TOBIN Applicant And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 284

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 284

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/3778

GENERAL ADMINISTRATIVE DIVISION		)
Re		DIANNE TOBIN

Applicant

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

Respondent

And            PAUL WHITE

Other Party

DECISION

Tribunal Senior Member K Bean

Date22 April 2010

PlaceAdelaide

Decision The Tribunal:
(a)  sets aside the decision of the Social Security Appeals Tribunal dated 11 February 2009; and
(b)  decides in substitution for that decision that:
(i) Ms Tobin and Mr White are not and have not been at any time from 4 September 2008 to date, members of a couple for the purposes of s 4 of the Social Security Act 1991; and
(ii)  Ms Tobin’s entitlement to Disability Support Pension should be re-calculated accordingly.

..............................................

K BEAN
  (Senior Member)

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether marriage-like relationship – parties had a daughter together and had re-located together – evidence that co-habitation was for practical and financial reasons rather than being attributable to marriage-like relationship – common commitment to daughter, rather than commitment to one another – decision under review set aside – decision in substitution that parties not in marriage-like relationship.

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

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327

REASONS FOR DECISION

22 April 2010   Senior Member K Bean      

1. Ms Tobin and Mr White (the applicant and the other party respectively), have a daughter together who was born in 1999.  They have also lived together continuously since 2003 and in 2008 they relocated together with their daughter from Queensland to South Australia.

2. Ms Tobin has at all relevant times been in receipt of Disability Support Pension (DSP) and on 5 September 2008 a Centrelink officer made a decision that her DSP should be calculated on the basis that she and Mr White were members of a couple.  She challenged that decision and on 17 October 2008 a Centrelink Authorised Review Officer (ARO) affirmed the decision that she and Mr White should be considered to have been members of a couple from 4 September 2008. 

3. Ms Tobin also challenged that decision and on 11 February 2009 the Social Security Appeals Tribunal (the SSAT) affirmed the ARO’s decision.  On 13 August 2009, Ms Tobin applied to this Tribunal for review of the decision of the SSAT.   As his interests were affected by the decision under review and he was a party to the SSAT proceedings, Mr White was also made a party to the proceedings in this Tribunal.

4. As her application to this Tribunal was filed outside the required period, at the time she lodged her application Ms Tobin also applied for an extension of time to seek review of the SSAT decision.  The respondent and Mr White consented to this and on 27 August 2009 an extension of time was granted.

the issue before the tribunal

1. The issue before the Tribunal is as follows:

   (a)      Whether, at any time in the period 4 September 2008 to date, Ms Tobin and Mr White have been members of a couple for the purposes of the Social Security Act 1991 (Cth) (the Act).

legislation

1. The rate of payments Ms Tobin was entitled to receive during the relevant period depends upon whether she was a member of a couple.  This is because if a person is a member of a couple, their rate of payment is reduced by the income of the person’s partner. 

2. Prior to 1 July 2009, s 4(2) of the Act provided that a person was a “member of a couple” for the purposes of that 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.

   Note:a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

   ·     an ancestor of the person; or

   ·     a descendant of the person; or

   ·     a brother or sister of the person (whether of the whole blood or the part‑blood)”.

3. Section 4(3) provided as follows:

   “4(3)    Member of a couple – criteria for forming opinion about relationship.  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.”

4. These provisions were subsequently amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008, which commenced on 1 July 2009. That amendment did not affect the test to be applied in determining whether Ms Tobin and Mr White are members of a couple. However, the amendment changed the applicable terminology such that, in s 4(2) and some parts of s 4(3), the term “de facto relationship” has been substituted for “marriage-like relationship”.

evidence as to whether ms tobin and mr white are members of a couple

1. In this matter, there was little in the way of documentary evidence available bearing directly on the nature of the relationship between Ms Tobin and Mr White.  However, helpful oral evidence was given by Ms Tobin, Mr White and a friend of Ms Tobin’s, – Ms Harding.  I propose to discuss the evidence of each of these witnesses in turn before proceeding to consider the application of the law to that evidence.

Evidence of Ms Tobin

1. Ms Tobin gave evidence that she and Mr White had been in a relationship for about a year approximately ten years ago, but they had broken up shortly after their daughter was born on 14 October 1999.  She explained that they had remained in touch because of their daughter and commenced living together in 2003 essentially for financial reasons.  She said that at that time she was living at an address in Southport, Queensland and was having difficulty in paying the rent.  As Mr White was looking for accommodation at the time, she effectively “sub-let” the garage of the property to Mr White and he contributed to the rent. 

2. She said that neither of them wishes to be separated from their daughter and they have continued to co-habit since 2003, for practical and financial reasons.  These include the fact that she trusts Mr White around her daughter and has tried other housemates who “have not worked out”.  She explained that in order to provide a house for her daughter (rather than a flat or unit) she needs help with the rent and would prefer to share accommodation with Mr White than with a stranger. 

