Closter v Transport Accident Commission [2004] VCAT 249 (16 February 2004)

Transport accident - whether applicant dependent spouse of deceased - section 57 Transport Accident Act 1986

MEDIUM NEUTRAL CITATION: [2004] VCAT 249

1. The determination of the Respondent made on 4 December 2001 is set aside and there is substituted for it a determination that the Applicant is a surviving dependent spouse of the deceased Wayne Davies.

Mr McCullagh of Counsel, instructed by Ryan Carlisle Thomas.

1. A young man aged 19 died in a motor vehicle accident. He was unmarried but had been living with the Applicant Cindy Closter, also then 19, in her mother's house for the previous nine months. After the first three of those months, the Applicant's family moved to Queensland leaving the Applicant and Wayne Davies ("the deceased") at the house in Bacchus Marsh. If the Applicant is to succeed in her claim for dependency benefits under the Transport Accident Act 1986 she must show that she lived with the deceased on a permanent bona fide domestic basis and was at least partly dependent on him for economic support.

2. Wayne Davies was born on 1 October 1981, Cindy Closter on 3 April 1982. The motor vehicle accident occurred on 9 August 2001, when the deceased was almost 20.

3. On 27 August 2001, the Applicant claimed dependency benefits as the surviving dependent spouse of the deceased. The Respondent, the Transport Accident Commission, on 4 December 2001 denied the claim on the basis that it was not satisfied that she was the deceased's dependent spouse. The Applicant filed an application for review with this Tribunal on 30 September 2002.

4. Section 57 of the Transport Accident Act 1986 ("the Act") provides for the payment of a death benefit to the surviving spouse of a person who dies as a result of a transport accident. Section 3 defines "surviving spouse" as follows:

"'Surviving spouse' in relation to a person who dies as a result of a transport accident means a dependent spouse of the person."

5. The section then defines "dependent spouse" in the following terms:

"'Dependent spouse' in relation to a person means the person's partner, if the spouse would but for injury or death of that person -

(a) be wholly, mainly or in part dependent on that person for economic support; or

6. Section 3(6) provides:

"A reference in this Act to the spouse of a person includes a reference to a person of the opposite sex who is not legally married to the first-mentioned person but lives with that person on a permanent and bona fide domestic basis."

7. The question of when parties should be regarded as living "on a permanent and bona fide domestic basis" was considered at some length by Mr Davies of this Tribunal in Re Preston and the Transport Accident Commission (1996) 11 VAR 183. His reasons are also quoted on this point by Deputy President Macnamara in Re Tirbanos-Pricop and TAC (1999) 15 VAR 245. They both referred to a judgement of the Full Court of the Family Court of Australia, In the marriage of L and L [1984] FamCA 39; (1984) 78 FLR 460 at 464 quoting the following statement of the court:

_"The most difficult part of the question is to determine whether the parties lived together as husband and wife. This is something referred to as the consortium vitae. His Honour referred to the decision of the Full Court of I_n the marriage of Pavey (1976) 25 FLR 450, where the Full Court, consisting of Evatt CJ, Demack and Watson JJ stated (at 455) the constituent elements of a marital relationship. They were said to include dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships and the nurture and support of the children of the marriage. To that we would merely add the obvious comment that not all of these elements need to be present before a consortium vitae can be recognised as such."

8. Both Mr Davies and Deputy President Macnamara quoted with approval in the cases to which I have referred the following passage from the headnote of the decision in Re Scholte and Director of Social Security (1993) 35 ALD 753 as setting out important criteria for determining the nature of the relationship between parties:

"(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;

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

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

(ii) the nature of any companionship and emotional support that the people provide

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

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

9. Counsel for the Respondent, Mr Middleton, forwarded some pages copied from two cases to the Tribunal after the end of the hearing. He had referred to one of the cases at the end of the hearing but not at all to the other. Since I ultimately found those cases to be irrelevant to my decision I decided it was unnecessary to offer the Applicant an opportunity of commenting on the relevance of the late material.

10. At the hearing Mr Middleton had briefly mentioned Barro Group Pty Ltd v Fraser and Another [1985] VicRp 59; [1985] VR 577 a case decided in the Supreme Court of Victoria, submitting that it was authority for the proposition that a person who represents himself in one way to an agency can not represent himself differently to another agency. It appeared to me that the case in fact turned on an analysis of the actual relationship between the parties in that case and the point made by the court about how the parties represented themselves was that it was necessary to look at the actual circumstances not at what the parties said. Deputy President MacNamara of this Tribunal put the same principle more strongly in Re Tirbanos-Pricop and TAC (1999) 15 VAR 245, 248 which also dealt with an application for dependency benefits in which the Applicant was not married to the deceased. In that case, the Deputy President said:

"It follows that distasteful as it may seen, if upon the proper view of the facts, Ms Tirbanos-Pricop was found to satisfy the requirements for a dependency benefit, there is no objection to her being granted that benefit because proof of her case entails proof that her statements to the social security authorities were lies."

11. The second extract sent to me was from Fine v Geier [2003] QSC 73 (20 March 2003, unreported) on the copy of which a number of passages were highlighted. This was a matter in which the plaintiff in a personal injuries matter claimed an amount for lost earnings which was inconsistent with his income tax records. The highlighted passage from the reasons of Wilson J was:

"A court shall not generally speaking make a finding favourable to the plaintiff in a personal injury case that his income is otherwise than he has disclosed to the revenue authority unless the plaintiff admits the non-disclosure."

12. If there was any non-disclosure of income in the present case, it was the deceased, who the Applicant said was earning money for "cash" jobs while he and she were both on youth allowances, who failed to disclose income. Even if the passage was intended by the Respondent to be applied to the Applicant's dealings with Centrelink, I am not persuaded it is relevant. The highlighted passage in Fine v Geier refers to calculation of a claim for lost earnings where the loss is calculated as a percentage of previous earnings, so that the precise amount of a previous earnings is relevant. The court did not accept the plaintiff's evidence that he had earned more than his income tax records showed, partly because he did not admit the records were false.

13. In the case of Nominal Defendant v Littlewood, CA 203/79, 21 August 1980, an unreported decision of the Supreme Court of NSW, which was referred to in Fine v Geier, benefits were lost by dependents of the deceased who had not accurately declared his income to the taxation authorities. The court there calculated the benefits on his actual income after tax, not on the amount which his surviving spouse thought was tax-free income, when it should always have been taxed.

14. Neither of these cases, in my view, departs from the principle that the court in deciding such matters will look at the actual circumstances of the parties, not at what they said about their circumstances. The refinement made by Fine v Geier which may not extend to the current circumstance is that a party who wants to say his income was greater than his income tax records disclosed must admit the previous non-disclosure and be prepared to "face the music". In the present case, the Applicant said she received economic support from the deceased's cash income which income had not been disclosed to taxation authorities. This non-disclosure was not her responsibility. She did not disclose to Centrelink the economic support received from this cash income but she said at the hearing that she did tell Centrelink she was living with the deceased and I accept that evidence, which I will later consider further.

15. If it was established as a matter of fact either that the deceased earned more than he disclosed or that the Applicant and the deceased lied to Centrelink about their co-habitation, in my view neither of these matters would in itself preclude me from finding that the Applicant was the dependent spouse of the deceased.

16. The Applicant provided a written statement dated 26 September 2003 and gave evidence. Statements were also provided by her mother, Karen Pitt (dated 30 September 2003), a long time friend, Michelle Hansen (dated 26 February 2003), a childhood friend of the Applicant and of the deceased, Michelle Dugdale (dated 26 February 2003) and her mother, Val Dugdale (dated 29 September 2003). They were called to give evidence.

