Ah-See and Secretary, Department of Family and Community Services

[2004] AATA 783

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 783

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2002/1656

GENERAL ADMINISTRATIVE DIVISION		)
Re		MS JANET AH-SEE

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member N Bell

Date26 July 2004

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant was not a member of a couple as at 5 December 2001.

..............................................

Ms N Bell, Senior Member

CATCHWORDS

SOCIAL SECURITY – parenting payment single – whether Applicant in a “marriage like relationship” with Mr Edward Bell during relevant period –  insufficient evidence to establish Applicant a member of a couple – decision set aside

Social Security Act 1991 ss 4(1), 4(2), 4(3), 4(3A)

Staunton-Smith v Secretary, Department of Social Security

REASONS FOR DECISION

26 July 2004 Senior Member N Bell        

1.      This is an application for review of a decision of the Social Security Appeals Tribunal (“SSAT”) dated 1 October 2002 which affirmed the decision of a delegate of the Department of Family and Community Services (“Centrelink”) on 5 December 2001 to cancel Ms Janet Ah-See’s (“the Applicant”) parenting payment single (“PPS”) on the grounds that she was a member of a couple.  The parties agree and I concur that it is the nature of the relationship between the Applicant and Mr Edward Bell as at 5 December 2001 that is relevant to this review.

2.      This matter has a long history of consideration by Centrelink and in the documents lodged with Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 there is a great deal of material concerning investigations made and statements given at earlier dates as far back as 1981.  I have limited my consideration to that material which is relevant to the question of whether, as at 5 December 2001, the Applicant was living in a marriage-like relationship with Mr Bell.

3.      It is not in dispute that the Applicant was born on 4 June 1949 and lived in a de-facto relationship with Mr Bell from about 1966 to 1981.  During this period the Applicant and Mr Bell both resided at 128 Hill Street, Orange.  There are four children of the relationship namely Robert, born 18 October 1967, Ian, born 23 October 1968, Damien, born 12 July 1977 and Timothy, born 26 May 1982.  There are eight grandchildren of which Alana, who is Ian Bell’s daughter, has lived with the Applicant since she was approximately 2 months old.  The Applicant has received supporting parent benefit (later sole parent pension and then PPS), from 1981 until payment was ceased on 5 December 2001.

4.      From about 1993 to 2002, Mr Bell was employed by the Department of Corrective Services as a prison welfare officer at Bathurst Correctional Centre (for about six years) and Kirkconnell Correctional Centre (for about two years).  He retired from employment on 4 December 2003. 

Applicant’s Evidence

5.      The Applicant gave evidence to the Tribunal by way of her statement dated 22 July 2003 and by oral evidence.  Her evidence was that she resides at 128 Hill Street, Orange with her granddaughter, Alana Hickey and her son, Timothy.  Her other sons Ian and Damien have previously lived with her but Ian now lives with his father, Mr Bell and Damien lives in Bathurst.  Her oldest son Robert lives in Grafton. 

6.      The Applicant said she has lived in Orange all her life and first began living at Hill Street in 1966 with Mr Bell.  They separated in 1981 and he currently lives at 1/121 Sale Street, Orange.

7.      The Applicant said that Mr Bell has a close relationship with his sons and grandchildren and that he attends family functions such as Christmas dinners, birthdays and parties when they are held at her house.  He also regularly visits Alana and has in the past helped her with homework. 

8.      The Applicant said that on occasions she has asked Mr Bell to baby-sit Alana when she has gone to bingo with friends on Wednesdays or to the RSL club with friends on Saturdays.  She said that on those occasions, if she returned home late, she would find Mr Bell asleep on a mattress in front of the television. 

9.      The Applicant said she has no income apart from a payment she receives from the Department of Community Services in respect of Alana.  She said that her sons give her money for food and living expenses when she needs it and Timothy, Ian and Damien generally contribute an average of $100 per fortnight each.

10.       The Applicant said that she suffers from multiple sclerosis which causes short term memory loss and blurry vision.  She has deep vein thrombosis which sometimes prevents her from walking and generally requires her to sit with her leg raised.  She regards her multiple sclerosis as life threatening and predicts that if it becomes very bad she may need a wheelchair and will have to live with her sister or her son, Robert in Grafton.

