ANNTOINETTE DEVINE and and STEWART VINCENT
[2010] AATA 134
•23 February 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 134
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2008/4152 and 2008/4153
GENERAL ADMINISTRATIVE DIVISION ) Re ANNTOINETTE DEVINE Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
And
STEWART VINCENT
Other Party
DECISION
Tribunal Deputy President D G Jarvis
Senior Member K BeanDate23 February 2010
PlaceAdelaide
Decision 1. In matter number 2008/4152 the Tribunal varies the decision under review by deciding that the applicant and the other party were members of a couple for the period from 21 November 2005 to 4 February 2009 but otherwise affirms the decision under review.
2. In matter number 2008/4153, the Tribunal affirms the decision under review.
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – marriage-like relationship – one party carer of the other – parties had resided together for significant period and re-located together – evidence of commitment to each other – financial interdependence – parties did not consider themselves in marriage-like relationship – held that parties were in marriage-like relationship and debts arising should be recovered – decisions under review affirmed in substance.
Social Security Act 1991 (Cth), ss 4(2), 4(3), 1236 and 1237AAD
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006)
REASONS FOR DECISION
23 February 2010 Deputy President D G Jarvis
Senior Member K Bean1. Ms Devine and Mr Vincent (the applicant and the other party respectively), began living together in March 2002. At that stage, the arrangement was one of mutual convenience as Mr Vincent was looking for a place to live and, because of his nursing qualifications, he was in a position to assist Ms Devine with some of her medical needs.
2. From that time until February 2009, they continued to share accommodation at a variety of different addresses in both Adelaide and Port Augusta and throughout most of that time, both of them were in receipt of Centrelink benefits. Ms Devine has been in receipt of Disability Support Pension (DSP) since 2003. Mr Vincent has received a Carer’s Payment (CP) in respect of care he provides for Ms Devine since 21 November 2005. Prior to that, he received a Newstart Allowance (NA) from 23 November 2004.
3. On 14 February 2008, a Centrelink officer decided that Ms Devine and Mr Vincent were members of a couple and had been so since 21 November 2005 and on 12 February 2008, a Centrelink officer made a decision to raise and recover from Ms Devine a debt of $6,872.91 in respect of DSP paid for the period 15 December 2005 to 6 February 2008. On 21 May 2008, a Centrelink Authorised Review Officer (ARO) affirmed both decisions under review. Ms Devine and Mr Vincent challenged these decisions in the Social Security Appeals Tribunal (SSAT) and on 25 July 2008 the SSAT decided to also affirm the decisions under review.
4. On 5 September 2008, Ms Devine applied to this Tribunal for review of the SSAT’s decisions and on 28 October 2008 Mr Vincent was made a party to the proceedings.
Issues before the Tribunal
5. The issues before the Tribunal are as follows:
(a)whether Mr Vincent and Ms Devine are members of a couple for the purposes of the Social Security Act 1991 (Cth) (the SS Act);
(b)if so, the period during which Mr Vincent and Ms Devine were members of a couple;
(c)if Mr Vincent and Ms Devine have been at any time since March 2002 members of a couple, whether any resulting overpayment of DSP to Ms Devine constitutes a debt due to the Commonwealth; and
(d)if there has been an overpayment and there is a debt due to the Commonwealth, whether all or part of the debt should be waived or written off.
Background
6. As alluded to above, there is no dispute between the parties that between March 2002 and February 2009, Ms Devine and Mr Vincent lived “under one roof”. There is also no dispute that Ms Devine suffers from a number of relatively serious medical conditions and that Mr Vincent’s nursing qualifications have allowed him to provide care to her, which is of value and reduces the need for her to engage medical and/or nursing services.
7. Mr Vincent and Ms Devine also acknowledge that they relocated together from Adelaide to Port Augusta in 2004, that they went on holiday together in New Zealand in 2006, and that their lives have become entwined. However, they assert that at all relevant times, their relationship has been primarily one of carer and caree and they have not at any time been members of a couple.
Legislation
8. The rate of the payments received by Mr Vincent and Ms Devine during the relevant period vary according to whether or not a person is a member of a couple. If a person is a member of a couple, their rate of payment is reduced by the income of the person’s partner.
9. Section 4(2) of the SS Act provided at the relevant time[1] that a person was a “member of a couple” for the purposes of that Act if:
[1] This provision was subsequently amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008, which commenced on 1 July 2009.
“(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.
Note:a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
· an ancestor of the person; or
· a descendant of the person; or
· a brother or sister of the person (whether of the whole blood or the part‑blood)”.
10. Under s 4(2) of the SS Act, the Secretary (and now this Tribunal standing in the shoes of the Secretary) is required to have regard to all the circumstances of the relationship between two people, including in particular certain enumerated matters. Section 4(3) provided at the relevant time as follows:
“4(3) Member of a couple – criteria for forming opinion about relationship. 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.”
Evidence as to whether Ms Devine and Mr Vincent are members of a couple
11. Whilst they have cohabitated for a considerable period of time and have a close relationship, there was little evidence before the Tribunal as to whether Ms Devine and Mr Vincent had at any time had a “romantic” or, more relevantly, sexual relationship, apart from their denials of such a relationship. Nor was there evidence of joint ownership of major assets or liabilities or legal obligations owed by one of them in respect of the other. However there was evidence suggesting a significant degree of pooling of financial resources, sharing of expenses, a significant commitment one to the other and considerable interdependence between them generally.
12. As their evidence was the most extensive and has proved to be the most relevant, we will first discuss the evidence of Ms Devine and Mr Vincent, before addressing the evidence of other witnesses and some of the documentary evidence.
Evidence of Mr Vincent and Ms Devine13. In the course of their evidence to the Tribunal, a number of specific topics were explored with both Mr Vincent and Ms Devine as well as some more general matters bearing upon the nature of their relationship. We propose to address first the specific topics which were canvassed with each of them, before proceeding to discuss other relevant aspects of their evidence.
