Quick; Beer and Department of Family and Community Services [2000] AATA 759 (30 August 2000)

Last Updated: 7 September 2000

DECISION AND REASONS FOR DECISION [2000] AATA 759

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S1999/211 & S1999/439

GENERAL ADMINISTRATIVE DIVISION )

Re STEVEN JOHN QUICK AND SANDRA LOUISE BEER

Applicants

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date 30 August 2000

Place Adelaide

Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that during the period 14 October 1998 to 10 July 2000, the applicants were not in a marriage-like relationship.

(Signed)

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Disability Support Pension - Sole Parent Pension -- marriage-like relationship - relevant factors considered - close and long-term friendship - carer/caree relationships considered

Social Security Act 1991 s.4

Re Secretary, Department of Social Security and Villani (1990) 20 ALD 49

Re Erdmann and Secretary, Department of Social Security (AAT 10939, 17 May 1996)

Re Needer and Secretary, Department of Social Security (AAT 8648, 6 April 1993)

Re Van Leeuwen and Repatriation Commission (AAT 6186, 13 September 1990)

Re Shadforth and Secretary, Department of Family and Community Services [1999] AATA 198

Re Mills and Lyle and Secretary, Department of Social Security (1991) 23 ALD 500

Re Tang and Director-General of Social Security (1981) 3 ALN N83

Re Smith and Secretary to Department of Social Security (1985) 7 ALN N371

REASONS FOR DECISION

30 August 2000 Senior Member J.A. Kiosoglous MBE

1. This is an application by Steven John Quick (the male applicant) (S1999/211) and Sandra Louise Beer (the female applicant) (S1999/439) for review of decisions of the Social Security Appeals Tribunal (SSAT) dated 3 May 1999 (QT2 and BT2) which affirmed upon review decisions of an authorised review officer (ARO) dated 8 March 1999 (QT9 and BT18) which had affirmed decisions of delegates of the respondent dated 14 October 1998 (QT8 and BT13) to treat the applicants as members of a couple for the purposes of the Social Security Act 1991 (the Act).

2. The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (QT1-13) in respect of the male applicant (S1999/211) and (BT1-24) in respect of the female applicant (S1999/439), together with ten exhibits, seven lodged by the applicant (Exhibits A1-A7) and three lodged by the respondent (Exhibits R1-R3). In addition, the Tribunal heard evidence from the applicants, who also called Mrs R. Treloar, the male applicant's mother. The applicants were represented by Mr M. de Rohan, of counsel, and the respondent was represented by Mr A. Goldie, a departmental advocate.

3. The Tribunal first convened on 28 June 2000 upon which day all evidence and submissions were received. Subsequently, the applicants applied for the matter to be brought back before the Tribunal due to a change in circumstances, and accordingly, with the agreement of the respondent, the Tribunal reconvened to hear further evidence from Ms Beer, and further submissions from both parties in respect of those developments.

4. The issue before the Tribunal is whether or not the applicants are members of a couple. Upon resumption of the hearing, the Tribunal learned that as from 10 July 2000 the applicants were again receiving the single rate, leaving the period in dispute from 14 October 1998 to 10 July 2000.

legislation

5. Sub-sections 4(2) and 4(3) of the Act relevantly provide:

"Member of a couple - general

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.

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."

steven john quick's evidence

6. The male applicant gave evidence on the first hearing day, and this summary of evidence is as stated at that time. He is 34 years old, divorced and has two young children by his ex-wife. The two children live with his ex-wife and he has fortnightly contact from Friday night to Sunday night, one week in school holidays and one half of the Christmas holidays.

7. He told the Tribunal that he had a major car accident in 1996, and suffered pelvis, leg, spine, shoulder, ankle and head injuries. He concurred with Dr Hocking's assessment of his symptoms dated 22 October 1999 (Exhibit A1, attachment A) that (inter alia):

"...

... he described severe depression, symptoms of which include crying, low moods, apathy, lack of initiative, insomnia, nightmares, lassitude, and some suicidal ideation. ...

Through our consultations Steven also displayed a lot of anger particularly towards his ex-wife whom he resents for abandoning him when he needed her most. He has thus developed powerful self-protective mechanisms that make intimacy extremely difficult for him.

His physical symptoms include constant pain in the right hip and right leg; painful right wrist; constant aches and pains in his ankles, knees and shoulders.

