VCG and Secretary, Department of Employment and Workplace Relations - [2006] AATA 956

CATCHWORDS – SOCIAL SECURITY – benefits and entitlements - disability support pension – appropriate rate of payment – whether applicant to be treated as a member of a couple – whether in a marriage-like relationship – relevance of a person’s being homosexual - decision set aside

Administrative Appeals Tribunal Act 1975 ss 35 and 37
Commonwealth of Australia Constitution Act s 51(xxi)
Family Law Act 1975 s 51
Marriage Act 1961 ss 5, 23, 23B and 26
Marriage Amendment Act 2004 s 3
Social Security Act 1991 ss 4, 94, 117, 1064, 1064-A2 and 1064-B1
Transfer of Land Act 1958 (Vic)

Ahmedi v Ahmedi (1991) 23 NSWLR 288
Attorney-General (Vic) v The Commonwealth (1962) 107 CLR 529
Chambers v Jobling (1986) 7 NSWLR 1
Fisher v Fisher (1986) 161 CLR 438; 67 ALR 513
Inderjit Singh v Minister for Immigration and Multicultural Affairs [1998] FCA 1366
Maynard v West Midland Area Health Authority [1984] 1 WLR 634; [1985] 1 All ER 635
Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634; [1985] 1 All ER 635
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 165
NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235
Re Needer and Secretary, Department of Social Security (AAT 8648, 6 April 1993)
Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497
Re: Wakim; ex parte McNally (1999) 198 CLR 511
State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in Liq) [1999] HCA 3; (1999) 160 ALR 588
The Attorney-General for the Commonwealth v “Kevin and Jennifer” and Human Rights and Equal Opportunity Commission (2003) 30 Fam LR 1 [2003] FamCA 94
Wilsher v Essex Area Health Authority [1988] AC 1074

DECISION AND REASONS FOR DECISION [2006] AATA 956

ADMINISTRATIVE APPEALS TRIBUNAL     )
  )          V2006/244
GENERAL ADMINISTRATIVE DIVISION     )

Re VCG

Applicant

AndSECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS
Respondent

DECISION

Tribunal:                   Deputy President S A Forgie
Date:  10 November 2006
Place:  Melbourne

Decision:The Tribunal:

1.set aside the decision of the Social Security Appeals Tribunal dated 16 February 2006 affirming a decision of a delegate of the respondent dated 7 September 2004; and
2.substitute a decision that:
(1)     the applicant is not a member of a couple for the purposes of the Social Security Act 1991 (SS Act);
(2)     the amount of Disability Support Pension payable to the applicant should be calculated on the basis that she is not a member of a couple since 8 April 2004; and
(3)     the applicant has not been overpaid payments of Disability Support Pension from 2 July 2002 to 22 September 2005.
S A FORGIE
  Deputy President

REASONS FOR DECISION

A delegate of the respondent, the Secretary of the Department of Employment and Work Relations (Secretary), decided to assess the Disability Support Pension (DSP) of the applicant, whom I will call VCG,[1] on the basis that she has been a member of a couple since 8 April 2004. As a consequence of that decision, the delegate decided to raise and recover a debt of $12,497.02 representing DSP overpaid to VCG between 2 July 2004 and 22 September 2005. I have decided that VCG was not a member of a couple in that period and was not a member of a couple at the time of the hearing.

LEGISLATIVE FRAMEWORK

[1] A confidentiality order was made under s 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act) on 7 September 2006.

Section 94(1) of the Social Security Act 1991 sets out the qualifications that a person must meet in order to receive a DSP. There is no question in this case that VCG meets those qualifications and has been receiving a DSP since 22 November 2002. The rate of DSP payable to VCG is calculated using Pension Rate Calculator A at the end of s 1064 of the SS Act.[2] Since its amendment with effect from 1 July 2004, s 1064-A2 has provided that:
[2] s 117(a)
“Where 2 people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis (see points 1064-E2, 1064-F2 and 1064-G2 below). They will also be treated as sharing expenses (e.g. for rent) on a 50/50 basis (see section 1070V below).”[3]
[3] Before its amendment, s 1064-A2 was, for the purposes of this case, in substantially the same terms. It read:

A person’s maximum basic rate depends on the family’s situation. The family situation relevant in this case is that in which the person is “not [a] member of [a] couple” or “partnered”.[4] The word “partnered” is defined in s 4(11) to mean:

[4] s 1064-B1, Table B, Items 1 and 2

“a person is partnered if the person is a member of a couple”.[5]
[5] s 4(11) and see also s 4(1)

The expression “member of a couple” is defined in s 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 subsection (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 s 23B of the Marriage Act 1961.”

Section 4(3) is referred to in both ss 4(2)(a) and 4(2)(b)(iii):
“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 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.”

Reference is also made in s 4(2)(b)(iii) to s 4(3A), which provides:

“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 person on a permanent or indefinite basis.”

CONSIDERATION

There is no question in this case that VCG and Anthony are not legally married to each other and so do not come within the first limb of the definition of a “member of a couple” found in s 4(2)(a). That leaves the second limb of the definition found in s 4(2)(b). Again, VCG satisfies one of the criterion, being that in s 4(2)(b)(ii), by not being legally married to Anthony. She and Anthony are both above the age of consent and are not within the prohibited relationships for the purposes of s 23B of the Marriage Act 1961 (Marriage Act). Therefore, VCG satisfies the criteria in ss 4(2)(b)(iv) and (v). That leaves two criteria being those in ss 4(2)(b)(i) and (iii).

The first is that of a relationship. Does VCG have a “relationship with a person of the opposite sex”? As Anthony is unquestionably a man, he is a “person of the opposite sex”. As to a “relationship”, what is meant by that word? Its ordinary meanings are:
“… 1 the state of being related. 2 the state of being related by birth or marriage. 3 friendship, contact, communications, etc between people, countries etc. 4 an emotional or sexual affair.”[6]

Given that s 4(2)(b) only comes into consideration if there is no marriage[7] and that prohibited relationships refer to a person’s relationships with ancestors, descendants or siblings,[8] the first and second of the ordinary meanings are inapplicable. The fourth could be relevant even though any sexual relationship is one of the factors to be taken into account under s 4(3)(d) in forming an opinion about their relationship. The word “relationship” could also be read as referring to friendship, contact or communications between persons as described in the third meaning. In this case, the persons are VCG and Anthony. On the basis of their evidence, I am satisfied that they have, at all relevant times, been friends and so have a relationship. Consequently, VCG meets the criterion in s 4(2)(b)(i).

[6] Chambers 21^st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)

[7] s 4(2)(b)(ii)

[8] Marriage Act, s 23B referred to in s 4(2)(b)(v)

What is a “marriage-like relationship”?

That brings me to the criterion in s 4(2)(b)(iii). It requires that the relationship between VCG and Anthony be a “marriage-like relationship”. Section 4(3) sets out the criteria to be taken into account in deciding whether two people are in a marriage-like relationship and yet one of those criteria is specified in terms that refer to the very matter I must decide. That is the criterion in s 4(3)(e)(iv) that requires me to consider “whether the people see their relationship as a marriage-like relationship.” If for no other reason, the circularity of the section requires me to consider what is meant by the term “marriage-like”.

The addition of the word “like” to the word “marriage” forms an adjective meaning either “resembling” or “typical of” a “marriage”.[9] Therefore, a “marriage-like relationship” is a relationship is one that resembles or is typical of a marriage. In that case, I must look to what is meant by the word “marriage” for that will be relevant in understanding what is regarded as “marriage-like”. I must look also to the context in which the expression is used. That context is that of the SS Act which is “An Act to provide for the payment of certain pensions, benefits and allowances …”.[10] It is an Act intended to assist in maintaining a person’s income at a certain level. In doing so, it has regard to the sources of income and the assets of that person. Where a person has a partner, the partner’s income and assets are also taken into account and the maximum payable is less than that payable to a person without a partner. It is implicit in the payment provisions that a person with a partner will share at least some expenses with that partner so that each does not need as much as a person who must meet all expenses alone. That it is implicit finds some support in s 4(3A), which provides that:
“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.”
[9] Chambers
[10] Long Title

Returning to the word “marriage”, its ordinary meanings include:
“1. the state or relationship of being husband and wife. … 4. a joining together; a union. …”[11]
[11] Chambers

But what is the relationship of being a husband and wife or a union that is described as a marriage? It is important to consider those notions before I can consider what is “marriage-like”. Section 5(1) of the Marriage Act defines “marriage” for its purposes as “… the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. In enacting the Marriage Act, the Parliament has relied on the power given to it by s 51(xxi) of the Commonwealth of Australia Constitution Act (Constitution). That power is, in part, to make laws with respect to “marriage”. The High Court has not been asked to consider the extent of the power but has touched upon it from time to time. They reveal a variety of views but I will refer only to three to reflect that variety.
A statement of general principles was made by Brennan J in Fisher v Fisher[12] when he said:
“ Marriage is a social and legal institution. For many, marriage is also, and primarily, a sacrament or an institution of religious significance, but it is the character of a legal institution that marriage is a subject of legislative power conferred on the Parliament by s 51(xxi) of the Constitution. … The measure of the legislative power cannot be determined by reference to the occasions of its purported exercise. The nature and incidents of the legal institution which the Constitution recognises as ‘marriage’ and which lie within the power conferred by s 51(xxi) are ascertained not by reference to laws enacted in purported pursuance of the power but by reference to the customs of our society, especially when they are reflected in the common law, which show the content of the power as it was conferred. …”[13]

