Shadforth and Department of Family and Community Services [1999] AATA 198 (30 March 1999)

Last Updated: 30 April 1999

DECISION AND REASONS FOR DECISION [1999] AATA 198

ADMINISTRATIVE APPEALS TRIBUNAL )

) V1998/1113

GENERAL ADMINISTRATIVE DIVISION )

Re: WALTER SHADFORTH

Applicant

And: SECRETARY, Department of Family and Community Services

Respondent

DECISION

Tribunal : Mr J T C Brassil, A M, Member

Date : 30 March 1999

Place : Melbourne

Decision : That the decision under review be set aside and that the Secretary, Department of Family and Community Services, should treat the applicant as eligible for the Disability Support Pension at the single rate on and from 5 May 1998.

(Sgd.) J T C BRASSIL

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - whether in a marriage-like relationship - decision set aside

Social Security Act 1991 ss. 4(2) & (3), s. 117 and s. 1064

REASONS FOR DECISION

30 March 1999 Mr J T C Brassil, A M, Member

1. This is an application for review of a decision of a Centrelink delegate on 5 May 1998 that the applicant's rate of Disability Support Pension (DSP) should be assessed on the basis that he is a member of a couple. This decision was affirmed by an authorised review officer on 12 June 1998 and by the Social Security Appeals Tribunal (SSRT) on 31 August 1998.

2. The applicant represented himself at the hearing and the Department's advocate was Mr T Coogan.

3. At the hearing on 10 February 1999 the Tribunal had before it the documents lodged pursuant to the Administrative Appeals Tribunal Act 1975 ("the T documents") and evidence was given by the applicant.

ISSUES

4. A recipient of the DSP may be paid at a single rate or as a member of a couple, the latter being a lower rate. The decision under review had the effect of reducing the pension rate payable as it was determined, for the purposes of the legislation, the applicant was living in a marriage-like relationship with Ms Gudrun Effinger. It is common ground that for a period they had lived under the same roof. The issue to be decided is whether the relationship was marriage-like and to determine this the Tribunal must consider all the circumstances of the relationship including financial, social and sexual aspects, commitment to each other and the nature of the household in which they live.

LEGISLATION

5. The relevant legislative provisions are found in the Social Security Act

1991 ("the Act"):

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

purposes of this Act if:

(a) ...

(b) all of the following conditions are met:

(i) the person has a relationship with a person of the opposite sex (in this paragraph called "the partner");

(ii) the person is not legally married to the partner;

(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)) a marriage-like relationship;

(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

4(3) In forming an opinion about the relationship between 2 people for the

purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is

to have regard to all the circumstances of the relationship including, in

particular, the following matters:

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

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

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

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

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

(b) the nature of the household, including:

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

(ii) the living arrangements of the people; and

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

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

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

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

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

(d) any sexual relationship between the people;

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

(i) the length of the relationship; and

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

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

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

EVIDENCE

6. The applicant was married but had separated some time ago while they were living in the Gemini Caravan Park, at Stanthorpe in Queensland. Ms Effinger also lived in that caravan park in a de facto relationship. Some months after his separation he met her again after her de facto relationship had ended. He told her about opportunities to go fruit-picking in Victoria. After a suggestion from his brother he had spent some weeks in Cohuna finding out about this. Ms Effinger asked could she come with him.

7. The applicant has a heart condition which has worsened recently. The recommendation after an angiogram was that two stents are required in his arteries. Ms Effinger is an alcoholic, is pensionable due to her condition and has very poor memory retention.

8. After arriving in Victoria the applicant shared a caravan with Ms Effinger, but slept in the annex. The applicant stated that he agreed to this arrangement because he felt that because of her alcoholic habit Ms Effinger was particularly vulnerable living alone in the caravan park. After some time they moved to a house on a property some distance from Kerang. Whilst prepared to take up residence there Ms Effinger stipulated that she must have her own room. This is the arrangement still in the three-bedroom house.

9. The applicant had been able to arrange the house through friends. He does not have a bond and the weekly rental is $100, all of which he pays. She does work around the house instead of paying rent. This work includes housework and tasks he cannot do because of his heart condition. The applicant does most of the cooking because he is the better cook but Ms Effinger does most of the washing and any ironing.

10. They have separate bank accounts with the Commonwealth Bank in Kerang. The only joint property they own is an old television set bought for $10. They each contributed five dollars. He owns a motor vehicle. She does not have a driving licence.

11. The applicant has a sapphire mining claim in Queensland and has to travel there to work the claim at least once a year. In recent years Ms Effinger has travelled with him. While there they stay, in separate rooms, with friends in the township which is 21 kilometres from the claim. While working the claim he camps out on his own.

12. While in Queensland to work his mining claim in 1997 Ms Effinger found she was pregnant and the doctor there, at Emerald, told her to expect a February 1998 birth based on the information she gave him. The applicant recalled having sex with Ms Effinger, when they were both drunk, at a time which led him to conclude he was the father of the expected child. He accepted this until the baby was born, full term, in December 1997. Both he and Ms Effinger say the baby's father is someone she met in a hotel and slept with some two months prior to their incident of intercourse in May.