..."

8. The Tribunal also notes Dr Hocking's comments in his report dated 27 April 1999 (QT13) (inter alia):

"...

He is emotionally incapable of a meaningful relationship with anyone and his physical capacity for relationship is also severely compromised."

9. He stated that he has had problems dealing with people since the accident, that his "head rocks" when he tries to work out problems, and that he no longer trusts women.

10. He told the Tribunal that he considers the female applicant as a sister and has known her for thirteen years. He stated that he considered them to be "good mates" but that he would not trust her or anyone with his feelings, and that it has never occurred to him to consider marriage. He stated that his mother arranged for the female applicant to come to Adelaide to act as his carer as he needed help with going to the toilet, showering and day-to-day tasks, given he could only walk for five to ten minutes at a stretch.

11. He stated that they moved from the first address because the landlord threatened them with a gun and demanded rent money. In relation to the second address, he stated that it was a temporary house belonging to a friend of his, and that they moved into 31 Holly Rise in January 1998. He told the Tribunal that he has a separate bungalow, but has recently been sleeping in the lounge room because of the cold. He also stated that he shares the toilet and bathroom facilities. He is listed as a sub-tenant, with the female applicant listed as a tenant. He further told the Tribunal that "Mel" moved into the bungalow for several months recently due to her and the applicants' financial problems, and he lived in the living room for this period of time. He told the Tribunal that he still borrowed Mel's car on occasions, but that other people were now able to help him with transport, and he was more capable on his own two feet in recent times. He uses the female applicant's car on occasion but has to pay her petrol money, and she uses the car to pick up his kids for contact visits, because his ex-wife has a restraining order against him.

12. He required a lot of care when the female applicant first arrived, but she has not been paid for acting as his carer, as they consider each other to be family. He has required massage, particularly in relation to his leg muscles which can seize up, and his mother, sister and male friends have all done that apart from the female applicant.

13. He told the Tribunal that he and the female applicant do not go out socially. He further stated that they did occasionally accompany each other to the cricket, but that the female applicant stopped her involvement with the cricket club because of what the respondent might think.

14. He and the female applicant have a three year old son, Ryan. He stated that he cannot explain how Ryan came to be, as he had been told by doctors that he was sterile and impotent. He told the Tribunal that he and the female applicant have only had sex on one occasion following a birthday party, at which they were both very drunk. Both regret and are embarrassed by the incident. He further stated that he has accepted paternity of Ryan ("put his hand up") because he wanted to give his life a focus, and that their understanding is that he will take Ryan when he moves out. He considered that the female applicant had in effect been a surrogate mother to give him a child, as she did not really want another child. He has "bumped into" some other women in the relevant period and has tried to have sex with them, subject to his medical limitations. He did not speculate as to whether the female applicant may have had other relationships.

15. He stated that they share expenses and accommodation because he is trying to save money to move out with Ryan. He further stated that he then wants to apply for full-time residence of his other two children. He considered that he is not "100 percent" sure if he is ready to move out, but considers his health to be getting better. He told the Tribunal that he is pining for his independence. He stated that without the Centrelink problem he would still want his own place, as he wants to get his life back to the position it was in prior to the accident.

16. He pays one half of the rent, but doesn't contribute to electricity and other bills currently, because he has no money. He told the Tribunal that he has been buying his own food for the past six weeks, as he becomes more independent, but that prior to that they would pool money, and the female applicant would generally do the shopping, as he was medically unable to. He further stated that he trusts the female applicant to get money from his account, as in the past he has not been mobile enough to pay bills himself.

17. He also stated that the female applicant will cook for his other children on contact visits because it is convenient, but that she does not cook for him, as he is seldom hungry, and never at the same time as the other people in the household. He told the Tribunal that he has no say in the day-to-day running of the house, and that it is not a stable family environment in his opinion, as it is not "his" place.

18. He stated that he cleans up after himself if he cooks or showers, but that the female applicant cleans the rest of the house. He still requires help with shopping and hanging out clothes. House maintenance is performed by a management company, they share lawn mowing responsibilities. They do not exchange birthday gifts with each other, but do buy gifts for the children. He stated that one of the female applicant's other children has called him "dad" on a couple of occasions, but that he has sat him down and explained that he is not their father.

sandra louise beer's evidence

19. The female applicant is 29 years old and has three young children, two to her ex-husband and one with the male applicant (Ryan). She told the Tribunal that she came to Adelaide at the suggestion of the male applicant's mother, as she had been abandoned in Sydney by her ex-husband and needed to make a new start. She could not return to Victoria, because her ex-husband's family were there, and so the male applicant's mother suggested that both she and the male applicant could benefit from her going to Adelaide. In this way, his care needs could be met, and she could make a fresh start.