In Attorney-General (Vic) v The Commonwealth,[14] Windeyer J said:

“ It has been suggested that the Constitution speaks of marriage only in the form recognized by English law in 1900. The word, it is said, is to be read as defined by the famous phrase of Lord Penzance in Hyde v Hyde^[[15]], ‘the voluntary union for life of one man and one woman, to the exclusion of all others’; and that therefore the legislative power does not extend to marriages that differ essentially from the monogamous marriage of Christianity. That seems to me an unwarranted limitation. Marriage can have a wider meaning for law. For example, Justinian described it broadly as the union of husband and wife involving the habitual intercourse of daily life, nuptiae sive matrimonium est viri et mulieris coniunctio individuam conseutudinem vitae contines (Inst. 1, 9, 1.); and he said that those citizens are joined together in lawful wedlock who are united according to law, qui secundum praecepta legume coeunt (Inst. 1, 10, 1.). And Higgins J in the course of his judgment in the Brewery Labels Case ^[[16]^]– that it was a dissenting judgment is immaterial for present purposes – said: ‘Under the power to make laws with respect to marriage I should say that the Parliament could prescribe what unions are to be regarded as marriages’ ^[[17]^] – and later, he was speaking of trade marks: ‘The usage in 1900 gives us the central type; it does not give us the circumference of the power’.^[[18]] …
… I do not think that the Commonwealth power over marriage is to be narrowly construed. It is plenary. …”[19]

His Honour considered that it would be within the power given by the Constitution were Parliament to recognise polygamous marriages and to pass a law dealing with tribal marriages between Aboriginal persons. Remembering that he gave his judgment in 1962, Windeyer J went on to speak of Australia’s inheritance of European Christian civilisation and the concept of marriage both in law and as the product of a long process of social history.[20]

[12] (1986) 161 CLR 438; 67 ALR 513

[13] (1986) 161 CLR 376 at 455-456; 67 ALR 513 at 525

[14] (1962) 107 CLR 529

[15] (1866) LR 1 P&D at 133

[16] (1908) 6 CLR 469

[17] (1908) 6 CLR 469 at 610

[18] (1908) 6 CLR 469 at 610

[19] (1962) 107 CLR 529 at 576-577

[20] (1962) 107 CLR 529 at 578-579

In Re: Wakim; ex parte McNally[21]McHugh J said:
“ The level of abstraction for some terms of the Constitution is, however, much harder to identify than that of those set out above.^[[22]] Thus, in 1901 ‘marriage’ was seen as meaning a voluntary union for life between one man and one woman to the exclusion of all others. If that level of abstraction were now accepted, it would deny the Parliament of the Commonwealth the power to legislate for same sex marriages, although arguably ‘marriage’ now means, or in the near future may mean, a voluntary union for life between two people to the exclusion of others.”[23]
[21] (1999) 198 CLR 511
[22] e.g. ‘‘trade and commerce with other countries, and among the States’’, ‘‘trading or financial corporations formed within the limits of the Commonwealth’’, ‘‘external affairs’’ and ‘‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’’.
[23] (1999) 198 CLR 511 at 553

The Full Court of the Family Court reviewed the High Court authorities in The Attorney-General for the Commonwealth v “Kevin and Jennifer” and Human Rights and Equal Opportunity Commission[24] and concluded that:
“ It seems to be inconsistent with the approach of the High Court to the interpretation of other heads of Commonwealth power to place marriage in a special category, frozen in time to 1901. We therefore approach the matter on the basis that it is within the power of Parliament to regulate marriages within Australia that are outside the monogamistic Christian tradition. Indeed, the contrary was not argued on behalf of the Attorney-General.”[25]
[24] (2003) 30 Fam LR 1 [2003] FamCA 94
[25] (2003) 30 Fam LR 1 at 24 [2003] FamCA 94 at [100]

Religious texts and text books also refer to marriage. A few examples taken from four of the larger number of faiths recognised in Australia under the Marriage Act 1961[26] are:
[26] Section 26 of the Marriage Act 1961 provides that “The Governor-General may, by Proclamation, declare a religious body or a religious organization to be a recognized denomination for the purposes of this Act.
“Marriage is honourable in all, and the bed undefiled …”[27]
[27] The Epistle of Paul the Apostle to the Hebrews, 13:4, The Thompson Chain-Reference Bible, 4^th edition, King James version

“DEARLY beloved, we are gathered together here in the sight of God, and in the face of this Congregation, to join together this man and this woman in Holy Matrimony; which is an honourable estate, instituted of God in the time of man’s innocency, signifying unto us the mystical union that is betwixt Christ and his Church; which holy estate Christ adorned and beautified with his presence, and first miracle that he wrought, in Cana of Galilee; and is commended in Holy Writ to be honourable among all men: and therefore is not by any to be taken in band unadvisedly, lightly, or wantonly; but reverently, discreetly, advisedly, soberly, and in the fear of God; duly considering the chief causes for which Matrimony was ordained.
It was ordained for the increase of mankind according to the will of God, and that children might be brought up in the fear and nurture of the Lord, and to the praise of his holy Name.
It was also ordained for the mutual society, help, and comfort that the one ought to have of the other, both in prosperity and adversity.”[28]
[28] The Scottish Book of Common Prayer, Cambridge University Press, 1929

“ So celebrate God’s glory in the evening, in the morning – praise is due to Him in the heavens and the earth - in the late afternoon, and at midday. He brings the living out of the dead and the dead out of the living. He gives life to the earth after death, and you will be brought out in the same way. One of His signs is that He created you from dust and – lo and behold! – you became human and scattered far and wide. Another of His signs is that He created spouses from among yourselves for you to live with in tranquillity. He ordained love and kindness between you. There truly are signs in this for those who reflect. …”[29]

[29] The Qur’an, 30:17-21, translated by M A S Abdel Haleem, Oxford University Press, 2004, reprinted 2005, 258
“ It is no accident that the term for the marriage ceremony in Hebrew is kiddushin/sanctification. Marriage is viewed by Judaism as a sacred act, also an imperative one. …
Marriage as an institution is as much the creation of God as anything in the Torah. ‘It is not good for man to be alone,’ the Creator says of Adam in Genesis 2:18 before creating Eve as his creation. By investing marriage with a Divine origin, Judaism gives it even greater weight and sanctity.
At the same time, marriage is a legal, contractual agreement. Traditionally, the marriage contract represents the agreement of a woman to give up a portion of her legal autonomy in return for a promise of financial support and other rights that she receives from a man. A Jewish marriage contract (ketubah) is made between two autonomous entities, man and woman; but there is a quid pro quo here, an arrangement negotiated between equals – to an extent.
Jewish men are obligated by the Talmud and the marriage contract to provide [for] their wives …

Jewish women, in turn, are obligated by the Talmud to provide earnings from her labor (if any); … Jewish law has always permitted women to own property and to enter into contracts, even after marriage. …”[30]
“In Hindu dharma, marriage is viewed as a sacrament and not a contract. Hindu marriage is a life-long commitment of one wife and one husband, and is the strongest social bond that takes place between a man and a woman.
Grahastha Ashram (the householder stage), the second of the four stages of life begins when a man and a woman marry and start a household. For a Hindu marriage is the only way to continue the family and thereby repay his debt to his/her ancestors.
In Hindu view, marriage is not a concession to human weakness, but a means for spiritual growth. Man and woman are soul mates who, through the institution of marriage, can direct the energy associated with their individual instincts and passion into the progress of their souls.”[31]

[30] Essential Judaism, A Complete Guide to Beliefs, Customs and Rituals, George Robinson, Pocket Books, a Division of Simon and Schuster, Inc, 2001, 160-161

[31] < >

These are short extracts but I have tried to give a true reflection of the whole. The extracts illustrate that there are both points in common among them and differences in emphasis. The sanctity of marriage is common among all as is the sense of the married couple acting honourably one to the other. The aspect of a contract is emphasised in Judaism but expressly disavowed in the Hindu religion.[32] The begetting of children has a position of some importance in the extract relevant to the Christian religion and of paramount importance in the Hindu religion.
[32] The Qur’an does not expressly make any reference to a contract but there is an implicit reference to agreement in a passage such as the following:
[33] The text of the Qur’an appears to place more emphasis on notions of fairness when, in speaking of polygamy in relation to men, it is said: “… If you fear you cannot be equitable [to them], then marry only one, … that is more likely to make you avoid bias. …”: 4:3. See also 4:34: “Husbands should take good care of their wives …”.
Children do not appear to occupy the same place in the extract from the Qur’an or the extract regarding Judaism. The extract from the Scottish Book of Common Prayer emphasises mutual society, help, and comfort that spouses should have for each other but the quality of being united for a common cause and assisting each in tangible and intangible ways is apparent also in the extracts relating to Judaism and Hinduism.[33]

Similar differences in emphasis are found in the many references to marriage, or aspects of marriage, to be found in literature and quotations. A very few examples are:
“Even if we take matrimony at its lowest, even if we regard it as no more than a sort of friendship recognised by the police.”[34]
[34] Virginis Puerisque, Robert Louis Stevenson, 1881, title essay, Part 1
“The sum which two married people owe to one another defies calculation. It is an infinite debt, which can only be discharged through all eternity.”[35]
[35] Elective Affinities, Johann Wolfgang von Goethe, 1809, 9
“My definition of marriage … it resembles a pair of shears, so joined that they cannot be separated; often moving in opposite directions, yet always punishing anyone who comes between them.”[36]
[36] Lady Holland Memoir, 1855, vol 1, ch 11, Sydney Smith, 1771-1845
“‘As unto the bow the cord is,
So unto the man is woman,
Though she bends him, she obeys him,
Though she draws him, yet she follows,
Useless each without the other!’
Thus the youthful Hiawatha
Said within himself and pondered,
Much perplexed by various feelings,
Listless, longing, hoping, fearing,
Dreaming still of Minnehaha,
Of the lovely Laughing Water,
In the land of the Dacotahs.”[37]

In all of these passages except the first, there is a sense of union between two people and a common purpose. That is also a feature of the texts relating to the religions I have set out above.