The move to Port Augusta14. Ms Devine and Mr Vincent moved to Port Augusta in approximately the middle of 2004, having lived at the same address in Adelaide for approximately two years prior to that. Mr Vincent gave evidence that, as he was working at that time, he rented their first home in Port Augusta and paid all of the rent. He also said in evidence that the two of them moved to Port Augusta because they were chasing a debt owed to him. The debt was owed by a couple to whom he had been introduced by Ms Devine, and she apparently felt some responsibility for the money he had lent them not having been repaid.[2]
[2] Transcript 22.12.09, p 11
15. Under cross-examination, Mr Vincent explained that the debt was for $14,000.00 and that he had initially intended to travel up to Port Augusta for a short visit. He was asked whether he had intended to travel to Port Augusta on his own and replied “No, I don’t think so, because we were going to use Star’s car”.[3] He stated “I thought we would nut it out in a weekend”.[4] When questioned as to how it came about that both he and Ms Devine decided to reside in Port Augusta, he stated:
“We went over to Dawn’s to talk to Eva and Dawn suggested that I might get work in Port Augusta. There was a need of mental health staff in Port Augusta. So that’s what prompted the move.”[5]
[3] Transcript 22.12.09, p 49
[4] Transcript 22.12.09, p49
[5] Transcript 22.12.09, p 49
16. He went on to explain that he secured a job in Port Augusta, with the Flinders Terrace Health Centre, on the weekend the two first travelled to Port Augusta, and subsequently held that job for about six months.[6] After that, he began doing “agency work” again in Adelaide and travelling back to Port Augusta at weekends, which he did for about three months. He then accepted a position at the Baxter Detention Centre which allowed him to again reside in Port Augusta full time.
[6] Transcript 22.12.09, p 50
17. Mr Vincent explained later in his evidence that during the period when he was doing agency work in Adelaide he stayed with Ms Devine’s daughter at Semaphore during the week.[7] He also stated that, although Ms Devine was coping reasonably well and not in need of daily care at that stage, he would still return to Port Augusta every weekend whilst he was working in Adelaide. When asked why he did this, he stated “to keep tabs on where she was at”.[8] He continued:
“My responsibilities, even though I was working in Adelaide, didn’t diminish. I still used to – she used to ring me each night and we’d talk for an hour about how her day had gone, things like that, what she was – phone counselling. Yes.”[9]
[7] Transcript 22.12.09, p 81
[8] Transcript 22.12.09, p 81
[9] Transcript 22.12.09, p 82
Trip to New Zealand18. As alluded to above, Mr Vincent and Ms Devine also each gave evidence that in approximately March 2006 they travelled to New Zealand together. Ms Devine went to see her family and Mr Vincent went to provide care to Ms Devine, and also for a holiday. They agreed that her family paid for her air fare, he paid for his and Mr Vincent said that he thought they flew business class.[10] Mr Vincent also gave evidence that he thought Ms Devine purchased the tickets, having accessed his account for his share of the amount due.
[10] Transcript 22.12.09, p 20
19. Mr Vincent also gave evidence that while they were in New Zealand, he paid for Ms Devine’s meals and accommodation. By way of explanation he stated “I was treating it as a holiday and I was going to have some fun”.[11] He also explained “When we arrived in Wellington, our first port of call was her sister, Noel, and Noel didn’t have room for us there, so we moved into a hotel in Wellington and we were in that hotel for about a week”.[12] He stated “I paid for everything while we were there” and “because I wanted to have a good time while we were there”.[13] By way of further explanation, he stated “Star and I had been living under the same roof for an amount of time and I had money. I shared it. What’s the harm in that?”[14]
[11] Transcript 22.12.09, p 74
[12] Transcript 22.12.09, p 74
[13] Transcript 22.12.09, p 75
[14] Transcript 22.12.09, p 75
20. Mr Vincent was also questioned about some large deposits into his account in early 2006, prior to the trip to New Zealand, and explained that he had received $15,000.00 being a “tax cheque” and had also received $17,000.00 and $50,000.00 respectively, both being amounts in respect of superannuation which he had “cashed in”.[15] In his statement tendered into evidence he said that he had cashed in his superannuation “because of hardship”.[16] Mr Vincent confirmed that he had drawn on these funds to fund the trip to New Zealand.[17] He also stated during his evidence that, as a result of having spent this money he subsequently needed to sell his car in order to finance a business venture on his return to Port Augusta. He stated:
“New Zealand cost me more than I thought it would and we needed to sell the car to open the shop.”[18]
[15] Transcript 22.12.09, p 80
[16] Exhibit A5, [19]
[17] Transcript 22.12.09, p 83
[18] Transcript 22.12.09, p 23
21. Ms Devine agreed that during the New Zealand trip, Mr Vincent had essentially paid for everything.[19] She explained that whilst she could have stayed with family, Mr Vincent could not, and she needed him readily available to her, for medical reasons. As he offered for her to stay with him, she therefore accepted.[20]
Ms Devine’s gambling[19] Transcript 23.12.09, p 147
[20] Transcript 23.12.09, p 147
22. At the hearing, some time was spent exploring the issue of Ms Devine’s gambling, in particular her withdrawal of certain amounts from Mr Vincent’s bank account which she then used for gambling. In itself, this issue sheds little direct light on the question of the nature of Ms Devine’s and Mr Vincent’s relationship. However, it has some relevance because of what it reveals indirectly about their relationship.
23. Mr Vincent gave evidence that certain withdrawals from his account in or about March 2005 were probably attributable to withdrawals by Ms Devine for gambling. The amounts involved ranged from $100 to $600.[21] He accounted for further similar withdrawals in July 2005 in the same way.[22] He qualified his evidence at one point by saying that he had given Ms Devine access to his account to pay certain expenses in connection with the business he was attempting to establish, stating:
“She had access to my account to replenish stock and to pay any bills that the business incurred. She kept my books.”[23]
[21] Transcript 22.12.09, p 15
[22] Transcript 22.12.09, p 16
[23] Transcript 22.12.09, p 18
However, he did not believe that all of the withdrawals from his account could be accounted for in that way, and, by reference to her banking records, considered that some of it had been spent on gambling at hotels.[24]
[24] Transcript 22.12.09, p 17
24. He claimed that he stopped her access to his account once he discovered that Ms Devine was abusing her access in this way, and he thought this was about eight months after he started the business,[25] which appears to have commenced in approximately March 2006.[26] He thought the business had “folded” in about September 2006. However, later in his evidence Mr Vincent was asked again about when he found out about Ms Devine “misappropriating” his money. He said he found out “When I finished at Baxter, I had it in my head that there would be a sizeable fund in my bank account, and it wasn’t there”. He said this was in the middle of 2005. He also said that that was when he suspended access to his bank accounts. However, he later acknowledged that she had access to one of his accounts until September 2006.[27]
[25] Transcript 22.12.09, p 18
[26] Exhibit R4 Supplementary T Documents, 2008/4152 & 4153, p 47
[27] Transcript 22.12.09, p 67
25. In her evidence, Ms Devine acknowledged that she had accessed Mr Vincent’s account without his knowledge and used some of his money for gambling.[28] Ms Devine thought that Mr Vincent had “confronted” her in relation to her gambling later than March 2006.[29]
Mr Vincent’s application for carer’s payment[28] Transcript 23.12.09, p 135
[29] Transcript 23.12.09, p 142
26. In November 2005, Mr Vincent completed an application for carer’s payment in which he ticked a box indicating that he was living in a de facto relationship with Ms Devine. He also provided details on that form indicating that he had been living with her on that basis since 20 March 2002.[30] He went on to complete a number of details required by the form in relation to “Your current partner”, providing the information which was applicable if Ms Devine was his current partner.
