Whyte and Secretary, Department of Social Services (Social services second review) - [2023] AATA 1092

Whyte and Secretary, Department of Social Services (Social services second review) [2023] AATA 1092 (16 February 2023)
Division:GENERAL DIVISION
File Number(s):2022/1268
Re:Graeme Whyte
APPLICANT

AndSecretary,Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member G Lazanas
Date:16 February 2023
Place:Sydney

The Tribunal affirms the decision under review dated 6 January 2022.
............................[SGD]............................................
Senior Member G Lazanas
CATCHWORDS
SOCIAL SERVICES – JobSeeker Payment – partner rate – member of a couple – de facto relationship – no single determinative factor – financial aspects of the relationship –– pooling of financial resources – social aspects of the relationship – nature of commitment – companionship and emotional support – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 4(2), 4(3), 4(3A)
Cases
Secretary, Department of Family and Community Services and VHB and Anor [2006] AATA 1
Ford and Secretary, Department of Family and Community Services [2003] AATA 7
DEWHURST AND ANOR AND SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS AND ANOR [2010] AATA 512
REASONS FOR DECISION
Senior Member G Lazanas
16 February 2023
INTRODUCTION

On 24 January 2022, Mr Graeme Whyte (the Applicant) applied to this Tribunal, the General Division of the Administrative Appeals Tribunal (AAT2), for review of the decision made by the Social Services and Child Support Division of the Tribunal (AAT1) on 6 January 2022 in relation to a decision made by Services Australia (the Agency). The AAT1 had decided that under the Social Security Act 1991 (Cth) (the Act) the Applicant is ‘a member of a couple’ and, therefore, to be paid the JobSeeker Payment at the partnered rate.
Mr Whyte disputes the AAT1 decision. He argued that it is incorrect because it is based on a form that he had completed in 2015 for a disability support pension. He says he incorrectly declared that Ms Jitraporn Sae-Sueng (Ms Sae-Sueng) was his partner based on information provided to him by Centrelink (as the Agency was known at the time). Mr Whyte also stated that in subsequent forms lodged with the Agency he continued to refer to Ms Sae-Sueng as his partner because he considered it was necessary for him to adopt the same terminology. Mr Whyte maintains that Ms Sae-Sueng is not his partner nor his girlfriend and that although they have lived together for nearly a continuous period of over 28 years, they are financially and socially independent of each other.
I have decided to affirm the decision of the AAT1 on the basis that the evidence supports the position that Mr Whyte is a member of a couple for the purposes of the Act.
THE FACTUAL AND PROCEDURAL BACKGROUND
The following facts are based on the evidence of Mr Whyte who gave evidence and was cross-examined at the hearing on 16 January 2023 as well as the T-Documents (including Supplementary T-Documents filed by the Secretary, Department of Social Services (the Respondent)). At the hearing the Respondent also produced an updated address listing document for Mr Whyte. That document showed that Mr Whyte had informed the Agency that he had moved out of the home he had been living with Ms Sae-Sueng into another unit for approximately 8 months, although Mr Whyte clarified at the hearing that he had moved out for only about 2 months. He had since moved back in with Ms Sae-Sueng.
Mr Whyte is 65 years of age and currently unemployed although he stated that on occasions, he does some casual work. Ms Sae-Sueng is approximately 54 years of age.
On 21 December 2015, Mr Whyte lodged a claim for disability support pension with the Agency, relevantly declaring that his ‘partner’ was Ms Sae-Sueng. He also declared that he lived in the same home as Ms Sae-Sueng and that from March 2009, he and Ms Sae-Sueng paid $525 per quarter for strata bills. Mr Whyte listed his medical conditions as arthritis, osteoarthritis of the left knee, obesity, and DVT. A disability support pension was not granted.
On 21 December 2015, Mr Whyte lodged an Income and Assets form with the Agency, relevantly declaring that his ‘partner’ was Ms Sae-Sueng, and the current market value of household contents and personal effects was $10,000, of which he had a nil share. That is, Ms Sae-Sueng owned 100% of the household contents and personal effects.
On 15 June 2016, Mr Whyte lodged a claim for Newstart Allowance (now referred to as ‘JobSeeker Payment’ (JS Payment) with the Agency, declaring his relationship status as “[p]artnered and currently living together”. He also noted that his partner was Ms Sae-Sueng, the relationship date was 8 April 2016 and he and Ms Sae-Sueng “own or are paying a mortgage for the home”.