17. The Applicant's evidence was that she first met Wayne Davies at Bacchus Marsh High School when she was in year 7, in 1993. He was in year 8. They first went out together on 11 December 1999 and from then until his death they had a regular sexual relationship. Although the deceased's mother Mrs Davies said she thought the couple had occupied different rooms until January 2001 even when living under the same roof, Mrs Davies appeared to speak about her assumptions rather than from any direct knowledge and I therefore prefer the Applicant's direct evidence that she and the deceased had a regular sexual relationship from December 1999 to his death.

18. From early 2000, Wayne Davies regularly stayed at the Applicant's house where she lived with her mother, stepfather and two younger brothers. When her stepfather moved to Queensland in October 2000, Wayne Davies moved into the house. This was in late October or early November. He moved in with the Applicant, her mother and the two younger brothers and the Applicant said he shared her room from this stage. The Applicant's evidence was that he moved in because she and her mother felt insecure without an adult male in the house and he was having arguments with his father. She said Wayne was working when he moved into the house.

19. Then in January 2001, the Applicant's mother and brothers moved to Queensland and the Applicant said she and Wayne Davies took over the house. The Applicant said she chose not to move to Queensland with her family because she wanted to be with Wayne and they had many friends in Bacchus Marsh.

20. The Applicant said she and Wayne Davies lived alone in the house until approximately three weeks before Wayne's death when Clint Kirkham moved in with them because he was having difficulties with his parents. The Applicant said she and Wayne Davies had discussed marriage and had looked at engagement rings in a catalogue and agreed they would become engaged but considered their lack of funds slowed down these plans. She said: "We agreed we wanted to be engaged but didn't have much money".

21. The Applicant also gave evidence and was cross-examined about the details of her life with the deceased. I propose to consider this evidence under the broad headings in Re Scholte and the Director of Social Security to which I have already referred.

22. Ms Karen Pitt, the Applicant's mother, said in her statement that the Applicant and the deceased were very close, that they were a very happy couple and that Wayne was "like a son to me". She said in her evidence that she had wanted her daughter to relocate with her to Queensland in January 2001 but that the Applicant wanted to be with Wayne Davies. Ms Pitt said she asked Wayne to come to Queensland with them as well but that he was close to his mother and that Cindy and Wayne had a lot of friends in Bacchus Marsh so she agreed to leave them in charge of her house at Lyle Street, Bacchus Marsh.

23. Ms Michelle Hanson said she had known the Applicant and the deceased while they were living together and had visited their house and had once provided advice on budgeting. She said that they each later told her that her suggestions were working. When cross-examined about her evidence she recalled little detail about what resources the Applicant and the deceased had available to them financially and what bills they were paying.

24. Ms Michelle Dugdale was also called by the Applicant and provided a written statement. She said she had known the Applicant "since prep" and had known the deceased since under 12 baseball. In her written statement she said she had stayed with them but at the hearing she said that she meant she had spent a lot of time at their house during the day and occasionally stayed over on weekends. She expressed the view that the Applicant and the deceased were committed to each other as a couple and she said that they went out together a lot. She said they had fights but never broke up or separated.

25. Ms Dugdale's evidence was somewhat lacking in specifics - she said in her statement that the Applicant and the deceased pooled their money but on closer questioning she said that she had put that in her statement as that was what she thought they would have done.

26. Ms Dugdale's mother, Ms Val Dugdale said that she was sure the Applicant and the deceased shared a bedroom from the time the Applicant's mother was living at Lyle Street when the deceased moved in late in the year 2000. She said all their friends knew that they were a couple and that during the period they were living together she had seen them three or four times a week at her house. She said she had also visited them at their house around once a week. She said she knew that 95% of their outings were as a couple because they often took her daughter along with them. This answer did not ring true to me and gave me the impression that she may have exaggerated in an effort to support the Applicant.

27. Counsel for the Respondent submitted that the evidence raised questions about the Applicant's credibility and veracity. He said these questions arose from five different items of evidence. I will consider each of the five instances.

28. The Applicant applied in December 2001 to VOCAT (the Victims of Crime Assistance Tribunal) for assistance. The Respondent suggested that the Applicant here missed an opportunity to describe herself as the dependent or de facto spouse of the deceased in filling out the form and that this revealed the Applicant would simply say whatever was necessary to gain financial advantage. A copy of the form signed by the Applicant was before me. The VOCAT form offers only two opportunities for an Applicant to describe his or her relationship to the victim of crime. On page 1 there are four boxes one of which is to be ticked. The Applicant is to nominate one of the following categories: primary victim, secondary victim, related victim, application for payment of funeral expenses only. The Applicant ticked "related victim". On page three of the report about one third of a line is allowed for the Applicant to write in response to the posed question "relationship to Applicant" meaning relationship of the deceased victim of crime to the Applicant. Ms Closter wrote "boyfriend". There is not, as the Respondent submitted, an opportunity to describe whether or not the Applicant on the form is in any way dependent on the victim of crime. The Respondent's counsel submitted I should also look at the letters from the Applicant's solicitor to the Registrar of VOCAT which described the deceased as the Applicant's "boyfriend". I note that the letters were written by the Applicant's solicitors, not by her, but in any case I am not persuaded that the use of the term "boyfriend" instead of, say, "de facto spouse", demonstrates any lack of veracity or inclination to say what is necessary to gain a financial advantage. They are both rather elastic terms.

29. Secondly the Respondent submitted that a "preparing for work agreement", a Centrelink document, apparently signed by the Applicant on 8 November 2000, was an example or part of the picture of the Applicant saying whatever was necessary to obtain a financial benefit. No definitive explanation was provided to me of how the Respondent had come by a copy of this form, although the Applicant's counsel drew my attention to a letter from Centrelink dated 6 March 2003 to the Applicant's solicitors releasing the whole of the Applicant's file to them and submitted this had been provided in full to the Respondent. Counsel for the Respondent pointed out and I observed that on the form dated 8 November 2000, in response to the question "marital status", the Applicant had ticked "single" and had indicated that she was not paying rent. I note however that according to the other undisputed evidence before me these details were correct at the time. The Applicant was, according to her and her mother's undisputed evidence, living with her parents. At this stage, also according to the Applicant's and her mother's undisputed evidence, the deceased had either just moved in with the Applicant and her mother and brothers or was about to do so. Counsel for the Respondent submitted that it was significant that the Applicant had made no attempt to correct these details with Centrelink later on. I will come to this point in relation to the other Centrelink documents.

30. Thirdly the Respondent submitted that an undated copy of a Centrelink "claim for youth allowance" on which the Applicant was said to be living at home with her parents, not in a marriage-like relationship of greater than 12 months standing and which she did not later correct when her circumstances changed, also showed that the Applicant was willing to say whatever was necessary to gain a financial benefit. I am not persuaded that this is the case. The undated document was shown to the Applicant. The Respondent's counsel suggested to Ms Closter that the information in the application was incorrect and suggested that she had at that time been living with the deceased at her parent's house. The form contained a statement that the Applicant was "currently doing year 10" therefore it appeared to me that it was not prepared at the time when the deceased was living with the Applicant at her parent's house. I found no incorrect information in this document when I compared it to the other evidence before me. The Respondent's counsel put to the Applicant that the document contained lies and the Applicant became visibly upset. Counsel for the Respondent later submitted that I should note that this was the Applicant's only show of emotion and that she had shown no emotion at the memory of the deceased. It appeared to me that the Applicant was upset by the suggestion that she was lying. On careful examination of the application form, I can find no untruth in it. The Applicant did not deny that her signature appeared at the end of the form but said that the form had been completed by her mother. I can find no fault with this procedure as far as I am able to understand the form. On the front of the form there appears the following statement:

"This form is to be completed by or on behalf of the person claiming youth allowance".

