Ford and Secretary, Department of Family and Community Services [2003] AATA 7 (7 January 2003)

Last Updated: 7 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 7

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2002/284

GENERAL ADMINISTRATIVE DIVISION )

Re BRIAN FORD

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms J Cowdroy, Member

Date 7 January 2003

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) J COWDROY

MEMBER

CATCHWORDS

SOCIAL SECURITY - benefits - newstart allowance - entitlement - whether applicant a member of a couple - whether applicant living in a marriage-like relationship

Social Security Act 1991

Re Spencer and Secretary, Department of Social Services (1987) 13 ALD 497

Re Dunbar and Repatriation Commission (AAT 6293, 19 October 1990)

Re Ambrose and Repatriation Commission (AAT 5849, 5 April 1990)

Re Needer and Secretary, Department of Social Security (1993) 74 SSR 1074

REASONS FOR DECISION

7 January 2003 Ms J Cowdroy, Member

1. This matter concerns review of a decision of the Social Security Appeals Tribunal of 6 March 2002 which affirmed a decision made by Centrelink on 27 November 2001 to regard Mr Ford as a member of a couple for the purpose of assessing his entitlement to newstart allowance.

2. The matter was heard on 30 October 2002. Mr Ford gave evidence. Ms Gabriela De Beer also gave evidence. Mr T Ffrench appeared for the respondent. The T-documents, lodged with the Tribunal pursuant to s 37 of the , were entered into evidence as Exhibit 1.

3. In deciding the matter, the Tribunal had regard to the T-documents, the evidence of the applicant and Ms Gabriela De Beer, and the oral submissions of both parties.

The Applicant's Case

4. The applicant outlined the circumstances, which led to the application before the Tribunal. He applied for newstart allowance in October 2001 and provided information to Centrelink to assess his entitlement. Centrelink determined that he was living in a marriage-like relationship with Gabriela De Beer who he has known and lived with for about twelve years.

5. In 1990 he moved to Sydney and answered an advertisement for a tenant at Gabriela's house. The relationship was one of landlady and tenant. He did not manage his finances well at that time, and, over the next few years, Gabriela helped him to organize his financial affairs. She arranged for him to make his purchases on her credit card, which enabled her to closely monitor his spending. He said that by doing this, he learnt to control his spending, and that he began to see the benefits of self-discipline.

6. He acknowledged that such an arrangement required a great deal of trust on both sides. This arrangement was beneficial, with the result that about eighteen months ago he commenced using his own credit card.

7. In 1996, a property at Sunshine Beach was purchased, in respect to which a joint venture agreement was entered into by the applicant and Ms De Beer (T9-23). Ms De Beer used her Sydney property as security for the purchase and entered into a mortgage of $220,000. The property was held in Gabriela's name, and Gabriela executed a Deed of Trust, holding the property in the ratio of 30/70, for her and for the applicant respectively. The house was rented for about eighteen months before they moved from Sydney to take up residence. The move was made on the basis that it provided a better lifestyle than in Sydney and also that it was a good investment.

8. Gabriela enjoys being near the beach and wanted to live near the sea and be a housewife. Mr Ford is able to work from home.

9. Gabriela cares for their home whilst he is away, and when he arrives home after work, he is secure in the knowledge that he is not coming home to any "dramas". There was a time when he worked in Canberra and only came home every three weeks. He prefers to live with Gabriela rather than share a rented flat, because "she understands me and I understand her". In fact, he could not think of a better way to live.

10. He would support Gabriela in a crisis, including the provision of financial support. In fact, he would support anything which impacted favourably on her well being.

11. In comparison with his relationship with his former wife, his relationship with Ms De Beer is "better". He pointed out that his current situation is nothing like his life with his former wife. He and Gabriela share cultural interests. He plays the piano. When married, his wife did not enjoy his playing, as a result of which he used to play behind closed doors. He had tried to separate from his wife when his children were small, but he always returned because of the children. He committed himself to the marriage for that reason and in retrospect, he often wondered how he managed to "put up with it". In his marriage, there was very little respect shown, with his wife always wanting to know where he had been and whom he had been with.