Also on 15 June 2016, Mr Whyte lodged an Authorising a Person or Organisation to enquire or act on your behalf form with the Agency declaring that Ms Sae-Sueng was his ‘partner’. Mr Whyte nominated Ms Sae-Sueng as the contact person and stated this arrangement was to last indefinitely.
Separately, on 15 June 2016, Ms Sae-Sueng submitted a Claim for Carer Payment form with the Applicant being the care receiver. Ms Sae-Sueng reported that Mr Whyte was receiving care for various tasks, including toilet use and stairs. The carer payment claim was not granted by the Agency.
Additionally, on 15 June 2016, Ms Sae-Sueng lodged an Income and Assets form with the Agency declaring that her ‘partner’ was the Applicant.
On 27 January 2017, Ms Sae-Sueng lodged a Business Details form, recording that her ‘partner’ was Mr Whyte and that she was not looking for full-time work as “[p]artner claiming for disability Benefit. Have applied for careers [sic] benefit.”
On 9 July 2020, Mr Whyte lodged a Relationship Details form, providing details of his relationship with Ms Sae-Sueng. He stated that he and Ms Sae-Sueng were workmates and he offered to share accommodation with her as she was having “trouble at home”. Further, he and Ms Sae-Sueng “are very good friends, company who both pay their own way”. He stated he has lived with Ms Sae-Sueng since 1995 and has an agreement with Ms Sae-Sueng where, in lieu of rent, he pays all the amenities such as strata levies, council rates, water, electricity and gas. Mr Whyte further stated that he has “not worked (2015) due to arthritis. The other person has paid”. Amongst other things, he also stated in the form that they eat different foods and cook their own meals; he suffered severe arthritis in 2016-2019; and Ms Sae-Sueng did everything for him “[t]ake me doctors, hospital and picked me up, shopping, washing”. Further, he added that Ms Sae-Sueng suffers from a bad back, and he helps her “where and when possible”; he and Ms Sae-Sueng went on a holiday together “2000 – 2 weeks in Hawaii, this is the only one”. As to other financial matters, Mr Whyte also added that they pay for their own food and housekeeping items are paid by whoever as needed, and he had nominated Ms Sae-Sueng as his beneficiary for his superannuation.
Mr Whyte also stated in that Relationship Details form that their relationship differs from a marriage as there is no sexual interaction and the relationship is companionship. He explained that they do their own things but, if needed, they are there for each other; and he believed the assessment that he and Ms Sae-Sueng were a couple was made by the interviewer “at the lodgement of forms for assistance”.
On 9 July 2020, Ms Sae-Sueng lodged a Relationship Details form in relation to Mr Whyte which relevantly provided that she moved in with Mr Whyte because of family problems and had lived with him since 1995 and they take turns to prepare the food to be eaten. She stated she pays for all the bills since Mr Whyte has been unable to work. Additionally, the relationship between her and Mr Whyte is purely friendship, and that they have their own friends. She further stated she has been helping Mr Whyte with his medical problems but is unsure how long she can continue due to her own medical issues.
On 19 August 2020, Mr Whyte requested an Authorised Review Officer (ARO) to review his relationship status. On 28 September 2020, the ARO affirmed the earlier decision that Mr Whyte was ‘a member of a couple’ with Ms Sae-Sueng and that his Newstart Allowance and JS Payments were to be calculated on the partnered basis from 16 June 2016 (first ARO decision).
On 2 December 2020, the AAT1 affirmed the ARO’s decision (first AAT1 decision). The first AAT1 decision relevantly accepted Mr Whyte’s evidence that there is no sexual relationship between him and Ms Sae-Sueng and that Mr Whyte has not paid rent, and only paid some of the bills when he can afford them. The AAT1 observed that the arrangement regarding the payment of rent and bills was “one of a number of significant factors in concluding that Miss Sae-Sueng and Mr Whyte were members of a couple and points to the pooling of resources”. The AAT1 also pointed to the fact that Ms Sae-Sueng was authorised to act on his behalf in Centrelink matters and the fact of an application for carer payment having been lodged by Ms Sae-Sueng was further support that they presented as members of a couple.