31. Fourthly, the Respondent submitted that the Applicant did not attempt to put the record straight with Centrelink when her circumstances changed and she began living with the deceased. The Respondent provided a print-out with all contacts between the Applicant and Centrelink which the Respondent's counsel said had been provided to TAC by Centrelink. It appeared from the letter dated 6 March 2003 from Centrelink to the Applicant's solicitors, which was before me, that this was in response to a Freedom of Information request made by the solicitors. The Respondent's counsel asked the Applicant about a number of these contacts which the records showed she had made with Centrelink and which recorded her as living alone. For example a contact on 11 July 2001 apparently required the Applicant to complete a form and the print out records "customer lives with no one else". The Applicant said she did not tell Centrelink that. However, I have examined the full record and as the Respondent said, it is correct that there is no record of the Applicant informing Centrelink that she had begun to live with the deceased.

32. The Applicant provided an explanation for this information not appearing on her file. She said in her statement that she and Wayne received Centrelink youth allowance payments on the single rate from March 2001 until August 2001 when Wayne began his job at Retravision. I note that it appeared from later evidence that the deceased did not in fact receive Centrelink payments until May 2001, but there was nothing to indicate to me that this discrepancy was anything other than an error.

33. The Applicant said that as part of the application process for the youth allowance Wayne was required to explain his decision to move out of his parents' home and that a social worker, Michael Cortz, was appointed by Centrelink to discuss this issue with him. The Applicant said that she attended one of Wayne's interviews with Mr Cortz in March 2001 in order to provide details of her relationship with the deceased. She said she understood that they could not both receive youth allowance at the individual rate since they were in a marriage-like relationship and she was willing to sign any relevant documents as his de facto partner. She said that they were informed by Mr Cortz that they would not be considered by Centrelink to be in a marriage-like relationship until they had been living together for a period of 12 months. She said that it was her intention to return to Centrelink in October 2001 when the 12 months was up. Counsel for the Applicant drew my attention to the Commonwealth Social Security Act 1991 in relation to this evidence. Relevant provisions, he submitted, are:

"1067A(2) A person is independent if the person is ....a member of a Youth Allowance couple".

1067C(1) A person is a member of a Youth Allowance couple for the purposes of sections 1067A and 1067B if:

(i) the person has a relationship with a person of the opposite sex.

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

(iii) the relationship has existed for a continuous period of at least 12 months.

(iv) in the secretary's opinion ...the relationship is and has for a continuous period of at least 12 months been, a marriage-like relationship.

34. These provisions appear to support the Applicant's evidence that she was told to wait 12 months during an interview regarding Wayne's application for youth allowance. The Applicant (perhaps mistakenly) seemed to have applied the same information to the question of whether her youth allowance would be assessed differently because she was living with the deceased. The Applicant attempted to summon Mr Cortz to give evidence but was unsuccessful. A solicitor for Centrelink appeared at the start of the hearing and drew my attention to Section 207 of the Social Security (Administration) Act 1999, which provides:

"An officer must not, except for the purposes of the social security law or the Farm Household Support Act 1992, be required:

(a) to produce any document in his or her possession; or

(b) to disclose any matter or thing of which he or she had notice;

because of the performance or exercise of his or her duties, functions or powers under the social security law or the Farm Household Support Act 1992, to:

having power to require the production of documents or the answering of questions."

35. After hearing submissions from the parties I ruled that the Tribunal could not compel Mr Cortz or any Centrelink officer to attend, produce documents or give evidence.

36. In answer to questions about why she had not told Centrelink that she and the deceased were living together, the Applicant said that she understood she had told them but the information she was given by Mr Cortz was that it would make no difference to their status until they had been living together for 12 months. She said in cross-examination that she had wanted to let Centrelink know about her status as she did not want to be required to return payments later on and had understood that she would be required to fill in a form when she and the deceased had been living together for 12 months. She said that this was the reason she continued to tick "single" on Centrelink forms.

37. I accept the Applicant's explanation of her dealings with Centrelink in this regard. I accept that she believed it was not necessary to inform Centrelink further of her partnership with the deceased until they had been living together for 12 months. I accept this evidence on the basis of the Applicant's demeanour - she did not appear to be exaggerating or fabricating her evidence - and because it is consistent with the documents I saw and because I was impressed with the reasons she gave for wanting to tell Centrelink about her status, that is that she did not wish to be required to return payments later.

38. Even if I am making a mistake in accepting the Applicant's version of these events, even if the true explanation is that, as the Respondent would have it, the Applicant lost interest in letting Centrelink know her status once Wayne had established his independence sufficiently to be granted the youth allowance, I am not persuaded that this should influence my conclusions significantly, if the rest of the Applicant's evidence makes out her case. It is the actual circumstances of the Applicant and the deceased in the period before his death which are relevant, not the accuracy of how one of them described herself at the time.

39. The point suggested to me here is a different one. The Respondent submits that I should be less inclined to accept the Applicant's evidence since she has been untruthful to Centrelink. I have however found her explanation of her dealings with Centrelink to be satisfactory and I accept her evidence that she did not deliberately tell Centrelink any untruth or deliberately withhold information from Centrelink. Therefore I do not draw the inference suggested by Counsel for the Respondent.

40. The respondent's fifth point was that the Applicant's veracity was in question in relation to a letter from Centrelink to the deceased. The letter appeared to be undated and it informed the deceased that he was entitled to be paid $290 as an independent person from 14 May 2001. The letter also included the information that the deceased could apply for rent assistance. The Respondent submitted that the fact that he had not so applied indicated that the rental situation described by the Applicant was not genuine. The Applicant said that she and the deceased paid $50 a week rent to her mother. I am not convinced that the lack of an application to Centrelink for rental assistance undermines the Applicant's evidence in this way. I will consider this issue further when I address the matter of the Applicant's evidence about rent.

41. The Respondent called the parents of the deceased Mr Rodney Davies and Mrs Karen Davies and Mr Lucas Borg, a friend of the deceased.

42. The Respondent had earlier sought permission from the Tribunal to submit Mr Borg's statement with some lines blanked out. His statement was dated 30 September 2003. It was apparent to me from information attached in a sealed envelope to the file that the Respondent had applied to the Tribunal for an ex-parte directions hearing about the statement. The Respondent wanted to use the statement but considered some material in it made unsubstantiated and irrelevant allegations about another person, which the Respondent wished to delete without having the statement re-signed. The Tribunal made no order, but I note the statement was filed and served with some lines blanked out.

43. At the hearing the Applicant objected to use of the statement in this form. The Applicant's counsel also submitted the Applicant had had little time to consider any response to new material in Mr Borg's statement and it should be excluded.

44. I decided to accept Mr Borg's statement in evidence as the Applicant would have an opportunity to cross-examine him. I also rejected the Applicant's request for a copy of the original statement as it did in my view contain irrelevant unsubstantiated allegations about another person. I could see no unfairness to the Applicant in pursuing this course. I granted leave for further evidence to be led from the Applicant which had not been in her statement if counsel deemed this necessary to deal with the lateness of Mr Borg's evidence.