[30] Exhibit R4, p 1
27. In explaining the details surrounding his lodging this form, he indicated that he had initially been on Newstart “but that wasn’t really working for me”. He went on to indicate that a social worker had suggested that he apply for a CP.[31] He stated that he had ticked the box “de facto” in frustration, going on to state “but that doesn’t explain what we are.”[32] He stated that:
“We are two separate individuals who reside together as carer and caree. That is the start and the finish of it, as far as I am concerned. What Centrelink do in their little ivory tower, I don’t know. … And it’s not a love relationship; it’s not a marriage, de-facto, whatever, affair, nothing like that. It’s a carer and caree or carer and patient.”[33]
[31] Transcript 22.12.09, p 27
[32] Transcript 22.12.09, p 26
[33] Transcript 22.12.09, p 28
28. When asked why he went to the trouble of completing all of these details on the form relating to Ms Devine if they were not actually in a relationship, Mr Vincent stated:
“At the time, if it serves me correctly, we’d come to a – I call them pay days, loosely, and my payment would not be there. So I’d go in week after – or fortnight after fortnight … (a)nd they threw more paper at me. And that’s probably when this sort of stuff got out of hand and I started ticking the wrong boxes.”[34]
[34] Transcript 22.12.09, p 57
29. When he was asked why he felt under pressure to indicate that he was in a de facto relationship as opposed to being a separated person (which was also provided for on the form), he stated:
“At the time – I can’t answer that question; I don’t know. Maybe I tried to expedite things; maybe I was just frustrated and ticked a box because I got really sick of Centrelink paperwork.”[35]
[35] Transcript 22.12.09, p 57
30. Mr Vincent explained later in his evidence that he had decided to pursue a CP prior to travelling to New Zealand partly because he discovered that NA was not portable and would not be paid to him in New Zealand.[36] He also agreed with the proposition when it was put to him that he believed at the time that he would have better prospects of getting the payment if he indicated that he was in a de facto relationship with Ms Devine and this had influenced him at the time that he completed the form.[37] He was asked by counsel for the respondent, Mr Parker, why, given his frustration at being treated by Centrelink as Ms Devine’s partner, he would further complicate matters by declaring Ms Devine as a partner on a Centrelink form. He could not really explain this, stating that it was an “oversight” on his part.[38]
Hospital and other records[36] Transcript 22.12.09, p 59
[37] Transcript 22.12.09, p 60
[38] Transcript 22.12.09, p 56
31. Contained within the T Documents filed with the Tribunal are records of the Queen Elizabeth Hospital relating to a number of admissions of Ms Devine. Earlier records of admission refer to Mr Vincent as a “friend”, however admissions after 14 February 2005 refer to him as “partner”.[39]
[39] Exhibit R2
32. Ms Devine acknowledged that at one stage, during a stay of a few nights, the hospital had said that Mr Vincent could not stay with her overnight unless he was her partner. She stated:
“… (w)hen I ended up staying in hospital for a few nights. To keep him there at the hospital overnight with me it had to be a partner. So I just said, ‘Well, fine, let him be a partner’ and that was only just during that time.”[40]
[40] Transcript 23.12.09, p 121
33. She also acknowledged however that this did not coincide with the change in the hospital records, as the admission for which the record was changed from “friend” to “partner” was for a day only admission. She was not able to explain why the hospital changed Mr Vincent’s status in their records when they did, but maintained this change did not accurately reflect their relationship.
34. Later in her evidence she stated that she felt anxious whilst she was in hospital if Mr Vincent was not with her, because of what he could provide medically and because of his understanding of her conditions and what she needed.[41]
[41] Transcript 23.12.09, p 137
35. Mr Vincent was also questioned about information obtained from one of his employers, The Flinders Terrace Health Service, indicating that he had advised them that his next of kin was “Devine Star – partner”.[42] He stated:
“I explained to them the situation between Star and I. We are carer and client, not partner. I don’t know – she was my first contact. If anything happened to me at work, at that time, she was the first contact because she has got the numbers of all my kids and all that sort of stuff.’[43]
[42] Supplementary T Documents, 4152 and 4153, T6, p 22
[43] Transcript 22.12.09, p 43
36. He stated that his employer had listed her as his partner, rather than his describing her in that way. The Tribunal also notes that the likelihood of this having occurred is supported by the fact that the employer has described her as “Devine Star” whereas her correct name is “Star Devine.”
Other relationships37. Mr Vincent stated that he was not currently in a romantic relationship and had not been since he started living with Ms Devine.[44] He stated:
“… After my marriage, I tried on several occasions to start relationships prior to meeting Star, but let’s say I’m a difficult person to live with.”
[44] Transcript 22.12.09, p 38
38. Ms Devine claimed to have an intimate relationship with another person living in Adelaide, and this was corroborated by that person in evidence before the Tribunal. It was also apparent from the evidence of both Ms Devine and this witness however, that while the relationship was a close one it did not involve a high degree of contact as the witness lived in Adelaide while Ms Devine lived in Port Augusta. Accordingly they only saw each other relatively infrequently, when Ms Devine was in Adelaide for other reasons, and the witness had never travelled to Port Augusta. They spoke on the phone less frequently than once per week. Ms Devine claimed to receive “emotional, loving support” from this person rather than from Mr Vincent. It was nevertheless clear from her evidence that on a “day-to-day” level she had a much higher level of contact with and was much more reliant upon Mr Vincent.
Other relevant evidence39. In the course of their evidence, Mr Vincent and Ms Devine also touched on a number of other matters of relevance to the nature of their relationship, including the day-to-day running of their household whilst they were living together.