The AAT1 also found that the sale of a unit in Strathfield and the purchase of another unit in Strathfield South because “Mr Whyte was finding the stairs in the Strathfield property difficult to manage, as indicating a very strong commitment to the relationship”. The AAT1 concluded that “the relationship between Miss Sae-Sueng and Mr Whyte is one which contains many elements of dependence”.
It is appropriate at this juncture to briefly set out the history of the living arrangements. Since about 1995, Mr Whyte has lived together with Ms Sae-Sueng except for approximately two months in early 2022 (see [4] above). Initially, Mr Whyte and Ms Sae-Sueng were living together in an apartment in respect of which they shared equally the rent payments to a landlord.
Subsequently, Ms Sae-Sueng purchased an apartment in Strathfield where she and Mr Whyte lived together from about December 2015 to July 2016. The arrangement between them changed when Ms Sae-Sueng acquired the unit in her own name and was discharging her financial obligations regarding the purchase such that Mr Whyte would pay the council and water rates, strata levies and utilities. Ms Sae-Sueng later sold that apartment and purchased another apartment in Strathfield South into which Mr Whyte and Ms Sae-Sueng moved into from July 2016 (Strathfield South Apartment). The same financial arrangement between them continued.
As stated at [18] above, the AAT1 found it significant that Ms Sae-Sueng‘s purchase of another unit in Strathfield South was because Mr Whyte was finding the stairs in the other Strathfield property difficult to manage. At the hearing before me, however, Mr Whyte denied that Ms Sae-Sueng purchased the Strathfield South Apartment on account of him having difficulties with stairs and suggested that she sold and purchased another property because she could make a sizable profit on the Strathfield unit, and the Strathfield South Apartment had better facilities including a gymnasium.
At the hearing Mr Whyte also stated that Ms Sae-Sueng has had to cover the payment of the rates and utilities expenses on some occasions and that he would then pay Ms Sae-Sueng back when he received money. Mr Whyte stated that he has, more recently, been paying the rates and utilities expenses by resorting to his superannuation monies.
Mr Whyte stated that he moved out of the Strathfield South Apartment for a period of some 2 months in about February 2022 (although the Agency’s form indicated he had told them he had moved out for a period of 8 months). He stated at the hearing that the reason for him moving out into a one-bedroom apartment with another woman was because he was “going through a rough time” and he and Ms Sae-Sueng “had grown apart”. He said Ms Sae-Sueng “was putting pressure on [me] to find a job and to make some money”. He also stated that “she was behaving as though she were my mother” and although he was doing everything he could to get back into the workforce, he kept being refused jobs because he was too old.
Mr Whyte could not remember the name of the woman with whom he shared the one-bedroom apartment where he said he resided for approximately 2 months. He said she was a friend of a friend, but he elsewhere revealed in his statement filed with the Tribunal on 28 July 2022 that he is a loner and doesn’t share information about himself. The latter was the explanation Mr Whyte volunteered as to why he didn’t have any friends to verify his relationship status. He stated he paid $200 per week rent when he lived in the one-bedroom unit. He also stated that it didn’t work out because the arrangements with respect to separate cooking and washing were difficult with the woman and he then spoke to Ms Sae-Sueng about moving back into the Strathfield South Apartment on the same arrangement as beforehand, and she agreed. Aside from Mr Whyte saying so, there was no independent evidence before me corroborating that Mr Whyte had moved out from the Strathfield South Apartment, but I am prepared to accept that this probably occurred.
As to the Strathfield South Apartment, Mr Whyte stated it was a two-bedroom two-bathroom unit and he and Ms Sae-Saeng slept in separate bedrooms and used their respective bathrooms. Mr Whyte stated they have always had essentially the same living arrangements. That is, always only the two of them living together having separate bedrooms and bathrooms and sharing the kitchen, laundry and living areas. The financial arrangement Mr Whyte had with Ms Sae-Sueng in relation to the earlier Strathfield unit was carried over into the Strathfield South Apartment, namely, in lieu of rent, Mr Whyte would pay or reimburse Ms Sae-Sueng for council and water rates, strata levies and electricity charges. According to Mr Whyte, Ms Sae-Sueng had paid off her mortgage but she was possibly paying back her sister who had assisted her to buy the unit.
