WAP; Secretary Department of Family and community Services [2000] AATA 7 (12 January 2000)

Last Updated: 14 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 7

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/181

General Administrative Division )

Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And WAP

Respondent

DECISION

Tribunal Mr R D Fayle, Senior Member Ms S McKnight, Member

Date 12 January 2000

Place Perth

Decision The decision under review is set aside, and in substitution therefor it is decided that the respondent was, during the relevant time, living in a marriage-like relationship and therefore a member of a couple as that term is defined in s4(2) of the Social Security Act 1991.

........(Sgd) RD Fayle..................................

Senior Member

CATCHWORDS

SOCIAL SECURITY - Young couple sharing accommodation as matter of convenience; sharing rent disproportionately; female does most of household chores and cooking; sharing household expenses but not toiletries; exclusive sexual relationship; some mutual friends but also separate friends; whether relationship permanent or indefinite; whether in a marriage-like relationship; s4 of Social Security Act 1991, whether a member of a couple not being legally married.

REASONS FOR DECISION

January 2000 Mr R D Fayle, Senior Member Ms S McKnight, Member

1. The Tribunal having considered the evidence in this matter is of the view that it is desirable not to disclose the name of the respondent in these proceedings because of the sensitive nature of some of the evidence and its potential adverse impact on the emotions of the respondent both now and in the future. In the Tribunal's opinion no public interest can be served from a disclosure of either the respondent's name or of the identity of any other person in these reasons for decision. For that reason the Tribunal directs pursuant to sub-section 35(2)(c) of the Administrative Appeals Tribunal Act 1975, that no disclosure be made of the identity of the respondent.

2. This matter, at the request of the respondent, was heard on the papers. The applicant had no objection to that procedure and provided written submissions to assist. The Tribunal had before it the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents"), a letter addressed to the Tribunal by the respondent dated 6 October 1999 and the applicant's written submissions filed on 21 October 1999. The section 37 documents contain, among other relevant material, a copy of the decision of the Social Security Appeals Tribunal ("the SSAT") in this matter, dated 6 May 1999. The SSAT set aside the decision of the applicant's Authorised Review Officer, of 19 February 1999, that WAP was living in a marriage like relationship. The effect of that decision was to allow WAP an entitlement to newstart allowance as a single person and not as a member of a couple. It is that decision which this Tribunal is reviewing.

The Issue

3. Essentially, the issue is whether the respondent, WAP, was a member of a couple as defined in s4(2) of the Social Security Act 1991 ("the Act"), or more particularly, whether in the applicant's opinion (that is, the opinion of the Tribunal on review) whether WAP's circumstances meet the conditions set out in s4(2)(b) of the Act. In forming that opinion the Tribunal is to have regard to the provisions of s4(3) of the Act. Those provisions are set out below.

The Legislation

4. Sub-sections 4(2) and (3) of the Social Security Act 1991 provide:

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

(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b) all of the following conditions are met:

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

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

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

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

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

Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

* an ancestor of the person; or

* a descendant of the person; or

* a brother or sister of the person (whether of the whole blood or the part-blood).

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.

5. The evidence is drawn from the SSAT decision and the T documents. In 1996 WAP began sharing accommodation with a girl friend. She and her friend then moved to a four-bedroom house in another suburb. They required another person to share the accommodation and rent. A mutual friend, Mr R moved in to share the accommodation. Not long afterwards WAP and Mr R began sharing the same bedroom and she regarded Mr R as her boyfriend. Difficulties with the sharing arrangement led WAP's girl friend to move out. About this time Mr R's parents purchased an investment house which they agreed to rent to their son and WAP who moved into it and immediately began sharing a bedroom. WAP told the SSAT that about six months after this she and Mr R became a couple in terms of being girl friend and boy friend as by then, in her view, the relationship had established itself. The SSAT was told that the rent was split two-thirds, one-third between WAP and Mr R respectively. Her evidence was that Mr R's father had suggested that the house could accommodate three people and when she insisted that they, she and Mr R, be the only occupants Mr R demanded that she pay two-thirds of the rent. In this respect, in a questionnaire completed by WAP on 4 December 1998 she disclosed to the applicant that she was paying half the then rent (T4, p18). But in another similar questionnaire completed 10 days later, on 14 December 1998, WAP declared that she was contributing $110 toward the total weekly rent of $160 (T6, p23). In that questionnaire WAP, in answer to the question: "How long do you intend to share accommodation?" wrote "Until we break up" (T6, p22). In each of those questionnaires WAP refers to Mr R as "boyfriend" (T4, p18; T6, pp22 & 28).