20. She stated that she knew the male applicant for 10-11 years prior to coming to Adelaide as his sister was her best friend. She also stated that she considers his mother, Mrs Treloar, to be more of a mother than her own mother. She told the Tribunal that the male applicant needed help with cramps and medical assistance, transport and shopping, but that lately he has needed much less help. She rarely cooks for him, but does cook for his other children on contact visits, as it is convenient. She told the Tribunal that she will help the male applicant for as long as he needs help, and that whilst she looks forward to him moving out, so she can "get on with her life", she would continue to help him then, being "only a phone call away". It never occurred to her to seek payment for such care, as "he is family" and it helped keep her mind off the problems from Sydney. She feels that he probably helped her as much as she helped him. She still considers the male applicant as a big brother.

21. She stated that she has never considered a relationship with the male applicant, as she wants to give her children everything, and that does not include another man. She considered from experience that a marriage requires two people acting as one, whereas she considered her relationship with the male applicant to be no different than that she had with Mel when she lived there, or with her own children. Her ex-husband has contact with his kids about once a month on the telephone, and whilst he is in arrears with child support, she does not press the issue, as she is fearful that if she did he would stop calling the children.

22. She stated that they share the rent and bills but that the male applicant has not been able to contribute to bills lately as he has no money. She told the Tribunal that Ms Grosser moved into the bungalow for about three months, as she needed a place, and the applicants needed money. She would love to return to part-time work if something was available.

23. She stated that the male applicant spends most of his time in the bungalow at 31 Holly Rise, but has been sleeping in the lounge recently because it has been cold. They do not watch television together, as she rarely watches television. When his kids are over for contact visits, they spend most of their time in the bungalow, or playing with her kids.

24. She told the Tribunal that she has not had any other significant male relationships in the relevant period, as no-one has "taken her heart away". She presumes the male applicant has had some relationships, but was not sure, suggesting that he has not brought anyone back to the house. She stated that they go out occasionally for birthdays and the like and have some mutual friends.

25. She stated that she and the male applicant only had sexual relations on one occasion, and that she was embarrassed by the incident. She further stated that she does not know for certain that the male applicant is Ryan's father, as he was told by doctors that he was sterile, but that once she was pregnant, she felt that Ryan must be a "miracle baby", and as she does not believe in abortion, she carried him to term. She told the Tribunal that the plan is for Ryan to go with his father when he leaves the house.

26. She stated that she trusts the male applicant, as he is using her house, and he is family, but that the current house is in her name because the plan is to get the male applicant back on his feet and out of the house.

27. When the Tribunal reconvened, she gave further evidence and stated that in the week following the first hearing date, she received a notice of termination from the landlord, giving her and the male applicant sixty days to vacate the premises. Within one and a half to two weeks after receiving this notice, the male applicant moved out to a male friend's house with Ryan, whilst she stayed there with her children in order to try to find new accommodation. She further stated that Ryan came back to her within two weeks as the male applicant's temporary accommodation was not suitable or big enough. She told the Tribunal that as of the morning of the second hearing day, it looked as if she had secured accommodation for herself and her children. She stated that she and the male applicant remained friends and communicated frequently, but were not able to see each other as regularly. She also stated that the male applicant will need some further care, but that it did not necessarily have to be from her.

mrs r. treloar

28. Mrs R. Treloar, mother of the male applicant, gave evidence on the first day of hearing. She told the Tribunal that the female applicant was like a foster daughter, and that they still continue to be in constant contact. She told the Tribunal that she encouraged the female applicant to move to Adelaide because she thought it would be mutually beneficial to both applicants. She and her daughter had been unable to help the male applicant with all his care requirements because of their own problems.

29. She stated that from her experience in nursing people with head injuries, she considered that the male applicant continues to suffer neurological problems. She told the Tribunal that she would give the female applicant care advice during the relevant period.