12. He has a commitment to ensuring the relationship with Gabriela remains the way it is. The only way in which he sees the relationship as not enduring is if either party betrays each other's trust, giving an example of his use of the joint credit card to pay for the services of a prostitute. He described their relationship as one encompassing mutual trust and respect.

13. In 1997, the applicant and Gabriela moved from Sydney to reside at the house in Sunshine Beach, where they currently reside. He pays her $100 for board, which includes meals. Whilst he is overseas, he does not pay anything for board. The telephone account and other utilities accounts are paid in equal shares.

14. He and Gabriela recently purchased an investment property for rental, in respect of which he borrowed $70,000 and Gabriela contributed $50,000 in cash. The title and the mortgage over the property are in joint names.

15. The applicant has an information technology consultancy business, BF Consultancy Pty Ltd, in respect of which he travels to London regularly. The trips are between two and a half months to five months. There has never been any expectation that Gabriela would accompany him. In 2001 he remained in London for five months, returning in September. On his recent trip to London, he was unable to obtain a contract for work, consequently he has been unemployed since May of this year.

16. Because of his lack of income, Gabriela purchased his interest in their jointly owned motor vehicle, which is now in her sole name. She also loaned him $4,500 until his financial situation improves. He has a personal bank account and a business bank account in his sole name, and a shared credit card with Gabriela in respect to the household expenses and outgoings on the investment property. The expenses are split evenly on the basis they are partners in business.

17. He acknowledged that the joint venture agreement acknowledges a "meaningful relationship" with Ms De Beer, which he said, was an accurate description. He explained that rather than rely on a verbal arrangement between them, they both wanted to ensure that their financial interests were protected. If either of them reneged on the arrangement, they both needed to be assured that the asset would be disposed of and the proceeds distributed in a fair manner.

18. He said that he did not consider that he had a de facto relationship with Gabriela, however he considered them to "have a very solid basis for friendship". He had had previous relationships, some of which were "disastrous", in that upon their termination, he found himself in dire financial straits, whereas he is comfortable and happy in his arrangement with Ms De Beer. He enjoys a freedom he has not encountered in previous relationships. He stressed there was no emotional bond between them, and nor had there ever been a sexual relationship. Each provides moral support to the other. He had acquired assets and the ability to deal with his financial affairs in a manner which he would not have been capable without Gabriela's guidance.

19. In respect to social aspects, he has never introduced Gabriela as his partner, nor has he ever given any cause for anyone meeting them to consider they are a couple. Gabriela has her own circle of friends, some of whom he has never met. Conversely, he has friends which Gabriela has not met. They have mutual friends. Occasionally they will go out for dinner together. He said when he was married, if he expressed a desire to socialise with a female friend, it would have produced an angry reaction from his wife.

20. They both recognise each other's birthdays, with Gabriela making him a birthday cake, and he may take her out to dinner. Usually, Christmas Day is spent together. He would not enjoy living alone, as having someone to live with who understands him and is a good friend is a source of pleasure. Before they purchased the Sunshine Beach property, they came to Noose on three or four occasions to look for property in the area. They stayed in a two-bedroom apartment. Gabriela accompanied him on a business trip for one week to the Cook Islands, on the basis that it was a free holiday for her. They spent ten days bushwalking in Tasmania this year, staying at youth hostels and backpacking. He has also taken holidays on his own.

21. He acknowledged that from an outsider's perspective, it could be perceived that he and Gabriela are living in a marriage like relationship. However, the opinions of others on this aspect of his life has never concerned him. He never describes Gabriela or introduces her to others as a partner but as a friend. The friendship he shares with Gabriela is what is encompassed by the term "meaningful" in the joint venture agreement.