Not long after the first AAT1 decision (see [17] above), on 16 February 2021, the Applicant lodged a Separated Under One Roof form in relation to Ms Sae-Sueng in which he stated, amongst other things, that he separated from Ms Sae-Sueng in December 2015; they help each other, but now communicate less, and live their own lives. Ms Sae-Sueng is nominated as the beneficiary of his superannuation as he has not seen his son in over 30 years. At or about the same time, Ms Sae-Sueng lodged a Separated Under One Roof form in relation to Mr Whyte in which she stated, amongst other things, that she separated from him in December 2017, and she is not sure how long they will continue to reside together. Ms Sae-Sueng stated that Mr Whyte assisted her with completing the form as her grasp of English is “not very good”.
On 29 June 2021, the Agency decided that Mr Whyte and Ms Sae-Sueng were members of a couple. On the same date, the Agency confirmed Mr Whyte’s nominee arrangement with Ms Sae-Sueng had ended in response to the request of Mr Whyte.
On 30 August 2021, an ARO affirmed the decision under review (second ARO decision).
On 6 January 2022, the AAT1 affirmed the second ARO decision (second AAT1 decision). Relevantly, Mr Whyte had confirmed that the summary of the factual circumstances as outlined in the first AAT1 decision, whose findings he did not dispute, had not changed in any respect.
On 24 January 2022, the Applicant applied for review of the second AAT1 decision to this Tribunal. As stated at [4] above, Mr Whyte gave evidence at the hearing and was cross-examined. Relevantly, he agreed with the summary of the factual circumstances as outlined in the second AAT1 decision, except in relation to the explanation as to why Ms Sae-Sueng had sold the Strathfield unit and purchased the Strathfield South Apartment.
The information about Mr Whyte having moved out and living in a one-bedroom unit with another woman (see [4], [23] and [24] above) was not canvassed in the second AAT1 decision because those events were attributed to February 2022. Mr Whyte had attended the Agency’s Burwood office on 24 February 2022 to update his address, however, he was unable to provide information such as the rental amount and the name of the other person he resided with.
It is significant to note that besides two written statements by Mr Whyte, there were also statements purportedly provided by two persons in support of him; one of them was said to have been made by a friend of Ms Sae-Sueng (S Brancalion) dated 21 June 2022. Two further statements were received by the Tribunal which were said to have been made by Ms Sae-Sueng’s sister (Ms R Sueng); one of those latter statements was undated and the other one dated 15 August 2022. Although arrangements were made for a Thai interpreter to be present at the hearing, at the request of Mr Whyte, neither of the witnesses made themselves available at the hearing, apparently due to their work commitments.
I further note that the statement of S Brancalion and the first statement of Ms R Sueng were inexplicably expressed in virtually identical terms, that is, both witnesses relevantly stated, as follows:
“… Ms Sae-Sueng lives with a flatmate (Graeme Whyte) as he doesn’t have any family in Australia.
We have spoken about how she manages her finances as she owns the apartment and is paying for the mortgage on her own. As her flatmate does not contribute to this (nor the deposit for the apartment) and so he pays for utilities (such as electricity and water).
Graeme [Whyte] and [Ms Sae- Sueng] have separate sleeping areas (ie bedrooms and bathrooms). They also have separate friendship groups and rarely mix socially, as they are just flatmates, and not in a relationship”.
Mr Whyte could also not explain why the two statements of Ms R Sueng (see [32] above) had entirely different signatures. In all the circumstances, I place little weight on these written statements especially as the witnesses were not able to be cross-examined.
There were other shortcomings in the evidence of Mr Whyte. First, as already stated above, there was no independent evidence confirming he had moved out in or about February 2022 and he could not give the Agency basic details when he attended their office to update his address at that time (see [31] above), nor could he recall the details of the person with whom he had been living for approximately 2 months at the hearing before me. Secondly, Mr Whyte had also changed the explanation as to why Ms Sae-Sueng had sold the Strathfield unit and purchased the Strathfield South Apartment in circumstances where he had earlier confirmed that he agreed with the summary of the factual background in the AAT1 decision (see [18] and [21] above).
Thirdly, Mr Whyte was unable to explain why in the Discharge Referral form prepared by a doctor at Concord Repatriation General Hospital on 5 May 2016, Ms Sae-Sueng was referred to as his ‘girlfriend’. Instead, Mr Whyte queried how the document came into the Agency’s possession only to be informed that it was in the T-Documents before the Tribunal as he had at some stage provided that medical record to the Agency. The medical record relevantly states under the heading ‘social history’, based on information provided by Mr Whyte, as follows:
Lives with girlfriend
Struggling to carry things around house, able to shower independently and dress.’