11.     She described her relationship with Mr Bell as a friendship born of the fact that he is the father of her four sons and the grandfather of her eight grandchildren.  She said that they separated in 1981 shortly before Timothy was born because of Mr Bell’s drinking and abusive behaviour.  She described Mr Bell as a caring father and grandfather providing support when his children and grandchildren need him.  She said they do not have a sexual relationship and that they are better friends now than they ever have been before.

12.     The Applicant described the passing of Mr Bell’s son from a former marriage in 2001 when Mr Bell visited her home more often than usual for the purpose of gaining support from his family.

13.     She also described the attempted suicide of her son Damien and Mr Bell’s particular relationship with him which provided him with comfort at that time. 

14.     The Applicant said that she has no financial link with Mr Bell and that he does not contribute any money towards the day-to-day running of her home.  She said that he previously agreed to be a guarantor for a loan in the amount of approximately $8,000 for the purchase of a car but that is the extent of their financial involvement.  She said that she owns all of the furniture and other items in the house and they have no joint bank accounts. 

15.     She said that Mr Bell has provided some support to their children in the form of birthday and Christmas presents and has purchased vehicles for two of their sons.  She also said that Mr Bell has had some involvement with the raising of Alana, helping her with homework and other things she  may need.

16.     When asked by the Tribunal why, on the Centrelink file, there are so many instances of public denunciations or “dob-ins”, she answered that it must be because of some jealousy or tension arising in the Aboriginal community in Orange.  She referred to an incident involving the theft of some money from Mr Bell which occurred when he was staying in Sydney with the daughter of a Centrelink officer.  She said that some people in Orange learnt of the statements made by Mr Bell about this incident and sought revenge.

17.     The Applicant said that she has visited Mr Bell’s unit about five times when he was not there. She noted that one of her granddaughters resides in the adjoining flat and she often has visited her there.  She said that the gas was disconnected from the house at Hill Street for some time because she did not have the money to pay for it.  It has now been reconnected due to the intervention of her Local Member.  She said she did not ask Mr Bell for the money to have it reconnected.

18.     The Applicant said that her son Damien had asked her on a number of occasions to deliver the Sale Street rent money to the landlord and she did so as a favour to him. 

19.     In cross-examination the Applicant was asked to comment on a surveillance video that had been shown to the parties and to the Tribunal earlier in the day.  The Applicant identified people in a car in the video with her as Alana and a person by the name of Nicholas Frail and his girlfriend.  She said that she was going to the house of her son, Ian and his then partner Emma Touzell at Lawson Crescent in Orange.  She said there was no arrangement for Mr Bell to obtain a lift with them and she was not sure whether Mr Bell was in the car.

20.     Another scene in the video shows the Applicant standing at her front door knocking and being let in.  She said that it would have been her son Tim who opened the door.  She said she has no keys to the house as she lost them. so she usually enters her house by the back door which she leaves unlocked.

21.     The Applicant said that her son Tim, who attends university and receives a Centrelink allowance, contributes approximately $100 per fortnight towards her Housing Commission rent of $340 per fortnight.  She also noted that as she is not in receipt of any Centrelink payment her rent has increased.  She said that her son Damien is on a youth allowance and living in Bathurst but gives her $100 per fortnight.

22.     The Applicant said that she received a lump sum compensation payment of $33,000 which is now exhausted.

Mr Bell’s Evidence

23.     Mr Bell’s evidence to the Tribunal was given by way of his statement dated 10 June 2004 and orally.  Mr Bell’s evidence accorded with that of the Applicant in relation to their cohabitation until 1981, the children of their relationship and his current circumstances.

24.     He said that when he was working at Bathurst Correctional Centre he travelled from Orange to Bathurst most days on the Selwoods bus.  Sometimes he would stay with his son Damien in Bathurst.  He said that when he was working at Kirkconnell he would stay there during the week and return to Orange on most weekends.  Some weekends he would stay with his son Damien in Bathurst and on other weekends he would sometimes stay with his son Ian in Orange.

25.     Mr Bell said that since his separation from the Applicant in 1981 he has visited her house to see his children and grandchild and that over the years he has stayed overnight at her house.  He maintained that they have not been involved in a sexual relationship since they separated.  He also confirmed that he spent a lot of time talking to and visiting the Applicant about eight years ago when their son Damien attempted suicide. 