[37] The Song of Hiawatha, Henry Wadsworth Longfellow, Longfellow Poems, Everyman’s Library, 1909, reprinted 1977, Dent Dutton

As far as children are concerned, their procreation or otherwise cannot be seen as a lynch pin determining whether or not persons are married. As the Full Court of the Family Court said in The Attorney-General for the Commonwealth v “Kevin and Jennifer” and Human Rights and Equal Opportunity Commission:
“ The real point of the Attorney-General’s submission was to support an argument that procreation is one of the essential purposes of marriage. …
… Apart from the stated purpose of procreation relied upon by the Attorney-General, we accept, as did the trial Judge, that marriage has a particular status. Like the trial Judge, we reject the argument that one of the principal purposes of marriage is procreation. Many people procreate outside marriage and many people who are married neither procreate, nor contemplate doing so. A significant number of married persons cannot procreate either at the time of the marriage or subsequently - an obvious example being a post - menopausal woman. Similarly, it is inappropriate and incorrect to suggest that consummation is in any way a requirement to the creation of a valid marriage. Subsequent to the passage of the Marriage Act, inability to consummate a marriage ceased to be a ground for making a declaration of nullity: see ss. 1 and 51 of the Family Law Act and ss. 23, 23A, and 23B of the Marriage Act.”[38]
[38] (2003) 30 Fam LR 1 at 30-31 [2003] FamCA 94 at [152]-[153]

A friend, to which reference is made in one of the quotations above, may be:
“… 1 Someone whom one knows and likes, and to whom one shows loyalty and affection; a close or intimate acquaintance. 2 some who gives support or help … 7 euphemistic a lover. …”[39]

Taking the meanings other than the euphemistic, friends may also show loyalty, affection and support for each other as do married couples. Their support may be emotional. It may be more tangible in the form of physical or monetary assistance. Friends may pool their resources in much the same way that students pool their resources and lease a group house to minimise their living costs and to achieve a standard of living that a student living alone could not afford. For all the pooling of their resources and their friendships, friends, whether sharing a group house or not, would not consider those factors to indicate that they were in a relationship that could be described as resembling a marriage.

[39] Chambers

Why would that be so? The relationship would have none of the more ephemeral characteristics which may attach to various notions of marriage and to which I have referred above. Those ephemeral characteristics might include one or more of the sanctification of the relationship, a spiritual relationship, a sense of union or joinder, a sense of common purpose and a sense of walking through life’s journey together. Although their lives will be touched by others and will need to bend to accommodate the needs of others as will others need to bend to their needs at times, others will not interrupt that sense of union. Friends may share a bond, and even a close bond, that stays with them throughout their lives but their bond has room for others and, for the religious in many cultures, does not have a spiritual significance attached to marriage. Friends are unlikely to see their relationship in terms of a contract although they may embark on a joint venture, such as buying a holiday home for them and their families to enjoy or going on an overseas holiday, that require some sort of understanding, if not a commitment, between them. At the same time, that understanding or commitment will generally be circumscribed by matters such as circumstances, events, plan or time. In the same way, a business relationship requires at least some level of understanding or commitment in order to embark on a joint enterprise. It too will generally be circumscribed. A marriage is not circumscribed in that way.

The word “marriage”, then, may encompass many notions, characteristics and values. For the purposes of the Marriage Act, it is “… the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.[40] That definition cannot limit the meaning to be given to the expression “marriage-like” in the SS Act. If it did, the requirement in s 4(2)(b)(i) that “… the person has a relationship with a person of the opposite sex” would be superfluous. Instead, it seems to me that the SS Act intends that regard be had to all of the many and varied notions of marriage that abound in Australian society when it requires regard to be had to those relationships that resemble or are typical of marriage.
[40] Marriage Act 1961, s 5(1)

There is no one formula that encompasses all of those notions. For some, those notions will have a deep spiritual significance. For others, they will be a matter of contract or mutual support. Yet others may enter marriage for the procreation of children and to provide those children with the support of a family framework whether built on a spiritual or secular foundation or, perhaps both.

Section 4(3) of the SS Act itself recognises that there are a number of factors that may indicate whether two persons have a marriage-like relationship but no one factor that determines whether they do. Having regard to the meaning of “marriage” to which I have referred above, it seems to me that “marriage-like” must be understood as referring to that nebulous sense of joinder and common purpose of two persons that would be recognised by the Australian community as resembling marriage in one or other of the many forms in which it currently exists in Australia.

Before I leave the general principles, I will refer briefly to the circumstances set out in s 4(3). They are circumstances to which particular regard must be had in determining whether there is a marriage-like relationship between two people. No one criterion is given any more weight than any other. Therefore, for example, the fact that the SS Act requires regard to be had to any joint ownership of real estate or major assets cannot be determinative of the issue. Every “relationship” must be assessed against all of the criteria and any others that are relevant. I do not accept, as Senior Member Muller (as he then was) said in Re Needer and Secretary, Department of Social Security,[41] that:
“… the criteria set out above are more appropriately applied to younger couples. It seems to me that when single people are in their mid to late fifties and beyond they are looking for security, companionship and living accommodation which they will be able to afford for the years ahead of them. They avoid, if they can, mingling their finances, pooling their resources (other than in obtaining accommodation), and consulting each other on a day to day basis about everyday affairs. They wish to be independent so far as they are able.”[42]
[41] (AAT 8648, 6 April 1993)
[42] (AAT 8648, 6 April 1993) at [6]

In view of the conclusion that I have reached, I agree with Senior Member Hayes in Re Spencer and Secretary, Department of Social Security[43] when he said:
“It would obviously be unsatisfactory to perform the task of categorising a relationship by reference to a ‘tick-off list’, with a particular points tally in mind. For in essence, the adumbrated factors are signposts to a goal for which the decision-maker is searching. That goal is the isolation of some exquisite quality in a relationship between two people which distinguishes it from the others built up in the course of their lives.”[44]
[43] (1987) 13 ALD 497
[44] (1987) 13 ALD 497 at 500

Can a homosexual man be in a marriage-like relationship?

The answer to the question I have posed in the heading is answered by asking whether a homosexual man can be in a marriage. After all, a marriage-like relationship is a relationship that resembles or typifies a marriage. I have only to look to Oscar Wilde to know that a man who has homosexual relations can marry. In his case, he also fathered children. Under the Marriage Act, he can marry for a “marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.[45] His homosexuality does not prevent his forming a union of that sort. It does not mean that the marriage is void. That is so because neither homosexuality nor non-consummation is a ground specified in the Marriage Act as having that effect.[46]
[45] Marriage Act, s 5(1) inserted with effect from 16 August 2004 by the Marriage Amendment Act 2004, s 3 and Schedule 1, item 1
[46] Marriage Act, ss 23 and 23B

Should a man and a woman not consummate a marriage, that marriage was voidable at common law. Until either party took steps to obtain a decree of nullity, it remained a valid marriage. Since the passage of the Marriage Act in 1961, non-consummation of a marriage has ceased to be a ground for making a declaration of nullity as such a declaration can only be made on the ground that the marriage is void.[47] A person, therefore, can be married in the sense in which the term is understood in the Marriage Act regardless of whether the marriage is consummated and whether or not the parties to it are able or inclined to consummate it.
[47] Family Law Act 1975, s 51 and see The Attorney-General for the Commonwealth v “Kevin and Jennifer”and Human Rights and Equal Opportunity Commission (2003) 30 Fam LR 1 at 31 [2003] FamCA 94 at [153]

It follows that a person might be in a marriage-like relationship with a woman even if the marriage is not consummated and there is no prospect of its being consummated. As with the procreation of children, consummation of a relationship is only one factor that is relevant in determining the quality of the relationship. Similarly, inclination to consummate is another factor but not a determinative factor.

Is Anthony’s evidence of his homosexuality of recent invention?