22. Since living with Gabriela, he has had sexual relationships. He tries to avoid romantic relationships, and commented that sexual gratification is achievable without a romantic entanglement. With Gabriela, their friendship is unconditional, whereas in his experience, sexual relationships are conditional. He had "shelved" the idea of having an emotional relationship with anyone again, however, he conceded it was possible.

23. He said that whilst their association may appear to be "marriage like", it is quite different from his experience of marriage. He considered that having a stable relationship with someone whom you trust and respect, is preferable to having an emotional relationship and the attendant "emotional baggage". In living with Ms De Beer, he knows "exactly what to expect" and that without the emotional component, there is no friction.

24. The underneath area of the house has been excavated and it contains a studio, a kitchenette and a bathroom. Gabriela provided the funds for that to occur. He has his own bedroom. They usually eat the evening meal together, and in respect to other meals, he makes his own arrangements. They have made joint purchases of a settee and a stereo, and the rest of the furniture belongs to Gabriela.

25. In cross-examination, Mr Ford stated that the joint venture arrangement of 70/30 shares in their present residence represented their respective contributions. He pays the entire mortgage on the basis that he could not afford to contribute to the deposit. He acknowledged that by paying the entire mortgage, he would ultimately have contributed more than 70 per cent of the cost of the house. When it was put to him that such an arrangement does not appear to be an "arm's length transaction" his response was that when appreciation in the value of the property was taken into account, it was a realistic arrangement.

26. He has an insurance/superannuation policy, with Gabriela being the sole beneficiary. He took this course to ensure that she is not left with the responsibility of repaying the mortgage on the house, as he would not like to see her in financial hardship. She is a beneficiary under his will, with a small bequest, the bulk of his estate being left to his children, a son in London and a daughter in Melbourne. He enjoys a good relationship with his children, but they are not really close.

27. In respect to the household tasks, he helps maintain their residence, as it is an asset besides being his home. Gabriela cleans the house, and he generally takes care of the maintenance aspects.

28. When asked to describe their relationship, the applicant said he was reluctant to use the word "unique" however he did not know of any other relationship which has been as good for him. He regarded her as his best friend. It has caused him some disquiet at having to reveal intimate aspects of his private life, however he believed that he did not have to have a sexual relationship in order to form the bond he has formed with Gabriela. He felt fortunate to have met her. He felt that Centrelink's categorisation of them as a couple was terribly unfair in that if they were not heterosexuals residing together, scrutiny of their living arrangements would not have arisen.

29. Ms De Beer confirmed that the applicant had his own studio/granny flat, which had its own separate entrance to the house. They share the living area and studio area upstairs. She acknowledged that to some people, her friendship with the applicant might appear to be like a marriage, however there were "no fights". She has had sexual relationships during her cohabitation with Mr Ford.

30. When she first met Mr Ford, he was steeped in debt and had no credit rating. After living with him in Sydney for about two or three years, she trusted him sufficiently to offer him the use of her credit card, and he would reimburse her for the purchases he made on it. The exercise was successful in that Mr Ford became financially self-sufficient.

31. She has been married twice. She described marriage as an "emotional" relationship, whereas her relationship with Mr Ford she described as a

stable friendship. She compared it to a relationship with a brother or another relative, "someone I can depend upon".

32. She is committed to their friendship continuing on the same level as it is now. She sometimes toys with the idea of moving "out bush" in which case she would like Mr Ford to accompany her. In regard to lifestyle, she enjoys the companionship and the financial benefits of living with someone who is similarly minded. She could not afford to live in the house at Sunshine Beach on her own.

33. The term "meaningful relationship" in the joint venture document is synonymous with "meaningful friendship" and is not synonymous with a de facto relationship. When they purchased the house at Sunshine Beach, she was aware of the potential for Mr Ford to claim a share of her assets should their cohabitation terminate on unfriendly terms. Consequently, it was at her instigation that the joint venture agreement was drawn up.

