Bailey; Secretary, Department of Education, Employment and Workplace Relations and Anor and
[2008] AATA 249
•4 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 279
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W 200600378
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS | ||
Applicants
| And | GAIL BEVERLEY BAILEY |
Respondent
DECISION
| Tribunal | Deputy President S D Hotop |
Date4 April 2008
PlacePerth
| Decision | The Tribunal sets aside the decision under review and, in substitution therefor, decides that;
|
..............[S D Hotop].............
Deputy President
CATCHWORDS
SOCIAL SECURITY – parenting payment (PP) – disability support pension (DSP) – family tax benefit (FTB) – respondent received PP, DSP and FTB at single rate – respondent cohabited with male person to whom not legally married – consideration of all circumstances of relationship between respondent and other person – financial aspects – nature of household – social aspects – sexual relationship – nature of mutual commitment – weighing and balancing factors militating for and against marriage-like relationship – relationship between respondent and other person a marriage-like relationship – respondent a member of a couple – respondent received overpayments of PP, DSP and FTB – debts due by respondent to Commonwealth – recovery of debts – debts cannot be waived – debts cannot be written off – debts recoverable in full – decision under review set aside
A New Tax System (Family Assistance) Act 1999 (Cth), s 3(1)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), s 71, s 95 and s 101
Social Security Act 1991 (Cth), s 4(2), s4(3), s1223, s 1236 and s 1237AAD
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
REASONS FOR DECISION
| 4 April 2008 | Deputy President S D Hotop |
| Introduction |
During the period from 17 January 2001 to 11 July 2006 (“the relevant period”) Gail Bailey (“Ms Bailey”) received payments of parenting payment and disability support pension at the single rate under the Social Security Act 1991 (Cth) (“SS Act”) and payments of family tax benefit at the single rate under the A New Tax System (Family Assistance) Act 1999 (Cth) (“FA Act”).
On 23 June 2006 an Authorised Review Officer (“ARO”) within Centrelink decided that Ms Bailey had been overpaid parenting payment, disability support pension and family tax benefit during the relevant period on the basis that, throughout that period, she had been in a “marriage-like relationship” with a man (“Mr G”), within the meaning of the SS Act and the FA Act, and that, accordingly, those benefits were payable to her, as a “member of a couple” for the purposes of the SS Act and the FA Act, at the partnered rate, and not at the single rate, during that period. The ARO also decided that the full amount of those overpayments should be recovered from Ms Bailey.
On 5 October 2006, however, the Social Security Appeals Tribunal (“SSAT”) set aside the ARO’s decision and instead decided that Ms Bailey had not been in a “marriage-like relationship” in the relevant period and that, accordingly, she had not been overpaid parenting payment, disability support pension or family tax benefit during that period.
The Secretary to the Department of Education, Employment and Workplace Relations and the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (“the applicants”) have applied to this Tribunal for review of the SSAT’s decision.
The Issues and the Tribunal’s Determination
The primary issue for the Tribunal’s determination is whether Mr Bailey was in a “marriage-like relationship” during the relevant period. If the Tribunal determines that Ms Bailey was in a “marriage-like relationship” during that period and that she was, accordingly, overpaid parenting payment, disability support pension and family tax benefit in that period, another issue will then arise, namely, whether the amounts of such overpayments should be recovered from her.
For the reasons which follow, the Tribunal has determined that:
· Ms Bailey was in a “marriage-like relationship” with Mr G for the whole of the relevant period;
· the amounts of overpayments of parenting payment, disability support pension, and family tax benefit received by Ms Bailey in the relevant period are debts due by her to the Commonwealth and are recoverable in full from her by the Commonwealth.
The Relevant Legislation
The phrase “member of a couple” is relevantly defined in s 4 of the SS Act as follows:
“4(1) In this Act, unless the contrary intention appears:
...
member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A);
...
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.”
In s 3(1) of the FA Act it is provided that the expression “member of a couple” has the same meaning as in the SS Act.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1-T106, pp 1-764) lodged by the applicants in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1-A21 tendered by the applicants;
·Exhibits R1-R5 tendered by Ms Bailey;
·the oral evidence of:
-Melissa Cawdell, John Corbett, Brendan Hart, Vicky Perrozzi, Tracey Seaton, and “Mr MJG” (who were called by the applicants);
-Ms Bailey, and Nicole Bailey, Coral Carson, and Kerry Allday (who were called by Ms Bailey); and
-Mr G (who gave evidence pursuant to a summons issued by the Tribunal at the request of the applicants).