Mr Mosby submitted that Anthony’s evidence had been recently invented to bolster VCG’s claim that the relationship was not marriage-like. Where an important claim surfaces for the first time late in the day and there had been ample opportunity to make it earlier, Mr Mosby submitted, it is open to the Tribunal to draw an inference that the evidence was of recent invention. He relied on a judgment of Lindgren J in NACB v Minister for Immigration and Multicultural and Indigenous Affairs[48] and also to a passage from the judgment of Weinberg J in Inderjit Singh v Minister for Immigration and Multicultural Affairs.[49] In that case, Weinberg J said:
“A finding of ‘recent invention’ is one which is generally devastating to the credibility of the witness against whom it is made – so much so that the ordinary rules which preclude evidence of prior consistent statements from being led are subject to an exception in the case of an allegation of this nature – Nominal Defendant v Clements (1960) 104 CLR 476 at 477-480 per Dixon CJ, at 486-490 per Menzies J, and at 490-496 per Windeyer J. Although the term ‘recent’ is frequently used in connection with this doctrine, ‘the adjective ‘recent’ is a misnomer and ... the doctrine is concerned with any fabrication subsequent to the events in question but anterior to the trial’: Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at 401.”[50]
[48] [2003] FCA 165 at [35] per Lindgren J and confirmed on appeal by the Full Court of the Federal Court in NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [15]
[49] [1998] FCA 1366
[50] [1998] FCA 1366 at [20]

In support of his submission that Anthony’s evidence was of recent invention, Mr Mosby referred to the fact that no reference had been made to his sexuality until Mr Robertson sent written submissions to Centrelink. That had occurred on 27 July 2006. Although VCG and Anthony said in giving evidence[51] that he had informed Centrelink that he was gay, there was no independent evidence other than that of a statutory declaration dated 9 July 2006. That statutory declaration was lodged with the Tribunal but did not explain how the deponent, whom I will call Joe, knew that to which he deposed. I will return to that. Mr Mosby also referred to Anthony’s evidence that he had been “up front and honest about his sexuality” and that there was no reason for him to be embarrassed about it.[52] Given that, VCG should have known that he was “up front and honest” about his sexuality and so there was no reason why she could not have raised it either with Centrelink or with the Social Security Appeals Tribunal (SSAT) at an earlier time. That was particularly so when the fact of Anthony’s sexuality must have been recognised as being particularly relevant in determining whether they were in a marriage-like relationship. Anthony gave evidence that he did not think that there had been any need to tell Centrelink of his sexuality until the SSAT hearing and that he had not known before that he was involved as VCG had been “trying to keep it hush hush”.[53] If Anthony were found to have recently invented his sexuality with the intention of assisting VCG’s claim that would be “devastating to …[his] credibility”[54] and VCG’s evidence that she was not in a marriage-like relationship could not be accepted without question.
[51] Transcript, 61-62 and 83
[52] Transcript, 96
[53] Transcript, 96
[54] Respondent’s Submission dated 27 September 2006 at 6.3

It goes without saying that no-one’s evidence can be accepted or rejected in a Tribunal such as this without their being some foundation for doing so. I must consider all of the evidence, both oral and written, and take into account all of the submissions. I may also have regard to the view I have:
“… of a particular witness, perhaps influenced by the witness’s demeanour and the kinds of considerations commonly referred to such as hesitation or displays of partisanship not readily conveyed, or conveyed at all, by the printed record.^[[55]^] One can hold different views about whether such considerations should intrude in the assessment of qualified expert witnesses.^[[56]] One can strive to minimise resort to such considerations in the case of lay witnesses, out of recognition of the fallibility of human assessment of credibility from appearances. But because trials remain public procedures for the resolution of disputes, it is inescapable that, in some cases at least, credibility assessments will be required where there is no documentary, electronic or other incontrovertible evidence to resolve the conflict presented for decision. …”[57]

A finding as to whether or not Anthony is homosexual and whether or not he made his claim of homosexuality at a late stage in the proceedings cannot be regarded as resolving the main issue in this case i.e. whether or not VCG and Anthony are in a marriage-like relationship. It can only determine that single issue which is only one of the many issues to which I must have regard. If I find that I do not accept his evidence that he is homosexual, it does not necessarily follow that all of his evidence is unreliable with regard to all of the other matters that I must take into account. Again, his evidence will, have to be weighed with all of the other evidence and vice versa before I make any finding regarding any of the facts that must be found before deciding the main issue.

[55] Maynard v West Midland Area Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637

[56] Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 290-292; but see at 299-300. Chambers v Jobling (1986) 7 NSWLR 1 at 25-26; Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; [1985] 1 All ER 635 at 637; Wilsher v Essex Area Health Authority [1988] AC 1074 at 1091.

[57] State Rail Authority of New South Wales v Earthline Constructions Pty Limited (in Liq) [1999] HCA 3 at [91]; (1999) 160 ALR 588 at 619-620 per Gaudron, Gummow And Hayne JJ

I will begin with the initial contact between VCG and Centrelink after Centrelink had received a “tip off” and had investigated property dealings by VCG and Anthony. VCG was recorded as telling Centrelink on 23 February 2004:
“… [Anthony] is her best freind [sic] and he lives in the garage. When she divorced from her husband she needed to raise $24,000 to pay him out and therefore … [Anthony] purchased a percentage of her home which gave her the money to pay out her ex. I asked her why she owns an investment property with him (in Mildura) and she said she needed to have something for the kids, but they only purchased it together as friends, I advised her I have all the loan applications on which they have stated they are married or de-facto, to which she responded, “We had to do that to get the loan”. A/n stated C/link advised her she was able to have an investment property as long as she was not receiving a direct income from it. A/n stated she does not cook meals for … [Anthony], however he does drive her around and provide help with her children and around the house. She stated she will be going into hospital in April and confirmed [Anthony] will take and pick her up, and care for her when she returns home. He does not contribute towards bills, but will give her money id [sic] he has used lots of machines in garage???? …”[58]
[58] Documents lodged under s 37 of the AAT Act (T documents), 58

On 4 March 2004, VCG completed a form headed “Living Arrangements”. [59] In it, she described Anthony as a “friend” and stated that he and she had been living at her current address since 29 September 2002. There was no question requiring her to refer to his sexuality. She stated that he lived in the garage and never slept in the house.
[59] T documents, 100-112

On 23 March 2004, an officer of Centrelink advised VCG that she would not be entitled to payment of DSP at the single rate. The officer noted that VCG would speak with Anthony and get back to her. Anthony telephoned her “… to discuss the situation. [but the officer] advised … [Anthony] that … could not discuss the situation due to privacy issues.”[60]
[60] T documents, 59

On 5 April 2004, Centrelink advised VCG of its decision that she and Anthony were members of a couple.[61] On 8 May 2004, VCG asked for an Authorised Review Officer (ARO) to review the decision on the basis that she does not have a partner. In an accompanying letter, she described Anthony’s place in her life:
“… [Anthony] is just helping me as a carer he has been a great friend and help to me and my children and is only here to give us peace of mind and to help with all the heavy work I can not do myself around the house, we don’t even live under the same roof he has his own room in the garage in a room that I did used as a summer kitchen, this is convenient for him as he can not afford to pay rent anywhere and before he moved into the garage he was going from friend to friend or sleeping in his car, in time he wore out his welcome with all his friends and did not have anywhere to go so this situation has worked out well for him. But unfortunately it has not been the case for me.”[62]

VCG went on to allege that her neighbours, who are very good friends with her ex‑husband, were letting themselves be used when they made allegations against her. She alleged that her ex-husband had opened the gas in the house in order to kill the family and, together with a neighbour, had taken her car and burnt it. VCG invited officers of Centrelink to her home to check and to see the situation for themselves.

[61] T documents, 114-118

[62] T documents, 120

After the ARO affirmed the decision on 7 September 2004[63] and VCG had applied to the SSAT, Anthony made a statutory declaration on 19 September 2005:
“I … [Anthony] of … declare that I am not and have never been the partner of … [VCG] and do not have any intention of being her partner in the future, I live in a room in the garage and I am quite happy with this arrangement as I can not afford another place to stay, if you wish you can come and check it out, I do not provide … [VCG] any financial support for any reason, I don’t have the funds for this, she can not provide you with any of my private details as my financial details are my private business and do not wish to make them public, under the Privacy Act I am entitled to privacy as this is the case you are trying to invade my privacy, if you persist in this action I will see legal advice to see what I can do about it and if I can take it further.
PS. I have sent you so many letters on this subject I will have to pull them out of my file to tell you how many there are.”[64]
[63] T documents, 134-139
[64] T documents, 140

VCG attended the SSAT hearing on 16 February 2006 with her daughter, whom I will call Miss VCG. The members of the SSAT heard evidence from Anthony by telephone in the absence of VCG and her daughter. In their reasons for decision, they summarised his evidence in detail. Anthony described his living conditions and that he and VCG “… are just friends and have never dated. There is no sexual relationship.”[65]
[65] Reasons for decision, 6

On 27 July 2006, Mr Robertson sent a number of documents to the Tribunal. Among them was a statutory declaration made by a person, whom I will call Joe. It reads:
“ I have known …[Anthony] for a period of 24 month.
In that time, I have known that … [Anthony] was, and still is, an active homosexual. He has always been upfront and honest about his sexuality and never been embarrassed.
To my knowledge, although … [Anthony] has not been in a steady relationship with a man for sometime, he is still actively meeting other men on a regular basis.”