26.     He confirmed that he has not given the Applicant any financial assistance since they separated, apart from buying things for their children and grandchildren and guaranteeing a loan for the purchase of a motor vehicle.  He confirmed that he is now in receipt of an age pension.

27.     In oral evidence to the Tribunal Mr Bell explained an incident which occurred when he was living in Sydney in 1986 when he discovered that money had been withdrawn from his account.  He went to the police and discussed it with his cousin, Meredith Bell, with whom he was staying.  He said that Meredith gave him an open envelope containing his key card and personal identification number.  He mentioned this to Meredith’s father, Harry (Sonny) Bell, who worked for the Department of Social Security at Orange.  He said that he never accused Meredith of foul play but that she knew Mr Bell suspected her.  He said that after this incident relations with these relatives were very poor.  He noted that Meredith’s sister Raelene Bell also worked for the Department of Social Security.

28.     Mr Bell said that he has a very close relationship with all of his children and grandchildren and that he visits Alana at Hill Street regularly to help with homework or, in the past, to baby-sit on Wednesday or Saturday night.  He said that over the last few years his sons have had a number of court appearances and he has always been around for those.  He said that, for example, he went to Hill Street two days previously in order to give the Applicant a photo of her grandchild that he had obtained on a recent visit to Grafton. 

29.     He described his relationship with the Applicant as being based on the fact that “she is the mother of my children”.  He said that over the years he has had casual relationships with other women.

30.     Mr Bell said that he agreed to guarantee a loan for the Applicant after she approached him so she could buy a car.  He explained that the Applicant needed the car as she has multiple sclerosis and needs to drive Tim and Alana to school and a number of extracurricular activities.  He only guaranteed the loan and made no repayments on the Applicant’s behalf nor contributed to the purchase price.

31.     In cross-examination Mr Bell said that he took out the lease on the Sale Street unit in August 1996 and before that lived in various places in Sydney including Campbelltown and Granville and has also stayed with his son Damien in Bathurst.

32.     He agreed that although he had the flat at Sale Street, he didn’t always stay there and noted that he allowed a friend of Ian’s to stay there for some time a few years ago.

33.     Mr Bell said that he sees the Applicant on occasions but does not go to Hill Street to see the Applicant specifically.  He said that family celebrates birthdays at the Applicant’s house and while both he and the Applicant go to the RSL club they do not go together.  He said that in the case that the Applicant arrived home late when he baby-sat Alana he would stay on a mattress in front of the TV.

34.     He denied ever staying the weekend at Hill Street.  He confirmed that Ian is now living with his mother, Tim and Alana at Hill Street and that Damien is in Bathurst.  He said that both Ian and Damien have lived at Sale Street at various times.

35.     Mr Bell said that he has his mail sent to the Sale Street address and agreed that the electricity was disconnected at the Sale Street unit at one stage because he did not pay the bill.  He said that he did not have the electricity put back on immediately because he was living at Kirkconnell or with his son or staying in Bathurst.  He said that he has kept the unit over the years, notwithstanding that he has stayed in other places, because he didn’t want to “sponge off my kids all the time” and needed to have his own place.

36.     Mr Bell said that when he would obtain a lift from Kirkconnell to Orange he would ask to be dropped off at Hill Street so that he could visit and see if he was needed.

37.     In relation to some photographs of the Sale Street flat that were taken by the property manager of Richardson and Wrench Orange in April 1998, Mr Bell said that the flat appears to be fairly bare simply because he didn’t need much and did not stay there often.  He said that he would generally eat at one of his son’s houses and keep a change of clothes at Kirkconnell.  He also noted that he had never given permission for anyone to photograph his flat or to conduct an inspection at that time.

38.     In relation to the video evidence before the Tribunal, Mr Bell agreed that it shows him at the Hill Street premises on 10, 11 and 12 August 2001 and that it looks from the video as if he had stayed there overnight.  He said that he is unable to recall anything specific occurring on those dates.

39.     He agreed that the video shows him taking junk mail out of the letter box at Hill Street and putting it in the bin.  He said that, when at Hill Street, he would perform tasks such as taking the garbage out if he was asked to.  He said that he does not have a key to Hill Street and that the back door is usually unlocked.  He said that as far as he is aware his sons do not have a key to Hill Street either.

