3. The facts in this matter are not in dispute and the evidence of the applicant and Mr Tory was not challenged. The applicant has two children aged 12 and 14 from her marriage to Robert George Peck. In 1987, she and Mr Peck separated and divorced, the applicant retaining custody of the children. She now prefers to use her maiden name, Napier. She had been in receipt of Sole Parent Pension for some time and regularly completed "Sole Parent's Review" forms. In a Review form dated 27 March 1992 (T4), the applicant stated that Mr Tory, whom she described as a "friend" was residing at the same address and would continue to do so "for the time being". Similar information was provided in subsequent review forms dated 20 June 1991 (T5) and 13 September 1991 (T6). The applicant also advised the Department by telephone that Mr Tory was paying $50.00 per week for board and lodging (18 September 1991, T7). There is no suggestion that the applicant failed to notify the Department of any relevant circumstances or in any way breached her obligations under s.284(5) of the Act.

4. In response to this information, on 3 October 1991 the Department requested that the applicant and Mr Tory each complete an "Assessment of Marriage-like Relationship" form. In that form, Mr Tory advised that he paid $50.00 per week to the applicant as well as one quarter of electricity and gas bills and his share of the telephone bill. He described their relationship as an "emotionally supportive friendship" and indicated that it was his intention to continue living with the applicant "indefinitely". The applicant stated that she and Mr Tory began sharing accommodation "because we wanted to have more time together and to eliminate travelling". She described their relationship as "experimental" and explained that:-

"in defiance of my dysfunctional family history I am learning to

trust, respect and be honest ... I continually struggle for my

emotional and spiritual self. Taking full responsibility for my life

means self-empowerment. For me there is no going back - no

relinquishing of my power to another person, and no exertion of my

power over another person either. I can no longer accept laws which

state that someone else ... takes responsibility for me in any way."

"My experience of marriage is that it does not work ... The

interdependence is subtly destructive and breeds condescension,

dishonesty, lack of trust and respect. My position as a dependent

housewife was one of subservience and inferiority."

5. The applicant subsequently attended an interview with an officer of the Department on 19 November 1991 and made a statement which elaborated on her view of her relationship with Mr Tory as follows:-

"I would not like to hand over power to someone else. I value my

independence very highly and I would not let anything jeopardise my

independence. When I used to be married I felt that being

economically dependent meant forfeiting my freedom of choice. At

present I am living in a relationship but at the same time I am trying

to preserve my independence and freedom. There is a strong emotional

bond between myself and Mr Tory and our relationship may gradually be

developing into an interdependent relationship."

6. A delegate of the respondent proceeded to determine on 20 November 1991 (T15) that the applicant was "living in a marriage-like relationship" with Mr Tory and she was advised that her Sole Parent Pension had been cancelled in a letter dated 19 November 1992 (T16) which rather curiously seems to pre-date the determination of the delegate. In any event, the applicant was in receipt of payments while her appeal to the SSAT was in progress (T27). The last payment received was in respect of the period ended 7 May 1992. Since then she and her children have subsisted on maintenance payments from Mr Peck, family allowance and her savings. The respondent has not sought to raise any overpayment.

7. Entitlement to SPP is to be determined in accordance with s.249 of the Act. The dispute in this matter is confined to whether the applicant qualifies within sub-paragraph (1)(a)(i) which relevantly provides:-

"249. (1) A person is qualified for a sole parent pension if:-

(a) the person:

(i) is not a member of a couple; or

(ii) ...

(iii) ...

(iv) ... "

8. The expression, "member of a couple", is explained in s.4(2) (as it then was) as follows:

"(2) Subject to subsection (3), a person is a member of a couple for

the purposes of this Act if:

(a) the person is legally married to another person and is not, living

separately and apart from the other person on a permanent basis; or

(b) all of the following conditions are met:

(i) the person is living with a person of the opposite sex (in this

paragraph called the "partner");

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

(iii) the relationship between the person and the partner is, in the

Secretary's opinion (formed as mentioned in subsection (3)), a

marriage-like relationship;

(iv) both the person and the partner are over the age of consent

applicable in the State or Territory in which they live;

(v) the person and the partner are not within a prohibited relationship

for the purposes of section 23B of the Marriage Act 1961." (emphasis

added)

9. The issue to be decided therefore is whether the applicant and Mr Tory have a "marriage-like relationship". Section 4(3) of the Act sets out criteria to be addressed in the formation of an opinion about whether a relationship is "marriage-like" and provides as follows:-