In the course of Anthony’s giving evidence to the Tribunal, the following exchange occurred between him and Mr Robertson:
“…[Anthony], are you homosexual? --- Yes, I am.
Have you had relationships with men during the time that you have been living … in the bungalow … --- ? --- Yes, I have.
Can you tell us a little bit about the length of time ---?---Most of it has been casual, casual relationships, on and off. There was a couple, three or four months.
So during one of the longer relationships, three or four months, did you regard yourself as a member of a couple?---Yes, I did, yeah. But it didn't work out in the end.
Did you - Did Centrelink ask you if you had had any relationships with women?---No.
Did they ask you whether you were homosexual?---No, they didn't.
Did you tell Centrelink?---Yes, tried to. They weren't interested.
Can you explain that a bit more?---I wrote it in a stat dec, and told them I wasn't interested in any women.
When was that?---That was over 12 months ago now. I should have a copy of it here somewhere.
Sure, but before that time, did you try to tell Centrelink that – about your relationships? --- No because I didn’t know I was involved in this until the last year, and that is when it got too much for VCG and she had to tell them.
So, you weren’t involved – sorry, were you involved in helping VCG with his matter? --- Not prior to the last hearing, no.
So when did you take some sort of interest in --- ? ---When I actually – when she actually showed me this. I had to write a few letters to people, Ministers, and Centrelink. They weren’t interested.”[66]
[66] Transcript, 83-84

In cross-examination, the following exchange took place between Anthony and Mr Mosby:
“There was a stat dec …[by Joe] … in support of VCG’s application ---?--- Yes
…
Who is he? --- A friend of mine.
He actually says that you are ‘up front and honest about your sexuality’?---Mm.
You have never been embarrassed about your sexuality?---No reason to be, no.
Now---?---Not with most people anyway.
---you have said that you have provided documentation previously to Centrelink regarding your sexuality?---Yes.
But in this matter there was nothing - no indication of your sexuality until the first preliminary conference here at the Tribunal?---First or second? Here?
Here?---Yes, I didn't think there was any need till then.
You didn't think there was any need?---Because I didn't know I was involved and she was trying to keep it hush hush.
But you were in---?---which I asked her to do early on in the peace [sic].
But you were involved at the time of the Social Security Appeals Tribunal, the SSAT hearing?---Yes, but I didn't know I was - on all these papers, they have been looking through all my business and everything.
But you were questioned by the Tribunal---?---Yes.
---then. You would have known what was happening, why you were actually called to give evidence?---On the ---
To the SSAT?---Yes, just to - so they wanted to know if I had a relationship with her.
Why didn't you actually give any evidence to the Tribunal that you were gay?---Because I didn't think there was a need to.
Even though---?---Because I had my room, I got my own gear in there, I got my own life and we both told them.
But the entire issue is that Centrelink has determined that you and VCG are in a marriage-like relationship, are members of a couple?---But that is hearsay of other people.
But that is the determination that Centrelink has made which VCG is appealing against?---Using hearsay and gossip.
I am saying - I am putting to you thought that if you had said something to the Tribunal then it would have gone a long way in assisting VCG?---With the people we were dealing with prior to that, no it wouldn't have. She was … I should say.”[67]
[67] Transcript, 96-97

Anthony also acknowledged that it is in his interests if VCG were able to keep her house as he would be able to keep his room at a cheap rate. He would not, however, protect his interests by lying about his homosexuality.[68] His friends know that he is homosexual but not all of his work colleagues. His bosses do not “Because it is pretty hard to keep a job when they know what you are.”[69] Anthony explained this further in another exchange with Mr Mosby:
“And your work colleagues, did you face any discrimination from them or how did they accept your sexuality?---Most ones, no, I didn’t, because they knew me from before. I got them - a couple of them - or one of them I got a job there from where I worked before prior to that. But the ones where I worked at …, they didn’t know.
You never told them?---No.
Why was that?---Because I wasn’t planning on staying there that long and the people that owned the business weren't known for their tolerance of that sort of thing.”[70]
[68] Transcript, 92
[69] Transcript, 98
[70] Transcript, 99

In cross-examination, VCG said that she first knew that Anthony was gay when she met him in 1999.[71] She knew that he had relationships with other people but did not have much to do with those other people. On a couple of occasions, she had seen him in the distance with men.[72]
[71] Transcript, 45
[72] Transcript, 19-20

Having regard to all of the evidence, I do not consider that Anthony’s statement as to his being homosexual can be said to be of recent invention or to have been fabricated to suit the case that he and VCG are not in a marriage-like relationship. I have two reasons for that finding. The first arises from the way in which VCG came to reveal it to the Tribunal. The second arises from the fact that I am satisfied that he is homosexual.

Anthony and VCG have consistently asserted that they are friends and that they have not had a sexual relationship of any kind. Until his statutory declaration dated 19 September 2005, he had not spoken of his homosexuality to any person in a position to make or influence the decision made in respect of VCG’s DSP. By the same token, when he had earlier telephoned Centrelink on 23 March 2004 to discuss the issues affecting VCG, he was told that he could not discuss them because of privacy considerations. That was so even though Centrelink had, by then, been investigating financial and property matters that related not only to VCG but also to Anthony. It was investigating matters relating to his private arrangements as well as to those relating to VCG. For all that, he was not given an opportunity to speak about the matters. He was not asked any questions by the Centrelink officer on that occasion and I have not been referred to any interview with him.

For Anthony and for VCG, the assertion that they were friends, and nothing more, seemed sufficient. The reason why they did not have a sexual relationship seems not to have occurred to them to have any importance. That is an understandable position to take given Anthony’s evidence to the effect that he was cautious about the people to whom he revealed his homosexuality. His evidence related to those to whom he revealed it in the workplace but, even in everyday life in modern Australia, his caution is understandable. People do not always accept other people’s differences as they would expect others to accept their own. Anthony’s cautious approach to revealing his sexuality, when combined with the position that he and VCG adopted that their word should be accepted regarding their relationship, explains why he did not reveal his sexuality to Centrelink at an earlier stage.

It was not until they sought Mr Robertson’s assistance that Anthony gave written notice in relation to VCG’s DSP of his homosexuality. He gave evidence that he had told Centrelink about it earlier in relation to another matter. There is no material to that effect on the file but, equally, there is no evidence that it was not recorded on Centrelink’s files or databases in relation to other payments.

As I have said, my second reason stems from being satisfied that Anthony is indeed homosexual. I base that finding in part on Anthony’s own evidence. His description of the care he has taken in revealing his sexuality to others rings true. That caution is entirely consistent with Joe’s description that Anthony has “… always been upfront and honest about his sexuality and never been embarrassed …” about his sexuality. Mr Mosby questioned the basis on which Joe had formed his opinion but he did not require Joe to be called for cross-examination. Joe’s evidence is not inherently unbelievable and, in the absence of some attack on the foundation on which he formed his view of Anthony, I accept it at face value. People often, and not just those who are homosexual, often reveal more of themselves to their friends and those with whom they feel comfortable than they do to their work colleagues. His claim that he is homosexual is not inconsistent with his choosing to live in accommodation provided by a woman or to enjoy a close, but non-sexual relationship, with a woman.

Early days

On the basis of their evidence, I find that VCG and Anthony met when VCG worked in a factory and Anthony would undertake work there from time to time. They would share their coffee breaks but did not see each other outside of work. That continued during 1999 and the early part of 2000. After VCG left that work, they would see each other from time to time at the shopping centre when she was shopping with her children. They would have a cappuccino but just as friends.

Joint ownership of assets and joint liabilities and financial aspects of the relationship

VCG and Anthony did not seek to hide the assets they held together or the liabilities that they had incurred. On the basis of their evidence and of the documents in the T documents, I find that they held the following property:

A. The “home property”

What I have described as the “home property” is the property at which VCG and Anthony reside. It is a suburban house with a separate garage. The garage has been divided into two rooms. Entry to the garage is by means of the driveway and it is a separate building from the house. In addition to its lift up door, it has two smaller external doors. One leads to a room in which there is a fold out bed, a television and a kitchenette. The other leads to a room in which there is a barbecue and Anthony keeps some of his belongings. That room could also accommodate a car but none is kept there. There is a small hallway leading from this room to the bedroom/kitchenette. Beyond the bedroom/kitchenette is a laundry and toilet.