40.     In relation to the incident captured in the video of Mr Bell in a car with the Applicant and others, he recalled that he was walking along the street and a car pulled up with the Applicant, Nicholas Fray and his girlfriend together with Alana.  He said that he got a lift with them to Ian’s house at Lawson Crescent.

41.     Mr Bell confirmed that he has no joint bank accounts with the Applicant and has no access to her accounts.

42.     He also said that he has children from a former marriage who live in Melbourne and that he visits them sometimes.  He said that after his son from his former marriage died he visited Melbourne with the Applicant and Ian.

43.     Mr Bell expressed the opinion that the Applicant has been “kicked around” by Centrelink for many years.

Mr Ian Bell’s Evidence

44.     Mr Ian Bell gave evidence to the Tribunal by way of his statement dated 22 July 2003 and orally.

45.     Mr Ian Bell gave his address as 1/121 Sale Street, Orange where he said he lives with his father.  He said, however, that he moves between that address and his mother’s house at Hill Street.  He confirmed that when he was growing up he lived mainly with his mother and with his grandmother, Laura Ah-See.  He said that he did not see his parents very much between 1989 and 1997 because he spent many of those years in goal; but since 1997 has spent a lot of time at his mother’s house helping to look after her.  He said that when living in Wellington with his grandmother he only saw his father three or four times a year and that his father would occasionally buy him things that he needed. 

46.     Mr Ian Bell said that the only time his father visits his mother’s house is if he wants to see his brothers and himself or to see his grandchildren.  He said that he is aware that his father has occasionally stayed overnight at his mother’s house when she has been out of town or has gone out and needs somebody to look after Alana.  He said that as far as he is aware his father does not assist his mother in any other way and that she relies instead on her sons or Emma Touzell to assist her with living expenses.  He said that he does not believe that his parents have been in a domestic relationship for more than 20 years.

47.     He said that he helps his mother by shopping, gardening, and performing domestic work and gives his mother regular payments of between $100 and $150 per fortnight.  He said that he has earned money over the last five and a half years by working on the vineyards but is currently receiving disability support pension.  He said that he has five children for whom he pays maintenance of $10 per child per fortnight. 

48.     Mr Ian Bell said that since 1997, when things were not going well with Ms Touzell, he would go and live with his mother.  He also said that when he was still residing with Ms Touzell his father would stay with them at Lawson Crescent and would leave some of his things there.

49.     He said that he and his siblings regard his mother’s house at Hill Street, even as adults, as a place they can go and stay anytime.  He noted that it only takes five minutes to walk from the unit in Sale Street to the Hill Street house.

50.     He said that when his parents are together they mostly ignore each other and that if they ever arrived together at his house at Lawson Crescent it would be mere coincidence.

Evidence of Ms Emma Touzell, Ms Karen Stuart and Ms Lynette Gibbs.

51.     The Tribunal also heard evidence from Ms Touzell, Ms Karen Stuart and Ms Lynette Gibbs.

52.     Ms Touzell confirmed her relationship with Mr Ian Bell and that he is the father of her four children.  She said that when she met Mr Bell in 1995 he was living at 1/121 Sale Street, Orange and that when she met the Applicant in 1996 she was living at 128 Hill Street, Orange.  She said that she has maintained very regular contact with the Applicant since 1997.  She has seen Mr Bell visit the Applicant’s house on a few occasions but only when Ian and his brothers are present or all of the grandchildren are present.  She said that when Mr Bell visits Hill Street he only stays for a short time and that she has never been present at Hill Street when he has stayed overnight, although she is aware that this has happened.

53.     She said that it is necessary to carefully consider arrangements for family occasions because tensions arise when Mr Bell and the Applicant are in the same room together.  She recalled an occasion in about 1996 when she attended a family funeral with the Applicant and Mr Bell and when both were to stay at an aunty’s house.  She said the aunty offered them the double bed but that the Applicant quickly said, “No, Emma and I will have the double bed”.

54.     She said she has never seen Mr Bell give the Applicant money over the years and that as far as she is aware they have not lived together in the time she has known them.

