Stewart and Secretary, Department of Family and Community Services

[2005] AATA 263

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 263

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  W2004/311

GENERAL APPEALS DIVISION		)
Re		PETER CHARLES STEWART

Applicant

And SECERTARY, DEPARTMENT OF    FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr Campbell, Member

Date30 March 2005

PlacePerth

Decision The decision under review is affirmed.

........ (sgd J Campbell)........

Dr Campbell,

Member

CATCHWORDS

Social security – member of a couple – marriage like relationship – decision affirmed

Social Security Act 1991, sections 4(2), 4(3)

REASONS FOR DECISION

30 March 2005 Dr J Campbell, Member     

1.      In this matter Mr Peter Stewart seeks a review of the decision of the Social Security Appeals Tribunal dated 27 August 2004 that affirms the decision of an authorised Centrelink Officer dated 24 March 2004 that Mr Stewart was a member of a couple as from 1 June 2003.  This decision had been reviewed and affirmed by an Authorised Review Officer on 18 June 2004.

background

2.      Mr Stewart moved from Sydney to Albany on 1 June 2003, at which time he was living at 333 Serpentine Road Albany in a residence owned and occupied by Ms Helen Knewstub.

3. In an application for Newstart Allowance on 18 June 2003 Mr Stewart described himself as being separated (T6 P21).

4.      In an application for Newstart Allowance on 23 March 2004 Ms Helen Knewstub indicated she was living with a partner.  Mr Stewart, in completing the accompanying partner details, listed himself as the partner and stated that they started living together in June 2003. (T8)

5.      In response to the declarations made in the applications for Newstart Allowance by Ms Knewstub, Centrelink raised an overpayment of Newstart Allowance to Mr Stewart on 24 March 2004, in that they considered him a member of a couple since 1 June 2003.  This decision was affirmed by an authorised review officer on 18 June 2004 and by the SSAT on 27 August 2004.

issues

6.      The relevant issue in the matter is whether Mr Stewart was living in a marriage like relationship with Ms Knewstub from 1 June 2003.

decision

7. For the reasons nominated later in this decision I find that Mr Stewart was living in a marriage like relationship from 1 June 2003 and as such from that date was a member of a couple for the purposes of the Social Security Act.

evidence

8.      Mr Stewart detailed the following evidence:

·     he was born in Sydney in 1969, left school age 17, completed three years of electrical engineering at University and then decided to undertake various jobs and do some travelling.

·     he had a relationship for two years between 1991 and 1993, then worked at various jobs in Sydney between 1993 and 1995 before embarking on a working tour of Australia, arriving in Albany in 1998.

·     he had a relationship with another woman during his stay in Albany, where he worked as a builders assistant.  He left Albany in 2001, having met Ms Knewstub some two to three months prior to leaving, and after his relationship with the earlier individual had ceased.

·     he returned to Sydney in 2001 to be with his ageing father who died in late 2002.  He undertook various jobs in both Sydney and Brisbane during the period – his Brisbane activities associated with endeavours to see more of his son from an earlier relationship.

·      he maintained contact with Ms Knewstub during the period on a monthly basis by way of telephone conversations and letters, but they did not meet during this period.

·     Mr Stewart stated that with the death of his father and a non work related back injury he was not working in early 2003.  He decided to have a change of scenery, and because he had enjoyed his time in Albany previously, decided to return.

·     he discussed his return to Albany with Ms Knewstub, who offered him accommodation at her residence.  He drove to Albany and commenced living at Ms Knewstub’s residence on 1 June 2003.

·     he slept in the main bedroom with Ms Knewstub on the first evening, and apart from  the next two nights, where he believes he may have slept in the spare room, has remained in the main bedroom.

·     that discussions prior to and in the weeks after his arrival at Albany were minimal in terms of either party’s expectations as to their arrangements.  Mr Stewart stated that he paid no rent at any stage but paid his share of phone, electricity and food costs from the outset.

·     that household arrangements centred around him doing some odd jobs: that each prepared their own breakfast but lunch and dinner were shared activities.

·     that both he had Ms Knewstub maintained their financial affairs separately.  They did not and do not share a joint bank account and have no joint credit cards.  Similarly, capital investments are maintained in individual names.

·     that friends and family viewed them as a couple, although both maintained friendships with other people, which they did not necessarily share.

·     that Ms Knewstub became pregnant in August 2003 but it was not until the second ultrasound in Perth in December 2003, that he, in his own mindset, committed to a long term relationship.

·     that throughout the period commencing 1 June 2003 they did things together and went out to dinner occasionally, although at this time Ms Knewstub’s work commitments took her elsewhere for three or four days a week.

·     that when he completed the partner’s form in April 2004 he considered that the date he nominated (1 June 2003) was the date on which he commenced living at the residence, not the date on which he considered himself to be partnered.

·     that in this regard (issue of when they were partnered) his partner may have a different view, but he could not necessarily state that for her.