40. Ms Devine and Mr Vincent both gave evidence to the effect that there was no clear division of responsibility in relation to housework, rather, each of them would do what they could manage at the time. When asked “Who’s responsible for the cleaning?”, Ms Devine replied:
“If I can stand and do just little things like dishes and what have you, light stuff, I’m fine. Apart from that, Stewart will bring in somebody to do some major stuff because he recently got diagnosed with … lupus.” [45]
As to the division of household chores, Mr Vincent said:
“When I was working, I paid for a cleaner. When I’m not working, I cook, she does the dishes, she does my washing – basically, I do the things in the house that she can’t do because of her physical wellbeing.”[46]
[45] Transcript 23.12.09, p 114
[46] Transcript 22.12.09, p 24
41. Mr Vincent gave evidence that the two of them would generally go shopping together and, although they used Ms Devine’s car, sometimes she would drive and sometimes he would.[47] He said that sometimes he would pay for food for the house.[48]
[47] Transcript 22.12.09, p 23
[48] Transcript 22.12.09, p 79
42. Ms Devine gave evidence that Mr Vincent used her car “all the time”[49] and Mr Vincent gave evidence to similar effect. As noted above, Mr Vincent also gave evidence that, following his retrenchment from Baxter he again worked for a brief period in Adelaide, returning to Port Augusta at weekends. During that period, he apparently used Ms Devine’s car to travel to and from Port Augusta.[50] He also referred to the fact that, when he was working in Port Augusta in March 2006, Ms Devine would come to pick him up after work.[51]
[49] Transcript 23.12.09, p 113
[50] Transcript 22.12.09, p 51
[51] Transcript 22.12.09, p 17
43. Both Mr Vincent and Ms Devine gave evidence to the effect that, while they were living under one roof, they essentially spent every night together.[52] The evidence was also to the effect that, whilst they were living together, they would also eat together every day.[53]
[52] Transcript 22.12.09, p 25 and 23.12.09, p 114
[53] Transcript 23.12.09, p 116
44. In relation to the sharing of expenses, both Ms Devine and Mr Vincent gave evidence to the effect that, once they were both in receipt of Centrelink payments, they were advised that the best way to manage their money was that Mr Vincent would pay the rent and Ms Devine would pay for electricity and food.[54] However, much of the evidence also suggested that this was a highly flexible arrangement.
[54] Transcript 22.12.09, p 10, and 23.12.09, p 145
45. Mr Vincent also gave evidence to the effect that after he had been retrenched and before he began to receive NA, Ms Devine was supporting him. He stated:
“I had been retrenched from Baxter because they were starting to close the place down. I was the last in, so I was the first out. Basically, I wasn’t contributing towards the house in any way and Star’s pension wasn’t going very far.”[55]
[55] Transcript 22.12.09, p 27
46. Mr Vincent also gave evidence to the effect that a drop in his income had a direct impact on Ms Devine. For example, when he was asked about the change in his circumstances following the move to Port Augusta, he stated:
“With the reduced hours, our income was – my income was less and life wasn’t as comfortable, and that contributed to her worsening mental state.”
He also added that:
“We live under the same roof. If I have money coming in from work or whatever, it goes into the household. That changed. The money wasn’t coming in. I didn’t deal with it very well; she didn’t deal with it very well.”
He continued:
“When you cohabitate under one roof, it’s like living with a brother and sister; you share expenses, and we went to living on her pension and that wasn’t going to work. So we both got stressed about that.”[56]
[56] Transcript 22.12.09, p 81
47. He also stated that he was concerned about Ms Devine at this time and, in his dealings with Centrelink, may have referred to her in such a way as to indicate he felt responsible for her.[57]
[57] Transcript 22.12.09, p 28
48. Mr Vincent also gave evidence that he gave Ms Devine authority to access his bank account for the purpose of paying for household expenses, prior to the middle of 2005.[58] He also said that she had access to his personal identification number and on occasions carried out Eftpos transactions using his debit card.[59] She confirmed that she had used Mr Vincent’s card to purchase food at supermarkets and that at one time she had access to his personal identification number.[60]
[58] Transcript 22.12.09, p 65
[59] Transcript 22.12.09, p 78
[60] Transcript 23.12.09, p 146
49. The evidence before us also revealed that, although it did not “get off the ground”, in October 2004 Mr Vincent registered a business called “Nguayuana Country Catering” and Ms Devine was listed as one of the owners of the business.[61]
[61] Transcript 22.12.09, p 11 and Exhibit R4
50. Mr Vincent also stated that when he cashed in some of his superannuation, he used those funds not only to pay for the trip to New Zealand, but also to make alterations to the home he shared with Ms Devine, for her benefit. In relation to that money he stated:
“It did lots of things : it put rails in bathrooms and a whole gamut of stuff, so that she could look after herself while I was in the shop, because she – her ambulation at that time was, and still is, to a large degree, difficult.”[62]
[62] Transcript 22.12.09, p 83
51. We find it to be significant that he used those funds in that way, particularly given that at around the same time, he sold his car to fund the café venture.
52. In the context of the money owed by Ms Devine to Mr Vincent that she had taken from him for gambling, Mr Vincent also referred to the possibility that he may in the near future go to New Zealand to work for her family. He explained that this was a form of recompense from the family for the money she had taken from him as he would be earning money from the family and he expected to be paid more than he would ordinarily expect to be paid for the kind of work that he would be undertaking.[63] In relation to this proposal, Ms Devine stated:
“In actual fact it wasn’t him that was asked; it was me. Right. It’s a pilot program that a native fisheries is going to lease some of the land off our farms on the coast of – Gisborne coast, in New Zealand, and I can’t go and I said to Stewart, ‘You can go if you want to’ … I told my family, ‘No, I’m not going,’ and so my cousin, Nick, he said, ‘Well, do you think Stewart will come?’ and I said, ‘Well, probably, I don’t know, ask him’. You know, and there’s no big deal. He wants a job. He wants to be working. So if he goes he goes. If he doesn’t, he doesn’t. I would like him to stay put and take care of me.”[64]
[63] Transcript 22.12.09, p 70
[64] Transcript 23.12.09, p 148
53. Ms Devine gave evidence that she saw herself living with or near to Mr Vincent “for the rest of my life actually”.[65] When asked how long he saw himself living with or near Ms Devine, Mr Vincent replied:
“How long is a piece of string? I don’t know. When I get work – if I get work – and go away, it will probably entail three weeks on, a few days off, so she will have to make some sort of other arrangements for her day-to-day needs.”[66]
[65] Transcript 23.12.09, p 124
[66] Transcript 22.12.09, p 41
54. When he was asked why he stayed with or near Ms Devine, Mr Vincent replied:
“’Why do you keep an old pair of slippers?’ Because they are comfortable.”[67]
[67] Transcript 22.12.09, p 42
55. Ms Devine also mentioned in the course of her evidence that Mr Vincent had access to her passport because his passport was kept together with her private documents.[68]
[68] Transcript 23.12.09, p 154
Inconsistencies56. There were some troubling inconsistencies between the evidence of Mr Vincent and Ms Devine and also some internal inconsistencies, particularly in the evidence of Mr Vincent. Many of the issues on which their evidence was inconsistent were not in themselves of immediate relevance to the issue before the Tribunal. Nevertheless, we consider these inconsistencies were significant enough to bear upon the reliability of the evidence given by Mr Vincent and Ms Devine on more relevant questions.