45. Turning to the criteria for determining the nature of the relationship set out in Re Scholte v Director of Social Security, first I consider the financial aspects of the relationship between the Applicant and the deceased. It was not disputed that the Applicant and the deceased owned no assets in common. The Applicant's counsel submitted that this was not surprising in their circumstances, considering their youth, relative lack of education and skills and socio-economic circumstances. I agree with this. They could hardly purchase things together if they had little money for purchasing anything.

46. The only joint legal obligation suggested to be undertaken by the Applicant and the deceased was the obligation to pay rent. When the deceased first moved in with the Applicant's family, he paid $20 a week to the Applicant's mother, according to both the Applicant's and her mother's evidence. Ms Pitt said this was "just a help". It can have no bearing on the financial relationship between the Applicant and the deceased in my view.

47. Then in January 2001 when the Applicant's mother and brothers moved to Queensland, the Applicant and the deceased were to pay $50 a week rent to the Applicant's mother, according to evidence from both the Applicant and her mother. The Applicant said that while both she and the deceased were unemployed her mother did not always strictly enforce the rental agreement and the arrangement was for Cindy and Wayne to pay the rent direct to her mother's bank account. The Applicant said she had retained receipts for these transactions although no receipts were produced for me to examine. The Applicant said that she paid rent and that the deceased paid the majority of the bills, as she said he had more money. The Applicant said that while her mother did not enforce the rental agreement strictly, they always paid the rent, although it was sometimes late. Ms Pitt's evidence was in accordance with this - she said that the Applicant and the deceased struggled to pay the rent sometimes but caught up later. She said there was still some rent outstanding when Wayne died and that her daughter had paid this up.

48. Mr Lucas Borg, a friend of the deceased, provided a statement dated 30 September 2003 and was called by the Respondent to give evidence. He said the deceased paid board of $50 to $60 per week "when he was working". His answers to questions about this evidence were somewhat vague but he was adamant that the deceased said he did not pay rent when he was not working. He did not say when the deceased told him this. Even if I accept that the deceased did tell him this, it does not prove the deceased was truly reflecting the situation to Mr Borg. He may have wished to keep financial issues fairly private or to downplay his obligations or have had some other reason for not telling the full story. Comparing Mr Borg's evidence with that of the Applicant and her mother that the deceased and the Applicant agreed to pay $50 rent, I accept their evidence, not Mr Borg's.

49. The Applicant's evidence that the deceased contributed more than she did to bills while she usually paid the rent is a likely explanation for what Mr Borg said he had been told by the deceased. It would also explain why the deceased had not applied for rent assistance. Accordingly I find that the Applicant and the deceased undertook a shared obligation to pay rent, but this was a family arrangement rather than a legal one, so was treated flexibly to some extent; nevertheless it shows the parties undertook a joint obligation.

50. There was evidence that the Applicant and the deceased pooled their financial resources to meet their commitments. The Respondent's counsel submitted that they did only what was expedient in the way any group of young people sharing a house would do. The Applicant said they divided the bills between them in accordance with their income as best they could but that the deceased paid the majority as he had more money. The Applicant agreed that the bills were in her name as she had lived there all along. She said she and the deceased would meet the bills when they fell due using available funds from either of their accounts. When asked about occasions when it appeared from the bank statements that the deceased had drawn out all of his Centrelink payment of $290 a fortnight on the day when it was paid into the account, the Applicant said that the deceased would use that money to put towards the bills.

51. The Applicant said she knew the deceased's PIN which she could use to access his bank account with his card but that he usually left her signed withdrawal slips for access to his bank account. At first she said that these were cheques but on cross-examination amended this to mention withdrawal slips specifically. Ms Pitt said that when she visited the Applicant and the deceased from Queensland in April 2001, she saw signed withdrawal slips with the deceased's signature on them in her daughter's bedside drawer. She said there were not a lot of slips, perhaps five or six.

52. There was further evidence from the Applicant about the proportion in which the deceased contributed financially, which evidence I will set out later in considering whether the Applicant was wholly or partly financially dependent on the deceased.

53. Michelle Hanson said in her statement that one evening not long after the Applicant's mother moved to Queensland she sat down at Cindy and Wayne's house and worked out a budget for them in their presence. She said she worked out their total income and bills, how they were to contribute and how much each would have at the end of a week. She said that the deceased had more money than the Applicant but she could not remember how much more. She said that at one time the Applicant sold her car and the proceeds were used to pay bills, but could not recall when this happened. When cross-examined, Ms Hanson did not recall how much the deceased had been earning but she said that the conversation about budget had occurred when he was working, doing " something to do with cars". She recalled accounts for phone, electricity and gas. She agreed she had not been present when the bills were actually paid and that what she had done was merely suggest a budget. She said that as far as she knew the Applicant and the deceased had followed it - she said they each later told her that it was working. When cross-examined about detail she had little to add although she was aware that the rent they paid was $50 per week.

54. Michelle Dugdale's evidence on financial issues in her statement was quite general and when cross-examined it appeared that her evidence was based on what she thought had been the case or had heard from others. However, she also said she had been grocery shopping with both the Applicant and the deceased and sometimes with the Applicant alone and had seen both of them pay for groceries. She had also been with the Applicant when the Applicant sold her car and she understood that the money was to be used to fix the deceased's car because the couple intended to drive to Queensland for a holiday although they did not ultimately drive there. She said she was told that the Applicant and the deceased pooled their money to pay bills but she had never actually seen them do so.

55. Ms Dugdale also gave evidence that the Applicant and the deceased had told her they shared their money, although she had seen no bills except the Applicant's mobile phone bill.

56. The deceased's father provided a written statement and was called by the Respondent to give evidence. He said that Wayne's bills, apart from his mobile phone, still came to his parents' house. He did not say what these bills were for. He said he did not know how the Applicant and the deceased had split their expenses. He did say that four weeks before the accident his son had asked to borrow money from him and when questioned about what the Applicant did with her money had replied "she just spends it".

57. In an affidavit dated 18 December 2001 and sworn on behalf of himself and Mrs Davies, for proceedings in the Magistrate's Court in relation to an action concerning his son's property, which affidavit was tendered in evidence by the Applicant, Mr Davies said:

"We believe that the defendant's claim to being legally entitled to retain the deceased's property has no factual or legal basis. To the best of our knowledge and belief the defendant was unemployed for almost the entire period that she lived with the deceased and she made nominal contributions, if any, to the household and living expenses. For much of their time together the deceased supported himself and sometimes assisted the defendant."

58. He agreed on cross-examination about this that the deceased told him he supported himself and assisted the Applicant. He said that when his son died having only the week before begun a job at Retravision Mr Davies told the employer to give his son's outstanding wages to the Applicant because, as he put it, "we didn't want the money". Mrs Davies, the deceased's mother, also gave evidence and she added that they thought their son may have owed money to the Applicant for bills. She agreed that her son assisted the Applicant but also said that he had had not listed her as a dependant or a spouse on his income tax, medicare or superannuation. Her husband also agreed with this.

59. Mr Borg said he did not believe that the deceased had been supporting the Applicant, but he seemed to me to have little knowledge of their actual financial affairs. His statement said that the Applicant had been working at Hungry Jacks and that she paid the bills when she was working and when the deceased was not. It appeared from the Applicant's evidence, which I accept, that she had not been working while she and the deceased were living together after January 2001 and this evidence was supported by the Centrelink documents. Mr Borg said that he and the deceased went out together without the Applicant and that the deceased spent money on these outings.