The home property was part of a property settlement reached between VCG and her former husband. They separated in 2000 and, before that time, had jointly owned the home property. In order to keep it, VCG had to find $24,000 to give to her former husband. She was unable to borrow it from any lending institutions she approached. Apart from her children, she had no family members to whom she could turn for assistance. I accept that she was upset by this and that she told Anthony about it when she saw him one day in the shopping centre. He offered to become a guarantor for her. Together, they applied for a home loan from Aussie Home Loans Limited (Aussie Home Loans) in November 2001.[73] Each wrote “separated” when asked to note marital status.[74] Each used the address of the home property as their residential address before settlement. Anthony wrote that he had been living there for six months and VCG as having done so for six years. The purpose of the loan was said to be to refinance the home loan and to pay VCG’s former husband as well as to refinance costs and to make home renovations.[75] The total loan was for $125,000 of which $35,000 was said to be to pay VCG’s former husband. Both VCG and Anthony were noted as the proposed registered owners. The market value of the property was shown as $170,000.
[73] T documents, 60-66
[74] T documents, 60
[75] T documents, 62

Settlement took place on 2 April 2002 and VCG and Anthony were registered as tenants in common in unequal shares on that day.[76] This is apparent from the Register Search Statement issued by the Lands Titles Office (LTO) in Victoria.[77] A mortgage in the name of Aussie Mortgages Ltd was registered on the same day. This is a statement from the body responsible for the registration of dealings with land in Victoria. A handwritten note of 4 March 2003 to a question directed to the Rates Department of the relevant City Council and asking for the date on which Anthony’s name was added to the title for the home property cannot be preferred to the statement of the LTO.[78] The LTO, after all, is the office administered by the Registrar of Titles and that officer has responsibility for the administration of the Transfer of Land Act 1958 (Vic) under which dealings of land are registered. The statement from the LTO shows that VCG held 19 of 20 shares and Anthony the remaining share. Aussie Home Loans was registered as the mortgagee.[79]
[76] I note that there is a difference at law between owning property jointly and as tenants in common. The parties did not address, and I have not considered, whether the criterion in s 4(3)(a)(i) refers to the concept of joint ownership in its legal sense or more broadly in its more general sense of its owner being joined or associated in some way in their ownership of the property.
[77] T documents, 185
[78] T documents, 95
[79] T documents, 184-185

Anthony signed a letter dated 23 April 2002 stating that he relinquished any claim to the home property for the following reasons:
“I am on this day stating that I am not on the title to gain any profit or claim to any part of the said property now or at any stage in the future.
I am only Guarantor Purely to help … [VCG] to gain access to funds from a finance company to enable her to pay out her ex-husband and not to have to sell the property to do so.
I am not at any stage responsible for any costs relating to maintenance or the upkeep of the said property, this is the responsibility of the owner of the said property … [vcg] and I am not responsible for any improvements to that property.”[80]
[80] T documents, 179

The authenticity of this letter was questioned but I accept it as having been written by Anthony on or about the date shown on its face. It is consistent with the evidence that both he and VCG gave that he was intended, in their eyes, to be no more than a guarantor of repayment of the loan by VCG. Anthony’s name was added to the title at the insistence of Aussie Home Loans. The letter is consistent too with their description of themselves as “separated” as they were separated from their spouses. There was no suggestion of their living together apart from their having a common address. It is consistent with Anthony’s having only a one twentieth interest in the house and then only as a tenant in common with her. As tenants in common, neither would take title to the whole of the property were the other to die i.e neither had a right of survivorship. That is to be contrasted with the situation had they been joint tenants. In that case, each would have had a right of survivorship and each would have inherited the other’s share upon the other’s death. That they chose to be tenants in common reflects a wish to maintain the separateness of their financial interest in the home property. I am satisfied that, at least at this stage, the home property was regarded by both of them as VCG’s property and Anthony wished to have no part of it. His assistance was intended to be intangible rather than directed to his acquiring an asset.

On the basis of the statement of the LTO, I find that VCG became the sole registered proprietor of the home property on 6 January 2006.

B. “Investment Property A” and “Investment Property B”

I accept the evidence of VCG that she attended a seminar relating to property investment some years ago. She thought that investment in property would enable her to put something aside for herself and her children. I accept the evidence of both VCG and Anthony that she spoke to him about it and he told her that they should look into it further. VCG understood that she did not need to pay out any money to invest. Ultimately, I find, they decided to invest in property together. They approached Required Finance Pty Ltd (Required Finance) for a loan of $171,500. The purpose was stated to be “Investment”. They completed a loan application on 29 July 2003.[81] Each ticked the “married” box when asked their marital status and showed the same residential address. Only Anthony’s income was shown as none was shown for VCG. The security offered was the home property and it would stand in the name of both VCG and Anthony. VCG and Anthony opened a joint bank account with the Bendigo Bank. On 30 July 2003, they signed a direct debit request to pay Perpetual Trustees Victoria Limited (Perpetual). They said that the purpose of the joint account was to pay the mortgage payments on Investment Property A and to refinance the loan on the home property.
[81] T documents, 72-75

On 2 September 2003, VCG and Anthony applied for a second loan with Required Finance[82]. This time, each was shown on the application form as “Defacto”. The purpose of the loan, which was for the sum of $64,000, was again noted to be “Investment”. Again, VCG and Anthony signed a direct debit request to pay Perpetual from their joint bank account with the Bendigo Bank.[83] I find that they used this loan to purchase Investment Property B.
[82] T documents, 77-79
[83] T documents, 80

The rent from the properties was paid into their joint account account. Since investment property A was sold in approximately 2004, only the rent from Investment Property B was paid into it. That was not enough to cover the mortgage payments. On the evidence given by Anthony, I find that sometimes, they had enough money in the joint account to pay the mortgage but, at other times, did not. When they did not, none of the money would be debited from the account. Instead, they received a notification that the payment had not been met and incurred a $40 fee. They would then each pay half of the amount owing. It was Anthony’s understanding that VCG would pay the amount herself or would be assisted by her children. VCG confirmed that this was so. Her children would assist her if she did not have enough money to pay the mortgage on Investment Property B. That was in addition to the assistance her son gave her from time to time to pay the mortgage on the home property. In the absence of any evidence to the contrary and in light of its not being inherently flawed, I accept that VCG and Anthony met the mortgage payments in respect of Investment Property B equally. VCG might be assisted by her son in meeting the payment but never by Anthony.

Meeting VCG’s liabilities and their household expenses

After summarising aspects of the evidence relating to the way in which VCG meets her liabilities, Mr Mosby submitted that:
“the applicant gave evidence that even though her son may help her with mortgage repayments, she is still primarily responsible for all other household expenses such as purchasing groceries and paying bills … Whilst the applicant has credit cards, she has a debt of around $1000. Because of the cumulative evidence, it is reasonable to assume that she either has another income stream, which she has not admitted to or, more likely, …[Anthony] assists her not only with the mortgage repayments on the … [Investment Property B] and … [home property], but also with the general household expenses such as groceries and utilities including rates. It is reasonable to assume that without this additional assistance, on the balance of probabilities, the applicant would, at the very least, be unable to afford to maintain her home as well as pay additional expenses such as the mortgage on the …[Investment Property B].”[84]
[84] Respondent’s submissions, [6.6(k)]

I do not agree with the conclusion that Mr Mosby reaches in relation to the sources of VCG’s income. I have omitted his references to the transcript but note that they do not necessarily refer to all of the evidence on the issues. Taking for example, the monetary contribution VCG’s son makes to his mother, Mr Mosby referred to the evidence VCG gave at lines 40 and 41of page 32 and line 22 of page 33 to support the following:
“the applicant claims that her son, who finished school in 2004, and works as a freight courier and also has a second job as a security guard, assists with mortgage repayments on …[the home property]. However, it was difficult to get a clear answer from the applicant as to whether the son makes payments in full or merely assists with repayments. At one point, the applicant indicated that he was giving her money every fortnight, but then said that it depends whether he pays the entire amount owing per month on the mortgage or just some. What the applicant did say was that he was only helping with the repayments on …[the home property]. …”[85]
[85] Respondent’s submissions, [6.6(j)]; footnotes omitted

That is so but there is more and those lines should be seen in their wider context of Mr Mosby’s cross-examination of VCG. Beginning on page 32, that wider context is:
“When both of your children were at school, it must have been quite a huge financial burden for you; is that correct?---Pardon?
When your kids were at school, the cost to you of having two teenage children at school would have been a lot?---Yes.
You would have had to buy school clothes; yes?---Yes.
School books?---Like, have them - yes.
Casual clothes, so clothes that they would need to wear or clothes that ---?---They buying for themselves.
How do they buy - did they - how could they afford to actually buy for themselves?---My kids working since 15.
That is very ---?---Part-time, school, and now my son full-time has two jobs. They're working - I am proud of my children. They're helping me.
They helped you?‑‑‑Yes. They bring in food to me at home.
But there were still expenses that you would have had to have taken care of, like your bills?---Yes.
Like your groceries?---Yes.
School clothes, school books for your children?---Mm.
What are you on at the moment in terms of income; do you receive any ---?---No, except $50 is what … [Anthony] giving rent, and what kids give me to pay bills, a little bit or nothing.
So they may give you - when you say your kids - so your daughter, what does your daughter do?---Waitress.
So sometimes they may give you money, yes?---No. They're not giving me money except to pay house off every fortnight. Otherwise they are buying their shopping and helping.
I am sorry. Just so I can get it clear in my mind; are they helping you to pay the house off?---Yes. My son giving me every fortnight.
How much does he give you?---Depends how much he giving to pay house. 338/350. But he is giving me 500. It depends.
But they don't give you money to pay for any other things?---Sometime, yes, if they got. If not, I got plenty bills here. What some electricity, gas or things. Even … [Anthony] can prove because they call him and I couldn't afford to buy nine hundred something, thousand, because the long-term I can't afford to pay. I use my credit cards until I can. Now it is over limit.
…
Do you still have credit cards? --- Yes, I do. Because I have to pay them off. But I can’t use it. It is over limit.
So, just to again get it clear, you received $50 a week income. Rent, from … [Anthony], yes?---Yes.
Your children or your son, primarily, helps you ---?---Yes.
---with payment of your mortgage?---Yes.
Does he actually pay for all of the mortgage or just some?---Depends.
Depends on what?---I am getting monthly child support for my daughter.
See you didn't say that before. When I ask you if you had any income ---?---You didn't ask me about child support.
I asked you what moneys?---But that is monthly.
So you receive monthly child support?---Yes, yes.
How much do you get per month?---I am not sure. 380, 450 - something like that.
Can I just suggest to you that you seem to be financially - you don't have a huge income coming in. You don't have a large income. You are basically living on $50 a week rent plus your monthly child support?---Yes.
…
… You would pay at least $100 on additional – on the … [Investment Property B]? --- Yes. If we have to put the – yes. And that mean I don’t have no money from that.
So, effectively, your son is paying the mortgages on your … [home property]? --- Yes.
And your share of …[Investment Property B]? --- Well, if he can give for that – if not I am putting from child support. That is their moneys.
THE D. PRESIDENT: Are you up to date with the mortgage payments for …[Investment Property B]? --- No
How far behind are you? --- I am not sure now but we are – they send a letter - four hundred something I have to put there between us two. And I have to keep going not to lose my house but how things are going, probably I going to lose everything. And because I am going well with my mortgage every fortnight.”[86]
[86] Transcript, 32-35