…
Girlfriend assists with cooking.
The lack of internal consistency in Mr Whyte’s evidence as well as the lack of consistency in what Mr Whyte has said to others, including the hospital doctor, is troubling, especially in a case such as this where Mr Whyte is the only person giving evidence and he has not adduced any independent evidence. It should also be recalled that Mr Whyte’s case is essentially that the Agency had incorrectly advised him to complete forms on the basis that Ms Sae-Sueng is his partner, that he and Ms Sae-Sueng had subsequently adopted that mistake in all their forms lodged with the Agency over the years but, according to Mr Whyte, Ms Sae-Sueng was never his partner.
THE ISSUES

The issues for determination in this matter are:
(a)whether the decision to pay Mr Whyte the JS Payment at a partnered rate as a member of a couple, as defined in s 4(2) of the Act, from 29 June 2021 was correct; and
(b)and if so, whether there is any special reason for Mr Whyte and Ms Sae-Sueng to not be treated as members of a couple.
RELEVANT LAW AND PRINCIPLES
Section 643 of the Act provides that a person’s JS Payment rate is to be worked out using the Benefit Rate Calculator B at the end of s 1068 of the Act. Section 1068-A1 of the Benefit Rate Calculator B provides for the method of calculating a JS Payment rate. Section 1068-B1 provides that a person’s maximum basic rate depends on a person’s family situation. Relevantly, for present purposes, the issue is whether the person is a ‘member of a couple’.
Subsection 4(2) of the Act provides the definition of ‘member of a couple’ for social security purposes under the Act. Relevantly, s 4(2)(b) states:
(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…
(b)      all of the following conditions are met:
(i)the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's            opinion (formed as mentioned in subsections (3) and (3A)), a de facto 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.
Subsection 4(3) of the Act sets out the criteria for forming an opinion about a relationship, and provides:
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with, 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 or a de facto relationship.
Subsection 4(3A) of the Act states:
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
It is acknowledged that the Tribunal must consider all the circumstances and make an objective assessment based on the evidence, albeit some of the factors may have a subjective element. In Secretary, Department of Family and Community Services and VHB and Anor [2006] AATA 1, the Tribunal held at [94]:
The s 4 (3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.
IS MR WHYTE A MEMBER OF A COUPLE?
Determining whether a person is a ‘member of a couple’ necessarily involves unpacking all the circumstances of the relationship between the parties, including reviewing the abovementioned 5 matters specified in s 4(3) of the Act to determine whether the persons are in a de facto relationship. Accordingly, it is appropriate to separately consider the 5 matters. Before doing so, it is significant to observe that no single factor is determinative and not all factors need to be present. Accordingly, the fact that the persons may not have a sexual relationship, for example, is not determinative of whether the persons are in a de facto relationship.
The financial aspects of the relationship
Mr Whyte and Ms Sae-Sueng do not currently jointly own any real property, nor have they previously owned any real property jointly. Ms Sae-Sueng owns the Strathfield South Apartment in which she and Mr Whyte reside, having purchased it with financial assistance from her sister. Ms Sae-Sueng also owned the Strathfield unit that she sold to purchase the Strathfield South Apartment. Mr Whyte stated that Ms Sae-Sueng also owns a car and that she drives him whenever he needs to attend appointments and for day-to-day tasks.
Based on the forms completed by each of Mr Whyte and Ms Sae-Sueng, it does not appear that they jointly own any household assets as Ms Sae-Sueng is shown to own 100% of these. They also do not have joint bank accounts nor liabilities.
Nevertheless, the fact that Mr Whyte and Ms Sae-Sueng present as financially independent is not determinative in a case such as here, where Mr Whyte and Ms Sae-Sueng pool their financial resources by contributing towards expenses for the Strathfield South Apartment. Based on the limited evidence before the Tribunal, it appears that Ms Sae-Sueng is responsible for paying back her sister for financial assistance provided to Ms Sae-Sueng in purchasing the Strathfield South Apartment. The arrangement is for Mr Whyte to pay for expenses associated with the property and their shared accommodation, including rates, strata levies and utilities while Ms Sae Sueng only has to meet repayments for the purchase of the apartment. That is, they are providing financial support to each other and are financially interdependent. It transpired, however, that from 2015, as Mr Whyte has been unable to work, he has only paid some of the ongoing expenses and been relying on Ms Sae-Sueng to pay these as well. That is, Mr Whyte and Ms Sae-Sueng have been pooling their financial resources to meet their financial obligations. In the case of Mr Whyte, he has had to rely on his social security benefits and superannuation benefits.