60. Taking all this evidence into account, I find that the deceased and the Applicant did pool their financial resources although each may have kept some funds for their own purposes as well. I find that they shared the cost of rent, bills and food and found it difficult to make ends meet. Ms Hanson's evidence about a budget did not persuade me that they were making a serious attempt to plan a secure financial future, or save for major financial commitments but rather that they were simply trying to get by. That was, in my view, a result of the levels of employment and income which they could command. These are not major financial issues or commitments. Two people aged nineteen in these circumstances have few financial resources to commit, but in my view that should not preclude the survivor from establishing this was a bona fide domestic relationship.

61. The presence of a boarder, Clint Kirkham, in the house for three weeks before the accident is relevant to financial issues. The Applicant's evidence was that he paid $50 rent in addition to what she and the deceased paid and that no bills arrived in the period after he moved in and before the accident, but it was intended he pay a share. His presence in the house on this basis does not change my finding that the Applicant and the deceased were pooling most of their financial resources.

62. I note also the Applicant's uncontradicted evidence that she contributed sometimes to the cost of purchases for the deceased's car. She said in cross-examination that besides personal sentimental reasons these contributions were a reason for her resisting the attempts of Mr and Mrs Davies to recover their son's car from her, although she eventually gave it up. That the Applicant made such contributions indicates that her financial resources, such as they were, were made available to the deceased. Taking all these matters into account I consider that financially the Applicant and the deceased shared obligations and resources on a domestic basis as a couple.

63. In considering the nature of the household, I note that the deceased first stayed at the Applicant's house several nights a week in the period between December 1999 and November 2000. The evidence differed as to whether this was one or two nights a week (according to the deceased's friend Lucas Borg) or on the other hand three to four nights a week (according to the Applicant's evidence). At this time, the Applicant lived with her mother, brothers and stepfather and on the facts I have found the deceased's status in the house can only have been that of a boyfriend in the family home. Then in November 2000 he moved in with the Applicant and her mother and brothers. There were, according to the Applicant's evidence and answers to questions, three reasons for this: he was not getting along with his father; the Applicant and her mother wanted a male presence in the house since the Applicant's stepfather had moved to Queensland and the deceased and the Applicant wanted to be together. The Applicant's mother said there had been a lot of discussion about Wayne (the deceased) moving in with them. She said in cross-examination that security was not the main reason. Mrs Davies, the mother of the deceased, said Wayne left home as a result of disagreements with his father and "because he wanted to further the relationship". Apart from these comments, there was no evidence about which of the three reasons for Wayne moving in at this stage was the most important one. Again, at that stage, he can only have been a boyfriend in the family household, although accepted and approved by the Applicant's family.

64. Then at the end of January 2001, the Applicant's mother and brothers moved to Queensland and the Applicant and the deceased took over the house, some six and a half months before his death.

"There were definitely people living there other than Cindy or Wayne, and every time that I went over there, there were ten - fifteen people over there. It was like a meeting place for Cindy's entire group of friends, and they were regularly drinking and smoking and such, mainly because there was no parents around. Often Cindy and Wayne were not there either. I do not recall the names of the boarders, but there were definitely several people who had lived with them, and I believe that there were boarders there constantly. I recall that Wayne said to me on many occasions that he was unhappy with the arrangements, and I said to him that he was going downhill quickly with all the people who were there."

66. When cross-examined about this Mr Borg said he did not know the names of the boarders. He said he had seen ten people there all discussing bills. When questioned further he said that this had occurred after Wayne's death, but said that he knew there had been people living there before that. He said that there were people there constantly, but they were not all boarders. He agreed on further questioning that there were not boarders there constantly. He agreed that he was mostly at the house on weekends although he sometimes visited during the week. He said the only way he knew that the others staying at the house were paying board was from conversations about bills which he overheard, but he did not know the names of the people conversing. He agreed that neither Wayne nor Cindy told him that other people were living there as boarders. In his statement he had said that Wayne complained he was unable to get to sleep when working because of the numbers of people at the house, but on cross-examination he agreed that Wayne was not working at this time. He said that he considered that what he said at the hearing was more important than what he had written in the statement. The vagueness and inconsistency which emerged in these answers led me to regard Mr Borg as a witness whose testimony should not be preferred to other witnesses.

67. Michelle Hanson said that she had been a frequent visitor at the house in Lyle Street - perhaps twice a week. She said that she had never seen more than one or two others at the house and certainly never ten or more people.

68. The Applicant agreed that the house had been like a meeting place for her friends but that it was only occasionally that one or two people stayed over at the house. She said that they did not pay board and they only ate at the house if they brought take away food with them. She also gave the evidence to which I have already referred that three weeks or so before Wayne's death Clint Kirkham moved into the house as a boarder. He paid rent to her mother of $50 per week. She said he had made no contribution to bills as none had arrived during that period.

69. The Applicant said she did most of the housework as she was more often at home than Wayne. She said that after his work "car detailing" at the Rialto ceased he worked one or two days a week in "cash jobs". She said she did washing, cooking and cleaning and usually the shopping, although she and Wayne sometimes went shopping together. I accept the Applicant's evidence about these household arrangements.

70. Ms Michelle Dugdale said she had seen the Applicant doing the cooking and had occasionally seen Wayne cook - "noodles sometimes". Her mother, Mrs Val Dugdale, who said she visited perhaps once a month at the house and saw Wayne and Cindy three or four times a week at her own house, said there were no boarders at the house except for Clint who moved in three weeks before Wayne died.

71. Taking all of this evidence into account, I have formed the view that Wayne stayed a few nights each week at the Lyle Street house as the Applicant's boyfriend up to November 2000. From then until January 2001 he was still living as a boyfriend in the Applicant's family home and he was accepted by her family. From the end of January 2001 until the fatal accident, I am satisfied that Wayne and Cindy lived in the house as a couple, sometimes with numbers of other young people about during the day and occasionally staying over. I am not satisfied that there was anyone else living there, except for Mr Kirkham in the last three weeks. I have accepted the Applicant's evidence about domestic arrangements. I therefore find that she and the deceased lived there on a domestic basis and the household was essentially that of her and the deceased as a couple.

72. I accept the Applicant's evidence that she chose to stay in Bacchus Marsh to be with the deceased and live with him and that he chose to live with her after leaving his parents' house. Older or wiser heads might say that filling the house with other young people was not the way for a young couple to settle down together, but I am not persuaded that the presence of other young people at the house changes the nature of the household from that of a couple living together to that of a "group house". It was not disputed that there was one boarder at the house for a short period of time, but again his presence is not sufficient to change the character of the situation between the Applicant and the deceased. I do not accept the Respondent's submission that this was a typical young people's shared house where some members of the household were cohabitating. Wayne and Cindy were the only ones living there in the house as their residence for over six months. The arrangement was in place when the Applicant's family moved out. The Applicant and the deceased apparently had the approval of her family to live there as a couple in her mother's house. They were both there because they wanted to live together.

73. Turning to the social aspects of the relationship, the Applicant said that she regarded herself as the de facto wife of the deceased and that people around her and the deceased knew them to be a couple. She agreed in cross-examination that friends did not regard them as married and that she did not introduce the deceased as her husband. Ms Hansen, Ms Dugdale and Mrs Dugdale all agreed that the Applicant and the deceased had been regarded as a couple. Even the deceased's parents, called by the Respondent, agreed that the Applicant and the deceased had been a couple.