57. For example, when she was asked about Mr Vincent’s reaction when he discovered that she had been using his money without his knowledge for gambling, Ms Devine’s evidence was to the effect that he had very little reaction.[69] However, Mr Vincent said “It got quite heated in the house”[70] and “you wouldn’t have liked to be under our roof when I found out.”[71] As to when Mr Vincent discovered that Ms Devine was using his money for gambling, he suggested at one stage that this was in the middle of 2005, and later, that it was not until late 2006.
[69] Transcript 23.12.09, p 109
[70] Transcript 22.12.09, p 18
[71] Transcript 22.12.09, p 65
58. Mr Vincent also said in the course of his evidence “I drink, but I don’t drink in hotels; I drink at home. So I don’t go to hotels apart from occasionally to eat … .”[72] However, Ms Devine gave evidence in relation to a particular hotel, the Semaphore Palais, that Mr Vincent “went there a lot” and “that was his watering hole”.[73] She also mentioned that the two of them would go there together and she would play the poker machines upstairs while he would drink downstairs, commenting “he’s a drinker, I’m not”. She said that his current “watering hole” in Port Augusta was The Augusta.[74]
[72] Transcript 22.12.09, p 19
[73] Transcript 23.12.09, p 141
[74] Transcript 23.12.09, p 144
59. Mr Vincent also gave evidence that he had moved out from the house he had shared with Ms Devine “When all this stuff started with Centrelink”.[75] However, he subsequently acknowledged that he was still contributing to the expenses of the household because he ate there. When asked why he ate there he stated “Because I go there and look after her and cater for her.”[76] Ms Devine was asked whether Mr Vincent came to her place much during the day, she indicated “Since I had that last fall I won’t let him out of the house.” When he was asked whether Mr Vincent returned to his other address to sleep at night, she stated “Not all the time”.[77] She stated that they still eat together “every day, if he’s home”.[78] Ms Devine explained later in her evidence that because of difficulties associated with sleep apnoea, she felt much more secure when someone was with her while she was sleeping, and that she generally sleeps during the day. Partly for this reason, she stated at the moment Mr Vincent was at her place “most of the time.”[79]
[75] Transcript 22.12.09, p 40
[76] Transcript 22.12.09, p 69
[77] Transcript 23.12.09, p 115
[78] Transcript 23.12.09, p 116
[79] Transcript 23.12.09, p 136
60. We note that Mr Vincent also gave evidence that he and Ms Devine moved to Port Augusta in April 2004. However, in a Centrelink form he signed in July 2006, he said they had moved in August 2003.[80] On the other hand, Ms Devine’s Centrelink records indicate that she moved to her Port August address on 9 July 2004.[81]
[80] Exhibit R4, p 8
[81] Exhibit R2, p 133
61. In light of these inconsistencies, we do not accept the evidence of Mr Vincent and Ms Devine on all issues without hesitation, as we consider that some aspects of the evidence of each of them to be unreliable. We therefore propose to treat the evidence of each of them with some caution.
Other witnesses62. In addition to the witness who claimed to be in a close relationship with Ms Devine referred to above, the Tribunal also heard evidence from two other witnesses called on behalf of the applicants, Mr John Walsh and Ms Dawn Matthews.
63. Mr Walsh gave very frank evidence which the Tribunal has no hesitation in accepting. He said he had known both Ms Devine and Mr Vincent very well for a period of about seven or eight years and that he and his partner socialise with Mr Vincent and Ms Devine regularly, often visiting one another’s homes. He stated that he did receive the impression initially that Mr Vincent and Ms Devine were romantic partners, “because they were together all the time.”[82] When asked why he thought they were not romantic partners, Mr Walsh stated “because he stays at my place sometimes and they sleep separately at home.” In relation to their current living arrangements he stated “because he uses my address as his own address, because a lot of times he’ll stay at our place when – you know, he’s had too much of her. She can get very overpowering, overbearing, and he gets a bit tired of that sometimes.”[83]
[82] Transcript 22.12.09, p 86
[83] Transcript 22.12.09, p 87
64. Ms Matthews also gave very frank evidence, which the Tribunal accepts as reliable. She stated that she had known Ms Devine for about 20 years and that she had had regular contact with Ms Devine and Mr Vincent since they moved to Port Augusta. In relation to whether the community in Port Augusta see Mr Vincent as Ms Devine’s partner, she indicated that people tended to assume that until it was explained to them that he was her carer.[84] She also stated that she would invite them to her place together but “only because, you know, he cares for her and it would be very rude not to invite him.”[85]
[84] Transcript 23.12.09, p 97
[85] Transcript 23.12.09, p 98
Other Evidence65. The T documents include a letter of Dr Ann Marie Southcott, respiratory physician, dated 25 May 2005. In this letter, Dr Southcott lists Stewart Vincent as the partner of Antoinette Devine and states “This letter is to certify a relationship between Stewart Vincent and Antoinette Devine.”[86]
[86] Exhibit R3, p 76
66. Another relevant document not otherwise mentioned above is a Centrelink note apparently made on 31 January 2005, in relation to Mr Vincent, which records the following:
“… cust referred to the person he lives with as his partner then said no she was not his partner, and then said it did not matter as this would be his last form …”[87]
[87] Exhibit R3, p 182
Consideration – Were Mr Vincent and Ms Devine a Couple?
67. The matters listed in s 4(3) of the SS Act are not exhaustive, since the decision-maker’s obligation under that section is “to have regard to all the circumstances of the relationship including in particular the (enumerated) matters.” We refer to the discussion at [6.56] to [6.60] in D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006) in relation to the meaning of the word “includes” in this context. It is clear that the decision-maker is required to assess the totality of the evidence and other available material in order to decide whether an applicant for a pension is a member of a couple, taking into account that the personal circumstances of people vary substantially: see Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
68. It is nevertheless necessary to “have regard to” the relevant matters, and this expression has been interpreted to entail a requirement to take the relevant matters into account and give weight to them as a fundamental element in the decision-making process: R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333.
