  She also referred to inconsistent evidence in the nature of the sexual relationship between them over the years.  She submitted that each of them had a commitment to the other which was likely to continue as they lived together for the sake of the children.

Consideration

46.     Sub-section 4(3) of the Act requires that regard be had to all of the circumstances of the relationship between Ms Stead and Mr Lynn. In Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252 at [24], it was stated that the Tribunal is:

“to have 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.”

Financial aspects of the relationship

47.     The financial circumstances of both Ms Stead and Mr Lynn changed significantly when the respondent’s decision to treat them as members of the couple was made.  I accept the contention that it is the financial situation prior to that event which should be analysed in assessing the nature of the relationship between them: see Kinnane and Department of Social Security (1997) AATA 12275. Nevertheless, it is significant that Ms Stead has allowed Mr Lynn to accrue a debt of $4000 by September 2005 and to allow that to continue into 2006. I have noted the evidence that each of them considers this to be repayable but, nevertheless, Ms Stead’s willingness to do this demonstrates a level of forbearance which one would not normally find between two people who merely share premises. There is no joint ownership of real estate or other major assets by Ms Stead and Mr Lynn and their evidence is that they have no joint liabilities apart from the obligations associated with the lease of their current premises. Both names appear on the lease and they made a joint application to borrow the amount required for the bond. That is not unusual for any two people who share premises. Before payments were reduced, Ms Stead and Mr Lynn shared the cost of utilities such as electricity and telephone usage but kept separate most of their day-to-day household expenses. In relation to their borrowing money from the same financial institutions and both entering into bankruptcy arrangements at the same time, I have noted the contention that this was coincidental and that each was acting independently. Whilst that may well be the case, the interaction of the parties at those times and their willingness to discuss the details of their financial affairs again exceeds that which one would expect between mere flatmates. The clear financial benefit to each of them from being able to share premises will be common to any persons sharing premises but an additional advantage to Mr Lynn has been Ms Stead’s willingness to allow him to use her vehicle.

Nature of the household

48.     The nature of the household at Springwater Place reflects the presence of a family comprising Ms Stead, Mr Lynn and the two children.  Their evidence that they occupy separate bedrooms has been confirmed by witnesses who have been to the house.  They use separate bathrooms and each has there own refrigerator for food storage.  Nevertheless, they frequently take meals together and watch television together although Ms Stead’s increased working hours in recent times has reduced the level of contact between them.  The family nature of the association has been enhanced by Ty’s references at times to Ms Stead as “mum” and the willingness of all parties to allow Ty to refer to Ms Stead’s relatives as if he was related to them.  While each of them, without the other, visits their respective families with the children they do make such visitations together from time to time and particularly on special occasions such as Christmas and the children’s birthdays.  Mr Lynn has assumed a reasonably high level of responsibility for providing care and support for both children and this is not surprising as he is their biological father.  However, this has the important effect of relieving Ms Stead from some of those responsibilities such as taking Shauna to and from preschool when she is unable to do so because of work commitments.  Ms Stead also exercises responsibility for both of the children and Dr Weatherall reported that she has brought both children to his rooms and she has looked after both children at times when Mr Lynn has been away from the house, on one occasion, for two days.  

Social aspects of the relationship

49.     Ms Stead and Mr Lynn have not held themselves out to be members of a couple but there were some inconsistencies in the evidence concerning social activities.  Mr Lynn’s evidence was that they tended to argue frequently and yet Ms Stead described them as being good friends.  She also referred to movie outings with the tickets provided by the Epileptic Society and but this was denied by Mr. Lynn and there were also references to them taking the children to a park.  It was also their evidence that they have a wide group of common friends which is not surprising, given the long period of time for which they have known each other.  At times, that they have entertained people at their home and have done so in the context of a barbecue setting where Mr Lynn assumed responsibility for the cooking. 