74. After the fatal accident, when Mr and Mrs Davies attempted to recover some of their son's possessions from the Applicant, they referred to her as his "de facto". In a letter dated 30 August 2001 signed by Mrs Davies, which was before me and which was put to Mr Davies, there appears a quote from the Fitzroy Legal Service law handbook about "claims on a deceased partner's estate". The extract, which I will not reproduce in full, includes the following:-

"If the spouse died without a will, then the surviving spouse automatically receives part of the estate. This law does not extend to de facto or same sex partners. It is therefore very important for people in unmarried relationships to make a will ..."

75. Mr Davies said that this was put in the letter following his and his wife's own research as the only thing they could find to try to explain to the Applicant that Wayne's possessions were not hers. Even so, it indicates at least that the deceased's parents thought the Applicant would see herself as their son's "de facto".

76. The documents before me also included a copy of an affidavit sworn by Rodney Wayne Davies (the deceased's father) on behalf of himself and Karen Anne Davies (his wife) on 19 December 2001. This appeared from its contents to have been filed in a complaint in which Mr and Mrs Davies were the plaintiffs and Cindy Closter (the Applicant) was the defendant. It was a claim for goods which appear to have belonged to the deceased. In the particulars of claim there appeared the following paragraph:

"Approximately six months before his death Wayne had commenced living in a de facto relationship with the defendant".

77. The same paragraph appears in the affidavit to which I have already referred.

78. Mr Davies agreed when questioned about this that it was his belief at the time that his son and the Applicant were living in a de facto relationship. When these matters were put to Mrs Davies she said that whether or not Cindy and Wayne were in a "de facto" relationship depends on the definition of "de facto". When asked whether she believed they had been in such a relationship she answered "what does de facto mean". Mr Davies also said that he had now a better understanding of the meaning of "de facto" than when he swore the affidavit and made the complaint.

79. Whatever better understanding Mr and Mrs Davies have about the exact meaning of "de facto", the words I have quoted from the affidavit and the claim indicate that the deceased's parents were aware that he lived in a sexual relationship with the Applicant. They indicate that Mr and Mrs Davies accepted around the time of their son's death that he and the Applicant were a couple, even though their evidence at the hearing might indicate that they do not think the Applicant and their son fulfilled the requirements for the Applicant to claim she was a dependent spouse.

80. I have already considered the issue of the way the Applicant and the deceased described themselves to Centrelink. I have accepted the Applicant's evidence that she told Centrelink she was living with the deceased and then understood that this would make no difference to her status for receiving youth allowance until they had in fact lived together for 12 months and that she made no further report of their status as a couple because she was waiting for 12 months to elapse. It may be that my finding about this wrong and the true explanation is that the Applicant reported to Centrelink that she and Wayne were living together only to assist him in showing Centrelink his independence from his parents and after that she did not intend to pursue with Centrelink the establishment of their status as a couple. This is not what I have found, but even if I had so found, it would not indicate that the Applicant and the deceased did not act and present themselves generally as a couple to their family and friends.

81. The Applicant agreed when cross examined that the letter written by herself and dated 10 December 2001, which was before me, and to which I have already referred, applying to VOCAT for assistance, described the deceased as her "boyfriend". As I have already noted, the form allows for no explanation by the Applicant. She also agreed that Wayne's parents had applied to the TAC for funeral expenses for him. When asked why Mr Davies had left blank the "Spouse and Children" box on the TAC "Funeral and Dependency Benefits Claim" form dated 11 August 2001 which was also before me, she said:

"His father disliked me and was determined to give me nothing. He argued with me two days after the accident as I had some of Wayne's things and he did not like me."

82. I accept this is a likely explanation, along with her youth, for her exclusion from Mr Davies' application. I note also that Mr and Mrs Davies appointed the funeral directors, according to Mr Davies undisputed evidence. However, the Applicant was involved in the funeral arrangements. She said, and Mr and Mrs Davies agreed, that she and her mother and grandmother went to the house of the deceased's parents to participate in arranging the funeral. Mrs Davies said in her statement that there was a discussion of whether a funeral notice should mention Wayne as a "son-in-law" but that she had said this was not correct and the notice should say "prospective", she added that as it happened this word was left out of the paper. She did not know why, she said.

83. As for social activities, evidence called by the Applicant from friends of the couple (Ms Michelle Hanson and Ms Michelle Dugdale) and which I accept was that the Applicant and the deceased went out together and attended sporting events together. Lucas Borg said that he and the deceased went out together without the Applicant. The Applicant did not dispute this and I accept there were such occasions. Mr Borg also said that the deceased told him that he had sexual relations with other women. This was not something of which the Applicant was aware, according to her evidence, and I will refer to it in more detail later.

84. Taking all this evidence into account I find that the Applicant and the deceased were known as a couple socially (that is by their family, friends and associates) and that they had the approval of the Applicant's family to live together. I am not inclined to accord great weight to whether the deceased's parents saw them as a "de facto" couple (literally "in fact" married) since Mr and Mrs Davies made their distinction at the hearing between what was their son's situation and a legal meaning for "de facto". However, their answers show that Mr and Mrs Davis thought at the time of their son's death that this term could be and was used loosely to describe the situation. Even Mr and Ms Davies were inclined to agree at the time of the funeral that "prospective son-in-law" was a fair description although "son-in-law" was not. "Prospective" in my view does not indicate that the deceased had intended to be a son in law but that it was possible he would have been a son-in-law. It shows that the Applicant and the deceased were seen as a couple by those involved.

85. It was not disputed that there was a sexual relationship between the Applicant and the deceased. This, according to the Applicant's evidence, began in December 1999 and continued until Wayne's death in August 2001, a period of 20 months. From October 2000, he lived at the Applicant's family home and shared her room, according to the Applicant's and her mother's evidence, which I accept. From January 2001, the Applicant and the deceased lived together and shared a room at her family home which they took over. There is no reason to doubt the Applicant's or her mother's evidence of this sexual relationship. The Applicant's evidence was supported by the evidence of Ms Dugdale and Ms Hanson that they were known to share a room and were known as a couple, therefore it is reasonable to infer from this also that they had a sexual relationship. I find therefore that the Applicant and the deceased had a sexual relationship of 20 months duration up until his death.

86. Mr Borg gave evidence that the deceased had sexual relationships with other women. He said that a week before Wayne's death, the deceased told him he did not want to be with the Applicant any more and had been "sleeping with another lady". Mr Borg also said that on a number of occasions the deceased told him of a girl he picked up in Ballarat and slept with in his car. The Applicant, when asked about these issues, said the deceased certainly did not intend to leave her and that he was not staying with her only in order to have a place to live, that he could have gone to other places if he wished. She said she was disgusted by the suggestion that he had other girlfriends and she knew of no other girlfriends and had heard no such rumours. She said the relationship was not "rocky" or "going downhill" as put to her by the Respondent's counsel.

87. Mr Borg's manner of speaking when he gave evidence was angry and he appeared belligerent. It is fruitless to speculate on the reasons for this. His demeanour gave me the impression that he was exaggerating the negative aspects of the relationship between the Applicant and the deceased. Even if he was not exaggerating, his evidence regarding other women can only be evidence of what the deceased said to him and this may have been, as the Applicant's counsel suggested, mere male braggadocio. It is not sufficient evidence for me to find in all the circumstances that the deceased did in fact have sexual relationships with other women. Even if other relationships were proved, this would not indicate that the sexual relationship between the Applicant and the deceased did not exist, although it might indicate, depending on the other circumstances, that the deceased was not committed to the Applicant. It may be common sense to expect that relationships in which one party is unfaithful will eventually break down, but such things happen even in marriages of long standing.

