Van Es and Secretary, Department of Family and Community Services

[2003] AATA 329

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 329

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No N2002/38

GENERAL ADMINISTRATIVE  DIVISION		)
Re		PIETER VAN ES

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Member

Date9 April 2003

PlaceSydney

Decision The Tribunal affirms the decision under review.

(sgd) Ms N Bell   Member

CATCHWORDS

Social Security – whether applicant is in a marriage like relationship – decision affirmed

Social Security Act 1991 s 4

REASONS FOR DECISION

9 April 2003 Ms N Bell, Member

1.       This is an application by Mr Peter Van Es ("the Applicant") for review of the decision of the Social Security Appeals Tribunal ("the SSAT") on 17 December 2001 that affirmed the decision of an authorised review officer of Centrelink that the Applicant is a member of a couple for the purposes of payments under the Social Security Act 1991 ("the Act"). The Respondent to the application is the Secretary of the Department of Family and Community Services. The parties elected to have the application considered “on the papers" and without a hearing. Documentary evidence before the Tribunal included the documents lodged under section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents"), a submission from the Welfare Rights Centre on behalf of the Applicant to the Respondent, the Applicant's Statement of Facts and Contentions and attachments prepared on his behalf by the Welfare Rights Centre, and the Respondent's Statement of Facts and Contentions.

background

2.       It is common ground between the parties that the Applicant migrated to Australia from Holland in 1972. He met Ms Helen Crampton in 1986 or 1987 at a dance club and they became friends from about 1990. In 1992 the Applicant and Ms Crampton decided to travel together to Europe. While there they had a brief sexual encounter but decided not to pursue a sexual relationship and continued their platonic relationship.

3.       On their return from Europe, Ms Crampton agreed to the Applicant moving into her spare bedroom where he stored his belongings and stayed there on weekends between weekday travel as a worker for various power stations. The Applicant continued to work on and off and supported himself with this work and his Dutch pension until 1998 when, at the age of 71, he retired. He now supports himself on his Dutch pension which is paid at a rate equivalent to the Australian pension rate.

4.       There is no dispute that the Applicant is a survivor of Nazi persecution and that this has caused him to be somewhat uncooperative in providing personal details to Centrelink. Nor is it in dispute that the Applicant does not play the role of a father to Ms Crampton's adult children.

5.       It is also not in dispute that Ms Crampton has named the Applicant as beneficiary for the purposes of her superannuation fund in the event of her death. Finally, it is not in dispute that the Applicant and Ms Crampton would provide support to each other in times of ill health or personal distress.

the applicant's evidence

6.       The Applicant gave no oral evidence to the Tribunal. However, the Tribunal had before it the Respondent’s Assessment of Living Arrangements Form completed by the Applicant, the Applicant's evidence to the SSAT as reported by that Tribunal, the written submission made to the SSAT by the Welfare Rights Centre on the Applicant's instructions and the Applicant's Statement of Facts and Contentions as prepared by the Welfare Rights Centre.

7.       In the Assessment of Living Arrangements Form the Applicant indicated that he and Ms Crampton did not have separate living areas, sleeping areas or utilities, that he does not pay rent to Ms Crampton and nor does he pay board and lodgings. He also indicated, however, that he does not get free accommodation from Ms Crampton. Further, he assists Ms Crampton with household tasks and they occasionally share social and leisure activities and go on holidays together.

8.       In the hearing before the SSAT, as reported by the SSAT, the Applicant gave the following evidence:  

"8. Mr Van Es migrated from Holland in 1972. He claimed to be a survivor of Nazi persecution. He said that this experience has made him distrustful of bureaucracy and reluctant to talk about private matters.

9.Mr Van Es met Ms Crampton in about 1987 at a dance club, They were both keen dancers and a friendship developed. In 1992, Mr Van Es was going overseas for a holiday. He asked Ms Crampton to go with him, not as a lover but as a friend. She agreed. At this time, Mr Van Es gave up his rented accommodation and stored his possessions in Ms Crampton's home while they were away. On his return from the holiday, he moved into a spare bedroom in Ms Crampton's home and has remained there since. In a written submission to the tribunal, it was stated the Mr Van Es did not pay rent but contributed to "food only".