30. She considers the applicants' relationship to be no different than that between the male applicant and his sister, (who is the female applicant's best friend). She was not happy about Ryan and the circumstances of the pregnancy, but cannot see any change in the applicants' relationship after Ryan's birth.

31. She did not consider on the first day of hearing that either applicant wanted to remain in the house for too much longer, but was unaware of plans for the male applicant to take Ryan.

applicants' submissions

32. Mr de Rohan submitted, on behalf of the applicants, that the focus of the relationship was on mutual care, and that there had been no change in the relationship as a result of Ryan's birth. He further submitted that the presence of the sub-tenancy agreement reflects the need for stability given the male applicant's care needs. He also submitted that the female applicant was a remarkable individual, as evidenced by the level of care she has provided the applicant.

33. He submitted that the only sexual contact between the two was a source of embarrassment, and that it was consistent with their honest presentation, that they are prepared to freely admit to that one occasion. He further submitted that the social aspects of the relationship were of no assistance either way to the Tribunal. He referred to the medical report of Dr David Kelly, Psychiatrist, dated 31 March 2000 (Exhibit A6) in which he states (inter alia):

"...

Given the nature of his ongoing problems it is unlikely that Mr Quick would be able to enter into and maintain a long term relationship.

..."

and submitted that this is consistent with the male applicant's, Mrs Treloar's and Dr Hocking's comments as to the male applicant's inability to have an effective relationship with women, noting neurological, psychiatric and sexual dysfunction problems. He also submitted that the applicants both desire to find someone else.

34. He submitted that pooling of resources was necessitated by their low income, and that they are no different to many other low income shared households, which exist on the poverty line, trying to adequately feed their children. He noted that Mel Grosser was also involved in pooling of funds for the time she lived at the house.

35. He submitted that the male applicant's evidence was clearly demonstrative of the fact that he does not regard the 31 Holly Rise house as his home, and nor is he happy to be there. Upon resumption of hearing, he submitted that the subsequent move demonstrated the lack of permanence of the applicants' arrangement, and the male applicant's desire for independence.

respondent's submissions

36. Mr Goldie submitted, on behalf of the respondent, that there is a significant pooling of assets, and that the inclusion of the male applicant on the lease was indicative of long-term commitment.

37. He submitted that there is a significant degree of trust and cooperation in the sharing of day-to-day expenses and activities. He further submitted that they have created a family unit with Ryan and both appear to have unlimited access to the house.

38. He submitted that the female applicant has provided sustained physical and emotional support to the male applicant. Whilst friends regard them as independent people, he submitted that the Tribunal should take account of the public information provided (and subject to a confidentiality order) which had been "carefully scrutinised" by the ARO.

39. He submitted that the relationship has not been entirely platonic, and that there is no evidence of either applicant having sexual relationships with anyone else. He submitted that there is a clear mutual desire for companionship and support and that the medical evidence was inconclusive as to whether or not the male applicant could enter into a relationship.

40. Upon resumption of the hearing, he submitted that the move appeared to be more a result of being forced out than any realisation of the applicants' intentions, and that such a development did not directly affect the period in question.

discussion and findings

41. Whilst there was some debate between the parties as to the applicable standard of proof, bearing in mind sub-section 4(4) of the Act, the Tribunal is mindful of Senior Member Balmford's comments in Re Secretary, Department of Social Security and Villani (1990) 20 ALD 49 and also notes the application of Re Villani in Re Erdmann and Secretary, Department of Social Security (AAT 10939, 17 May 1996) wherein the Tribunal stated at paragraph 12:

"In Villani (supra), the Tribunal construed the provision as having the following effect: if the Tribunal was left in a state of uncertainty after considering all the evidence and was unable to decide on the balance of probabilities whether a person was or was not living in a marriage-like relationship, the provision referred to required a decision that the person was living in a marriage-like relationship. Whilst we understand and agree with the reasoning of the Tribunal, we are of the view that the terms of s.4(4) are not, in the circumstances outlined above, such as to require a decision that the person in question is living in a marriage-like relationship. Section 4(4) takes the form of prohibiting the formation of an opinion ie. "... the Secretary must not form the opinion that the claimant or recipient is not living with the other person in a marriage-like relationship unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is not living in a marriage-like relationship with the other person." In other words, if the above state of uncertainty exists, then s.4(4) dictates that the Secretary (and this Tribunal on review) must not form the opinion that there is not a marriage-like relationship. It does not mean a decision is required that there is a marriage-like relationship."