55.     Ms Touzell said that the Applicant comes to her house each evening for a meal and that she makes Alana her lunch for school each day.

56.     In oral evidence to the Tribunal Ms Touzell said that she has visited the unit at Sale Street many times and considers it adequately furnished and has seen Ian and Mr Bell cook and eat there.  She also said that on a couple of occasions Mr Bell and the Applicant visited her at Lawson Crescent together.  She said that Mr Bell has never kept his belongings at Lawson Crescent although he would sometimes stay for the weekend.

57.     Ms Karen Stuart said she has known the Applicant all her life and she is related to her.  She said she visits the Applicant at her house a few times each month and that her daughter Mary and Alana often have sleepovers at each other’s houses.  She said Mr Bell and the Applicant were living together when she first moved to Orange.  She said she knows Mr Bell as the Applicant’s previous partner but is aware that they separated many years ago.  She recalled that at least 16 years ago the Applicant was living on her own with her children at the Hill Street house.  She described the relationship between the Applicant and Mr Bell as “hardly a relationship at all”.

58.     Ms Lynette Gibbs confirmed that she has known the Applicant for some 20 years and has never seen Mr Bell at the Hill Street house.  She stated that as far as she is aware the Applicant resides at 128 Hill Street with her granddaughter and her son and that Mr Bell lives in his own unit in Sale Street.  She said that the Applicant has always attended Land Council meetings in her own car and that she was very surprised that Mr Bell noted his address for the purposes of the Land Council as Hill Street.

Dr R Leslie’s Evidence

59.     Dr R Leslie, the Applicant’s treating general practitioner, gave evidence to the Tribunal of the Applicant’s current conditions and their effect on her.  The first of these conditions was reflex sympathetic dystrophy in her right leg arising from a varicose vein operation.  Dr Leslie said that this condition gives rise to pain and discomfort for which the Applicant needs to take analgesics.

60.     The second condition described by Dr Leslie was the Applicant’s multiple sclerosis which gave rise to visual disturbance, including blurred vision, variable headaches and myalga and memory loss.  Dr Leslie said that the memory loss amounts to a general vagueness and forgetfulness and affects mainly the Applicant’s short term memory.  He described it as a fairly constant problem. 

61.     Dr Leslie described the Applicant as being significantly impaired, physically and mentally.  He said, however, that although the Applicant’s multiple sclerosis is fairly mild there is a strong possibility that it will progress in the future.

Documentary Evidence

62.     An examination of the T-documents shows a long history of investigation and, given the scope of this inquiry, a great deal of irrelevant information.  The following is a discussion of the documentary evidence most relevant to the question of the nature of the relationship between the Applicant and Mr Bell as at December 2001. 

63.     There is a long history of “public informations”, the latest being on 28 May 1998 at T202 to the effect that, although they have separate residences, the Applicant has the benefit of Mr Bell’s wages, accesses his account, does his washing, cooks his meals and does his shopping. The “public information” alleges that they are known as a couple to friends and family and have Christmas with the children and grandchildren.  The information was anonymous.  A further “public information” is at T195 and is again anonymous, making a general allegation that the Applicant and Mr Bell live together. 

64.     The Authorised Review Officer’s (“ARO”) decision dated 15 November 1997 (T190) involves a thorough analysis of the available evidence at that time. The ARO noted that the nature of the Applicant and Mr Bell’s commitment to each other is one of continued association and that the evidence is contradictory as to the extent and nature of the association, all speculation being based again on third party opinion.  The ARO concluded that the weight of the evidence does not support the opinion that the Applicant and Mr Bell are members of a couple.

65.     A letter dated 1 April 1998 from Peter Mitchell, property manager, Richardson and Wrench at Orange (T197) documents an inspection of the unit at 1/121 Sale Street, Orange and notes that there was no food in the unit and that the only furniture consisted of a bed/bunk, chairs, fridge, TV, a heater, cutlery, cookery and minor clothing.

66.     A letter or report from Country Electricity dated 9 October 2001 (T222) notes that electricity at 1/121 Sale Street was disconnected from Mr Bell on 31 October 2000 and reconnected in the name of E Brown from 13 December 2000 to 22 January 2001.  The letter notes that the electricity was then connected again for Mr Bell from 20 August 2001.

