Cavallaro and Forward and Secretary, Department of Family and Community Services [2000] AATA 85 (10 February 2000)

Last Updated: 15 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 85

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S99/161 & S99/163

General Administrative DIVISION )

Re LEONORA CAVALLARO AND STEVEN FORWARD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member WJF Purcell

Date 10 February 2000

Place Adelaide

Decision The Tribunal affirms the decision under review.

(Signed)

WJF PURCELL

(Senior Member)

CATCHWORDS

SOCIAL SECURITY - pensions, benefits and allowances - Newstart Allowance - Sole Parent Pension - marriage-like relationship - living separately under one roof - nature of household - nature of relationship - financial relationship - whether irretrievable breakdown - intention of applicants in the future

Social Security Act 1991 s.4

REASONS FOR DECISION

10 February 2000 Senior Member WJF Purcell

1. This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) dated 29 March 1999 affirming the decision of an authorised review officer of 27 January 1999 to treat Mr Forward and Miss Cavallaro as living in a "marriage-like relationship" for the purposes of the Social Security Act 1991 (the Act).

2. The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T Documents) and the exhibits tendered by the parties at the hearing. The applicants were represented by Mr Bullock of counsel, and the respondent (the Department) was represented by Ms Pugsley.

3. The male applicant, who is 45 years of age, gave evidence that they met in 1985, in Melbourne. They became friends, and shared accommodation at his home in Melton, a Melbourne suburb, for three years. The male applicant lost his job and sold his house. He moved to Maryborough, some 200-300 kms from Melbourne, where he purchased a freehold home, for a lower value than the home in Melton. He has not worked since he moved to Maryborough in about 1988. The female applicant joined him as she had lost her job also, and they shared accommodation and expenses. After what he described in evidence as a "three-year casual sexual relationship" they established a marriage-like relationship in about 1991, and advised the Department accordingly as both were in receipt of Social Security payments. In 1993 they separated, and she came to Adelaide where her father, brother and sister resided. He sold his house and returned to Melton. They had discussions subsequently regarding the division of the proceeds of sale of the Maryborough property, and decided to resume cohabitation in Adelaide.

4. The applicants rented a home at Woodville; they continued in receipt of Social Security benefits and subsequently obtained a loan from Homestart, and purchased, jointly, a home at Largs North, in about May 1995. Their child, Laura, who is now 5 years of age was born on 1 January 1995, and in mid 1996 the female applicant was diagnosed as suffering from breast cancer. She underwent chemotherapy treatment for an 8-month period, and is now in remission. It would appear that the female applicant's illness, and the care of an infant child placed enormous stress on the relationship, and on 9 February 1998 she applied for Sole Parent Pension, stating that she had separated that day, but that she and the male applicant were residing under the same roof. The male applicant applied also for payment of Newstart Allowance at the single rate. Both applications were successful.

5. In November 1998 the Department reviewed the living arrangements and on 25 November 1998 the delegate determined that the applicants were living in a relationship similar to that of a married couple in accordance with section 4 of the Act which as far as is relevant for the purposes of this review provides:

"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.

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

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

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

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

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

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

(b) the nature of the household, including:

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

(ii) the living arrangements of the people; and

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

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

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

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

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

(d) any sexual relationship between the people;

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

(i) the length of the relationship; and

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

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

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

4.(3A) partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

4.(4) If:

(a) a person claims, or is receivingparenting payment; and

(b) a particular residence has been, for a period of at least 8 weeks, and a person of the opposite sex; and

(c) the claimant or recipient is not legally married to the other person; and

(d) at least one of the following subparagraphs is satisfied:

(i) child of both the people also lives in the residence;

(ii) the people of the residence;

(iii) the people are joint lessees of the residence and the original duration of the lease was at least 10 years;

(iv) the people have joint assets with a value of more than $4,000;

(v) the people have joint liabilities totalling more than $1,000;

(vi) the people have at any time been members of the same couple;

(vii) the people have at any time shared another residence with each other;

, the weight of evidence supports the formation of an opinion that the claimant or recipient does not have a marriage-like relationship with the other person."

6. The applicants submit that prior to February 1998 they were members of a couple, but that, as of 9 February 1998 the nature of their relationship changed significantly. Although they are financially associated in that they are joint owners of their home, they have never held a joint bank account, each has a motor car and they have taken every step towards financial independence which they consider to be reasonably open to them. They have never been legally married, they did not wish to sell their home upon separation. They lead separate lives, each has a distinctly separate relationship with their daughter; they have entered into a parenting plan and property settlement agreement under the guidance of a Family Court Counsellor and altered their wills. They maintain that whereas before separation each had a commitment to the family unit and to each other, they each have a commitment now, only to their daughter, and they are no longer living in a marriage-like relationship.

7. The respondent argues, that on balance, the factors which go towards there being a marriage-like relationship outweigh the factors suggesting there is not a marriage-like relationship. The applicants' relationship is one of long standing, they continue to derive mutual financial benefits and to provide a nurturing environment for their child similar to that of a family unit. There is no intention by either of the applicants to alter this. Whilst the relationship may have changed between the applicants it has not broken down, and the Department maintains the applicants were in a marriage-like relationship in the relevant period.