10. In March 1993, Mr Van Es lost his job and was granted Age Pension for a short time. However, he returned to work and did not receive any payments from Centrelink until his claim for Age Pension in 2000.

11. Mr Van Es claims that he has been single for all his time in Australia. He was previously married in Holland but divorced in about 1965. He says that he does not regard Ms Crampton as a potential partner but concedes that they did "have a fling" when overseas on their holiday.

12. Ms Crampton was once married but divorced many years ago. She is financially independent and was a "career woman". She has two adult children.

13. Mr Van Es sees his relationship with Ms Crampton as living in the same house as friends who are committed to each other. They are friends rather than members of a couple in a marriage like relationship.

14. Although the evidence suggests that Mr Van Es has occupation of the spare bedroom, in fact he now sleeps on a couch in the rumpus room. This is to enable a dog to sleep with him, Ms Crampton does not allow the dog in to the bedroom areas of the house.

15. Mr Van Es claims that he and Ms Crampton socialise together as friends on occasions and also go out separately. He has no idea how others perceive his relationship and says that it is none of their business. Also, he has never spoken to friends and acquaintances to solicit their views as to his circumstances.

16. At the appeal hearing, Mr Van Es was asked questions about his "fling" with Ms Crampton. He said that for the trip overseas in 1992, they booked separate sleeping arrangements in hotels and the like but did try a sexual relationship. This did not work out because of physical circumstances. They have not tried again and they remain just as friends.

17. Mr Van Es said that from the very first he contributed money to Ms Crampton for his accommodation. There was no fixed agreement but he would leave $150 per week for her as an informal contribution. He said that the amount has not varied and continued until he had no income.

18. The tribunal asked Mr Van Es about the circumstances of the superannuation. He repeated that the reason for the arrangement was that the superannuation entitlement would be lost if it was not organised this way. He said that although he was nominally the beneficiary, he was going to give all of the money to Mrs Crampton's grandchildren. He said that this was his idea of what he should do with it. This was because the children of Ms Crampton were adequately looked after.

19. Mr Van Es was not willing to nominate any person who would be able to confirm that he and Ms Crampton were living separately and not as a couple. The tribunal suggested that Ms Crampton herself would seem an obvious witness. He was most reluctant to involve anybody else in what he regarded as his personal business. Eventually, he agreed that the tribunal could speak with Ms Crampton."  

9.       In addition to the evidence reported by the SSAT, the submission made by the Welfare Rights Centre on the Applicant's behalf is as follows:  

"The evidence given at the SSAT shows that Mrs Crampton wanted Mr Van Es to benefit from her superannuation after her death. Otherwise money would stay with the superannuation fund.

Mr Van Es gave evidence that if he received money from Mrs Crampton's superannuation fund he would give it to Mrs Crampton's children. Mr Van Es now knows that to receive the money he would have to make an application to the fund after Mrs Crampton's death. He would only be paid if he could show that he had been her de facto partner. He says that he would not make such an application if it involved dishonesty. Mr Van Es has not taken any steps to receive money from the fund in the event of Mrs Crampton's death.

The SSAT regarded the situation with Mrs Crampton's superannuation as critical. Mrs Crampton paid superannuation for over 40 years and she does not want her superannuation payments to disappear on her death. Mrs Crampton has taken steps to provide Mr Van Es with a benefit but Mr Van Es has done nothing about it. Mr Van Es said that he would give any money he received to her children. This shows that he does not feel entitled to receive money from her superannuation. In our view the situation shows that Mrs Crampton is prepared to take certain action to keep money out of the hands of her superannuation fund but it does not show any more than that. It is not sufficient to establish that Mr Van Es and Mrs Crampton have a significant commitment to each other constituting a marriage-like-relationship for the purposes of the Social Security Act 1991.

Mrs Crampton's primary motive is against the superannuation fund rather than in favour of Mr Van Es. Mr Van Es' attitude is that if he gets some money then he would give it to the Crampton family but he is not willing to become involved in the process of obtaining money from the superannuation company. Mr Van Es does not feel entitled to receive money from the superannuation fund as shown by his evidence that if he received any money he would give it to Mrs Crampton's family.