13. However the applicant allowed his name to be recorded on the birth certificate of baby Sasha as he "was old-fashioned" and did not want the girl to grow up regarded as a "bastard". As this caused him trouble with Centrelink he has tried to have it removed without much success. The Clerk of Courts at Kerang told him to go to Legal Aid but they did not think they could help. He was then referred to Births, Deaths and Marriages registration offices. He has been told that he will need a DNA test to prove he is not the father but this could cost over $750 which he cannot afford. The baby is not on his Medicare card but on her mother's card.

14 They do not go out as a couple but he is prepared to mind the baby for short periods. Ms Effinger has not been to the hotel for "a session" since the baby was born. They shop together in Kerang, travelling in his motor vehicle, as most goods are cheaper at the supermarket there. They agree a list of shopping but split the cost between them except for personal items.

15. While he has accompanied the baby's mother to her doctor's appointments this is more because of her poor memory and would, without prompting, forget to tell the doctor what she needs to tell him. They are not regarded as a couple at the doctor's surgery.

16. While some people in the town may think they are a couple the applicant stated he does not care what they think. Their friends know they are not a couple and treat them as two individuals. Ms Effinger is not known as Mrs Shadforth.

17. The applicant was being treated for his impotence about the time of the incident in May 1997 but he says that his doctor has now confirmed that the treatment was not successful. As he cannot have a sexual relationship he is of the view that even if he wanted a marriage-like relationship Ms Effinger would not be interested. In any case he does not want extra responsibility for the baby.

18. As the child gets older he is not confident that the present arrangements will continue. The applicant says he may consider returning to live with his wife. While he said they were "just good friends" he stated that "romance is non-existent".

19. His sapphire mining has not been particularly successful except for one stone that he keeps in a bank deposit box most of the time. Its potential value has been the subject of enquiry from Centrelink and for a period his pension was reduced because of its treatment as a substantial asset. It has now been properly valued. He stated that it does not now affect his pension but he is concerned that if he is in a de facto relationship with Ms Effinger, as Centrelink thinks, then she could have a claim on the value of his sapphire. He is keen that this should not happen and this is why he would not, in his circumstances, agree to be her de facto even if she wished.

CONSIDERATION OF THE ISSUES

20. In considering the possible existence of a "marriage-like relationship" it is necessary for the Tribunal to examine the evidence pursuant to the provisions of s. 4(3) of the Act.

21. The financial aspects do not provide significant support for the proposition being examined. As a matter of practical common sense they shop together in Kerang and travel in the applicant's vehicle. They do share costs of general household items and food but not that of personal items. They have no joint ownership of major assets nor pooling of resources for major financial commitments. Their only joint ownership is their $10 television set. They have no joint legal obligations.

22. The applicant appears, because of the sapphire he found, to have a substantial reason for not entering into a relationship with Ms Effinger which could give her some claim over his prized asset.

23. The nature of the household does not provide support either. Ms Effinger has always had a separate bedroom and this has been at her insistence, she accepts responsibility for the child and any support from the applicant appears to be merely incidental. Division of responsibility for household duties seems to be a sharing governed by practical considerations of health and capacity to perform the duties.

24. The Tribunal is satisfied they do not hold themselves out to be married to each other, regular associates accept them as not married and they do not plan or engage in joint social activities.

25. The applicant did concede there have been a small number of incidents of sexual intercourse but this is not on a regular basis, quite the reverse. His medical condition is such that it is not a continuing likelihood.

26. There appears to the Tribunal that there is some commitment between the applicant and Ms Effinger but it is prepared to accept the statement of the applicant that it is more properly construed as a friendship and a recognition that each of the parties would have some difficulties in living alone so it is more convenient for the current arrangements to continue, not necessarily indefinitely.

27. Against this there is the problem of the applicant's name as the father on the birth certificate of baby Sasha. The Tribunal is satisfied that the applicant's claim that he is not the father is true, in view of the date of birth and his medical condition at the time of the acknowledged incident of intercourse some 7 months before Sasha was born. The Tribunal accepts that the applicant has attempted, without success, to find out how to remove his name from the birth certificate and that, if DNA testing is required, he could not afford such expenditure.

28. However, for the purposes of this consideration, the Tribunal does not find that the name of the applicant being on the birth certificate is determinative of a marriage-like relationship for the purposes of the Act.

CONCLUSION

29. The Tribunal notes that counsel for the Respondent, at the end of the evidence and his cross-examination of the applicant, invited the Tribunal to find that there was not a marriage-like relationship and the Tribunal, after consideration of all the matters before it, so finds.

30. The Tribunal will set aside the reviewable decision and finds that the applicant was, on 5 May 1998, and remains, eligible for payment of his benefit at the single rate.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr J T C Basssil, AM, Member

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

Personal Assistant

Date/s of Hearing 10/2/99

Date of Decision 30/3/99

Counsel for the Applicant -

Solicitor for Applicant Self-represented

Counsel for the Respondent Mr T Coogan

Solicitor for the Respondent Centrelink Administrative Law Section