3. Ms Tobin said that since they have co-habited, Mr White has always had his own room and they have led largely separate lives.  She conceded that she has not had other relationships during that time.  However she said that Mr White has, although they have an agreement that he does not bring partners home. 

4. She said that generally Mr White would take their daughter out about once a week but on these occasions she would not go with them.  She said that he would help their daughter with her homework if he was around and he and their daughter would sometimes play video games or go for a bike ride together.  However, she cooked for herself and her daughter, whilst he would generally provide his own meals and clean up after himself.  They would occasionally all share a meal, although he would usually eat separately.  He would mow the lawns for Ms Tobin and assist her with lifting something if he was available and it was too heavy for her.

5. She said that Mr White pays her $110 per week towards the rent and also contributes to electricity bills.  She said she had been on the Housing Trust list for 5 years, but was still waiting to be allocated a house.  If she and her daughter could obtain a Housing Trust house, she expected she would be able to live separately from Mr White with her daughter, although if that occurred she expected he would live close by.  Currently however, she could not afford to pay the rent on a house without some contribution from another person.  Under those circumstances, she preferred to share the house with Mr White than with a stranger.

6. Under cross-examination, Ms Tobin said of the situation currently that, on an average day, Mr White will either be in his room or go out so that, even if they are both at home at the same time, there would be little interaction between them.  She said that her daughter likes having Mr White around and also acknowledged that it was useful to have a man around, for example for security and to assist her with things she was not strong enough to do.  She said that co-habiting with Mr White involved some sacrifices from her point of view, however she was prepared to “put up” with this for the sake of her daughter. 

7. In relation to their move together from Queensland to South Australia, she acknowledged that she had persuaded Mr White to move with her and her daughter and to do so at the same time, as she considered it was easier for him to come with them than to move later.  She said that her daughter would have been sad if he had not come, although she would not have been.  She also acknowledged however that it was in some ways useful to have him with her.  She said it had been easier to move with him than it would have been to move alone with her daughter, as it meant she had a friend with her. 

8. When asked about statements she had made in 2008, that the two of them had plans to live apart, she said her attitude had changed since then and she had accepted that it was best for them to live together.  She also repeated however that if she was able to get public housing there would be no need for them to share as she would be able to afford to provide a house for her daughter without Mr White living with them. 

9. As to the relationship between her and Mr White, she said this was one of friendship, not love.  When asked whether she saw the three of them as a family unit, she acknowledged that her daughter did see them as family unit, but said that she and Mr White did not.

Evidence of Mr White

1. Mr White’s evidence was largely consistent with that of Ms Tobin.  He also stated that they lived together for reasons of convenience and that if he moved out, someone else would have to move in and that would mean that a stranger would be living with his daughter rather than him.  He said living with Ms Tobin and his daughter made it easier for him to see her.  For example, he was generally able to see his daughter when she got home from school and before she went to school. 

2. As to the household arrangements, he confirmed that he had his own room, that he would clean his own room and wash up his own things.  As to the future, he said that to some extent this depended on the Tribunal’s decision in this matter.  If the Tribunal concluded that he and Ms Tobin were a couple, he would probably move out because of the reduction in his Centrelink entitlements and Ms Tobin’s. 

3. Under cross-examination, Mr White said as to the situation currently that he would generally stay in bed until around 9:30-10:00am (although his daughter would come and say good-bye to him before she went to school).  After that he would generally go to “the pub”, but would be home in time to see his daughter when she got home from school.  He said that he would sometimes make some food for his daughter and the three of them might occasionally share a take-away, but generally he ate separately from his daughter and Ms Tobin.

4. Like Ms Tobin, he said there were significant sacrifices for him involved in living in his current situation and that he would like to have more scope to “live his own life”.  For example, he stated that currently he is not able to bring his “mates” home.  However, he said there were also significant benefits in the arrangement as he and Ms Tobin were “saving each other money”. 

Evidence of Ms Harding

1. Ms Sally Harding also gave evidence on behalf of Ms Tobin.  She said that at one stage she had lived across the road from Ms Tobin and Mr White and she still lived close by.  She said that she and Ms Tobin socialised regularly and that their children played together.  She said that from her observation, Mr White had his own section of the house he shared with Ms Tobin and he would generally be out when she was visiting Ms Tobin.  She said that from her observation the two of them were not a couple and were “separate people”.

consideration – are ms tobin and mr white members of a couple?

1. The matters listed in s 4(3) of the Act are not exhaustive, since the decision-maker’s obligation under that section is “to have regard to all the circumstances of the relationship including, in particular, the [enumerated] matters”.  It is clear from the authorities that the decision-maker is required to assess the totality of the evidence and other available material in order to decide whether a person is a member of a couple, taking into account that the personal circumstances of people vary substantially: see Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.