Mr Van Es and Mrs Crampton keep their financial affairs quite separate from each other. Mr Van Es pays $650 to Mrs Crampton per month for his board. Mr Van Es has no say in how Mrs Crampton uses that money. They have no joint accounts and they have no joint property. There is no evidence that they have intermingled their finances other than the steps taken my Mrs Crampton to possibly provide a superannuation benefit to Mr Van Es after her death."

10.     Finally, in the Applicant's Statement of Facts and Contentions, prepared on his behalf by the Welfare Rights Centre, it is stated:

"16. To meet household expenses, Mr Van Es advises that he puts money in a tin in the kitchen. The bulk of his monthly Dutch Pension payments (approximately $650) are expended in this way. He has no say in how Mrs Crampton uses that money.

17. Mr Van Es' and Ms Crampton's finances are separate. They have no joint accounts and no jointly owned property. There is no evidence that they have intermingled their finances other than the steps taken by Mrs Crampton to possibly provide a superannuation benefit to Mr Van Es after her death.

18. …Mrs Crampton has advised that she nominated Mr Van Es as beneficiary in the event of her death as a means of ensuring that the funds did not just remain in the superannuation fund. Mrs Crampton contributed to the fund for over forty years, and she thought it unfair that her children would not ultimately benefit from these contributions merely because she is not either married or in a defacto relationship. She therefore nominated Mr Van Es - this being the only means of allowing release of the funds after her death.

19. Information proved by the State Superannuation Scheme (Attachment  C) shows that after a member's death a State Superannuation Scheme Benefit is payable to an eligible spouse or defacto partner. Mr Van Es now understands that in order to be paid from the fund in the event of Mrs Crampton's death, he would need to make an application to the fund and declare himself to have been her defacto partner. He says that he would accept the money and give it to Mrs Crampton's grandchildren if this involved no action on his part, but he is not prepared to become involved in the process if it were to involve dishonesty.

20.. The situation with regard to the superannuation is thus that Mrs Crampton has taken steps to provide Mr Van Es with a benefit but Mr Van Es has done nothing about it. He says that he would not claim the superannuation upon Mrs Crampton's death if this required any dishonesty on his part. He says that if the money were paid to him by the fund, he would pass it on to Mrs Crampton's grandchildren. It is contended that this shows that Mr Van Es does not feel entitled to receive the superannuation. He also advises that he is firmly convinced that as he is older than Ms Crampton, he will die well before she does.

ms crampton's evidence

11.     In the Assessment of Living Arrangements Form completed by Ms Crampton, Ms Crampton indicated that she had no boarders or lodgers residing at her home, that the Applicant contributes towards the payment of electricity, gas and telephone but not to water rates, land rates and insurance, that household tasks are shared and that in illness or personal crisis the Applicant provides help and support. Ms Crampton gave evidence to the SSAT which reported her evidence as follows:

21.      Ms Crampton repeated the claim that her superannuation entitlements would be lost if she were to die as a single person, notwithstanding that she had children who would have survived her.  So, she decided to record Mr Van Es as her de facto partner for the purposes of the superannuation fund.  She went on to say that not only was this a strategy to ensure that the superannuation entitlements were not lost but that she fully intended Mr Van Es to have the benefit of the monies in the event that she died before her (sic).  She said that her will confirmed that the superannuation was to go to him.  She thought that this was a fair provision to Mr Van Es in view of the circumstances.  The superannuation comprised only a small portion of her estate.  The balance was left to her children.  Ms Crampton did not confirm an understanding that Mr Van Es was obliged to hand the superannuation monies on to her grandchildren..  She said that they were for his benefit.

22.      Ms Crampton confirmed that they had tried a sexual arrangement on the overseas trip in 1992.  She was asked the reason it did not continue and answer (sic) was generally the same as given by Mr Van Es, although the specific factual detail suggested a slightly different circumstance.  Nothing turned on the discrepancy, if indeed there was any, and in deference to the privacy of the two, the matter will be left at that.  Also,  Ms Crampton stated that they had both gone overseas again, later in the 1990’s.  Similar arrangements prevailed as for the first trip.  That is, they went their separate ways for some of the time in Europe and they had separate rooms in hotels and the like.

23.      The tribunal asked Ms Crampton what she expected would happen to Mr Van Es in the event that she died, leaving him to survive.  Where would he live?  Ms Crampton said that she expected that he would go back to Holland because there would be nothing for him in Australia.