69. In Pelka (supra) French J, after setting out the provisions of s 4(2) and (3) of the SS Act, reviewed a number of authorities where the courts have considered various analogous criteria or statutory formulae to determine whether a “marriage-like” relationship existed. His Honour provided at [46] what is, with respect, a most helpful summary of the effect of the authorities. He said:
“Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1. Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people; and
(e) the nature of the people’s commitment to each other.
3. In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4. Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5. Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements; or
(e) mutual commitment.”
70. We propose to address each of the most relevant criteria below, in light of the evidence discussed above and by reference to the contentions of each of the parties.
Financial aspects of the relationshipContentions
71. Mr Parker for the respondent submitted that the finances of Ms Devine and Mr Vincent appeared to be well and truly entwined. He submitted that neither of them appeared to “keep track” of who was paying for what and whether their contributions were equal. He also drew attention to the degree of access Ms Devine appeared to have at least at one stage to Mr Vincent’s bank accounts, including his ATM card and personal identification number, which, Mr Parker submitted was more consistent with the two being a couple. He submitted that the two appeared to “pool” their financial resources, rather than maintaining a strict delineation between them.
72. Mr Parker also drew attention to the fact that, initially, both Ms Devine and Mr Vincent owned their own cars. Following their return from New Zealand however, Mr Vincent sold his car and has since used Ms Devine’s. He submitted that their pooling and sharing of resources suggested they were a couple. He also submitted that the fact that Mr Vincent paid not only his own expenses of the trip to New Zealand, but most of Ms Devine’s strongly suggested that the two were a couple and indeed this was difficult to explain if they were not. He submitted it was inconsistent with the proposition that the relationship was simply one of “carer and caree”. He acknowledged that there were no joint assets and no loans or debts for which they were jointly responsible, but submitted that otherwise their finances were highly interrelated and interdependent and more consistent with a “marriage-like” relationship.
73. Ms Riley for the applicants submitted that during most of the time they had cohabited, Mr Vincent paid the rent while Ms Devine paid electricity, telephone and food bills and that, in practice, this worked out to be approximately a 50/50 share of the expenses of the household. She pointed out that there was evidence given that this arrangement was put in place on the advice of a social worker. She submitted that Mr Vincent owned most of the entertainment appliances and his bedroom furniture, while Ms Devine owned the whitegoods and her bedroom furniture. She submitted that these arrangements were consistent with their not being a couple.
74. In relation to the trip to New Zealand, she also submitted that, as the two of them could not stay with Ms Devine’s family and it was necessary for Mr Vincent to stay in a hotel, it was not surprising that Ms Devine stayed with him. She submitted that this did not necessarily point toward them being a couple.
Our Conclusions75. We acknowledge that there are aspects of the financial arrangements between Ms Devine and Mr Vincent pointing in each direction. However, on balance, we consider that those arrangements are more consistent with them operating as a couple, or in a “marriage-like” way, during the period they were cohabiting. We accept Mr Parker’s submission that the evidence reveals a very high degree of “pooling” and sharing of financial resources between Ms Devine and Mr Vincent, including each of them being prepared at different times to financially support the other when this was necessary.
76. We also agree with Mr Parker’s submission that the financial aspects of the pair’s trip to New Zealand were especially significant in this regard. In particular, the fact that Mr Vincent was prepared not only to spend his own money to travel to New Zealand with Ms Devine, but also to pay her expenses demonstrates the very high degree of financial interdependence between them. The lack of clear delineation between them as to who was responsible for what expenses, is also more consistent with a “marriage-like” relationship than with the relationship being solely one of “carer” and “caree”.
77. On balance therefore, we consider that the evidence directed to this criteria points toward Ms Devine and Mr Vincent being in a “marriage-like” relationship.
Nature of the household
Contentions
78. Ms Riley for the applicants relied upon the fact that Ms Devine and Mr Vincent have no children together and Mr Vincent is not considered to be a step-father to any of Ms Devine’s children, nor grandparent to her grandchildren. She submitted that whilst Mr Vincent generally spends Christmas with Ms Devine’s family, this was partly for reasons of practicality given that he was a chef and was estranged from his own children. She also pointed out that when they have cohabited the two have always had separate bedrooms, and while they would have been happy to have separate living spaces, this had not been available to them. She submitted that, whilst there was some sharing of some household tasks, again this was partly dictated by practical considerations, given Ms Devine’s physical limitations.
79. Mr Parker submitted that the household arrangements between Ms Devine and Mr Vincent were more consistent with them being a couple than otherwise and that it was significant that they had lived together in shared rental accommodation from March 2002 until February 2009 at a number of different addresses in both Adelaide and Port Augusta.
Our Conclusions80. As with the financial aspects of the relationship, we consider that, whilst Mr Vincent and Ms Devine were cohabiting, the nature of their household was more consistent with the two being in a “marriage-like” relationship than merely friends, or carer and caree. In particular, it is significant in our view that household tasks were divided more according to capacity and need, than according to what might be considered a fair division of labour. It was also significant that there appeared to be significant flexibility as to who did what, and tasks were generally “pooled” and divided in the most practical and efficient manner, rather than on the basis of each of them being primarily responsible for looking after themselves. For example, Mr Vincent did “the cooking” whilst Ms Devine would wash his clothes as well as her own. It was also clear on the evidence that they carried out some household tasks together, such as the shopping.
81. The Tribunal considers that, while they were living together, Mr Vincent and Ms Devine’s household operated very much as that of a couple, with pooling of energy and skills to the benefit of both of them. Further, we consider that the fact the household operated in this way is not entirely accounted for the fact that Mr Vincent was at all relevant times Ms Devine’s carer. Whilst that may explain some aspects of the household arrangements, such as the fact that he carried out tasks she was not physically able to do, it does not explain other things, such as the fact he always cooked while she washed up, the fact she did his washing as well as her own, or that they always went shopping together.
82. On balance therefore, we consider that the evidence before us as to the nature of the household also points toward Mr Vincent and Ms Devine being in a “marriage-like” relationship.