42. With respect, this Tribunal would concur with the approach outlined in Re Erdmann, in that the Tribunal considers the matter on the balance of probabilities, and if in a state of uncertainty either way, is not to conclude that the applicants are not in a marriage-like relationship.

43. From the outset, the Tribunal would comment that this has been a difficult case to determine. The living arrangements and personal relationships of the applicants are somewhat extraordinary in the literal sense of that word. The Tribunal can appreciate why all the "red flags went up" as Mr de Rohan put it, upon first glance at the applicants' living and personal arrangements, but equally appreciates Mr de Rohan's submission that this is a case where careful scrutiny of all the evidence is warranted.

44. The Tribunal is in the position of having heard both applicants at length, as well as the evidence of Mrs Treloar, the male applicant's mother. Mr Goldie did not seek to push the issue of credibility, however, it is appropriate in all such marriage-like relationship cases for the Tribunal to make comment in that regard. There was no evidence led before the Tribunal so as to suggest that either applicant has made deliberately false statements to the respondent throughout the course of the respondent's enquiries. Both applicants freely admitted altering their behaviour (such as quitting the cricket club) in an effort to ensure that the Department did not glean the wrong impression, but the Tribunal is satisfied that they took such action out of a sense of desperation as to their financial circumstances, as opposed to any deliberate intent to deceive the reality of the situation.

45. Both applicants were candid in their answers and this Tribunal is satisfied that they were witnesses of credit. The female applicant was a particularly impressive witness, who gave answers in a forthright and no-nonsense manner. The Tribunal is mindful in its assessment of the male applicant's evidence of the health problems he has had and is having, and there were clearly demonstrable psychological problems in evidence at the hearing of the matter. Where there are discrepancies between them, the Tribunal is inclined towards the female applicant's evidence.

46. The Tribunal notes that there were some notable discrepancies in the evidence of the applicants, on matters such as watching of televisions (or whether they have one or two televisions) and whether the female applicant's children have called the male applicant "dad". The Tribunal did not consider the discrepancies in the evidence to be major, and nor did Mr Goldie suggest that this was the respondent's impression. In respect of perhaps the most significant, the issue of how the female applicant's children refer to the male applicant, it may be explicable by the fact that it was a one-off that the female applicant remained unaware of, or that she forgot the incident described by the male applicant. Given her evidence that she goes to some lengths (including not taking child support action to her financial detriment) to ensure that her children continue to have contact with their natural father, it seems that she would have a good faith belief that they would consider their natural father to be "dad".

47. The Tribunal considers that this is one of those particular cases where the fact that there are some discrepancies as to minor details bolsters the applicants' credit, in that the Tribunal does not consider that they have got together and concocted this story. The only indication that Mr Goldie gave that credit might be in issue is in respect of his submission that the confidential public information before the Tribunal be accepted. That information is contrary to both applicants' evidence. Whilst the Tribunal is appreciative of the importance of people providing information to the respondent, in this particular case, there is a clear vested interest involved. This Tribunal does not accept evidence as reliable simply because an ARO does. The confidential information before the Tribunal as it currently stands, is documentary hearsay evidence of a person with a vested interest in these proceedings, and as such, without being afforded the opportunity to test such evidence, and in the absence of corroboration thereof, the Tribunal can attach little weight to it.

48. This is not a case to take a "tick list" approach (see Re Needer and Secretary, Department of Social Security (AAT 8648, 6 April 1993) at paragraph 14) but it is appropriate to canvas the sub-section 4(3) factors in relation to the factual material before the Tribunal. The Tribunal will then consider the various explanations offered for the state of affairs between the applicants.

49. There is obvious pooling of resources in this case, and a sharing of the household expenses, including rent, utilities and food. The male applicant is listed as a sub-tenant on the lease, however it was clear from the evidence that the female applicant has taken charge in respect of finding their current accommodation, and attending to bills and the like. The female applicant has a car, to which the male applicant must contribute petrol money in the event that he uses it, or it is used on his behalf.