I refer also to VCG’s evidence regarding her paying the rates in respect of the home property and the essential services such as gas and electricity. Anthony played no part in meeting them, she said. In so far as the house was concerned, that was so because Anthony had nothing to do with it despite his name being on the title. His name was only on the title because he was effectively a guarantor of the loan.[87]
[87] Transcript, 30-31

Having regard to the whole of the passage I have set out from the transcript, I have formed a very different view from that submitted by Mr Mosby. I am satisfied that VCG is receiving money from her children in varying amounts to meet varying expenses as they fall due. Her son is effectively meeting the mortgage on the home property by holding two jobs and foregoing his tertiary education. Her daughter is also assisting. If she is unable to meet her share of the mortgage payments on Investment Property B from her child support payments, her son assists her in so far as he can. Her children also pay for some food but she still sees expenses such as groceries and essential services to the house as her responsibility. VCG struggles to meet the payments as they fall due but is not succeeding even with the assistance of her children and the more recent contribution of $50 per week from Anthony. Her credit card is beyond its limit and she can no longer use it to make payments, she and Anthony are both behind in the payments of the mortgage on Investment Property B and she fears losing that property.

If, as Mr Mosby submits, Anthony were assisting her to make the payments, it could be expected that she would not be in this position. That she is in this position lends support to my finding, as I do, that Anthony is not assisting her to meet her liabilities or her general living expenses. His payment of $50 per week should not be seen in that light but as payment for his accommodation. His not paying that amount at an earlier time does not, in my view, lead me to conclude that he must have been assisting her. At the hearing, I formed the impression that VCG is a proud woman who has a strong view of what is her responsibility and what is not. Anthony had already enabled her to hold on to her home property when she separated from her husband. That had not required him to part with any money but simply to lend his name and, potentially more onerously, to expose himself to future liability. It is consistent with my impression of her that she would not turn to him for payment of what she saw as expenses relating to her and her family.

The nature of the household

I have already referred to evidence regarding Anthony’s living arrangements. In view of the evidence of VCG’s friend, whom I will call Sally, that I have set out below,[88] I am satisfied that Anthony lives in the garage at the home property. He will enter the main house if invited but that is rarely. He has not paid rent until recent times but, since he has lived at the home property, I find, Anthony has done a number of jobs around the house. Those jobs have included mowing the lawn, gardening and painting the house. VCG could not do that work herself as it was too heavy but she paid for the petrol for the lawnmower and the paint for the house. Her stated reason for doing so was that it was her house. She did not charge Anthony rent but regarded his work as being in place of rent. Had she been required to pay for the work to be done, she could not have afforded to have it done.
[88] see [72]-[74] below

There is no question that Anthony received a Carer Allowance for a period of two or three months in 2004. That occurred after VCG had undergone carpal tunnel operations on both her hands and a hernia operation. In cross-examination, VCG said:
“… I need the help when I - there was - for Centrelink when I don’t want to get carer payment because of my operation, nearly only I was stuck. I couldn't drive car. Both of the hands in a bandage. I couldn’t walk because stitches. I couldn’t sit properly because of other operation. I am sorry. But as a friend, yes, he was always there when I need him and ask him for.”[89]

Anthony said that he helped by picking up the children from school, cleaning and washing the dishes. Miss VCG did some vacuuming at the time. I accept his evidence and make findings accordingly.

[89] Transcript, 39

The social aspects of the relationship

VCG was questioned about her being described as “married” and as “de facto” in the loan applications. She said that she had never stated that to Required Finance[90] and that she had not noticed those statements when she signed the forms.[91] She had explained her situation to Required Finance at the time and referred to a letter of apology the Mortgage Manager of that firm had later sent to her. It reads, in so far as it is relevant:
“We first made application to Interstar Wholesale on your behalf in August 2003. The purpose of the application was to refinance your Aussie Home Loan mortgage and provide additional funds to purchase an investment property.
I recall at the time that … [VCG] advised that … [Anthony’s] name had been included on her Title to [the home property] as a means of obtaining sufficient funds through Aussie Home Loans to effect a matrimonial settlement with her former husband. I do recall you advising that you were not living in a de facto relationship.
As a consequence, I am unable to explain why the application form listed you as married (obviously not the case) and a later application recorded a de facto relationship. I suspect that the error on the first application was carried through to subsequent applications.
We apologise for any inconvenience that has occurred as a result of this error.”[92]
[90] Transcript, 14
[91] Transcript, 43-44
[92] T documents, 188

The letter, dated 13 February 2006 is entirely consistent with VCG’s evidence. The Mortgage Manager was not required to attend the hearing for cross-examination. Consequently, I accept the evidence that VCG and Anthony did not hold themselves out as married to each other or as being in a de facto relationship. On the contrary, they presented themselves as individuals embarking on a joint investment.

Anthony said that he and VCG had been to a couple of traditional dances but that had been when she and her children had been taking part in them and she could not drive. VCG said that Anthony has also driven her to pick up her children after she had undergone surgery and could not drive.[93] He has done that more than once but only when she has been sick and he has also taken them to the movies. Anthony said that VCG was always in the car when he drove the children. From time to time, Anthony has helped VCG’s daughter with her homework and spoken with her son about cars. I accept their evidence, which was unshaken in cross-examination, consistent with each other and internally consistent.
[93] Transcript, 39-40

I also accept their evidence that they have spent two Christmases together but that that came about because he was simply at the home property on the day. They did not exchange presents and he did not give the children presents. He gave her no money.

I also accept their evidence that they travelled to Queensland together. VCG and her children travelled in one car with Anthony and Anthony’s sister and brother in law travelled in another. VCG explained how that came about in the following exchange with Mr Robertson:
“Okay. And can you explain to the Tribunal the events leading up to you going to Queensland with … [Anthony]? What was … [Anthony] going - what do you believe …[Anthony] was going there for?---… [Anthony] was going there, to Queensland for, looking for a job.
Right. So he wasn’t going there for a holiday?---No.
Okay?---I’d never been on holiday in my life, I’d never gone to Queensland. I asked him to come in and travel with him and the kids.
Right?---And he agreed if I got money to buy for a holiday, to go, but not to disturb his life.”[94]
[94] Transcript, 18

Anthony gave evidence to the same effect. In cross-examination, VCG explained that she went to Queensland on holiday.[95] Miss VCG confirmed that Anthony stayed in one room and she, her mother and brother in another when they stayed overnight on the trip. She spoke with the woman who travelled in the other car when they stopped but she did not realise that she was Anthony’s sister until they reached Queensland. When asked whether she thought it strange that she had not explored how the woman had come to know Anthony, VCG replied:
“No, because I don't need to know.
So ---?---I am friends with …[Anthony].
But you are travelling in a group?---Yes, we talk. We talk. We joke and we laugh.”[96]
[95] Transcript, 41
[96] Transcript, 43

Again, I accept their evidence. It was not challenged and makes sense. Certainly, there would be many people who would ask each other how they came to know the people they knew in common. But everybody is not the same. Some do not need to know and some think that they be imposing on other peoples’ privacy. Yet others think that all will be revealed in due course without their hastening the process by asking questions. The fact that a person’s approach is different from another’s does not mean that the person should not be believed. I accept her evidence that she went for the holiday and that Anthony and she went their own ways in Queensland. He looked for a job and she had a holiday.