·     that since December 2003, the time at which he internalised a commitment to a long term relationship, nothing in the circumstances and conduct of their relationship has changed.  Mr Stewart did admit that with the birth of their daughter both he and Ms Knewstub are now giving more detailed consideration to longer term plans and strategies as to their combined futures.

consideratrion and findings

9.      I have detailed the essential elements of Mr Stewart’s evidence.  Mr Stewart detailed this evidence in a frank and forthright manner and I have no hesitation in accepting his evidence as credible.

10.     Mr Stewart does not dispute that he has been living as a member of a couple since December 2003, this date being defined by what he states was a decision (internalised) on his part to commit to a long term relationship.

11.     Apart from that internal commitment made by Mr Stewart, in December 2003, nothing else has changed.   I note that financial, household, sexual and social aspects of the relationship have continued as before.  I do acknowledge that the relationship is maturing as evidenced by their desire to pursue longer term goals and strategies together.  This has in part been brought about by the arrival of a child with both seeking to pursue independent work activities.    

12.     Section 4(2) of the act defines the conditions which must be satisfied for a person to be considered a member of a couple.  Section 4(3) of the Act nominates that a decision maker must give consideration to all the circumstances of the relationship and in particular to the following matters:

(a)      financial aspects of the relationship

It is evident that both parties in this relationship maintained their financial activities independent of each other.  There is no common bank account, no credit card account and capital purchases are held independently of each other.  Mr Stewart considered it important that he received Newstart Allowance, so he could pay his way.  He paid no rent, but did share in the payment of food, electricity and telephone costs and that he did undertake general handyman duties around the house.  More importantly nothing really has changed since before or after December 2003, with the real estate remaining in Ms Knewstub’s ownership, ownership of the cars in respective names and bank accounts and payments for household expenses the same.  Mr Stewart states that he has made a sort of loan of a few thousand dollars to Ms Knewstub in relation to some house maintenance at a later time.    

(b)      Nature of the Household

Again while changes have obviously occurred since the birth of the child and both returning to part-time work there was again no change between the pre and post-December 2003 date.  In this regard Mr Stewart, was attending to handy man duties, the living arrangements had not changed and apart from breakfast, meal activities were jointly prepared and eaten.  This to be noted that between 1 June 2003 and 3 March 2004 Ms Knewstub worked away from home for four days a week, with Mr Stewart seeing himself as a caretaker.

(c)       Social Aspects of the Relationship

It would again appear that there was no change in the social aspects of the arrangement pre and post December 2003.  They went out together, when Ms Knewstub was not away from home working and they were viewed as a couple by friends and family.  They carried through nearly all their social activities together, although they maintained some independent friendships.

(d)      Sexual Relationship

There was no change in their sexual relationship pre and post December 2003.

(e)      Nature of Commitment

Mr Stewart stated that he had known Ms Knewstub for three to four months prior to leaving Albany in 2001 and had maintained contact by monthly phone and letters prior to his arrival back in Albany in 2003.  He had not had a partner since he had been in Albany previously.  It is evident from the records that Ms Knewstub considered herself to be in a relationship since 1 June 2003, while Mr Stewart readily admits that he made a decision to long term commitment in December 2003 – a decision which he did not necessarily share with Ms Knewstub at that time, for they did not seem to talk much of such matters.

13.     In analysing all the circumstances I am satisfied on the balance of probabilities that a marriage like relationship has existed between Mr Stewart and Ms Knewstub since 1 June 2003.  In arriving at this finding I have placed weight on the exclusivity of their relationship, the nature and joint sharing of household activities, the unchanged nature of their social and sexual relationships and financial arrangements.  I also place weight on their joint declaration in April 2004 in which they characterised their relationship as being partners since 1 June 2003.  It is also evident that their relationship has matured over time, which is in itself indicative of a growing emotional commitment to each other.  Further while I respect Mr Stewart’s analysis of his commitment, I am not sure that it represents either the reality of the situation or indeed Ms Knewstub’s view of the relationship.  Commitment to most activities in life is an evolutionary process, as opposed to a point in time decision, unless it is of course the signing of a legal document, which in turn is the end point of a process.  In so stating I suspect that Mr Stewart was speaking of an evolving commitment to one of finite commitment. However, this is but one aspect that has to be considered in defining whether a marriage like relationship existed.  I do believe that a non-disclosed absence of finite commitment by Mrs Stewart at that time has minimal imposition on the decision made in this decision.

14. For the reasons ennumerated I consider that Mr Stewart and Ms Knewstub were in a marriage like relationship since 1 June 2003. In noting the requirements of section 4(2)(b) of the Act, I conclude that all the conditions are satisfied and find that Mr Stewart was a member of a couple since 1 June 2003 for the purposes of the Social Security Act.

determination

15.     The decision under review is affirmed.

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J Campbell, Member

Signed:         ......................(sgd N Wee)..............................
  Associate

Date/s of Hearing  17 March 2005
Date of Decision  30 March 2005
Representative for the Applicant    Self-represented
Advocate for the Respondent       Mr Paul Maishman