88. In considering whether the Applicant and the deceased were committed to each other, the length of the relationship is relevant. It began in December 1999 and there was a progression of greater involvement in each other's lives until the couple began to live together in the Applicant's parents' house after her mother went to Queensland in January 2001 and it continued thus until August 2001. Both parties were very young but legally they were able to make decisions to live in such a relationship. Their parents in each case knew of the relationship and the Applicant's mother indicated approval by including the deceased in her household and by leaving him and the Applicant to run the house when she went to Queensland to live.

89. I consider it relevant to the Applicant's commitment to the deceased that she was prepared to remain in Bacchus Marsh when her family moved to Queensland. I accept her evidence that she did so in order to stay with the deceased. It was not disputed that the deceased did live in the house with her for six months and was living there when he died. I accept that he was not getting on with his father but there is no reason to suppose that he was without alternative accommodation. He chose to live with the Applicant in her mother's house. These facts alone indicate that the Applicant and the deceased relied on each other's companionship and emotional support to some extent.

90. The Applicant gave evidence that she and the deceased had in private considered marrying. It is not essential to a finding that they had a positive commitment to each other that I should find they intended to marry, but a finding of such an intention would go to show that they considered the relationship likely to continue indefinitely. The Applicant said they had agreed that they wanted to become engaged but did not have much money. She said in her evidence that they had chosen a ring from a picture in a jeweller's catalogue and the Applicant had fixed the picture to the refrigerator. They had not set a date for a formal engagement or wedding. The Applicant said she had planned to surprise her mother with news of these plans, but was vague about when she would have told her. As it turned out, the Applicant's evidence was that her mother saw the picture of the ring only after Wayne's death.

91. The evidence of Ms Karen Pitt (the Applicant's mother) was that after Wayne's death she saw the picture of the ring on a cork board in the bedroom where the couple had "pictures of dreams" pinned up. Despite this discrepancy in recollection of where the picture was, I accept that there was a picture of the ring in the house at the time of Wayne's death. Even if putting the picture on display was more the Applicant's work than the deceased's, it indicates that the topic was under discussion between the Applicant and the deceased.

92. Mr Borg said that the deceased had told him that he had proposed to the Applicant but that the deceased had said this had occurred in the heat of the moment and he could not really do it. Mr Borg said that the week before the deceased died he told Mr Borg he was going to move out of the Applicant's house. As with the other evidence of Mr Borg which I have already considered, this shows at its highest that the deceased said these things to Mr Borg, not that these were his true intentions. I have already noted some inconsistencies in Mr Borg's evidence which led me to consider his evidence might not be reliable. However, there is no reason to suppose this part of his evidence to be completely fabricated. I accept that the deceased must have said something of the sort to Mr Borg. I also accept the Applicant's evidence that the deceased had not said any of this to her. This would indicate then that the deceased was saying different things to different people about his plans for the future with the Applicant. I am not persuaded it shows that the deceased had made up his mind to leave the Applicant or to call off their plans for the future. I am of the view that it shows marriage was being discussed but the deceased was not inclined at that stage to make a public commitment to the relationship. However, it is not possible to decide what would have been the outcome of those discussions had the deceased lived; I can only consider all of the circumstances to find whether the totality indicates that the deceased and the Applicant acted as if the relationship would continue indefinitely into the future. The deceased's words to Mr Borg are only one factor.

93. Counsel for the Respondent submitted that it was relevant to the nature of the commitment between the Applicant and the deceased that the deceased still had mail sent to his parents address and gave that address to his new employer, Retravision, in the weeks before his death.

94. There was no dispute that the only mail sent to Lyle Street for the deceased was his Centrelink mail and mobile phone bills. There was no evidence about other mail the deceased received at his parents' address. It appeared from his MasterCard statement for August 2001 which was before me that he used his parents' address for this purpose.

95. The Hughes Investigation report prepared for TAC, which was before me, included a statement dated 6 November 2003 from Ms Torma of Retravision, the employer of the deceased for a week before he died. Ms Torma said that the phone number given by the deceased on his employee card was his parents' number. No explanation was offered for this by the Applicant. I note that attached to Ms Torma's statement was a curriculum vitae for the deceased which I presume was provided to Retravision around the time the deceased began work there in late July or early August 2001. The curriculum vitae lists his current employment as "Manager Diamond Sparkle Detailing". It appeared from the other evidence before me, such as the records of the business produced by the Applicant, that the deceased treated his parents' address as his business address. This was consistent with Mr Davies' evidence that he helped his son obtain the work for his detailing business and in fact "put him on to it".

96. Although the deceased may have still received some mail, particularly that relating to business activities, at his parents' home, the other evidence suggested he no longer saw it as his own home. Mr Davies mentioned in cross-examination that although Wayne "left most of his stuff at home initially" he had taken "the rest of his stuff" two or three weeks before he died. This included his "baseball stuff, trophies and BMX trophies". He also took his television although it was not clear from the evidence at what point this had occurred. This indicates to me that the deceased had some permanent intention to leave his parent's home.

97. There is little evidence other than these few facts about whether at this time the parties saw the relationship as marriage-like. I find that they lived domestically as a couple, and discussed plans for the future. I am not satisfied that the deceased was unfaithful to the relationship and in any case I accept the Applicant's evidence and so find that if he was unfaithful he did not tell the Applicant, so the relationship was marriage-like in the sense that each expected fidelity of the other.

98. I note that according to Mr Davies' undisputed evidence, two or three weeks before his son's death, the deceased had finally removed the last of his personal belongings, sporting trophies and such like from his parents' house. This indicates some intention of permanence elsewhere than his parents' home, seemingly with the Applicant since that is where he lived. While on the other hand I have already noted that the deceased appears to have given his parents' contact details to Retravision, where he had just begun work, there are possible explanations for this other than that he intended to leave the Applicant and I find those more likely.

99. Taking all the circumstances into account I find that the Applicant and the deceased lived in a marriage-like relationship for six months before his death and had a sexual relationship as boyfriend and girlfriend with a growing involvement in each other's lives for 14 months before that. I find that they provided companionship and mutual support living as a couple and while the Applicant wanted the relationship to continue indefinitely the deceased had not made any decision one way or the other but continued to live with the Applicant, moving in all his personal belongings. He had discussed marriage with her but there is no evidence he had made a final decision and some evidence that he was telling others he was not committed. However, the photo of a ring in the house is also a public or partly public gesture. His parents gave no evidence except to say they were not aware of any wedding plans.

100. Taking into account the financial aspects of the relationship, the nature of the household, the social aspects, the sexual relationship and the nature of the couple's commitment and mindful that they were not old or wealthy enough to have entered heavy financial commitments, I find that the Applicant and the deceased lived together on a bona fide domestic basis in a relationship which was permanent in the sense that they saw it as continuing indefinitely.