50. The applicants share joint responsibility for Ryan, and of late the female applicant has undertaken the majority of his care. It is intended that the male applicant will take Ryan if and when he leaves the current household. The female applicant appears to have sole care of her children, and the male applicant has no say in their upbringing. The female applicant provides meals for the male applicants' children, and drives them to and from contact visits, due to the existence of a restraining order taken against the male applicant by his ex-wife. The female applicant attends to the bulk of the housework. They have equal access to the house, with the male applicant spending most of his time in the bungalow, and sleeping in the lounge.

51. The applicants do not regard themselves as a couple. They have some mutual interests and mutual friends, and appear to have some separate friends and interests also. There is a paucity of apparent shared social activities, save for the odd birthday or event concerning the children.

52. The only evidence of sexual contact is the somewhat unusual circumstance surrounding Ryan's conception, about which both applicants appeared genuinely embarrassed.

53. The applicants have lived together for several years in three separate residences, and have both provided support to each other over that time. Both parties indicated to the Tribunal an intent to end the shared living arrangements on the first day of hearing, with the female applicant indicating that the level of emotion and physical support will continue as long as necessary. Neither sees the relationship as marriage-like, using descriptions like, "he's family", "she's like a kid sister", "he's like my big brother".

54. Mr de Rohan rightly considered that the stand out feature of this relationship is the carer/caree aspect. From the evidence before the Tribunal, the female applicant has taken on a considerable burden in caring for the male applicant, and from its assessment of him, and medical reports before the Tribunal, he would not be an easy man to care for. The female applicant has persevered with this caring for several years now, and indicated that she would continue to be there for the male applicant for as long as is necessary. She is clearly a very giving and compassionate woman, and she was an impressive witness in this regard.

55. The Tribunal has taken the opportunity to consider a large number of cases involving "marriage-like relationship" questions, and the difficulty in making any comparative assessments is that such cases are always dependent on their facts to a large degree.

56. In Re Van Leeuwen and Repatriation Commission (AAT 6186, 13 September 1990) Deputy President Forgie made the following observations (inter alia) at paragraphs 17-19:

"...

17. ... I am satisfied that they lived totally separately and apart for fourteen years which is a very lengthy period. The fact that they came together on occasions to assist in the treatment of their daughter and on very rare social occasions when the rest of the family was gathered does not seem to me to detract from the fact that not only were they living separately and apart during that time but also that there was no intention to maintain a relationship of marriage as such. The fact that they did not seek a divorce does not detract from this as I am satisfied that, as neither had met another person whom they would like to marry and the fact that the illness of the elder daughter seemed to be all pervading, the question of a divorce never became relevant in their minds.

18. Certainly, when they came to Queensland, they did start to live under the one roof again. I am satisfied on the evidence that neither intended to resume a marriage type relationship. Certainly, they kept their finances separate and they did many of their household duties separately. Unlike the case of Re Gordon to which Mr Loftus referred, there is no suggestion on the evidence before me that they came together because of emotional needs including loyalty and friendship. Each was quite capable of subsisting without the other and they came together only because it improved their separate financial positions and because it enabled them to see their only grandchild much more regularly. Certainly, they were friendly to each other and there were feelings of loyalty and responsibility but I am satisfied that these were feelings which resulted from their long relationship and their joint responsibilities in the form of their children but not from any feelings that they wanted to be man and wife in any sense of that term.

19. The fact that Mrs Van Leeuwen took on responsibility for caring and nursing Mr Van Leeuwen in his final months does not detract from this in my view. I accept that she has often cared for her friends and she has been cared for by them in times of illness. Nursing Mr Van Leeuwen at such a tragic time was something that she would have done for any of her long term friends and cannot be taken as indicative of any wish by either of them that their marriage relationship be revived ..."

57. In Re Shadforth and Secretary, Department of Family and Community Services [1999] AATA 198, Member Brassil AM considered relevant the fact that shared shopping and travel was a "matter of practical common sense" (paragraph 21). He also noted a division of responsibility for household duties governed by "practical considerations of health and capacity to perform the duties" (paragraph 23). In that case, the couple had had sex "when they were both drunk" and he had accepted paternity (inter alia) "as he "was old-fashioned" and did not want the girl to grow up regarded as a "bastard"" (paragraphs 12-13).

58. In Re Needer Senior Member Muller stated (inter alia) at paragraphs 6 and 14 as follows:

"6. ... Both of these people have lived in marriage situations before they met and they were at pains to point out that their current situation is nothing like their previous lives with their respective spouses. I accept that there is a difference and I also accept that the difference may be hard to define. I believe 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.