8. The male applicant said in evidence that the female applicant changed character during and after the chemotherapy treatment. She had been a happy-go-lucky, caring, loving person, they had always pooled their resources and shared their social outings. She became forgetful, had mood swings, was distracted easily, and he felt under constant stress, and he is restricted in what he can do with regard to disciplining the child, he feels under constant threat that if he oversteps the mark the female applicant will take the child from him. He said that if it were not for the child he would return to Melbourne; and that the only reason he remains is because of his daughter's well being. He is not prepared to leave his home to satisfy the Department's requirements. He does not want his daughter to live in rented premises, he wants the child to have the benefit of the presence of both parents, and he does not wish to be separated from his child, and cannot afford financially to rent a home nearby so that he can see his daughter daily. He said in evidence also that he has no feelings towards the female applicant, only towards their child, and there is no chance that they will reconcile in the future. He has formed a "casual sexual relationship" with another lady, who is a friend of the female applicant, but he is not interested in another "full on" relationship at present.

9. The female applicant gave evidence that in the course of the chemotherapy treatment she changed from a placid individual to one who speaks her mind, and he found that hard to accept. She felt that she did not receive the support from him that she needed; she felt he could have done more, but as she became more vocal, they argued but could not resolve their difficulties. In February 1998 they argued, and he became aggressive. She took the child to the women's shelter, and about 3-4 days later they reached an agreement that they would share the house, that he would make no threats against her, and that if he did threaten, she would take the child, and he would raise no objections. She said that they are getting on better since their agreement in February 1998, and each of them attends to their own domestic chores, shopping and cooking. She prepared her and the child's dinner, and they eat separately from the male applicant. She is not prepared to move to rented premises, and she will only move out when the child is old enough to accept the situation. The child is more important than is she, and they both want to give the child the best start in life.

10. Both applicants gave evidence on oath. He impressed as a quick witted, articulate, confident man who surprisingly has been unable to obtain any form of employment in the last 12 years. The female applicant presented as a quieter personality, a more reflective lady, whose illness has changed her perspectives and priorities in life, and who is fiercely protective of her daughter. They have been in a relationship for about 15 years, allegedly platonic initially, then a "casual sexual relationship" and then a marriage-like relationship, and now allegedly separated under the same roof with the male applicant involved in a "casual sexual relationship" with a friend of the female applicant. I accept much of their evidence regarding their relationship problems that culminated in their separation for some time in February 1998, but I do not accept their evidence that their marriage-like relationship has broken down to the extent that they had separate lives under the same room as they allege.

11. The applicants' marriage-like relationship is of long standing, and in accordance with section 4(4) of the Act, the Secretary and hence this Tribunal must not form the opinion that the applicants do not have a marriage-like relationship, unless having regard to all of the matters referred to in section 4(3) of the Act, the weight of evidence supports formation of the opinion that the applicants do not have a marriage-like relationship.

12. The applicants own their home as joint tenants; and although they have executed new wills in which they are no longer the sole beneficiary of the other's estate, their major asset is the home. Their financial resources are Social Security payments, and they continue to share jointly the outgoings on the home, but they have never held a joint bank account. They have joint responsibility for their 5-year-old child, although the female applicant is, not surprisingly at this stage, the main caregiver. They maintain that they do not have a sexual relationship, but in any event, I am unconvinced that the male applicant pursues this alleged "casual sexual relationship" with a mutual friend whom the female applicant said in evidence, still visits the home with her children, and she continues to regard this lady as a friend. In any event, on my assessment of the applicants there continues to be a strong bond between them albeit that the relationship has changed and developed over time.

13. I have examined the whole of the evidence carefully and in detail and I have taken into account the parties' submissions. I have had regard to all the matters referred to in section 4(3) of the Act and I am not satisfied on the balance of probabilities that the weight of evidence supports an opinion that the applicants do not have a marriage-like relationship. I am satisfied on the evidence that by February 1998 the relationship had deteriorated to the extent that the applicants were bickering and arguing, and that on one occasion the male applicant had threatened violence, and she left the home and took the child to a women's shelter for some 3-4 days. They met at her brother's home and had discussions about future living arrangements and reached an agreement about her returning to the home and the division of duties for the future. Their relationship was certainly strained at this time and they may well have been separated for some weeks or even months because of her conviction that he was not sufficiently supportive of her in her illness, and his perception that she had changed and become less docile and malleable than before her illness, and one would think also, before the birth of the child.

14. I am satisfied on the evidence however, that at least by November 1998, when the delegate made the original determination, the relationship had been re-established, and they had settled into a routine, albeit with changes in the "ground rules" which continue to this day. They both maintain that the only reason they stay together is for the sake of the child; that they have no commitment to each other, but only a commitment to the child. The relationship and motives of this couple differ little from the motives of couples in what they would describe as a less than satisfactory marriage relationship. They remain in the relationship rather than separating and establishing a new life. They wish to provide the child with a nurturing environment, and the continuing relationship provides that environment. I am satisfied on the evidence that the marriage-like relationship between the applicants has not broken down irretrievably. Despite their protestations to the contrary, the relationship provides mutual support and security. They can remain in their jointly owned home, contribute equally to the mortgage, and neither of them has to find alternative, rented accommodation whilst their income continues to be derived solely from Social Security benefits.

15. I am satisfied on the evidence that the applicants should be treated as members of a couple for the purposes of the Act. I am satisfied on the evidence and find as a fact, that at 25 November 1998, the applicants were living in a marriage-like relationship.

16. For these reasons the Tribunal affirms the decision under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell

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

Personal Assistant

Date/s of Hearing 19 January 2000

Date of Decision 10 February 2000

Counsel for the Applicant Mr Bullock

Solicitor for Applicant Parks Legal Service Inc

Counsel for the Respondent Ms Pugsley

Solicitor for the Respondent Centrelink