Taylor and Department of Family and Community Services

[2001] AATA 350

DECISION AND REASONS FOR DECISION [2001] AATA 350

ADMINISTRATIVE APPEALS TRIBUNAL)
  Nº V00/1282
GENERAL ADMINISTRATIVE  DIVISION)

Re:            KIM MAREE TAYLOR

Applicant

And:         SECRETARY TO THE
  DEPARTMENT OF FAMILY AND
  COMMUNITY SERVICES

Respondent

DECISION

Tribunal:       Mrs H.E. Hallowes, Senior Member
Date:             30 April 2001
Place:            Melbourne

Decision:The decision under review is set aside.   The Tribunal substitutes a decision that, for the period 17 July 1996 to 21 July 1997, the applicant was not living in a marriage-like relationship.

(sgd) H.E. Hallowes
  Senior Member
  SOCIAL SECURITY — newstart allowance — overpayment — whether living in a marriage-like relationship — statement made by applicant to that effect — whether in all the circumstances opinion formed that relationship marriage-like
Social Security Act 1991 ss.4, 643, 1068, 1068-G10

REASONS FOR DECISION

30 April 2001  Mrs H.E. Hallowes, Senior Member

1. Miss Taylor seeks review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 20 September 2000.   The SSAT affirmed a decision of a delegate of the respondent, which had been affirmed by an authorised review officer ("ARO"), that Miss Taylor owed a debt of $8551.56 to the Commonwealth, being newstart allowance ("NSA") paid to her pursuant to the Social Security Act 1991 ("the Act") between 17 July 1996 and 21 July 1997. The delegate found that Miss Taylor was living in a marriage-like relationship with Mr D. Younger during the period.

2. Section 643 of the Act provides how to work out a person's NSA rate. The Benefit Rate Calculator B at the end of section 1068, must be used. The rate of benefit payable depends on a person's family situation. Miss Taylor had been paid NSA on the basis that she was not a member of a couple. Different rates apply if a person is partnered. The income test must be applied. If a person has a partner, the partner's "income excess" reduces the rate of benefit payable (section 1068-G10).

3. In lodging her application for review, Miss Taylor said that she thought the decision of the SSAT was wrong because she had not been living in a marriage-like relationship with Mr Younger.   She contended that she had been pressured into signing a statement to that effect.   In an undated letter to her Member of Parliament, which appears to have been written in late July 1997, Miss Taylor stated that she had only signed a statement on 24 July 1997 because she was pressured and she felt that the representative of the Secretary

   . . . didn't believe a word I told her.   David was a truck driver and he was hardly ever home.   When he was home it was only on weekends, and then it was only for a day, he was living in my house and sleeping in the spare room.   This was none of her business, but she didn't accept that.   We went out places together, but we weren't a couple.  

She was also concerned that the Secretary had garnisheed her wages, as she is now employed, and she said that she would prefer to pay a lesser amount off her debt each week if she owes a debt to the Commonwealth.

1. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") and Mr T. Baker, of Centrelink, who represented the Secretary at the hearing, provided Miss Taylor and the Tribunal with a statement of facts and contentions. The documents included a statement, signed by Miss Taylor on 24 July 1997, in which she declared that:

   I wish to advise I have been advised of what a marriage like relationship is, and state I have been living in a marriage like relationship with David Younger since mid July 1996 to 21.7.97, when David packed his possessions and moved to his brother Peter Youngers at 38 McKenzie St Bairnsdale.   We were financially independent of each other, but shared food expenses, I did most of the household chores, washing, etc, David did the cooking, lawns etc.   Friends and family regarded us as a couple, and invited us out together.   The reason I never advised Social Security of our relationship was because I was unaware I had to advise of personal changes of my circumstances, I realise I have been overpaid from mid July 1996 until 21.7.97.   . . .  

2. Subsections 4(2) and (3) of the Act provide, so far as relevant:

   4(2)        Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

   (a)       . . .

   (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). . .

   (v). . .

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

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

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

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

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

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

   (b)the nature of the household, including:

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

   (ii)the living arrangements of the people; and

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

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

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

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

   (iii)the basis on which the people make 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. 