...

14. ... It may well be that their friendship is greater than that of many married couples but there are many thousands of people in our community who have stronger relationships outside their marriage than in it. Apart from their friendship they are really quite independent of each other and, in may view, they do not live in a marriage-like relationship."

59. In Re Erdmann the Tribunal stated at paragraph 53:

"In considering all the circumstances of the relationship, the Tribunal is mindful that the fact that Mr Esposito is blind cannot be lightly passed over. The applicant has carried out extensive driving "duties" for Mr Esposito since 1985 when he went blind. Mr Esposito's blindness also affected the applicant's view that she could not in those circumstances have deprived him of Vance [their son]. The applicant now provides general housekeeping services for Mr Esposito, though he continues to do some things for himself such as cleaning his own room and most of his own laundry. Both the applicant and Mr Esposito acknowledge he needs some assistance and that his family would not be able to assist to the extent the applicant does. The applicant, in her evidence, indicated that she would not be living with Mr Esposito if he were not blind. Although the applicant also gave other reasons, namely her friendship with Mr Esposito and her desire to involve him more in Vance's upbringing, the Tribunal is satisfied that Mr Esposito's blindness and his need for assistance were factors in the applicant's decision to move into the house at Pooraka with him. This aspect of providing care to Mr Esposito because of his blindness is not a factor which, in the Tribunal's view, necessarily renders the relationship more marriage-like. The Tribunal accepts the evidence of the applicant and Mr Esposito to the effect that the move to Pooraka has little changed the relationship which has existed since Mr Esposito became blind: one would be very hard pressed to consider that relationship as marriage-like."

60. In Re Mills and Lyle and Secretary, Department of Social Security (1991) 23 ALD 500, Senior Member Barnett stated (inter alia) at page 502:

"...

This relationship has been continuing for just over a year and a half and they don't know how long it will continue. They feel that it will continue indefinitely unless they start to argue and suffer the hostilities quite often associated with joint living arrangements. Each said quite vehemently that they don't want to have those hassles which they experienced in their previous marriages and that if they start arguing they would certainly sever the relationship. ...

It is always hard to assess these sorts of relationships against the test of whether or not it is a marriage-like relationship. The outstanding feature of this relationship however appears to be the fact that it was formed in order to help cope with M's physical disability. More recently L's own increasing degree of disability has become a major concern because it raises doubts about his ability to help M. It is characterised mainly as being a "caring" relationship. ... All the circumstances of the relationship must be taken into account including the fact that it commenced as a way of caring for a disabled person and that care and support for the disabled has remained the outstanding characteristic of the relationship. The fact of entering a joint tenancy and a single insurance policy, the short-term opening of a joint account, and the fact that L drives M's car (but usually on her business) must of course be taken into account. ...

This relationship is bonded by the mutual respect, trust and care which has grown up between the 2 applicants as they have helped each other to overcome their respective disabilities. The fact that during this process they have developed a strong friendship is not sufficient to satisfy the Tribunal that this is a marriage-like relationship.

..."

61. In relation to this current application, the Tribunal considers that there are several factors which are strongly indicative of a marriage-like relationship. Most notably, the joint responsibility for Ryan and the level of emotional support the applicants have provided to each other over the relevant period. There has been pooling of resources and each party has shown a great degree of trust in the other They have remained in the same household in three separate consecutive residences.

62. In the final analysis, this Tribunal must take a global approach to marriage-like relationship cases, and its assessment of the couple as witnesses will be paramount to its assessment of the relevant factors. In cases where there is a carer/caree relationship, appearances may sometimes be deceiving, and it is necessary to look behind what appears on the face of it, to be a marriage-like relationship, to see if there is a good explanation for certain events.

63. In relation to the financial aspects, the Tribunal notes that there is pooling of resources. In the absence of any major assets and given the severely limited finances of the applicants, this is perhaps to be expected in a shared household. The Tribunal does not find that the financial aspects are determinative either way.

64. The female applicant appears to have had the main carriage of the housework, and this is to be expected given the male applicant's disability. Whilst the third party information before the Tribunal (that subject to a confidentiality order) suggests otherwise, given that they were not challenged on this at hearing, the Tribunal accepts that their sleeping arrangements were separate throughout the relevant period. Day-to-day living arrangements appear quite separate, in terms of most activities, meals and recreation.