VCG’s friend, Sally, said that she met VCG about three years ago at a social function held weekly at a community hall. They started meeting for coffee at the shopping centre and their friendship developed. They are now very close friends and, in the past year, Sally has visited VCG two or three evenings a week and several times during the day. Sally described her visits:
“Okay, can you describe to the Tribunal what a typical, say, evening would be with VCG?---Well, I would get there sometimes late, I went - I go to bingo and bingo would finish around 10.30 and I mean - I would call and she was up and I would say - and she would say, ‘Come on down.’ So I would go down and we would have coffee and we would be watching DVDs and films and just carrying on and sometimes we would be there for hours.
Now, is that at VCGs house?---Yes, at VCGs house.
During the day, what kind of - when you met during the day, what sort of things would you do?---Well, I would go down there - sometimes I would go down there, like, for breakfast - I am going into … [VCG’s suburb] and VCG would make some pancakes and she would say, ‘Let’s have some pancakes.’ And make some pancakes and I would probably be there for maybe two hours, three, maybe.”[97]
[97] Transcript, 70

During her visits, Sally said, she saw Anthony inside the house on only one occasion. That occasion coincided with Mr Robertson’s own visit to the home property. She gave no evidence of having seen Anthony at the functions at the community hall. Certainly, she was not asked that question but, despite that, her evidence supports the statements made by VCG and Anthony that they do not have a relationship that extends beyond friendship. Given the length and timing of Sally’s visits, it would be expected that she would see Anthony in the house were he and VCG having a relationship extending beyond friendship. Anthony gave evidence of his working hours and they required early morning starts but left his evenings free. VCG’s invitations to Sally to visit her in the late evening and to stay for hours watching DVDs is not consistent with her being in a more intimate relationship with Anthony than that of friendship. Rather, it is consistent with someone who does not need to consider a partner.

Sexual relationship between the people

Mr Mosby submitted that:
“The applicant contends that she has never had a sexual relationship with …[Anthony] [T2, p14]. However, in light of all the evidence, it is reasonable to assume that on the balance of probabilities, the applicant and …[Anthony] may be in a sexual relationship.”[98]

He made this submission in the face of their clear denials that this was the case and without developing a submission as to what evidence I should prefer over other evidence in order to reach that conclusion. Having regard to the evidence overall, I am not satisfied that VCG and Anthony are in a sexual relationship. In reaching that conclusion, I take into account their denials, the sleeping arrangements that I have found existed on the trip to Queensland and the sleeping and general domestic arrangements that I find exist at the home property. I have also taken into account Sally’s extended visits at hours of the day and night. For those in a marriage-like relationship, such visits might be regarded as unwelcome or at least unwelcome on some occasions. As it is, they are visits that are clearly welcomed.

[98] Respondent’s submissions, [7.10]

Nature of the commitment

On the basis of her statement in her letter to the ARO, I find that VCG regards Anthony as a great friend who gives her peace of mind and who has helped her and her children.[99] I am satisfied that the arrangement is likely to continue for as long as VCG has the home property. Since approximately September 2005, I find that he has been paying rent to VCG. At first the amount was $40 each week but it then rose to $50[100].
[99] T documents, 120
[100] Transcript, 91

The reason why I have reached that conclusion lies in Anthony’s evidence that he could not afford to move elsewhere. Despite receiving a net payment after taxation of approximately $984 each week since 5 July 2004, he pays his boss $400 of it in order to repay a loan. He obtained that loan to pay out the debts he incurred when he started his own business after his return from Queensland. The business had been unsuccessful and returned nothing like the $75,000 that had been shown in the loan applications as his estimated income. On top of his repaying the loan, Anthony is committed to repaying his half of the mortgage payments on Investment Property B. They amount to over $700 a month but are reduced by weekly payments of rent of $125.[101] His share is $100 each month but the only evidence that I have is that they are not meeting their repayments. It might be thought that he would have just enough to find his own accommodation but there was no detailed investigation of the way in which he spent his money. If he were to move out of his present accommodation, he could presumably find rental accommodation but he would have to find the bond money as well as weekly rental payments far above that which he presently pays.
[101] Transcript, 34-35

I have been given no evidence to contradict Anthony’s evidence that he cannot afford to move. In light of that, I do not consider that his decision to remain is of any great weight in my assessing the nature of his commitment to VCG. Quite apart from any emotional aspect, to which I will turn shortly, financial considerations dictate that he remain where he is for as long as he can.

VCG and Anthony do not, I find, regard themselves as in a marriage-like relationship. Certainly, VCG has relied upon Anthony in times of trouble for periods of time. At the same time, Anthony has not gone “unrewarded” as it were. When he cared for her after her operations, he received a Carer Allowance. In return for doing work around the home property, he has lived in simple accommodation very cheaply. That is not to say that they saw the arrangements in terms of reward. Rather, they saw the arrangement as one that suited friends who helped each other. That is consistent with the criteria that must be met for the payment of a Carer Allowance as its payment is not limited to those who care for a family member.

Are VCG and Anthony in a marriage-like relationship?

There may be some who are, with the level of commitment that VCG and Anthony show each other, in a marriage-like relationship. There may be those who are married or who are in a marriage-like relationship who show each other less commitment. As I have said earlier, I need to have regard to the whole relationship. Certainly, they have embarked on joint investments but, otherwise, they have kept their financial affairs separate. VCG sees the day to day living expenses as her expenses and her obligations under the mortgages as obligations to be met by her and her children; not by Anthony. She pays for consumables that he uses in assisting her in maintaining the home property.

They are committed to helping each other. He by assisting her to save her home and by caring for her and she by providing him with affordable accommodation in exchange for some work around the property that she cannot do herself. There is some interaction between him and the children but it is not an interaction of the sort or the depth that could be expected of a person who is their mother’s partner. There is some interaction between VCG and Anthony but there is no evidence of their having the social interaction or engaging in the joint planning that could be expected of “life partners” as opposed to friends sharing some joint ventures. Their lives are quite separate. A four day trip by road to and from Queensland accompanied by her children and his sister and brother in law and accommodated in separate rooms overnight at motels does not raise the relationship from friends to another level. It smacks of convenience and not of romance.

Having regard to all of the circumstances specified in s 4(3) of the SS Act and otherwise, I am not satisfied that VCG and Anthony are in a marriage-like relationship. Their relationship is one of commitment to each other as friends. The strength of a friendship can vary as can the lengths that friends will go to in order to assist each other. In assisting the other, they may assist themselves in tangible or intangible ways. Alternatively, there may be no discernible advantage at all to the person assisting the other at a particular time. The actions of friends may be no more than an aspect of a very understandable desire to do the right thing by others. In this case, Anthony has gone further than some friends might do to assist VCG to pay her former husband but no further than others might do. He exposed himself to a liability but, holding only a one twentieth share of the property and in relinquishing any claim to it, clearly did not contemplate any personal advantage of any sort for himself. VCG and Anthony have engaged in a common purpose in acquiring investment properties. Their venture has been without success but, apart from entering the venture, they have met their commitments separately. For the reasons I have given earlier, I am satisfied that they did not present themselves as a married or de facto couple in obtaining the loans.

All of these matters lead me to conclude that the friendship between VCG and Anthony is one of strong commitment but that it does not have the sense of union or common purpose that is inherent in the notion of marriage and so in the notion of something resembling or typical of marriage. It has neither a physical nor a spiritual bonding. It does not have a sense of union or joinder that transcends particular activities or enterprises. As I have said, there are many notions in inherent in the concept of marriage but I am not satisfied that any of those notions are present in this case. Anthony is looking to people other than VCG to meet his emotional needs. The arrangement gives VCG peace of mind to have a man at the home property. Anthony does work around the home property but that is entirely consistent with the actions of a person who has accommodation rent free and with a person who pays some regard to his surroundings. The arrangement they have come to suits both of them in the meantime and perhaps for a long time to come. It remains, though, a relationship of friendship and not a relationship that is marriage-like.

It follows that I find that VCG is neither a member of a couple nor partnered for the purposes of the SS Act. She was entitled to be paid DSP at the single rate for the whole of the period.

For the reasons I have given, I:
1.set aside the decision of the Social Security Appeals Tribunal dated 16 February 2006 affirming a decision of a delegate of the respondent dated 7 September 2004; and

2.substitute a decision that:
(1)the applicant is not a member of a couple for the purposes of the SS Act;
(2)the amount of Disability Support Pension payable to the applicant should be calculated on the basis that she is not a member of a couple since 8 April 2004; and
(3)the applicant has not been overpaid payments of Disability Support Pension from 2 July 2002 to 22 September 2005.

I certify that the eighty-four preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,

Signed: ...............................................................

Jayne Rathjen Associate

Date of Hearing  21 September 2006
Date of Decision  10 November 2006
For the Applicant  Mr C. Robertson
Solicitor for the Respondent         Mr T. Mosby
  C/- Clayton Utz

“Where 2 people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis (see points 1064-E2, 1064-F2 and 1064-G2 below). They will also be treated as sharing expenses (e.g. for rent) on a 50/50 basis (see points 1064-D7 and 1064-D8 below).

“… Other women are lawful to you, so long as you seek them in marriage, with gifts from your property, looking for wedlock rather than fornication. If you wish to enjoy women through marriage, give them their bride-gift – this is obligatory – though if you should choose mutually, after fulfilling this obligation, to do otherwise [with the bride-gift], you will not be blamed: God is all knowing and all wise.” The Qur’an, 4:24, translated by M A S Abdel Haleem, Oxford University Press, 2004, reprinted 2005. Reference should also be made to 30:21: “Another of his signs is that He created spouses from among yourselves for you to live with in tranquillity: He ordained love and kindness between you. There are truly signs in this for those who reflect.” See also Islam Its law and society, Jamila Hussain, 2^nd edition, Federation Press, 2004, 91.