The social aspects of the relationship
Contentions
83. In his submissions Mr Parker drew attention to the fact that Ms Devine and Mr Vincent would attend friends’ places together and that they would also entertain friends, such as Mr Walsh and his partner, at their home together. He also referred to the carer claim form completed by Mr Vincent in which he described Ms Devine as his de facto partner, and the hospital records recording Mr Vincent as Ms Devine’s partner. He submitted that they had held themselves out to be members of a couple to the hospital, to Centrelink and to one of Mr Vincent’s employers. He also alluded to the fact that Mr Vincent was well-known to Ms Devine’s family. In his written contentions, he also referred to the letter dated 25 May 2005 from Dr Southcott in which she confirmed that existence of a de facto relationship. He also referred to the fact that in March 2006, they travelled together to New Zealand and visited members of Ms Devine’s family. He submitted that, overall, the social aspects of the relationship indicated that they were members of a couple.
84. Ms Riley contended that Ms Devine and Mr Vincent are seen by family and friends as independent of each other and also relied upon the fact that Ms Devine has had another relationship of a romantic nature during the time she was living with Mr Vincent. Ms Riley also relied upon Mr Vincent’s evidence that he had not described Ms Devine as his partner to his employer and submitted that the fact that his employer had formed a mistaken impression in this regard could not be relied upon to indicate that the two were members of a couple. In relation to the carer claim form completed by Mr Vincent, she relied on the evidence to the effect that the day on which this was carried out, 21 November 2005, was an extremely stressful one which immediately followed Ms Devine and Mr Vincent being evicted from their home.
Our Conclusions85. We consider the indications on the evidence to be more equivocal in relation to this criteria than in relation to some of the other relevant criteria. It is apparent on the evidence that during the relevant time Mr Vincent and Ms Devine often socialised together, however they sometimes did so apart. Significantly, they attended friends’ places together, for example for dinner, and entertained those same friends together at their place, much as a couple would. Mr Vincent is also known to and socialises with Ms Devine’s family and travelled to New Zealand with her when she was visiting her family and there have apparently been discussions as to the possibility of his travelling to New Zealand to work for her family in her stead. The evidence is that he spends Christmas with Ms Devine’s family and does some of the cooking, which would support a conclusion that the two are a couple. There is also some contemporaneous documentary evidence which on its face would support a conclusion that the two were in a “marriage-like” relationship, including the carer payment claim form completed by Mr Vincent and the hospital and employment records discussed above, as well as the report of Dr Southcott stating that the two of them are a couple.
86. In relation to the documentary evidence, however, we accept Mr Vincent’s evidence to the effect that, whilst he did indicate on his claim form that he and Ms Devine were a de facto couple, he did not consider that they were in such a relationship at that time. We accept that he completed the claim form in the manner in which he did for reasons of frustration and expediency rather than because he believed the two of them to be in a de facto relationship. Similarly, we accept the explanations given by Ms Devine and Mr Vincent as to the contents of the hospital records and Mr Vincent’s employer records, and we are satisfied that in each case these were completed by others and did not necessarily accurately reflect Mr Vincent’s and Ms Devine’s own perception of their relationship.
87. We are more troubled by Dr Southcott’s report, and no explanation was provided before us as to why Dr Southcott would have certified that the two were in a relationship, unless she believed that they were. In our view, this document provides some support for a conclusion that the two were a couple or in a “marriage-like” relationship at the time Dr Southcott completed that report. However, in light of the other evidence before us, and the fact that Dr Southcott was not called to explain this report, we do not regard it as in any sense conclusive.
88. We also note that there is reasonably consistent evidence before us to the effect that, whilst members of their community have from time to time formed the impression that Ms Devine and Mr Vincent were a couple, wherever possible they have sought to correct this impression, explaining that their relationship is primarily one of carer and caree. We accept their evidence, and the evidence of Ms Matthews and Mr Walsh that, amongst the community with whom they socialise in Port Augusta, or at least those they socialise with regularly, the two are not considered to be a couple.
89. By reason of the conflicting nature of the evidence in relation to this criteria, we consider that it does not point strongly either away from or toward the two being in a “marriage-like” relationship.
Sexual relationship between the parties90. As mentioned above, there was little evidence before us that Ms Devine and Mr Vincent had a sexual relationship at any relevant time, and Mr Parker did not submit to the contrary. We are accordingly not satisfied that there was a sexual relationship between them during the relevant period.
Nature of the parties’ commitment to each otherContentions
91. In relation to the nature of their commitment, Ms Riley submitted that there was little emotional support exchanged between the two, in light of Mr Vincent’s evidence that he did not require emotional support and Ms Devine’s evidence that she obtained emotional support elsewhere. She also submitted that it was clear on the evidence that Mr Vincent and Ms Devine did not see themselves as being in a “marriage-like” relationship. Mr Parker pointed to the length of the relationship and the evidence of each of them that they expected it to continue.
Our Conclusions92. We accept that Mr Vincent and Ms Devine do not see themselves as being in a “marriage-like” relationship. However, we note that they lived together for seven years, and that over that time period both parties demonstrated significant commitment to the relationship, including by moving from one place to another together, and in particular relocating together from Adelaide to Port Augusta. Ms Devine also gave evidence to the effect that she hoped and expected that Mr Vincent would remain in her life and be her carer for the rest of her life. Mr Vincent gave evidence that about six months after they moved to Port Augusta he worked in Adelaide for a while. He said that during that period he returned to Port Augusta every weekend, and during the week he would speak to Ms Devine on the phone for about an hour each night.
93. Some evidence was given to the effect that the two may be separated if Mr Vincent obtains work, either in New Zealand or outside Port Augusta. There was also evidence given as to possible alternative carers who could “replace” Mr Vincent. It is nevertheless clear to us on the evidence that Ms Devine has a strong preference for Mr Vincent to be her carer, not only because of his skills and understanding of her condition, but because of their personal relationship. We also regard it as significant that, although Mr Vincent apparently no longer resides with Ms Devine, he continues to spend most of his time at her place and continues to care for her. We also consider that Mr Vincent and Ms Devine each tended to downplay the true extent of their emotional relationship and dependence upon one another.
94. Whilst Mr Vincent and Ms Devine do not see themselves as being in a “marriage-like” relationship, we consider that the length, stability and overall nature of the relationship supports a conclusion that the two were in fact in a “marriage-like” relationship more than it detracts from that conclusion.