"(3) In forming an opinion about the relationship between 2

people for the purposes of paragraph (2)(a) or sub-paragraph

(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." (emphasis added)

"(4) If:

(a) a person claims, or is receiving, sole parent pension; and

(b) a particular residence has been, for a period of at least 8 weeks,

the principal home of both the claimant or recipient and a person of

the opposite sex; and

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

person; and

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

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

(ii) the people have joint ownership of the residence;

(iii) the people are joint lessees of the residence and the original

duration of the lease was at least 10 years;

(iv) the people have joint assets with a total value of more than

$4,000;

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

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

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

other;

the Secretary must not form the opinion that the claimant or recipient

is not living with the other person in a marriage-like relationship

unless, having regard to all of the matters referred to in subsection

(3), the weight of evidence supports the formation of an opinion that

the claimant or recipient is not living in a marriage-like

relationship with the other person."

"If the Tribunal is in a state of uncertainty after considering

all the evidence, unable to decide a question of fact either way on

the balance of probabilities (Woodward J (in McDonald v

Director-General of Social Security [1984] FCA 57; (1984) 6 ALD 6)), then the

subsection requires a decision that the person is living in a

"marriage-like relationship": Re Secretary, Department of Social

Security and Villani [1990] AATA 68; (1990) 20 ALD 49, 58.

Should the Tribunal be unable to reach a clear conclusion, therefore, the applicant will not be entitled to payment of SPP.

12. Under s.4(6) of the Act, a person is not a member of a couple if a determination under s.24 is in force in relation to the person. The latter section, so far as is relevant, states:

"(2) Where:

(a) a person is living with another person as the spouse of that other

person on a genuine domestic basis; and

(b) the person is not legally married to the other person; and

(c) the other person is of the opposite sex; and

(d) the Secretary is satisfied that the person should, for a special

reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be

treated as a member of a couple for the purposes of the Act."

13. The Tribunal would note at the outset that s.4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a "marriage-like relationship" exists (Re Staunton-Smith and Secretary, Department of Social Security (1990) 21 ALD 456) and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship. Much will depend, in forming the requisite opinion in any instance, on matters of degree and impression. (Re Bourke and Secretary, Department of Social Security (Dec No 4184; 2 March 1988)). Moreover, if the result of a consideration of the factors enumerated in s.4(3) is inconclusive or ambiguous then s.4(4) must be applied to determine whether a marriage-like relationship exists: Re Secretary, Department of Social Security and Villani (above). The Tribunal makes the following findings in respect of the nature of the applicant's relationship with Mr Tory.

The Nature of the Commitment and the Social Aspects of the Relationship

14. The applicant and Mr Tory do not view their relationship as "marriage-like". They have strived to maintain a high degree of autonomy, independence and an equal balance of power which they consider are not present in marriage. They have been together since December 1990 and describe their relationship as affectionate, companionable and harmonious. They try to support one another emotionally, have an exclusive sexual relationship and exhibit a strong commitment to each other. The applicant said that she regards Mr Tory as her partner "and this means to me companionship, someone to be with and to talk with ..." (transcript, p.39). Both the applicant and Mr Tory indicated that it is their desire that the relationship continue indefinitely. She acknowledged in this respect that should either of them "change direction" and their lives cease to run parallel, the relationship may not last but at present they see it continuing for some indeterminate time in the future.

15. The applicant does not hold herself out as married and does not regard Mr Tory as a husband. Similarly, Mr Tory does not view himself as married but is comfortable being described as the applicant's "partner". Close friends and relatives regard them as a couple. The applicant said that it would be strange if she were invited out without Mr Tory:

"I suppose we present ourselves as a couple. Now we do. In the

beginning of the relationship that wasn't so. As things have changed

as we go along, yes, I'd probably expect to be invited together".

16. They share some social activities but not all. The applicant told the Tribunal that they:-

"each make plans on the basis of our own preferences and

interests. If the interests are shared ones, we will take part

together and if not, each person follows their own wishes. In this

way the paths sometimes converge and sometimes diverge. There are

many things which we do enjoy together and there are some few

activities which I find I prefer to do on my own".

17. The social aspects of the relationship and the fact that they are clearly viewed by friends and relatives as a couple are suggestive of a "marriage-like relationship". The nature of their commitment is also a prominent indication of the character of their relationship. The applicant and Mr Tory regard themselves as partners in a loving relationship and intend to continue as such. In this respect, their relationship is undoubtedly "marriage-like" in the ideal sense of the notion.