In his Relationship Details form dated 9 July 2020, Mr Whyte stated in relation to arrangements for food and housekeeping items, that they do their own shopping, separately pay for their own food and that housekeeping items are paid by whoever whenever needed suggesting the sharing of some day-to-day household expenses.
Ms Sae-Sueng is the nominated beneficiary of Mr Whyte’s superannuation benefits which is also indicative that Mr Whyte is committed to financially supporting Ms Sae-Sueng.
The nature of the household
Mr Whyte and Ms Sae-Sueng have separate bedrooms and bathrooms but share the kitchen and laundry in the Strathfield South Apartment. In his Relationship Details form lodged with the Agency on 9 July 2020, with reference to household chores, Mr Whyte stated that in the period 2016 -2019, Ms Sae-Sueng “did everything for me” as in taking him to the doctors, hospital, shopping and washing. Mr Whyte has assisted Ms Sae-Sueng occasionally as she suffers from a bad back and is also not fluent in English. Elsewhere, for example, in Relationship Details forms, Mr Whyte stated that he and Ms Sae-Sueng did their own housework. This is another example of internal inconsistent statements by Mr Whyte. Based on the limited evidence, it is probably the case that Ms Sae-Sueng has been doing all or most of the housework since 2016 due to his ongoing severe arthritis.
The social aspects of the relationship
Mr Whyte stated he was a loner and did not have any friends, only colleagues, but then also stated he and Ms Sae-Sueng had separate groups of friends. As stated above, Mr Whyte had also stated that the person who he resided with for approximately 2 months in the period commencing late February 2022 was a friend of a friend, but he could not recall any of those details. In the absence of any reliable evidence, it is improbable that Mr Whyte and Ms Sae-Sueng have entirely separate groups of friends in circumstances where they have been living together for over 28 years.
Any sexual relationship between the people
Mr Whyte stated there was no sexual relationship between him and Ms Sae-Sueng and this is accepted. He added that he had not been in any intimate relationship with anyone since coming to Australia and that he thought Ms Sae-Sueng had not been in a romantic relationship because she was a workaholic.
The nature of the people’s commitment to each other
Mr Whyte has lived together with Ms Sae-Sueng for an almost continuous period of over 28 years even allowing for the period of about 2 months in late February 2022 when Mr Whyte says he moved out. Mr Whyte and Ms Sae-Sueng provide companionship and emotional support to each other. At various times, Mr Whyte expressed the view that his relationship with Ms Sae Sueng is likely to continue indefinitely. The fact that Mr Whyte has nominated Ms Sae-Sueng as the beneficiary of his superannuation benefits, instead of his only son - who he has not seen for some 30 years – is also indicative that he considers Ms Sae-Sueng to be a close companion.
In his oral evidence before the Tribunal, Mr Whyte also stated that the reason he moved out in or about February 2022 was because he had “grown apart” from Ms Sae-Sueng and, further, that was because she was pressuring him to find a job and earn money and he had been trying very hard to do so but he could not cope with her insisting that he find work. Mr Whyte’s spontaneous evidence as to his personal predicament strongly suggested that the nature of the relationship between Ms Sae-Sueng and Mr Whyte was a de facto relationship. This is because the nature of the demands made by Ms Sae-Sueng in relation to financial matters, as described by Mr Whyte and, specifically, Ms Sae-Sueng’s expectations that Mr Whyte contribute to a greater extent, suggested there was a strong bond between them. That is, the relationship between Mr Whyte and Ms Sae-Sueng is one of financial dependence and reliance. The relationship is also characterised by strong companionship because they look out for each other as well as encourage each other to make the most of their lives. The fact that Mr Whyte resumed living with Ms Sae-Sueng after living apart for a short period of about 2 months lends credence to their strong emotional attachment and reliance on each other. The objective evidence overwhelmingly supports the position that Mr Whyte is a ‘member of a couple’ with Ms Sae-Sueng.