67.     In a report dated November 2001 (T226) a Mr Hyland, a co-worker of Mr Bell’s at Kirkconnell Correctional Centre notes that he picks up Mr Bell most Mondays and takes him home on Fridays and on a few Wednesday afternoons to and from a house in Hill Street, Orange.  The letter states that Mr Hyland is unaware of Mr Bell’s marital status.

68.     The surveillance video mentioned above and commented on by the Applicant and Mr Bell is exhibit (R3)..     

69.     The investigative report, related to the video, notes that on 11 August 2001 (agreed by the parties to be a Saturday) Mr Bell was observed to enter a Mitsubishi Colt containing the Applicant, a child and a male and female in the front seats which travelled to a house in Lawson Crescent, Orange.  The report states that on 12 August 2001 (a Sunday) Mr Bell was observed to walk from the house at Hill Street and return to the house a short time later.  The report also notes that on 1 September 2001 (a Saturday) Mr Bell was observed to walk down the footpath of the Hill Street house and enter a house in Dalton Street and then return to the Hill Street house a short time later where he checked the mailbox, removed an item and proceeded down the driveway.  Some 40 minutes later Mr Bell was observed to walk from the house via the front door and deposit an item into a rubbish bin.  He then walked back to the house through the front door.  On 2 September 2001 (a Sunday) Mr Bell was again observed to walk out of the house at Hill Street via the front door and deposit something in the rubbish bin and then walk back into the house via the front door.  The video screened during the hearing generally supported these observations.

70.     Credit reference reports relating to Mr Bell and to the Applicant (T2180)   show three entries dated 3 December 1998, 29 October 1998 and 20 October 1998, each in relation to “Esanda Dealership NSW” in the amounts of $12,543, $6,545 and $9,416 respectively.  On the report relating to the Applicant, she is noted as a principal in relation to those loans and on the report relating to Mr Bell, he is noted as a guarantor in relation to those loans.  I note that when the Applicant and Mr Bell were referred to those documents they each expressed puzzlement as to their genesis whilst each agreeing that Mr Bell had been a guarantor for the Applicant in relation to a loan of approximately $8,000 for the purpose of the Applicant purchasing a car.  Neither could offer any explanation as to the entries noted in the reports.

WERE THE APPLICANT AND MR BELL MEMBERS OF A COUPLE IN  DECEMBER 2001?

71.     The provisions of the Social Security Act 1991 (“the Act”) relevant to determining whether a person is a member of a couple are subsections 4(1) to 4(3)(A) of the Act as follows:

“Member of a couple—general

4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(b) all of the following conditions are met:

(i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner);

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

(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

Member of a couple—criteria for forming opinion about relationship

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

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

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

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

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

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

(b) the nature of the household, including:

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

(ii) the living arrangements of the people; and

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

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

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

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

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

(d)      any sexual relationship between the people;

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

(i) the length of the relationship; and

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

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

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

4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”

72.     In considering this application I have taken into account the matters put forward by Mr Vincent for the Applicant and Mr Peek for the Respondent.  I was referred to a number of decisions of the Federal Court and of the Tribunal.  In particular, I had regard to the decision of the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 in which the Court, after listing a number of matters relevant to the question of whether a married couple are living separately and apart, made the following comments:

“19.  In para 19 of its reasons, the tribunal made particular reference to Tang's case, supra listing the 10 subject matters that had been identified in that case by counsel for the applicant as matters against which a relationship should be evaluated.  In Tang's case the tribunal had said that it found the list "helpful in a general way" but it did not endorse it "as being either a necessary or an exhaustive list".  I consider, with respect, that those comments were appropriate. Each of the 10 matters touches upon an important subject but they were compiled for the purpose of determining whether the applicant in Tang's case was "a woman who (was) living with a man as his wife on a bona fide domestic basis although not legally married to him".  As the test to be applied in this case in whether Mrs Staunton-Smith was living separately and apart from Mr Staunton-Smith, I would prefer to have regard to the subject matters that were mentioned in Tang's case, but to recast them in the following fashion:

(1)What are the living, eating and sleeping arrangements in the household between the applicant and the other party?

(2)       Do the applicant and the other party have a sexual relationship?

(3)       Do the applicant and the other party have a social relationship?