2. It is nevertheless necessary to “have regard to” the relevant matters, and this expression has been interpreted to entail a requirement to take the relevant matters into account and give weight to them as a fundamental element in the decision-making process: R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333.

3. In Pelka (supra) French J, after setting out the then current provisions of ss 4(2) and (3) of the Act, reviewed a number of authorities where the courts have considered various analogous criteria or statutory formulae to determine whether a “marriage-like” relationship existed.  His Honour provided, at [46], a summary of the effect of the authorities.  He said:

   “Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:

   1.   Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).

   2.   Must have regard to each of:

   (a)    the financial aspects of the relationship;

   (b)    the nature of the household;

   (c)    the social aspects of the relationship;

   (d)    any sexual relationship between the people; and

   (e)    the nature of the people’s commitment to each other.

   3.   In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).

   4.   Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.

   5.   Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:

   (a)    financial cooperation;

   (b)    cohabitation;

   (c)    a sexual relationship;

   (d)    cooperative household arrangements; or

   (e)    mutual commitment.”

4. I propose to address each of the most relevant criteria below, in light of the evidence discussed above, before proceeding to record my overall assessment of the relationship between Ms Tobin and Mr White.

Financial aspects of the relationship

1. On the evidence before me, it seems that in the relevant period Mr White and Ms Tobin have kept their finances quite separate.  Ms Tobin acknowledged that she went guarantor for Mr White a number of years ago and as a result lost some money.  However, she indicated that this was a mistake on her part and she would never do this again. 

2. The evidence as to their current financial arrangements was that Mr White pays to Ms Tobin an agreed amount as his contribution toward the rent and that he also pays a share of the electricity bills.  He purchases and pays for his own food and other personal items and there was no evidence before me of any shared assets or belongings, any joint financial commitments or significant pooling of financial resources.  Both parties gave evidence to the effect that, apart from items in his room and some personal toiletries, the remainder of the items in their home belonged to Ms Tobin.  This included cooking utensils, which Ms Tobin allowed Mr White to use in order to prepare his own meals. 

3. On the basis of this evidence, I consider that this criterion points quite strongly away from Ms Tobin and Mr White being in a “marriage-like” or “de facto” relationship.

Nature of the household

1. The evidence before me was to the effect that Ms Tobin and Mr White maintain a relatively high degree of separation between them in terms of their living arrangements.  Mr White has his own bedroom, where he also watches television.  It appears that he generally prepares his own meals and washes up after himself, while Ms Tobin cooks for herself and their daughter and cleans up after them.  Mr White is responsible for cleaning his own room, however it appears that Ms Tobin attends to the remainder of the housework and other chores, although Mr White does mow the lawn and assist with any tasks which are physically beyond Ms Tobin.  Both Ms Tobin and Mr White acknowledged that they would occasionally share a meal together, perhaps sharing the cost of a take-away, but this was the exception rather than the rule.

1. Whilst the evidence was to the effect that Ms Tobin probably does more than her share of the housework, it was my impression from the evidence that this was something she was willing to do to facilitate the smooth running of the household and not reflective of a “marriage-like” relationship between herself and Mr White.

2. Ms Tobin and Mr White each appear to take some responsibility for the care and support of their daughter.  However, the evidence of each of them suggested that this responsibility fell primarily to Ms Tobin and that, while Mr White spends time with his daughter, he does not play an equal role in caring for her.  That conclusion is also supported by the fact that Ms Tobin and Mr White both gave evidence that, if Ms Tobin could obtain public housing, they expected that the two of them would live separately and their daughter would live with Ms Tobin, although Mr White would continue to see her regularly.  Neither of them appeared to see this as causing any fundamental change either to their relationship or their current arrangements in terms of caring for their daughter.

3. I therefore also consider that, on balance, the evidence directed toward this criterion points away from a conclusion that Ms Tobin and Mr White are in a “marriage-like” or “de facto” relationship.

Social aspects

1. There was very little evidence directed to this criterion, however all of the evidence available suggested that Mr White and Ms Tobin socialised separately and led largely separate lives from a social perspective.  Mr White has a number of friends in Adelaide, however he goes out by himself to see them and does not bring them home.  Ms Tobin also has some friends, such as Ms Harding, separately from Mr White. 

2. In fact it appeared on the evidence that the two of them would rarely go out together and when Mr White takes his daughter out, Ms Tobin does not usually go with them.  Mr White acknowledged that he spent last Christmas morning with his daughter and Ms Tobin, whilst his daughter opened her presents.  However, he went to a friend’s place in the afternoon.  There was no evidence that any of their friends or associates considered the two to be a couple and Ms Harding gave evidence that she did not regard them as such.

3. The available evidence in relation to this criterion also points away from Ms Tobin and Mr White being in a “marriage-like” or “de facto” relationship.