65. The joint responsibility for Ryan is a factor strongly indicative of a marriage-like relationship, and it is also apparent that the female applicant has been providing a great deal of support and assistance during the contact visits between the male applicant and his other two children that could be said to be above and beyond what one would expect to see in a shared household situation.

66. The Tribunal only has the applicants' evidence in terms of the social aspects of the relationship, but accepts that they do not regard themselves as married, albeit that they present as a mother and father of Ryan living together, such that one would not be surprised if some assumptions were made. There appears to be few social functions, and only outings on children's birthdays and the like, and this is not a factor going against the applicants in the Tribunal's opinion. In respect of activities such as the cricket club, the Tribunal appreciates that such were not so much joint social activities, but activities in which both were involved in their own particular way.

67. The sexual relationship is in no way suggestive of marriage-like, and both applicants appeared genuinely embarrassed by the one episode of sexual contact.

68. The Tribunal concurs with Mr Goldie that the subsequent forced move from 31 Holly Rise is significant more for the fact that it was forced, and diminishes the weight of the applicants' intent. The Tribunal has found the witnesses to be credible however, and as such, must be mindful that factor 4(3)(e)(iii) of the Act speaks of the peoples' consideration (see Re Tang and Director-General of Social Security (1981) 3 ALN N83). In that regard, the intention of both was that they did not wish the relationship to continue indefinitely. Neither sees the relationship as marriage-like.

69. There are some factors indicative of a marriage-like relationship and some that are not. There are explanations proffered for the indicative factors, as outlined above. The Tribunal has given careful consideration to all the evidence before it, and is reasonably satisfied that this is not a marriage-like relationship. It formed a favourable impression of the female applicant, and accepts that she is the type of person who would perform duties as a carer for someone she views as "family" without being in the context of a marriage-like relationship, even though many of the duties and tasks she has done are things one would do in a marriage. There is clearly a close, familial and loving relationship in this case. However, on its assessment of both applicants in the witness box, the Tribunal is prepared to accept that it is more akin to a close brother and sister relationship, where the "brother" has had significant care needs met by a dutiful "sister".

70. The Tribunal is mindful of the conclusions in Re Erdmann, and considers there to be some application of that case to the current matter. Whilst there is a very close bond and friendship, the carer/caree aspect of the relationship is very significant, albeit that the female applicant considered that she had also received useful support from the male applicant. Re Mills and Lyle is also applicable, in that one must bear in mind that in the present matter, the relationship commenced upon the suggestion of the male applicant's mother, due to her son's care needs, and the need of the female applicant to start afresh.

71. The Tribunal thought that the female applicant made one very salient remark in her evidence, to the effect that she has not had her "heart taken away" or been "taken to the clouds and back". The Tribunal gained the impression that this "spark" was missing, and is mindful of the Tribunal's comments in Re Smith and Secretary to Department of Social Security (1985) 7 ALN N371 at pN374 (inter alia):

"...

Perhaps it is some emotional element that must exist in the relationship between a man and woman before she can be regarded in any way as his wife. Whatever spark is required to ignite the tinder of cohabitation into the fire of a quasi-marriage relationship, we are clear that it did not exist in the present circumstances. An arrangement of mutual convenience for the housing and material welfare of the parties and their children is the highest level at which it could be put.

..."

72. The Tribunal is appreciative of the reasons why the "flags went up" at the Department, as on the face of it, the indicia are present to suggest a marriage-like relationship. For the above reasons however, the Tribunal is satisfied that, whilst highly unusual, this relationship cannot be said to extend beyond that of very close friends, one of whom has had care requirements, and both of whom have had to seek out support, both emotionally and financially, through recent tough times. The fact that they have relied on each other and now share responsibilities to Ryan, does not deter the Tribunal from concluding that for the period in question, the applicants were not living in a marriage-like relationship.

decision

73. For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and in substitution therefor, decides that during the period 14 October 1998 to 10 July 2000, the applicants were not in a marriage-like relationship.

I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE

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

Personal Assistant

Date/s of Hearing 28 June 2000 and 24 August 2000

Date of Decision 30 August 2000

Counsel for the Applicant Mr M. de Rohan

Solicitor for the Applicant LSC

Counsel for the Respondent Mr A. Goldie

Solicitor for the Respondent Centrelink