The relationship between Mr Whyte and Ms Sae-Sueng is not dissimilar to the Tribunal’s characterisation of the relationship of persons in the case of Ford and Secretary, Department of Family and Community Services [2003] AATA 7, as follows:
52. The applicant has lived with Ms De Beer for over ten years, in two households. They moved interstate together. They provide for each other a strong degree of companionship and support, which is not always present in marriage. Whilst they profess not to have any emotional commitment to the other, it is clear they are very fond of each other and each would assist the other in times of need…Whilst they do not perceive their relationship as being “marriage like”, the inescapable conclusion is that they share what is aptly described as an exclusive and permanent cohabitation, which, by necessity, excludes the notions that either will have other life partners.
53. Whilst I accept that they do not have the level of emotional commitment found in some marriages, they have a degree of emotional attachment which transcends mere friendship. The household is not only structured in the manner that it is because of convenience, practicality and/or economy. It is structured in that manner because they have a strong bond based upon mutual respect, affection, loyalty and trust. Whilst these factors on their own would not be sufficient to indicate a marriage like relationship, it is their reliance and dependence on each other and their resolve that it should continue indefinitely, which leads me to the conclusion that, in law, Mr Ford is living in a de factor [sic] relationship with Ms De Beer.
In Dewhurst and Anor and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 512 (Dewhurst), the Tribunal considered whether the evidence supported a member of a couple relationship or a friendship with mutual practical and emotional benefits. The Tribunal specifically noted the fact that there were limited financial resources may have explained some of the arrangements made by the persons in that case, but the Tribunal nevertheless decided the two persons were members of a couple in part due to the shortcomings in the evidence, as set out below:
69. The real question on the evidence is whether the behaviour demonstrated by the evidence is attributable to a “marriage-like” relationship, or a strong and enduring friendship with practical and emotional benefits to each of them. We have found this aspect of our assessment of the relationship between Mrs Dewhurst and Mr Hineman particularly difficult as we consider many of the arrangements between them could be equally compatible with and potentially attributable to a strong friendship rather than a “marriage-like” relationship. The picture is further complicated by the fact that it is clear on the evidence that each of them have limited financial resources and some of the choices they have made in relation to the arrangements between them are potentially attributable to that cause rather than purely to the nature of their relationship.
70. If it has not been for our doubts about the accuracy of their evidence, we would probably have concluded that the evidence directed toward this criteria pointed slightly away from the two being member of a couple rather than towards it. For the reasons set out above however we have concluded that each of them gave evidence which was at least to some extent misleading in relation to this issue. In light of that conclusion we find that, on balance, the evidence directed to this criteria also points towards the two being members of a couple.
As per the Dewhurst decision, I also consider that the shortcomings in Mr Whyte’s evidence, albeit different in nature, have not assisted his case. Mr Whyte’s assertions to the effect that the relationship between him and Ms Sae-Sueng is one of two independent persons sharing a home as flatmates only, and that he incorrectly referred to Ms Sae-Sueng as his ‘partner’ in forms lodged with the Agency do not withstand scrutiny. It will be recalled that Mr Whyte also separately referred to Ms Sae-Sueng as his ‘girlfriend’ in the context of a medical appointment at Concord Hospital.
The objective evidence points to Mr Whyte and Ms Sae-Sueng being in a de facto relationship for the purposes of s 4(2) of the Act. Accordingly, I consider Mr Whyte to be a ‘member of a couple’ and that he should be paid the JS Payment at the partnered rate. Furthermore, there is no special reason for Mr Whyte and Ms Sae-Sueng to not be treated as members of a couple, nor was any special reason advanced by Mr Whyte. Besides, there was no evidence before the Tribunal that the monthly expenses of Mr Whyte and Ms Sae-Sueng exceed their joint monthly income.
For completeness, I note that on 3 February 2023, Mr Whyte sent an email to the Tribunal about his matter which I understand was not copied to the Respondent’s representative. I was informed by my Associate about the email, however, I did not read the email nor take it into account in circumstances where the hearing had concluded and no request was made for further material to be considered after the hearing.
CONCLUSION
The AAT1 correctly decided on 6 January 2022 that Mr Whyte is a member of a couple and, therefore, Mr Whyte is to be paid the JS Payment at the partnered rate.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Lazanas

.............................. [SGD]..........................................
Associate
Dated: 16 February 2023

Date(s) of hearing: 16 January 2023

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Ms T Balakisnan, Services Australia

Date(s) of hearing:	16 January 2023
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms T Balakisnan, Services Australia