18. There are no separate living areas within the house that the applicant and Mr Tory share although they each have a particular area which they use for their own recreation. The applicant prepares the meals on weekdays and on weekends, when the children stay with their father, Mr Tory cooks for both himself and the applicant. They share the responsibility for the housework and the applicant described the organisation of the home as follows (T13, p.56):

"There are four of us living in the house and each is responsible

(as far as they are able concerning the children) for themselves,

their own belongings and their relationships with one another. As a

parent I see myself as having an overall responsibility for some

aspects of communal living".

19. The nature of the household is somewhat inconclusive and could be interpreted in either light. Though the absence of any significant separation of living areas and the shared responsibility of household tasks are consistent with a "marriage-like" relationship, in the particular context of this couple it also demonstrates a carefully thought out arrangement in which each party has quite discrete zones of privacy. In the end, the significance of this factor is quite equivocal, lending weight to neither side.

20. The most significant difference between the applicant's relationship with Mr Tory and the notion of a marriage relates to Mr Tory's interaction with her children and the financial aspects of the relationship. With respect to the former, she and her ex-husband, Mr Peck, share the responsibility for providing care and support for the children and make all the necessary decisions together. Mr Tory has never assumed a "father" role with the applicant's children nor does he have any say in their upbringing. He stated (p.55 Transcript):-

"From where I'm coming from I see myself as having absolutely no

responsibility whatever for the children beyond what any adult would,

given some emergent need for care or kindness but I don't see myself

because of the relationship having any special responsibility towards

the children ..."

21. The applicant emphasised that she sees her parenting role as entirely separate from her relationship with Mr Tory and has no expectation that Mr Tory will take an interest in the children. She feels very strongly that he should not be in a position of authority over the children, in their own home.

22. It is therefore apparent that Mr Tory's position in respect of the children is merely that of any adult who would act if called upon for assistance and it cannot be said that his relationship with, and lack of responsibility for, the children are consistent with the notion that he and the applicant have a "marriage-like relationship".

23. In February 1992, the applicant and Mr Tory purchased a property as tenants in common, owning shares of two-thirds and one-third, respectively. Her intention in structuring the arrangement in that manner was to define her share of the property and ensure that the interests of her children were protected by excluding any right of survivorship that would flow from a joint tenancy. The mortgage payments are deducted from the applicant's account and Mr Tory pays her one quarter of the amount due, by cheque. The applicant's preference was for two separate accounts to be debited for the mortgage payments but the bank found that to be unacceptable. The acquisition of a common home, albeit as tenants in common rather than as joint tenants, indicates that their association was intended to be stable and permanent.

24. The day-to-day household expenses are shared in similar proportions, as are the gas, electricity and telephone charges, although the accounts are in the applicant's name. Personal items are purchased separately. They each have their own car and are responsible for their own expenses in that respect.

25. The applicant and Mr Tory hold one joint bank account which contains funds for the renovation of the home. There is no other significant pooling of financial resources. The applicant and Mr Tory do not hold any insurance policies relating to one another nor have they executed wills in one another's favour.

26. The applicant's main contention is that SPP is paid in order to support single parents financially and that her need for assistance has not diminished because she has chosen to be in a relationship. Mr Tory does not assume responsibility, financial or otherwise, for the applicant or her children. She has a strong desire to retain her independence and autonomy and to protect her children from the imposition of another person's authority. The applicant described her view of the basic difference between their relationship and marriage as:

"We're not responsible for one another, and neither of us hands

over the responsibility of their happiness to the other as is

traditionally accepted."

Her objection to the characterisation of their relationship as marriage-like is based upon her experience that one party assumes a dominant role to the detriment of the individuality of the other. Illustrative of the divergence of opinion that can arise in perceptions of marriage, in Re Donald and Director-General of Social Services (1983) 5 ALN N185 it was said:

"The traditional roles of husband and wife as breadwinner and

housewife respectively are no longer regarded as necessary

characteristics of marriage, nor is the subservience of one party to

the other in respect of any aspect of their relationship."

27. The applicant's concern was that, if she were deprived of financial assistance, she would thereby be forced into a position of dependence and subservience and Mr Tory would likewise be forced to assume responsibility for her and her children. Such a result is unacceptable to both the applicant and Mr Tory.