The degree of the Applicant's dependence on the deceased

101. Here the definition of "dependent spouse" is particularly relevant. For convenience I set it out again:

"'Dependent spouse' in relation to a person means the person's partner, if the spouse would but for injury or death of that person -

(a) be wholly, mainly or in part dependent on that person for economic support; or

102. It remains for me to decide whether the Applicant was wholly, mainly or in part dependent on the deceased for economic support. The Applicant said in her statement that the deceased's income was greater than hers throughout the period they lived together. She said and it was not disputed that from about October 2000 to sometime in March 2001 the deceased was fully employed. For January and February 2001 he had his own business as a car detailer. It was in late January 2001 that the Applicant and the deceased took over the running of the house, when the Applicant's mother and brothers followed their stepfather to Queensland. The Applicant said in her statement that at this time the deceased earned $50 to $100 per day but that this was not all declared for tax purposes. She said that she herself had been unemployed from November 2000 to March 2003 and had been receiving Centrelink benefits of approximately $250 per fortnight during the time she and the deceased lived together. The evidence later showed that her benefit was about $290, not $250, but I presumed that she had accidentally misstated this in her statement. The Applicant said that the deceased received Centrelink benefits from March 2001 to August 2001 but it appeared from the evidence, such as the undated letter to him from Centrelink, to which I have already referred, that he did not receive the living away from home allowance until May 2001 and it is unclear to me whether he received any other Centrelink benefits before that. The Applicant however said that the deceased also worked for cash during this period and as far as she knew did not inform Centrelink of his cash income. She said he worked one or two days a week.

103. The Applicant provided 27 pages of records from "Diamond Sparkle Detailing", the deceased's business, which appeared to be records of payments received. The records began on 1 February 2001 and ended on 8 May 2001. They showed an income of $1300 in January and $1400 in February then individual amounts coming to a total of another $4,000 with the last payment on 8 May 2001. The Applicant said that the deceased worked for "Melbourne Signworks" and my perusal shows this is the name of the entity shown in these records as having made payments to the deceased in May 2001. The Respondent pointed out and I note that no one from Melbourne Signworks appeared to give evidence about these payments. However, they are consistent with the Applicant's evidence that the deceased did "cash jobs" at this time.

104. The Applicant said that the deceased continued to earn $200 a week from doing cash jobs for most of the time he lived with her. On 1 November 2001, she made a statutory declaration in support of her application for dependency benefits. In that declaration she said that her weekly income was $145 and that the deceased's contribution was $160 - $190. She said in cross-examination that he earned his contribution in cash jobs. The Respondent's counsel pointed out that there were no receipts or records for any jobs for cash after May 2001. If the deceased was working for cash and not reporting this to Centrelink, I find it quite likely that he kept no receipts after he began to receive Centrelink benefits, so the lack of receipts is not inconsistent with the Applicant's evidence.

105. I have already accepted the Applicant's evidence that she and the deceased pooled their financial resources to some extent to pay rent and bills and that the deceased gave the Applicant access to his bank account via withdrawal slips which he provided already signed for her and that she knew the PIN number for his bank account. I have also accepted the Applicant's evidence that at one point she sold her own car and the couple intended to use the proceeds to go to Queensland and that at another point she contributed to costs for the deceased's car. The Applicant also said that the deceased paid more of the bills than she did as he had the greater income. I have no reason to doubt the Applicant's evidence but it is appropriate to consider whether there was other evidence to support this statement by the Applicant.

106. Lucas Borg, a friend of the deceased who provided a statement and was called by the Respondent to give evidence, said that he thought the Applicant paid all the bills when she was working and Wayne was not, but the other undisputed evidence before me indicates that the Applicant was not working at all while she and the deceased were living together, so I am not inclined to take Mr Borg's statement seriously on this point. While Mr Borg may have known the deceased well, his evidence gave me the impression that Mr Borg was not familiar with the domestic arrangements in the household of the deceased and the Applicant.

107. I have already referred to the affidavit of 19 December 2001 sworn by Mr Rodney Davies, the father of the deceased. In that affidavit, sworn for the purpose of recovering some of his son's property from the Applicant, Mr Davies said at paragraph 16:

"We believe that the defendant's claim to being legally entitled to retain the deceased property has no factual or legal basis. To the best of our knowledge and belief the defendant was unemployed for almost the entire period that she lived with the deceased and she made nominal contributions, if any, to the household and living expenses. For much of their time together the deceased supported himself and sometimes assisted the defendant."

108. This affidavit, which Mr Davies did not deny when it was put to him, while it can only indicate Mr Davies' belief about the situation, tends to support the Applicant's evidence that the deceased provided economic support for her.

109. Counsel for the Respondent submitted that it was important that no documentary evidence was provided to show that the bills were paid wholly or in part by the deceased. It is true there was no such documentary evidence, however, given that the couple was occupying the Applicant's family home, it would not be surprising if the bills had continued to be in the name of the Applicant or her mother even if the deceased did pay all or part of them. Therefore, the lack of copies of the bills is not in itself significant. In all the circumstances I find the deceased supported the Applicant by contributing substantially to the household bills.

110. The Respondent's Counsel also submitted that the Applicant's evidence in the Magistrate's Court action taken by Mr and Mrs Davies relating to the deceased's possessions indicated that the deceased had been dependent on her. That evidence was that she contributed to the cost of purchases for the deceased's car. It does not on its own indicate that the deceased was dependent on the Applicant for economic support. It does imply that at the time she contributed the Applicant had more funds available than the deceased. This is consistent with her evidence that she and the deceased shared their resources and expenses and not inconsistent with her evidence that overall his income exceeded hers.

111. Even if the deceased was bringing in little other than his youth allowance, I note that he owned a car. Mr Rodney Davies gave evidence that his son still owed him money for his car and it is one of the items reclaimed on Wayne's death by his parents. However, access to the use of a car is a financial advantage in my view. I have accepted evidence that at one point the Applicant contributed to the cost of items for the deceased's car. There was no particular evidence that she used the car, however it is reasonable to suppose that it was available to her for transport from time to time, especially since there was evidence (which I have accepted) that she had sold her own car. I note also that it is common sense that two people living together can live more economically than two people living apart because of the opportunity to share expenses. I have no evidence about the particular bills which were paid so I cannot be sure that this is the case in relation to utilities, however, even in relation to food and cooking it is reasonable to consider that two together can live more economically than two apart.

112. I note also that the deceased was employed until the end of February 2001 and that his income for this month (the first full month he and the Applicant lived together without the Applicant's family) was $1400. There was no evidence about the overheads for his business. Allowing a reasonable reduction for overheads his income was likely still to be better than the $580 he would have brought home on the youth allowance if he had been receiving it at that stage. Then in August 2001 just before his death the deceased was again employed. He had not had time to make any contribution to the household expenses from his first salary payment, but it is fair to assume that he would have done so had he lived.

113. The Respondent submitted it was important that the deceased had not claimed the Applicant as his spouse on any tax return. I note however that the tax return for the year ending June 2000 would not have been relevant as the Applicant and the deceased were not living together at this point. I heard no evidence that the deceased had completed his tax return for the year ending June 2001 before he died. The Respondent submitted that it was also relevant that the deceased and the Applicant were not listed on the same Medicare card. Given that the Applicant and the deceased had not taken any formal steps to have their relationship legally recognised I do not find this surprising. It would be pointless to provide in legislation for people who are not legally married to be recognised as having lived in a marriage-like relationship and then to expect that they must have completed other legal formalities if they are to be so recognised.

114. I find that for some of the time the Applicant and the deceased lived together he earned more than she did and that he contributed substantially to the household bills, so that she was economically dependent on him. I also find that by living together and sharing costs and resources the Applicant and the deceased shared the cost of living which also indicates the Applicant depended on the deceased for economic support.

115. In all these circumstances I find that the Applicant was in part dependent for economic support on the deceased. I have already found that they lived together on a permanent bona fide domestic basis. Accordingly I will set aside the Respondent's determination made on 4 December 2001 and substitute for it a determination that the Applicant is a dependent spouse of the deceased Wayne Davies. Since I have heard no submission as to costs, I will make no costs determination at this point.