95. In some cases, the fact that one party had subsequently moved out and was now living elsewhere might be seen to shed light on the true nature of the relationship, and we have considered the potential relevance of the fact that Ms Devine and Mr Vincent no longer reside together. On the evidence before us however, whilst Mr Vincent moved out because of the conclusion reached by Centrelink that the two of them were a couple, they continue to spend a great deal of their time together. In fact the evidence before us suggests that Mr Vincent spends more time at Ms Devine’s place than at his new address. In these circumstances, we do not consider that the fact that Mr Vincent has moved to a different address bears significantly on whether the two were in a “marriage-like” relationship while they were cohabiting.
96. Weighing up all of the evidence relevant to this issue, we conclude that they have a strong commitment to each other, such as the commitment to each other of two people who are in a “marriage-like” relationship.
Overall assessment97. We have not found this an easy matter to decide. As will be apparent from the discussion above, we consider that there are indications pointing away from a conclusion that Ms Devine and Mr Vincent were in a “marriage-like” relationship. We are not satisfied that there is a sexual relationship between them and accept that they do not see themselves as being in a “marriage-like” relationship. Ultimately however, the question for us is not whether most people in the community would consider them to be a couple, but whether they were at the relevant time in a “marriage-like” relationship, within the meaning of s 4 of the SS Act.
98. As we have outlined above, the bulk of the evidence on the majority of the criteria we are required to have regard to points towards Mr Vincent and Ms Devine being in a “marriage-like” relationship. In particular, we are satisfied that during the period they lived together their finances were highly entwined, that they pooled their resources to a significant extent and that there was a high degree of interdependence between them. We also consider that the nature of their household was more consistent with them being in a “marriage-like” relationship than otherwise and that they have each demonstrated significant commitment to each other and to their relationship.
99. Having regard to the statutory criteria in light of the evidence before us, we are accordingly satisfied that, during the period when they cohabited, Ms Devine and Mr Vincent were in a “marriage-like” relationship and were therefore members of a couple for the purposes of s 4 of the SS Act.
100. As to when that relationship should be taken to have commenced, we note that the SSAT found that they were a couple from 21 November 2005, the date on which Mr Vincent lodged his carer payment claim form. That date is some three years after the pair began living together, and we also accept that they were not in a “marriage-like” relationship when they first began living together, and there is no evidence that this marked the start of any sexual or romantic relationship between them. Rather their relationship and the practical arrangements between them have changed over time such that it has gradually evolved into a “marriage-like” relationship.
101. We have found it difficult to determine the date when the relationship began to be a “marriage-like” one. The primary decision and the decisions of the ARO and the SSAT arrived at 21 November 2005 as the date when the “marriage-like” relationship commenced. The Secretary did not question this aspect of the reviewable decisions in the hearing before us. We are satisfied that the “marriage-like” relationship commenced no later than 21 November 2005, and that there is no basis on the evidence before us to vary that aspect of the reviewable decisions.
102. For completeness, we note that an issue arose on the evidence before us as to whether, from February 2009 when he changed his address, Mr Vincent has in fact been living separately and apart from Ms Devine. However, that issue was not the focus of the evidence before us, nor was it the subject of submissions to us, and for those reasons we do not propose to embark upon it in the context of this matter.
Has there been an overpayment to Ms Devine?103. It follows from our above findings that Ms Devine has been overpaid DSP in respect of the period referred to in the decision of the SSAT.
Should the debt be waived?104. In the event that the Tribunal concluded that an overpayment did exist, Ms Riley contended that the Tribunal should waive recovery of the debt due to the existence of special circumstances, pursuant to s 1237AAD of the SS Act, which provides as follows:
“1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
Note 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt.”
105. Ms Riley contended that waiver was available because at all relevant times both Ms Devine and Mr Vincent genuinely believed that they were not a couple and did not realise that Centrelink would consider them to be so. She submitted that the debt would impose significant hardship on Ms Devine.
106. In relation to the hardship question, Mr Parker submitted that Mr Vincent and Ms Devine were each currently repaying their existing debt at the rate of $15 per fortnight deducted from their entitlements and, therefore, if they had been having difficulty repaying the debt “it’s not apparent to Centrelink”.
107. In relation to this issue, we accept that the occasion for exercise of the discretion does properly arise, as we accept that Ms Devine did not knowingly misrepresent her position to Centrelink. As is apparent from the provision itself, however, that of itself is not sufficient to warrant the exercise of the discretion in her favour, and nor is the existence of financial hardship alone. Ms Riley did not point to the existence of any other “special circumstances”, which would warrant us exercising our discretion to waive the debt and nor have we identified any on the evidence before us. We also accept the force of Mr Parker’s submission that Ms Devine is currently repaying her existing debt and there would not appear to be any reason why she could not continue to do so at a rate deemed appropriate having regard to her income.
108. For these reasons we have decided that we should not exercise the discretion conferred by s 1237AAD to waive the debt owed by Ms Devine.
Should the debt be written off?109. Under s 1236 of the SS Act, write off is available only if one or more of the four conditions in the provision is met. Those four conditions are:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
110. In light of our observations above in relation to Ms Devine’s capacity to continue to repay the debt as she is doing now, we are not satisfied that she has no capacity to repay the debt. We also note that, under s 1236(1C) of the SS Act, if recovery can be effected by deductions from the debtor’s social security payment, “the debtor is taken to have a capacity to repay the debt unless recovery by these means would result in the debtor being in severe hardship”. There is nothing before us to suggest that hardship would result from recovery at the current rate of $15 per fortnight.
111. As this condition is not fulfilled, and we do not consider any other of the conditions to be fulfilled either, we are not satisfied that the preconditions which would enable write off of the debt are established. We have therefore decided not to write off the debt and it follows that the debt must be recovered.
Conclusion
112. We have concluded that Ms Devine and Mr Vincent were in a “marriage-like” relationship and therefore members of a couple between 21 November 2005 and 4 February 2009.
Decision
113. In matter number 2008/4152 the Tribunal varies the decision under review by deciding that the applicant and the other party were members of a couple for the period from 21 November 2005 to 4 February 2009 but otherwise affirms the decision under review.
114. In matter number 2008/4153, the Tribunal affirms the decision under review.
I certify that the 114 preceding paragraphs are a
true copy of the reasons for the decision herein of Deputy President D G Jarvis and Senior Member K BeanSigned: .....................................................................................
L. Staker AssociateDate/s of Hearing 22 and 23 December 2009
Date of Decision 23 February 2010
Counsel for the Applicant Ms M Riley
Solicitor for the Applicant Welfare Rights Centre
Counsel for the Respondent Mr S ParkerSolicitor for the Respondent Centrelink Legal Services and Procurement Branch
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