Submissions

34. Mr Ffrench submitted that the applicant's relationship with Ms De Beer was founded on trust, commitment, mutual respect and deep friendship. Some marriages exhibit those characteristics, whereas some do not. However, such aspects are important indicators of how cohabitation should be viewed within the context of the section relating to "marriage like relationships" in the Social Security Act 1991 ("the Act").

35. The sharing of finances and the nature of the household suggest that those aspects are organised along traditional lines. The fact that there is no sexual relationship is not decisive, and regard should be had to the comments of Senior Member Hayes in Re Spencer and Secretary, Department of Social Services (1987) 13 ALD 497, particularly the statement (at 500):

"It would be obviously unsatisfactory to perform the task of categorising a relationship by reference to a 'tick-off list', with a particular points tally in mind. For in essence, the adumbrated factors are signposts to a goal for which the decision-maker is searching. That goal is the isolation of some exquisite quality in a relationship between two people which distinguishes it from the others build up in the course of their lives."

36. The distinguishing feature of the applicant's association with Ms De Beer is that they jointly own two properties, with a shared mortgage over one property, and Mr Ford appearing to pay more than his share in respect to the property which is held in 70/30 shares. The life assurance policy and superannuation polices list Ms De Beer as the sole beneficiary. Whilst they jointly owned a motor vehicle, Mr Ford does not have any assets of his own. Their finances are as intertwined as any married couple.

37. The nature of the household - she cooks and he cleans is indicative of a traditional marriage. Mr Ford's comment that Ms De Beer "just wants to be a housewife" and his categorisation of their respective roles, goes beyond the concept of mere flat mates.

38. In regard to social aspects, they enjoy joint holidays, and whilst they have separate friends, they also have shared friendships, which again, is not dissimilar to a marriage like relationship. Ms De Beer acknowledged that she could understand why others might view them as a couple.

39. The applicant's and Ms De Beer's evidence clearly demonstrates a strong desire for and a commitment to a continuance of the present living arrangements. They have lived together for more than ten years, in two residences; they have moved interstate together. They have indicated a willingness to support each other in times of crisis. Despite the fact they do not consider themselves as living in a marriage like relationship, objectively their cohabitation would support a finding to that effect.

40. In respect to the sexual aspect, in both Re Dunbar and Repatriation Commission (AAT 6293, 19 October 1990) and Re Ambrose and Repatriation Commission (AAT 5849, 5 April 1990), the Tribunal found a marriage like relationship existed, despite the absence of a sexual relationship. In Re Needer and Secretary, Department of Social Security (1993) 74 SSR 1074, Senior Member Muller (as he then was) found against a marriage like relationship despite the fact that there had been an intermittent sexual relationship in the early stages. Whilst Senior Member Muller indicated that the criteria set out in section 4(3) of the Act was more appropriately applied to younger couples, Mr French suggested that this was not a correct interpretation of the legislation.

41. Clearly, the applicant's relationship with Ms De Beer has that "special quality" which according to the applicant, is different and better than a marriage. All the evidence points to their relationship as fitting the description of "marriage like".

42. Mr Ford suggested that certain aspects of his relationship with Gabriela were not marriage like, namely that they did not have any interest or knowledge of each other's business interests. The observations or perceptions of others as a couple were based merely on assumptions. He urged the Tribunal to have regard to the fact that marriages have a variety of attributes and the fact that he and Gabriela have a special or unique friendship does not mean they are a couple. He contended that he and Gabriela were "living fairly much independent lives" and the way they had organised their joint household simply suited their individual needs.

Consideration

43. In determining whether or not Mr Ford and Ms De Beer are "members of a couple" for the purposes of the Act, regard must be had to the criteria set out in subsection 4(3) which provides as follows:

"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."

44. The Tribunal found both the applicant and Ms De Beer to be truthful witnesses in all respects. They gave evidence about intimate aspects of their private lives candidly.