3. In her statement Miss Taylor conceded that she was living in a marriage-like relationship with Mr Younger and when asked by Mr Baker, during the course of her evidence, whether her statement was correct, she agreed that it was.   She also agreed that, in completing claims for payment of NSA during the relevant period, she had advised she was not living with someone as if married.   The documents include an undated Newstart Allowance Review Form which was apparently completed by a field assessor, but which was not signed by Miss Taylor.   It is recorded on the form:

   Sharing with David Younger, here weekends only, works away during week works "Pinners" CART FOR CSR contactable by mobile phone.   Shepparton/Melbourne Pinners Transport – Port Melbourne.   Relationship friends only. . . . 

The form also records that Miss Taylor owned her own home and that she had a savings account with a current balance of $146.00.  

1. Despite the statement signed by Miss Taylor on 24 July and her response to Mr Baker at the hearing, the evidence before the Tribunal does not satisfy it that the condition under sub-paragraph 4(2)(b)(iii) is met.   The Tribunal is satisfied that Miss Taylor was living with a "partner", although not legally married to the partner, but in the opinion of the Tribunal the relationship was not a "marriage-like relationship".   The Tribunal's opinion was influenced by the evidence of Mr Younger's mother, Mrs P. Younger.   Mrs Younger told the Tribunal that her son was "an unsettled boy".   She said that Miss Taylor and Miss Taylor's mother were friends of hers and that her son had come to live with her in Bairnsdale when he was unemployed.   He had got a job with Pinners Transport as a driver, travelling interstate.   He did not take holidays.   His few possessions, including a television set, were in his room at her home.   Mr Younger and his father "niggled" at each other and, after about five months, her son told her that he would have to move out.   He said that he would move in with Miss Taylor because she had a spare room.   The families continued to get together as friends.   She visited Miss Taylor and her son, and she thought of them as friends.   Her son had visited her with another woman but she did not tell Miss Taylor about that as she did not want to upset her.   Miss Taylor was suffering a nervous complaint at the time.   She was aware that the other woman had moved to Queensland and her son told her that he was moving "up there".   He loaded his possessions into his car and "took off".  

2. Turning to the matters the Tribunal must have regard to in forming an opinion about the relationship between Miss Taylor and Mr Younger, and considering the financial aspects of their relationship, the Tribunal finds that they did not own any real estate or other major asset jointly, nor did they have any joint liabilities.   There was no "significant" pooling of their financial resources, especially in relation to major financial commitments.   Miss Taylor owned her home jointly with her father, but there was no suggestion that Mr Younger should purchase an interest in it.   Services were in Miss Taylor's name.   Miss Taylor did tell the Tribunal that, even if she got married, the ownership of her home would not alter.   There was no evidence pointing to Miss Taylor and Mr Younger purchasing any major items of furniture, nor other asset together.   They each had their own motor vehicles for which they were responsible.   No legal obligation was owed by one in respect of the other and the only evidence with respect to financial aspects pointing to a relationship which may be more than that of two friends sharing accommodation and expenses was the opening of a joint Christmas Club account.   Apart from that, they had their own separate bank accounts.   Miss Taylor said that there had been no discussions between them with respect to their finances.   The evidence with respect to the sharing of household expenses was somewhat confusing.   Miss Taylor said that her NSA was paid into her own bank account and Mr Younger had his own bank account into which his wages were paid.   They each had signatures on the Christmas Club account into which he paid money which allowed her to pay his bills when he was away such as his mobile telephone account and the registration for his motor vehicle when it became due.   The financial records before the Tribunal did not bear this out and it may have been that Miss Taylor paid his accounts with cash he gave her.   Mr Younger did not pay her board, nor did he make a financial contribution towards rates and utilities.   They generally bought their own food.

3. Advice from the local manager of the Bank of Bendigo was that Miss Taylor had two accounts in her name during 1995, 1996 and 1997, a Christmas Club account with a balance of $592.35 and another account with a balance of $2.21 in December 1997.   Debits and credits to Miss Taylor's account, which were available to the Tribunal from 12 months before the Secretary contends Miss Taylor entered into a marriage-like relationship, disclose a fairly consistent pattern of credits and debits during 1995, 1996 and 1997.   A Christmas Club account was held jointly by Miss Taylor and Mr Younger which had a balance of $2.01 on 12 December 1997.   This points to Mr Younger as having not bothered to withdraw from the Christmas Club although he had left Miss Taylor's address some months earlier.   Bank records indicate that Miss Taylor and Mr Younger opened their Christmas Club account with $2.00 on 15 June 1996.   There is no evidence of any other activity on the account.