6. WAP provided the following answers to the question on T6: "To what extend does [Mr R] provide care, support or help to you in any of the following circumstances? -

* Illness: None

* Personal crisis: None

* Money matters: None

* Family disputes: Some emotional" (T6, p26)

7. WAP observed that Mr R was very rigid in terms of money and although when she needed financial assistance he offered to lend her money she refused because she thought it might cause difficulties in their relationship and instead borrowed money from his parents.

8. WAP and Mr R split household bills such as food and groceries, gas and electricity and local telephone calls but she paid for all the interstate and overseas calls since she was the only one using that service. They each bought their own toiletries. WAP did all the shopping and cooking and made decisions about meals. She admitted that she and Mr R had an exclusive sexual relationship and each let the other know of their respective whereabouts. Both had their own exclusive friends and different interests which they pursued but there were also mutual friends whom WAP thought would tend to see them as a couple and invite them out as a couple. At T6 WAP described her understanding of the relationship in the following terms:

"Now a days young people live together with boyfriends and the like because it is acceptable, not necessarily because they will get married - its more like convenience and a sharing of costs" (p28)

9. In regard to the sleeping arrangements WAP said that she and Mr R shared a bedroom and even when he had to sleep on a mattress on the floor due to a back ailment he remained in their bedroom.

10. The SSAT asked WAP what she saw as the difference between the relationship, which existed between Mr R and her, on the one hand, and a marriage or defacto relationship. She ventured that in her view "a marriage is where people support each other emotionally and financially and everything is shared".

Discussion

11. The Tribunal notes that in deciding whether a person is a "member of a couple" for the purposes of s4(2) of the Act, an opinion is formed having regard to all the circumstances of the relationship, including, in particular, those matters enunciated in paragraphs 4(3)(a) to (e) inclusively. Those provide objective criteria, which can be determined on the evidence. However, there is no guidance as to how much weight one attributes to each criterion. In the circumstances, it falls to the Tribunal to make a value judgement giving weight to each criterion having regard to all the circumstances of the relationship. The criteria must be considered as a whole in context. It is not in dispute that WAP has a relationship with Mr R, a person of the opposite sex; that they are not legally married; that they are both over the age of consent; and neither is within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961. That is, apart from the question of whether a marriage like relationship exists, the facts support all other relevant conditions set out in s4(2)(b) of the Act.

12. The Tribunal is sympathetic with WAP when she takes the view that one cannot be in a marriage-like relationship (and therefore not a member of a couple) unless the couple provide each other with emotional support and share everything including financial obligations. However, whilst that no doubt is an acceptable description of the phrase as it is commonly understood, although not exhaustive, it is not the relevant statutory test. Therefore, in getting to its decision the Tribunal finds it necessary to work through the statutory criteria in s4(3) of the Act and consider all the relevant circumstances of this case.

13. Financial aspects of the relationship - This is a young couple. They are just starting out in their adult life and have not as yet accumulated major assets nor does either own real estate so there is no joint liability or liabilities. Nor would it be surprising that there is no significant pooling of financial resources or any joint or several legal financial obligations. However, they do share day-to-day household expenses.

14. The nature of the household - There is no child from the relationship. They live together under the same roof and share a bedroom despite there being other vacant bedrooms. WAP does the cooking and household chores although Mr R does the washing up.

15. The social aspects of the relationship - They share a house together alone. They have mutual friends who view them as a couple. They socialise together from time to time although they each also pursue their own exclusive friendships and interests. There is mutual caring in the sense that each is informed of the others likely time of coming home, presumably to plan for meals which are shared and to allay any worry that would be normal if one is unduly late. Neither has been ill to the point where it has been necessary for the other to care for them although WAP believes Mr R would expect her mother to take care of her in such circumstances. That matter has simply not been tested.