The evidence of Ms Bailey
Ms Bailey’s witness statement, dated 3 September 2007 (Exhibit R1), states as follows:
“1. I was born [in] 1962…
2.I have 7 children…as follows:
· Michael Bailey DOB … 1978 …
· Nicole Bailey DOB … 1979 …
· Peta Bailey DOB … 1980 …
· Scott Bailey DOB … 1982 …
· David Ridell Bailey DOB … 1987 …
· John Kelly DOB … 1992 …
· Krystal Kelly DOB … 1993 …
…
8. I first met [Mr G] (Marty) about 9 years ago. We met through my daughter Nicole. Initially it was just as friends. Several months after we first met, we started a relationship of boyfriend/girlfriend. I can now identify that the relationship started after my son Michael’s 21st which was in January 1999 (as I remember I had another boyfriend at Michael’s 21st), but my relationship with Marty started in the same year as Michael’s 21st and it was in November. It was therefore in November 1999. Shortly after Marty and I started a relationship, my daughter Nicole rented the granny flat in Marty’s house in Etwell Street Vic Park.
9. At that time I was living in Casserley Avenue in Girrawheen and Marty was living at his house in Etwell Street, Victoria Park.
10. In early 2000 I was unable to cope with looking after John on a full time basis and my daughter Nicole agreed to look after John and Krystal during the week and I would have them at weekends. The 2 youngest children were therefore transferred from Hainsworth Primary School to Millen Primary School. I had Michael, Peta, Scott and David at home. David as I recall started at Girrawheen High in 2000, previously he was at Hainsworth Primary.
11. During this period from late 1999 to my accident in November 2001 Marty would at times stay with me or I would stay with him, but never more than 3 times a week. We were in this relationship for about 2 years. From fairly early on in the relationship he was pushing me to get married. I wasn’t ready and I didn’t want to. I agreed to become engaged, but I wasn’t ready for anything more. I was very hesitant. The engagement made no difference to our relationship, we stayed together on average 2 or 3 nights a week but we both kept our separate houses and we didn’t keep clothes in each other’s houses. He would ring me every day. He was doing carpentry work at the time. I had been told by Centrelink that: ‘You can have a relationship but they are not allowed to stay with you on a continuous basis, they can stay 3, at most 4 nights, a week, but not 3 nights a week in a row’. We sometimes were together at his place and sometimes at mine, but no more than 2 days in [a] row at either place and no more than 3 nights in a week. He would call in to see me more often, but he would go home. He would ring frequently and sometime fall asleep on the end of the phone. There was no sharing of finances.
12. At one stage Marty wanted to adopt the 2 kids. He was getting impatient. I told him that I was not ready to live with him on a permanent basis. He wanted to get married. I agreed to have my tubes untied so we could have a child, but I cannot say whether we would ever have lived together, even if we had a child or children together.
13. I kept the relationship to 2 or max of 3 nights a week, because of the Centrelink rules and I did not wish to lose my independence. We did talk about moving in together, it was implicit that if that occurred I would be off Centrelink and he would be supporting me, but this never happened. I wanted my independence not only from a financial point but also because I liked to be able to make my own decisions and not have to ask a partner what I could do or to accommodate that partner.
14. The car accident was about 2 years after the relationship started and perhaps 18 months after the engagement as best as I can remember.
15. I was still in Casserley Avenue when I had the car accident on 1 November 2001. I remained on a single parenting allowance. I was in hospital for about 3 weeks and then pretty well incapacitated at home over the next 2 to 3 months. During this period I was primarily looked after by Michael and Peta. Nicole continued to look after John and Krystal during the week. Krystal started in beginning of 2006 (sic). I was in a wheel chair my older ones had to work. He did use to stay (sic). I was asleep a lot. Peta was on shift work as I recall and usually either she or Michael were at home. Marty would not be there during the day. I could not go [to] the toilet on my own. I could not go [to] the shower. Marty provided some care, but in reality our relationship broke down within weeks of my coming out of hospital and after it broke down, I was uncomfortable with Marty caring for me, particularly as I knew he wanted the relationship to continue. I was in a great deal of pain. I saw my life has (sic) been ruined by the accident. I could not have sexual intercourse because of the pain and I did not want Marty to be part of my life. I felt he should move on.
16. After the motor vehicle accident I said to my Marty (sic) that the relationship would not work out. I wanted to be friends, but nothing more. I could not have kids. I could not have a sexual relationship. He was upset, he said he didn’t want to end the relationship. He wanted to get married. I said you are young, you still have a life. We remained friends, but the relationship did not continue. For the next few months, I continued to see him quite frequently. He sold his house at Etwell Street and moved back to live with his parents. He occasionally stayed over at my place, but never in the same bedroom. If he stayed over, he would usually sleep in the couch, unless there was a spare bedroom. He would stay over if he had a few drinks and it was unwise to drive. This happened occasionally during the first few months, but rarely if at all after this period, as he accepted the end of our relationship and he started to go out with other girlfriends and was no longer so emotionally dependant on me.