4. Turning to the nature of Miss Taylor's household, she has no children.   She told the Tribunal that Mr Younger moved into one of her spare rooms when she suggested he live with her.   He arrived with his clothes, photograph album and his music but he left his television set, dressing table and clothes dryer at his parents' home.   Miss Taylor did not deny that she and Mr Younger had a sexual relationship.   She advised that he cooked dinner on Saturday nights and he cut her lawn as she found it difficult to start the motor mower.

5. Considering the social aspects of their relationship, Miss Taylor agreed that their families asked them out together and she said that they went out together with friends.   The only evidence as to whether they held themselves out as married to each other was the evidence of Mrs Younger (see paragraph 7 above).   It may be that, in a country town where a person's movements become generally known, people drew the conclusion that Miss Taylor and Mr Younger were holding themselves out as married.   His motor vehicle was parked at her home when he was away truck driving.   They must have been seen together around the town.   The staff of the bank would be aware that they held a joint bank account.   It is difficult for a model litigant to obtain evidence from others about a relationship without invading people's privacy.

6. Although there was a sexual relationship between Miss Taylor and Mr Younger, there was little, if anything, in the evidence pointing to them being committed to each other, particularly a commitment by Mr Younger to Miss Taylor.   The relationship did not last very long.   There is no evidence that they made any long-term plans; no evidence that they had gone on holidays together.   Mr Younger did telephone Miss Taylor a couple of times a week when he was away working.   Miss Taylor did not suggest in her evidence that she considered that their relationship was likely to continue indefinitely.   She denied that the illness she suffered towards the end of the period when they shared her home had anything to do with a deterioration in their relationship, but her evidence and that of Mrs Younger suggests to the Tribunal that she may have placed greater store on the relationship than Mr Younger and she may have hoped that it would continue.   This would explain why Mrs Younger was reluctant to tell her that Mr Younger was seeing some one else.   On the other hand, Miss Taylor told the Tribunal that she was relieved when Mr Younger moved out.   Mrs Younger's evidence about her son's relationships since he left Miss Taylor's home points to the relationship between Miss Taylor and Mr Younger as not being perceived by Mr Younger as marriage-like.  

7. The Tribunal finds that disputes arose between Mr Younger and his father and an opportunity to leave his parents' home presented itself to him when Miss Taylor suggested that he move into her spare room.   The Tribunal further finds that, on the balance of probabilities, he was not committed to the relationship and that he did not provide emotional support to Miss Taylor.   Nor did he make a commitment which would make the relationship marriage-like.   This finding is supported by the relatively short period he resided with Miss Taylor and his later relationships.

8. The opinion a decision-maker must form under subsection 4(3) of the Act is not easy to reach when, to a large extent, the decision-maker is dependent on the evidence of a person with a vested interest in the opinion. Nor is it easy to decide the benchmark laid down under the Act which leads a decision-maker to decide that a relationship is marriage-like when the foundations underpinning marriage are so variable and which are subject to changing community attitudes. How long should a relationship last before it is marriage-like? Miss Taylor and Mr Younger shared a home and there was a sexual relationship between them. The Tribunal is satisfied, however, that they did not "significantly" pool their finances. They did not appear to have any future plans together. There were no plans for a major financial commitment together. The Tribunal finds that it was a relationship of convenience. If something had occurred which had cemented their relationship and which pointed to an ongoing commitment of one to the other, such as Miss Taylor becoming pregnant or a major financial undertaking by them both, the Tribunal would have been satisfied that the relationship was marriage-like, but that did not occur. Although others around the town may have considered their relationship marriage-like, having regard to all the circumstances the Tribunal was made aware of, and in particular the matters under subsection 4(3) of the Act, the Tribunal has not formed the opinion that there was trust, commitment and sharing, nor obligations of one to the other in this relationship which would make it marriage-like. Decisions were made independently.

9. The Tribunal will set aside the decision of the SSAT, and insert a decision that, between 17 July 1996 and 21 July 1997, Miss Taylor was not living in a marriage-like relationship even if she made a statement to that effect to a Centrelink officer on 24 July 1997, shortly after Mr Younger had left.

   I certify that the sixteen [16] preceding paragraphs are a true copy of the reasons for the decision herein of 
   Mrs H.E. Hallowes, Senior Member

   (sgd)       Catherine Thomas
                 Personal Assistant

   Date of Hearing:  27.03.01
   Date of Decision:  30.04.01
   Solicitor for the Applicant:           NIL — IN PERSON

   Solicitor for the Respondent:        Mr T. Baker, Advocate with Centrelink