28. The assessment of relationships for the purposes of the Act is fraught with difficulties in that it involves diverse concepts and subjective judgments (Re Stuart and Secretary, Department of Social Security (1985) 9 ALN N38). This has been alleviated to some degree by the enumeration of criteria in s.4(3) of the Act and its predecessor, s.3A of the Social Security Act 1947. However, the factors to be considered merely reflect the interpretation of the notions of "marriage" and "de facto spouse" that had developed prior to the inclusion of the relevant provision in the Act (Re Secretary, Department of Social Security and Villani (above)).

29. Although the existence of the substantial joint investment in the home is undoubtedly an important consideration, it is not conclusive (Re Lambe and Director-General of Social Services [1981] FCA 171; (1981) 3 ALN N72). The parties in Re Donald and Director-General of Social Services (above) owned a home as joint tenants and each executed a will in favour of the other. The applicant was responsible for all household tasks including the other party's laundry but their lives were otherwise separate in that there was no romantic attachment, sexual relationship, or shared social activities. The Tribunal held that the lack of exclusivity in the relationship and absence of any emotional or sexual involvement led to the conclusion that there was an insufficient commitment to one another that was uncharacteristic of marital relationships. Given the applicant and Mr Tory's emotional and exclusive involvement, the purchase of a home jointly, albeit as tenants in common, assumes a greater weight in the consideration of whether a marriage-like relationship exists as it indicates a degree of permanence.

30. It was said in Re Roberts and Secretary, Department of Social Security (1987) 12 ALD 723 at 725 that:

"The Tribunal must approach this matter by considering all facets

of the interpersonal relationship of the applicant and (the other

person).. It must search for the essential characteristic of the

marital relationship which is the commitment of the applicant to (the

other person) to a greater extent than, and in a manner qualitatively

different from, the commitment of either to anyone else"....

31. The Tribunal adopted that approach in Re Tomlin and Secretary, Department of Social Security (Decision No 5717; 20 February 1990). Ms Tomlin and her son moved into a Mr Ward's home, providing housekeeping services and paying board. Ms Tomlin began sharing a bedroom with Mr Ward some months later. They were financially independent and did not present themselves as married nor did they view their relationship as "de facto". There was a great deal of co-operation between them and they assisted one another with the care of their respective children. Eventually, Mr Ward asked Ms Tomlin to marry him. The Tribunal found that until they decided to marry they had "held back from committing themselves permanently to each other". It was that lack of a permanent commitment in their relationship that in the circumstances led the Tribunal to conclude that there was no marriage-like relationship, and that they were not living together on a bona fide domestic basis. It should be noted that Ms Tomlin had at no time acquired any interest in the home and there were no joint assets or liabilities.

32. In the light of the evidence, the Tribunal is, on balance, of the view that the applicant's relationship with Mr Tory is "marriage-like" within the meaning of subsections 4(2) and (3) of the Act. Their emotional involvement and the degree of stability and permanence indicated by the purchase of a home together outweigh the lack of financial interdependence and shared parental responsibility. Financial independence, while not a usual characteristic of marriage, is not fatal to such a classification. In Re Stuart (above), although the parties retained a substantial degree of independence financially and had separate interests, the Tribunal nevertheless, found that their significant emotional and romantic commitment necessitated the conclusion that the applicant was living as a "married person".

33. Further, though it has connotations that the applicant sees as inappropriate, the Tribunal finds the description of their relationship as "marriage-like" to be fitting notwithstanding the applicant's belief that there is a degree of uncertainty inherent in any relationship and that she and Mr Tory are free to part should either of them "change direction". In Re Donald and Director-General of Social Services (above) the Tribunal reiterated the comments in Re Roberts (above) and remarked:

"When a marriage ceases to have that essential characteristic (of

commitment to one another), the community accepts ... that it is

reasonable for the parties to be able to have it dissolved."

34. The Tribunal respects the sincerity of the applicant's convictions and appreciates the difficulty experienced by her in trying to accommodate her situation within the present strictures of the Act. But in the end, whilst acknowledging that the relationship she has with Mr Tory is built to a large extent on respect for the individuality, independence, autonomy and integrity of each other, the Tribunal is swayed by factors such as the property arrangements and degree of on-going caring commitment to each other to conclude, on balance, that the applicant is a "member of a couple" in that she is living in a "marriage-like relationship" and she therefore does not qualify for payment of SPP under the Act.