Sexual relationship

1. I accept the evidence of Ms Tobin and Mr White that there is not currently any sexual relationship between them and has not been for many years.

Nature of the parties’ commitment to each other

1. Mr Visser for the respondent submitted that the evidence established a high level of commitment by Ms Tobin and Mr White, both to each other and to their family unit.  He pointed to the fact that they had now lived together continuously for some 7 years, had moved interstate together and that they had demonstrated a joint commitment to raising their daughter together and maintaining a family unit.  He submitted that their situation was not significantly different from that of many married couples who stay together “for the sake” of their child or children.  Mr Visser also pointed to the fact that, particularly if they were successful in their application to this Tribunal, Ms Tobin and Mr White had no immediate plans to live separately.

2. There is no doubt on the evidence and Ms Tobin and Mr White do not dispute that they have lived together since 2003 and that they share a strong commitment to the welfare of their daughter.  It was clear to me on the evidence that Ms Tobin and Mr White were each devoted to their daughter and extremely committed to her welfare.  Ultimately however, as Ms Tobin and Mr White both pointed out, a distinction must be made between their respective commitments to their daughter and their commitment to one another. 

3. Ms Tobin and Mr White each gave evidence to the effect that, if they had not had a daughter together, they considered they would probably have lost contact.  They gave evidence that there was friendship between them, but nothing more and they would not be living under one roof and would not have moved interstate together if it had not been for their daughter.  They each explained that their common commitment to their daughter led to them being in a degree of proximity with each other which they would not otherwise have chosen and which entailed some discomfort for each of them.  However the fact of having a daughter together combined with their relatively straitened financial circumstances meant that the option of living together with their daughter was more attractive to each of them than any alternative.  Each acknowledged that, superficially, it may appear that there was more to their relationship, but they each asserted that this was simply not the case.

4. I accept the evidence of Ms Tobin and Mr White in relation to these matters which was given in a frank and consistent manner.  As Mr Visser pointed out and each of them acknowledged, the bare facts of their relationship, including the fact they have a daughter together and have lived together for some 7 years and moved house together a number of times, are suggestive of a relationship between them which goes beyond mere friendship.  In most circumstances where these facts were found, they would probably be attributable to a “marriage-like” relationship.  In the case of Mr White and Ms Tobin however, I accept that they have each made the somewhat unusual choice to live together for practical reasons.  These reasons include the financial advantages of doing so and the advantages associated with each being available to and able to access their daughter and share parenting of her.

5. For these reasons, I have concluded that the evidence does not in fact demonstrate significant commitment between Mr White and Ms Tobin, but rather a strong common commitment to their daughter.  In reaching that conclusion, I have also had regard to the fact that the evidence suggested that the degree of emotional connection and interdependence between Ms Tobin and Mr White was no greater than would be expected between people who had been friends for some 10 years.

Overall assessment

1. I have therefore concluded that each of the relevant criteria I am required to have regard to points away from Ms Tobin and Mr White being in a “marriage-like” or “de facto” relationship.  This is consistent with my overall impression from the evidence that the two of them do not regard themselves as members of a couple, are not considered by others to be members of a couple (apart perhaps from their daughter) and do not behave or conduct themselves as members of a couple.  I received the strong impression on the evidence that if either of them were less committed to their daughter, or alternatively if either of them had access to greater financial resources, then they probably would not be living together.  However, a combination of circumstances, including Ms Tobin’s desire to provide a house for her daughter, the fact that the three of them get on well enough to make co-habitation viable and the fact that both Ms Tobin and Ms White have limited financial resources, have led them to choose to live together in the absence of any preferable alternative. 

2. Having regard to the statutory criteria in light of the evidence before me therefore, I am satisfied that from 4 September 2008 to date, Ms Tobin and Mr White have not been in a “marriage-like” or “de facto” relationship and therefore have not been members of a couple for the purposes of s 4 of the Act.

conclusion

1. I have concluded that Ms Tobin and Mr White were not in a “marriage-like” or “de facto” relationship and therefore were not members of a couple from 4 September 2008 to the present.

decision

1. The Tribunal:

   (a)sets aside the decision of the Social Security Appeals Tribunal dated 11 February 2009; and

   (b)       decides in substitution for that decision that:

   (i)Ms Tobin and Mr White are not and have not been at any time from 4 September 2008 to date, members of a couple for the purposes of s 4 of the Social Security Act 1991; and

   (ii)Ms Tobin’s entitlement to Disability Support Pension should be re-calculated accordingly.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean

Signed:    ……          ....J Coulthard.........................................
  Associate

Date of Hearing  23 February 2010
Date of Decision  22 April 2010
Advocate for the Applicant       Self-represented
Advocate for the Other Party     Self-represented  

Advocate for the Respondent   Mr C Visser

Centrelink Advocacy Branch