24.      Ms Crampton said that from the time Mr Van Es came to live with her, he contributed $200.00 per week to the expenses of the household.  He kept up these payments until he left work.

25.      The tribunal asked Ms Crampton if she could nominate anybody who could support the claim that they were not a couple.  She did not volunteer anybody.  The tribunal suggested that her daughter would seem an obvious possibility.  After some discussion, the tribunal arranged to speak by telephone to Tracey, the daughter.  Tracey repeated that she regarded her mother and Mr Van Es as separate persons, sharing a commitment as friends, not as members of a couple.

consideration

12. Sections 4 (2) and 4 (3) of the Act provide:

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

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.

4.(3A)  The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

13.     There is no dispute that the Applicant and Ms Crampton are not legally married and are living separately and apart from each other.

14.     As to the financial aspects of their relationship, there is no evidence that they have joint ownership of any major assets or that they share any significant liabilities.  There is contradictory evidence about the extent to which the Applicant contributes financially to the household and whether he pays board or contributes to the payment of specific household expenses.  However, the Tribunal is satisfied that the Applicant makes some financial contribution to the expenses of the household.

15.     There is no dispute that Ms Crampton has named the Applicant as her de facto partner and beneficiary for the purposes of her superannuation fund in the event of her death.  The Applicant’s evidence was that he intended to give the proceeds of any superannuation to Ms Crampton’s children but Ms Crampton’s evidence was that it was her intention that the proceeds be used by the Applicant and that her will confirms this.  In any event, both agree that the Applicant has been represented to the superannuation fund as Ms Crampton’s de facto partner.

16.     In relation to the nature of the household, the Tribunal is satisfied that the Applicant takes no responsibility for Ms Crampton’s children but also notes that the child remaining at home is not a minor.  The Tribunal accepts the Applicant’s consistent evidence that, while he has his own room in the house, he currently sleeps in the rumpus room in order to care for Ms Crampton’s remaining dog.  Both the Applicant and Ms Crampton stated in their Assessment of Living Arrangements forms that household tasks are shared.

17.     In relation to the social aspects of the relationship, both the Applicant and Ms Crampton said that they occasionally share social activities and go on holidays together.  They have held themselves out as being de facto partners to Ms Crampton’s superannuation fund.  There is no information available as to how they are perceived by others, except for the stated perception of Ms Crampton’s daughter.

18.     There is no dispute that there was an attempt at a sexual relationship between the Applicant and Ms Crampton and that no such attempts persisted.

19.     As to the nature of the Applicant’s and Ms Crampton’s commitment to each other, they have been friends for more than fifteen years and have cohabited for more than ten years and both agree that, in the event of illness or personal crisis, they would provide help and support to each other.  In particular, Ms Crampton’s evidence that, if she died, the Applicant would probably return to Holland because there would be nothing for him in Australia, indicates a level of dependence and exclusivity that suggests a very committed relationship.  In addition, Ms Crampton’s decision to nominate the Applicant as beneficiary of her superannuation fund and her confirmation of that in her will indicates a sense of responsibility by one for the other.

20.     There is no indication of any intention on the part of either the Applicant or Ms Crampton to end the relationship.  On this basis, the Tribunal concludes that it is intended to continue indefinitely.

21.     The Tribunal accepts that the relationship between the Applicant and Ms Crampton is not a typical marriage like relationship in that there is no sexual relationship and no joint financial obligations.  Despite this, the length of the relationship and cohabitation, the degree of commitment and exclusivity exhibited by the Applicant and Ms Crampton and the responsibility shown by Ms Crampton for the Applicant in naming him as a beneficiary to her superannuation fund lead the Tribunal to conclude that their relationship goes well beyond that of firm friends.  While not typical of many marriage like relationships, theirs is more in the nature of a marriage like relationship than it is a friendship.

Decision

22.     The Tribunal affirms the decision under review.

I certify that the preceding 22 paragraphs are a true copy of the decision and reasons for decision of Ms N. Bell, Member:

Signed:          
           ....................................................................................……………………………….

Associate

Date of Hearing  5 March 2003

Date of Decision  April 2003

Applicant  Self-represented

Advocate for Respondent            Ms A. Garcia