Wheeler and Secretary, Department of Family and Community Services

[2005] AATA 561

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 561

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1498

GENERAL ADMINISTRATIVE DIVISION		)
Re		BEN WHEELER

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Bell, Senior Member

Date14 June 2005

PlaceSydney

Decision The decision under review is affirmed.

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

Ms N Bell   Senior Member

SOCIAL SECURITY – Claim for Sickness Allowance – Applicant Ineligible Based on Income of Girlfriend – Applicant Found to be in a Marriage-Like Relationship – Decision Under Review Affirmed

Social Security Act 1991, section 4

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

REASONS FOR DECISION

14 June 2005 Ms N Bell, Senior Member

1.      Mr Wheeler lodged a claim for sickness allowance in July 2004.  His claim was rejected by Centrelink due to the earnings of Ms Wakelin.  Centrelink considered that Mr Wheeler and Ms Wakelin were in a marriage-like relationship and so took into account her income of approximately $60,000 per year when determining whether sickness allowance was payable to Mr Wheeler.  A review by an Authorised Review Officer affirmed this decision and the decision was also affirmed by the Social Security Appeals Tribunal (SSAT).

issue

2. The issue for me to consider in this application is whether Mr Wheeler and Ms Wakelin were, at the relevant time, living in a marriage like relationship. Section 4(3) of the Social Security Act1991 (“the Act”) sets out a range of factors to which I must have regard in forming such an opinion.

3. Section 4(3) of the Act provides:

Family relationships definitions—couples

Member of a couple—criteria for forming opinion about relationship

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

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

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

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

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

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

(b) the nature of the household, including:

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

(ii) the living arrangements of the people; and

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

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

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

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

(iii) the basis on which the people make plans for, or engage in, joint social activities;

(d) any sexual relationship between the people;

(e) the nature of the people's commitment to each other, including:

(i) the length of the relationship; and

(ii) the nature of any companionship and emotional support that the people provide to each other; and

(iii) whether the people consider that the relationship is likely to continue indefinitely; and

(iv) whether the people see their relationship as a marriage-like relationship.

4.      I am mindful, in this exercise, of the comments made by the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 in which the Court, after listing a number of matters relevant to the question of whether a married couple are living separately and apart, said:

“It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case.  It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators.  The tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

21.  It should, of course, be clearly understood that no tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list.  The personal circumstances of people vary substantially.  The responsibility of the tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations.  If the tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.”

evidence

5.      The following is based on Mr Wheeler’s evidence to the Tribunal and is largely not in dispute.

6.      Mr Wheeler met Ms Wakelin in New Zealand while on a working holiday in August 2003 and in October of that year Mr Wheeler and Ms Wakelin returned to Australia.  Mr Wheeler had been living in Brisbane and Ms Wakelin had been living in her parents’ home on the South Coast of New South Wales.  They decided to move to Sydney and, on Mr Wheeler’s part, this was in order to be with Ms Wakelin.  However, he added there was “nothing keeping me in Brisbane”.

7.      Ms Wakelin went to Sydney first and took out a lease with her friend, Justin with a view to Mr Wheeler joining them in the two bedroom flat.  Mr Wheeler said that had he been present at the time the lease was signed, he would have signed it as well.  Mr Wheeler then resigned from his job in Brisbane and, having moved to Sydney in December 2003, found a job as a manager at a liquor store in February 2004.  Ms Wakelin was working as a freelance editor for a publishing company.

8.      In June 2004 Mr Wheeler developed acute appendicitis, had an appendectomy and took some five weeks off work.  He received only one week sick leave from his employer and so claimed a sickness allowance from Centrelink.

9.      The total rent on the unit Mr Wheeler and Ms Wakelin shared with Justin was approximately $440 per week.  Mr Wheeler paid $105 or $110 per week, as did Ms Wakelin and the remainder of the rent was paid by Justin.  Mr Wheeler and Ms Wakelin did not and do not have any joint bank accounts, joint assets or joint liabilities.  Utility bills and remaining household expenses were split between the three tenants.  Mr Wheeler and Ms Wakelin did not go shopping together but would, when buying food for dinner, buy sufficient to feed the other.  Mr Wheeler and Ms Wakelin shared the same bedroom and common areas of the house and continue to have an ongoing sexual relationship.  That relationship was and continues to be an exclusive one.  Within the household, chores were shared between the three of them.

10.     Mr Wheeler and Ms Wakelin socialise together and are known to each other’s family as a couple.  They also socialise separately.  Mr Wheeler and Ms Wakelin provided, and continue to provide, each other with emotional support.  Mr Wheeler and Ms Wakelin had, and continued to have a serious and committed relationship.  