16. Any sexual relationship between the couple - They are in an exclusive sexual relationship. The Tribunal understands this evidence to mean that neither has any other sexual relationship and at least WAP believes they will be faithful to each other in this respect.

17. The nature of their commitment to each other - The relationship has continued for over two and a half years. WAP believes that she gets virtually no emotional support from Mr R and that she believes that he regards the arrangement as one of convenience, which she believes is not unusual for young people such as themselves. She does however consider the relationship to be continuing indefinitely in the sense that she believes it will continue "until they break up" which is clearly, in the circumstances, indefinite. Finally, the evidence points to a conclusion that whilst mutual friends of their own age group may not see anything remarkable about their relationship (which WAP believes is quite normal now-a-days) an objective conclusion is that it is more than just two people sharing accommodation for mutual financial benefit. By design WAP has ensured that she and Mr R share the accommodation exclusively and they have a normal heterosexual relationship as would be expected of mature healthy adults living together and sharing accommodation. Granted that Mr R does not see that he has any obligation to provide financial assistance to WAP although when she was in need he did offer to make her a loan which she refused because she believed it may damage their relationship. Instead she approached his parents who lent her the money. That WAP could get such a loan may be indicative that Mr R's parents saw her as someone special in their son's life and not just a casual acquaintance. For why else would they lend a substantial sum ($3,000) to a stranger without security?

18. It is necessary for the Tribunal to address WAP's submission that the complete absence, as she saw it, of any emotional support from Mr R and his insistence that she remained financially independent are factors, of themselves, sufficient to characterise their relationship as one of mutual convenience rather than marriage-like. Subsection 4(3) of the Act requires the Tribunal to have regard to all the circumstances of the relationship. This, in the Tribunal's opinion, is recognition that the factors, which lead to a conclusion that a marriage-like relationship exists, are multifarious and defy a neat encapsulation of exclusive objective tests. That in a marriage both partners rely exclusively on their own financial means and share expenses would not necessarily be unusual today, especially as more and more women are gaining valuable qualifications and earning incomes of their own. It is easy to understand in a number of circumstances where both partners of the relationship would insist on financial independence and this may persist at least until there are dependant children of the partnership. That in marriage one or other or both partners crave more emotional support, in the opinion of the Tribunal, may not necessarily be unusual. Individuals have different perceptions of what may be an appropriate level of emotional support. WAP gave no actual evidence as to occasions when she believed Mr R had not provided emotional support when she believed he ought to have done so. No doubt WAP has a well considered view of how much emotional support she should expect from her chosen life-long partner and that her experience is that Mr R does not measure up to this expectation. In the Tribunal's view it would not be unusual to find that within a marriage one or other partner believes that they do not receive the expected level of emotional support, and one can think of many instances where such a view would be viewed objectively as reasonable. However, in the opinion of the Tribunal lack of expected emotional support in a marriage does not, of itself, make the relationship not marriage-like. It is clear on the evidence that this is not just a relationship of convenience between two people of the opposite sex who come together occasionally to gratify their sexual desires and then go about their own lives to without recourse to the other. Indeed, in the opinion of the Tribunal this is a marriage-like relationship where there is mutual care, concern and affection, albeit probably not to the extent that WAP would wish in the ideal relationship.

Decision

19. For the above reasons and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the decision of the SSAT of 6 May 1999 under review is set aside and in its stead the Tribunal finds that the respondent was, during the relevant time, living in a marriage-like relationship and therefore a member of a couple as that term is defined in s4(2) of the Social Security Act 1991.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R D Fayle, Senior Member and Ms S McKnight, Member

Signed: .........(Sgd) C O'Hara...................................

Associate

Date/s of Hearing N/A

Date of Decision 12 January 2000

Counsel for the Applicant Alan Jones

Solicitor for Applicant -

Counsel for the Respondent -

Solicitor for the Respondent -