Sexual relationship

50.     There were inconsistencies in the evidence relating to the sexual relationship between Ms Stead and Mr Lynn.  It is not disputed that they were living in a de facto relationship whilst they stayed with Mr Lynn’s parents.  Clearly, this continued for some time thereafter as they left those premises because of Mr and Mrs Lynn’s feelings about their relationship. In declarations made by Ms Stead to the respondent, differing dates have been given for its cessation.  On 11 May in 1993, Ms Stead declared that she had separated from Mr Lynn “about three months ago”.  In another declaration, dated 24 February 1994, she stated that they had ceased the relationship “about June 1993”.  In various documents completed for the respondent to assess living arrangements in January 2003, February 2003, February 2004 and September 2004, 1992 was given as the year of separation.  After moving from the home of Mr Lynn’s parents, Ms Stead and Mr Lynn lived in a succession of houses.  Ms Stead denied a sexual relationship during those times but that was not the evidence of Mr Lynn.  There was the sexual encounter which led to the conception of Shauna and I have noted their evidence that this was a single episode involving alcohol.  Because of the conflicting evidence of their relating relationship, I make no finding in respect of it because a sexual dimension is not necessarily material to finding that a marriage-like relationship exists between them.

The nature of commitment to each other

51.     Ms Stead and Mr Lynn claim that the reason for them sharing premises is to keep the children together and, from Ms Stead’s perspective, to provide Shauna with a father figure and a more favourable family environment than she had when she was a child.  I am satisfied that, while this is a relevant consideration for them, it is not the only consideration.  They have demonstrated a consistency in their living arrangements which has endured through a range of changing circumstances over the years.  Since the end of 1996, this has been, apart from the period when Mr Lynn cohabited with Ty’s mother, for some 3 years without children; for 11 months, with Ty; and, since August 2001, with the two children.  Also, since the end of 1996, it has been through changes of address from Pinelands Road to the house adjacent to Mr Lynn’s parents, to Longford Crescent and then to Springwater Place.  Ms Stead suffers from an anxiety condition and I am satisfied that she gets support from her mother and sister but that she also gets support from Mr Lynn. This was acknowledged by him in his evidence when he also said that he reminded her from time to time about her medication.  On 10 February 1994, referring to circumstances of illness or family disputes in an Assessment of Living Arrangements form completed for the respondent, Ms Stead referred to Mr Lynn and said that “if I need him he would most probably be there”.  In a similar form completed on 24 November 2004, Ms Stead responded to those matters by indicating that he would still provide assistance “as a friend”.  I am satisfied that this aspect of support is still a relevant factor. Ms Purvis described the relationship as being similar to that between a brother and sister but, nevertheless, in her report, dated 5 August 2005, she wrote:

“it was apparent that the security and sense of safety that Ms. Stead derives from this friendship with Mr. Lynn provides important emotional support for her and goes some way to easing her internal vulnerabilities resulting from an abusive childhood”  (exhibit 3)

52.     Ms Purvis’ report also indicated that the stability of Mr Lynn’s present living arrangements with Ms Stead has enabled him to rehabilitate himself and to move on from his previous lifestyle which was characterized by inappropriate behaviour and which had resulted in his imprisonment.  Both Ms Stead and Mr Lynn were reported by Ms Purvis as having a high level of trust in each other and I am satisfied that this plays a significant role in the willingness to share premises for such a long period of time.  This has enabled them to establish and maintain a unit which functions as a family and it is significant that neither of them foresees any changes to the arrangements in the immediate future.  Mr Lynn indicated that he would move from the premises but only if he could take both children with him.  Ms Stead indicated that she would not allow him to do this.  Their circumstances in 2003 and February 2004 were almost identical to those which pertained when the decision under review was made except, of course, that they had continued for several more months.  Indeed, those circumstances remained much the same from the hearing date in September 2005 to that in February 2006 except that the children are now attending school and preschool and Ms Stead is engaged in heavier work commitments.  

The overall relationship

53.     Having regard to the factors in sub-section 4(3) of the Act, I am satisfied that Ms Stead and Mr Lynn were in a marriage-like relationship on the date of the decision under review.  The most significant of those factors is that relating to the nature of commitment by each of them to maintain a family unit.  Certainly, a large component of that is their concern for the children.  But I am satisfied that it goes beyond that and that this reflected in their sharing of premises, both with and without children, for approximately 10 years with no intention of making changes in the immediate future.  Accordingly, this means that they were members of a couple at the time of the decision under review for the purposes of subsection 4(2) of the Act. 

Decision

54.     The Tribunal affirms the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:          Jeff Mills

Legal Research Officer

Date/s of Hearing  30 September 2005, 19 & 20 February 2006
Date of Decision  31 March 2006
Counsel for Ms Stead               Mr B Wessling-Smith
Solicitor for Ms Stead                Legal Aid Queensland  
Solicitor for Mr Lynn                  Mr R Watson
For the Respondent                  Ms S Oliver, departmental advocate