11.     When Mr Wheeler was sick following his appendectomy, Ms Wakelin provided him with no financial support.  He survived on some payments by his parents and by using his credit card.  At a time of his illness, Mr Wheeler’s mother came to Sydney from Brisbane to look after him.  Ms Wakelin was unable to do so because she had to work.  Ms Wakelin offered to lend Mr Wheeler some money when he was sick but he did not accept this offer.

12.     Mr Wheeler told the Tribunal that he and Ms Wakelin do each others’ washing whenever there is a pile that needs to be done.  He also told the Tribunal that he and Ms Wakelin had moved together to another address in Coogee because their friend Justin had moved out of Sydney.  Now he and Ms Wakelin live alone together.  Mr Wheeler also told the Tribunal that he plans to go overseas in February for approximately 18 months.  He said that Ms Wakelin will not be joining him.  He said he set the date for his departure approximately one month ago and has been thinking about it for about six months.

13.     Mr Wheeler submitted that because of his and Ms Wakelin’s financial independence their relationship was one of “boyfriend and girlfriend” rather than “marriage” or “de facto”.  When asked by the Tribunal what he though the defining characteristics of a marriage like relationship were, he answered “financial dependence”.

consideration

14.     I am satisfied that Mr Wheeler and Ms Wakelin are largely financially independent of each other.  I accept that he received no financial support from Ms Wakelin during his period of illness.  However there are some aspects of their circumstances which indicate a limited pooling of resources such as the proportion of the rent on the unit shared with Justin that was paid by them.  I accept Mr Wheeler’s evidence that Justin received a rent subsidy from his employer and for that reason paid a greater proportion of the rent.  However, by virtue of their particular relationship and their ability, because of that relationship, to share a bedroom, Mr Wheeler and Ms Wakelin were in a position to make some economies.  In addition, there is some pooling of resources in buying food.  I accept that these matters are minor and somewhat incidental but these small economies could not be made if Mr Wheeler and Ms Wakelin were not a couple.

15.     The nature of the household as shared by Mr Wheeler and Ms Wakelin was, at the relevant time, a shared household in a unit.  However they shared a bedroom, and continued to do so in their current accommodation, and from Mr Wheeler’s evidence, they shared some household tasks, such as laundry and cooking, for the benefit of each other.  Importantly, they shared a bedroom as a couple.  In terms of the social aspects of Mr Wheeler’s and Ms Wakelin’s relationship, they held themselves out as a couple to their friends.  Mr Wheeler’s evidence was that their families regarded them as a couple and they were engaged in joined social activities.

16.     There is an ongoing sexual relationship between Mr Wheeler and Ms Wakelin. Mr Wheeler’s evidence was that the sexual relationship is an exclusive one.

17.     Mr Wheeler’s evidence was that he and Ms Wakelin are committed to each other.  He said they provided each other with emotional support.  He had no difficulty in describing himself and Ms Wakelin as a couple.  However he drew a distinction between the status being “girlfriend” and that being a “de facto” couple in a marriage like relationship.

18. For the purposes of the relevant provisions of the Act, the distinction made by Mr Wheeler has no effect. I am required to look at the totality of the evidence and in that regard to the factors or indicators set out in section 4(3). It does not matter to characterisation of a relationship as marriage like that one factor or indicator is not made out. The financial independence present in Mr Wheeler’s and Ms Wakelin’s relationship is not unusual in couples not legally married or, indeed, in couples who are legally married. It is a feature of many modern marriage-like relationships. For that reason, and given their commitment to each other, the way they present themselves to family and friends and their living arrangements, I consider Mr Wheeler and Ms Wakelin to have been and continue to be in a marriage like relationship within the meaning of the Act.

19.     A further matter needs to be addressed.  Mr Wheeler gave evidence that it is his intention to depart overseas, without Ms Wakelin, in February.  He described this intention as having been formalised approximately one month ago and having begun to consider doing so approximately six months ago.  I note that the decision of the SSAT which it is my task review was made on 21 October 2004.  That is more than six months prior to the date of his hearing.  I note that the original decision which was affirmed internally and affirmed by the SSAT was made on 7 July 2004.  There is no evidence to suggest that at the time the decision was made Mr Wheeler had an intention of leaving Australia without Ms Wakelin.  For that reason his intention to do so, conveyed at the hearing, has no bearing on my assessment of the nature of his relationship with Ms Wakelin at the time the original decision was made.

20.     It follows that I consider that it was correct for Mr Wheeler and Ms Wakelin to be considered to be in a marriage like relationship at the time of his claim for sickness allowance.  It follows that I consider that it was correct that Ms Wakelin’s income be taken into account in considering whether sickness allowance was payable to Mr Wheeler.

decision

21.     The decision under review is affirmed.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         .............[Linda Blue].................................
  Associate

Date of Hearing  31 May 2005
Date of Decision  14 June 2005
Applicant  Self-Represented
Advocate for the Respondent   Mr G Lozynsky