(4)What third parties (particularly children) are residing in the house and what is the relationship between each third party and the applicant and the other party?

(5)What are the financial arrangements between the applicant and the other party?  For example, are resources within the household pooled and household expenses shared?

(6)Do the applicant and the other party hold themselves out as living separately and apart?

(7)Do the applicant and the other party have a genuine belief that they are living separately and apart?

(8)Does the existing relationship give rise to any moral, social or legal rights between the applicant and the other party?

(9)Finally, what is the relationship between the applicant and the other party and does it contain any degree of permanence?

20. It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case.  It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators.  The tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.

21.  It should, of course, be clearly understood that no tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list.  The personal circumstances of people vary substantially.  The responsibility of the tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations.  If the tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.”

73.     Prior to reaching my conclusion on the “totality of the evidence”, I will examine the evidence relevant to the “indicators” listed in section 4(3).

74.     In relation to the financial aspects of the relationship, there is no evidence before me of jointly owned real estate, major assets or liabilities between the Applicant and Mr Bell.

75.     There is no dispute that Mr Bell was guarantor for the Applicant for a loan for the purchase of a car.  It is suggested by the Respondent, by reference to the credit reference reports that two further guarantee arrangements were entered into by them.  I cannot be satisfied, however, on the basis of a third party report alone, that this was the case.

76.     The Respondent submitted that it is implausible that Mr Bell provides no financial support to the Applicant given her circumstances now, at the relevant time and over the years.  However, the Applicant’s evidence was that she receives in the order of $300.00 per fortnight in financial support from her sons together with a payment of over $300.00 per fortnight from the Department of Community Services in respect of Alana and support in kind from Emma Touzell (meals and school lunches for Alana).  I do not consider this implausible and note, in any event the Applicant’s evidence of straightened circumstances exhibited by the recent disconnection of her gas service.  I also note Mr Bell’s evidence, supported by the Applicant and Mr Ian Bell, that he has over the years bought presents of clothing and other items for his children.  While this may have indirectly benefited the Applicant, I do not consider that it amounts to anything more than a sporadic and minimal contribution towards the support of his children.

77.     As to the nature of the household, I am satisfied that Mr Bell has held a lease on the unit at Sale Street since the 1990’s and that the Applicant has continued to reside at Hill Street since 1981.  I am also satisfied, on the basis of the Applicant’s, Mr Bell’s and Ian Bell’s evidence that their sons have, over the years, moved between the two premises in a fairly fluid way.  The evidence suggests, however, that it is the Hill Street house that is the site of most family gatherings and the place to which the sons return regularly.  I am also satisfied that, over the years, Mr Bell has been regularly present, sometimes overnight, at the Hill Street house for family gatherings, to babysit and tutor Alana and during times of crisis including the attempted suicide of Damien.

78.     I also find that Mr Bell has had significant input into the care of Alana and has made himself available to his sons for guidance and support.  However, I do not consider this to amount to assuming joint responsibility for the care and support of the children.  Rather, the evidence points to Mr Bell having taken this responsibility on his own account and not in a manner that could be described as “jointly” with the Applicant.  I consider it has little bearing on the nature of his relationship with the Applicant.

79.     The question remains as to whether Mr Bell resided at the Hill Street house as at December 2001.  The Respondent submitted that the video evidence before me is evidence of such residence.  It clearly is not.  At most, it places Mr Bell at the Hill Street house for short periods on a few days.  That he is seen to perform household tasks such as emptying a letterbox and removing garbage is in accord with his evidence that he will do such things if asked when present at Hill Street.

80.     The Respondent also submitted that the often disused state of the Sale Street unit and the disconnection of the electricity for the periods noted in the electricity authority’s report indicate that Mr Bell did not live at Sale Street.  His evidence was that he did not always stay there and, instead, stayed with one or other of his sons, with relatives elsewhere or at Kirkconnell.  His evidence was also that he used the Sale Street unit as a base and as his “own space” and at one stage sublet the unit to some friends.

81.     The Respondent also submitted that the Sale Street unit is a type of “annex” for the male members of the family and essentially a covering address for the purposes of hiding the real situation as to the relationship between Mr Bell and the Applicant.