45. I make the following findings in respect to each of the criteria set out above. In respect to the financial aspects of the household, there is joint ownership of real estate, some items of furniture, and until recently a motor vehicle. There is significant pooling of financial resources in relation only to the mortgage repayments and the costs associated with maintaining two properties.

46. The day to day household expenses are shared evenly. The applicant and Ms De Beer have separate bank accounts and neither is privy to information about the other's business interests. Mr Ford does not pay any contribution towards the cost of meals when he is absent from the house. Ms De Beer has supported the applicant financially when he has been unable to find work. Neither of the parties is financially dependent on each other.

47. There are some aspects of what could be described as traditional aspects of a marriage, in the sense that they operate a joint account for joint liabilities. The fact that they also maintain separate accounts is not, on its own, indicative of a non-marriage like relationship, given that many couples chose to arrange their financial affairs along similar lines. Similarly, many couples chose to keep their business affairs separate from their partner, for a variety of reasons.

48. The living arrangements are organised in what could be described as traditional lines, with Ms De Beer cooking the meals and cleaning the house. The applicant undertakes the maintenance tasks associated with the upkeep of their properties, however this is explicable in the sense that they are likely to be more physically demanding than housekeeping duties.

49. Their partaking of joint holidays and the extent to which they participate in joint activities indicates a strong sense of companionship and enjoyment of the other's company. They both have separate friends. They do not hold themselves out as married to each other, or as members of a couple. However, it is likely that they are perceived as such by objective observers. They celebrate birthdays and Christmas festivities together. Whilst the applicant contended that they lead separate independent lives, there was very little evidence of any activities which they did independently of each other, apart from some outings with friends and his business activities.

50. The applicant regarded some aspects of his relationship with his ex wife as unsatisfactory, which he attributed largely to the emotional aspect associated with marriage. He expressed a strong reluctance to commit himself to another relationship involving an emotional/romantic commitment as, in his experience, it resulted inevitably in friction and lack of freedom. He considered that because he and Gabriela did not have a sexual relationship, such emotional involvement was absent and consequently, his cohabitation with Gabriela was more enjoyable and created less friction than a marriage.

51. I do not place a great deal of weight on the absence of a sexual relationship as mitigating against a marriage like relationship, given the applicant's lack of desire to enter into a romantic (accompanied by a sexual) relationship in the foreseeable future and his preference to continue living with Ms De Beer despite the absence of a sexual relationship. It appeared to the Tribunal that the applicant was prepared to forego such a relationship, as other aspects of their relationship were more than compensatory.

52. The applicant has lived with Ms De Beer for over ten years, in two households. They moved interstate together. They provide for each other a strong degree of companionship and support, which is not always present in marriage. Whilst they profess not to have any emotional commitment to the other, it is clear they are very fond of each other and each would assist the other in times of need. They share similar interests and live in a harmonious way, sharing meals and celebratory events. They both expect and desire the current arrangement to continue indefinitely. Whilst they do not perceive their relationship as being "marriage like", the inescapable conclusion is that they share what is aptly described as an exclusive and permanent cohabitation, which, by necessity, excludes the notion that either will have other life partners.

53. Whilst I accept that they do not have the level of emotional commitment found in some marriages, they have a degree of emotional attachment which transcends mere friendship. The household is not only structured in the manner that it is because of convenience, practicality and/or economy. It is structured in that manner because they have a strong bond based upon mutual respect, affection, loyalty and trust. Whilst these factors on their own would not be sufficient to indicate a marriage like relationship, it is their reliance and dependence on each other and their resolve that it should continue indefinitely, which leads me to the conclusion that, in law, Mr Ford is living in a de factor relationship with Ms De Beer.

54. Accordingly, I affirm the decision under review.

I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Cowdroy, Member

Signed: Sarah Oliver

Associate

Date of Hearing 30 October 2002

Date of Decision 7 January 2003

The Applicant Appeared in Person

Solicitor for the Respondent Mr T Ffrench, Departmental Advocate