82.     I cannot be satisfied on the evidence before me that Mr Bell resided at the Hill Street house at the relevant time.  I am satisfied that his occupation of the Sale Street unit has been interrupted and irregular over the years.  I consider the better explanation to be that he has been an itinerant worker and a commuter, when last working, between Orange and Kirkconnell.  In any event, even if it could be established that Mr Bell resided, at least part of the time, at Hill Street, I have no evidence before me of the living arrangements in that house other than the evidence of the Applicant and Mr Bell that, when there overnight, he has slept on a mattress in front of the television.  This does not indicate a marriage like relationship.

83.     At this stage, and having concluded that Mr Bell did not, at the relevant time, reside at Hill Street, I am mindful of section 4(3A) of the Act which precludes me from forming the opinion that the Applicant is in a marriage like relationship with Mr Bell. My consideration of the matter could end here.

84.     However, if (given the fluid nature of the living arrangements in the Applicant’s family and Mr Bell’s particularly itinerant lifestyle, at least to the time of his retirement in 2002) I am wrong in my conclusion that he did not reside at Hill Street, I consider that an examination of the remaining factors in section 4(3) and the evidence before me prevents me from forming the opinion that the Applicant and Mr Bell were in a marriage like relationship at the relevant time.

85.     The evidence before me relating to the social aspects of the relationship indicates an arms length relationship.  The evidence of Mses Stuart, Gibbs and Touzell and Mr Ian Bell is of a significant degree of estrangement.  There is evidence of attendance, at the same time, at social gatherings but these appear to be family based gatherings such as birthdays and Christmas.  Given Mr Bell’s continued involvement with his children and grandchildren, this is not surprising.   There is also evidence of attendance, at the same time, at the RSL Club and at Land Council meetings but the evidence is also that the Applicant and Mr Bell arrive at and leave these places separately.  There have been a number of “public denunciations” to the effect that they are in a de facto relationship.  However, these advices to the Respondent are anonymous and, by definition, cannot be tested.  I am mindful of the Applicant’s and Mr Bell’s evidence as to some discord with family members who are employed by or associated with Centrelink and, while I cannot be satisfied that it is this discord that gave rise to the denunciations made, it appears to be a plausible explanation.

86.     There is no evidence before me of any sexual relationship between the parties at the relevant time.  Nor is there any evidence that the relationship between the Applicant and Mr Bell, as it currently stands, will not continue into the future.

87.     The credibility of the Applicant and Mr Bell was raised as an issue by the Respondent.  In particular, the Respondent submitted that the Applicant’s evidence was deliberately vague and evasive and that Mr Bell’s evidence was similarly evasive and at variance with the evidence he had given to the SSAT.  I agree there were inconsistencies in the evidence given by the Applicant and by Mr Bell.  However, these were mainly in response to questioning by the Respondent in relation to events which took place a number of years ago.  In particular, Mr Bell’s evidence in relation to his employment history prior to Kirkconnell was somewhat vague and he contradicted his evidence to the SSSAT, as summarised by that Tribunal, about his presence in a car with the Applicant and others.  I do not, however, consider him to have been evasive and, on the contrary, found him to be a direct and helpful witness.

88.     In relation to the Applicant, I am mindful of the evidence of Dr Leslie as to the effect of the Applicant’s medical condition on her memory and his description of her as “vague”.  Her evidence was, at times, vague and questions often had to be repeated to her.  Again, however, she was questioned by the Respondent about events which took place a number of years ago.  In view of that and of Dr Leslie’s evidence, I do not consider the Applicant to have deliberately sought to misrepresent her circumstances to the Tribunal.

89.     On the basis of these conclusions, and having regard to the totality of the evidence, I consider that the Applicant and Mr Bell were not in a marriage like relationship in December 2001.

Decision

90.     The decision under review is set aside and in substitution therefor the Tribunal decides that the Applicant was not a member of a couple as at 5 December 2001.

I certify that the 90 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member N Bell

Signed: A. Krilis
  Associate

Date/s of Hearing  23, 24 and 25 June 2004
Date of Decision  26 July 2004
Counsel for the Applicant         Mr Mark Vincent
Solicitor for the Applicant          Mr Rolf
Counsel for the Respondent     Mr Greg Peek
Solicitor for the Respondent     Ms Rachael Quinn