17. In March 2002 I moved from Girrawheen to Eastdene Circle in Nollamara. I had previously let HomesWest know I would take a smaller house.
18. During the period in 2002 after Marty sold Etwell Street and before he bought [XX] Bathgate Loop, Marty used my address as his mailing address. He asked me if he could, as his mother opened his mail. It was a matter of a few months only that I allowed him to use my address as his mailing address. I didn’t see any harm in this.
19. In August 2003, I was awarded $169,000 for the injuries suffered in a motor vehicle accident. I informed Centrelink of my award at the time that I received it. I had expected Centrelink to make a deduction from [the] award. I specifically went to Mirrabooka, I took the letter with me, I asked how much I have to pay back, they already had a letter and said there was nothing to pay back, that it had all been calculated that there was nothing to pay back.
20. When Nicole came back from Esperance and moved back home it was too crowded for everyone to be there and Michael and Peta moved out from Eastdene Circle and got the house at [00] Bathgate Loop. The lease was 12 months from 14 November 2003 and was renewed for a further 12 months in November 2004.
21. The house at Eastdene Circle was unsafe and very unhygienic, it should have been condemned. Cockroaches were often falling in your food. I could not get HomesWest to carry out the necessary repairs. I was particularly concerned after Nicole gave birth to Page. We decided to terminate the HomesWest lease and to leave. John, Krystal and I moved in with Michael and Peta. David and Nicole moved to the new place that Nicole and (sic) obtained. Scott at the time was staying with my nephew Nathan Wagland.
22. When Michael and Peta were told that [00] Bathgate Loop had been sold and that they would have to leave at the end of the lease they started looking around for somewhere to live. It was not suitable that John, Krystal and I stayed with them on a permanent basis anyway and Marty said that he was hardly ever in his house and that I could rent it from him, but reserving one bedroom for him. The rent was initially $130 per week. The rent was later increased to $140 pw and then to $150 pw.
23. At the time I rented the house in October 2005 we had an agreement that we won’t bring other lovers to the house. At one stage he was seeing somebody so I heard, for a while. He doesn’t bring anyone to the house because I am essentially renting the living areas of the house. I said I would prefer it at time if he went to his girlfriends’ homes. What he does is his business and has nothing to do with me. We would sit and talk, but I don’t ask him about his relationships.
24. From the time that I have rented from him and whilst I was on disability support I have paid him fortnightly, if he has been there. I paid him cash. I don’t trust the bank, they have made mistakes and withheld my money in the past.
25. I would take my Centrelink payment out of the bank as soon as I received it, I would pay the rent or give it to Peta to hold or to my father to hold. I would put money aside to the (sic) rent and would pay Marty when he came back, sometimes I wouldn’t have enough and I would make an additional payment. At one stage I was a couple of weeks behind, I made it up over a period of a few weeks.
26. My payments were stopped in Feb 2006 that was until Nov/Dec 2006. During that 9 or 10 month period I had no money. I was supported by my children and also charity organisations.
27. When later Centrelink cut off the payments Marty said ‘pay me when you can’. However I kept up my payments and I don’t owe him anything, my older kids helped me and paid the rent and the food. I also went to Vincent de Paul (sic).
28. Michael and Peta are now in Balga, they moved in early 2006 after the house at [00] Bathgate Loop was sold. We are generally a close family I see children (sic) except Scott most days.
29. I have a prepaid mobile phone. I have changed phones but I have remained on the same number for years since when I was living at Casserley Ave. Certainly I have had the phone since before my MVA. I gave the number on the day of the accident as I was being driven by Michael travelling back from Princess Margaret Hospital having taken my niece into Hospital.
30. Marty came to Bali on the same trip with me on 3 occasions, I believe. I have been on 7 occasions from and including my first trip in 2002. I didn’t previously hold a passport. I believe that on one occasion Marty and I went on our own; on the other occasions there were other family members there. The occasion we went on our own we shared a bedroom, as it was cheaper, but we had separate beds. When we were with other family members, we did not sleep in the same room, the arrangement was that all the females would have one room and all the males would have another.
31. The $169,000 has been spent on kids and on holidays, I actually received quite a bit less than $169,000. It was an amount of more than $100,000 but I don’t recall the exact net amount. I lent my mother some money. It just disappeared in bits and pieces; it took a couple of years to get through it.
32. Scott boarded with Marty at [XX] Bathgate Loop for a short period. This was a favour to me as Scott needed somewhere to live. As I recall, I was living at [00] Bathgate Loop at the time. Within a short time, Scott and Marty were in conflict. Scott was heavily into Marijuana (he also abuses prescribed medication). Marty had asked him not to smoke in his house. Scott ignored him and Marty then asked Scott to leave, but he refused. Marty asked me to help him get Scott to leave. Scott threw a knife at me and started smashing things. The Police were called by Marty and they suggested I take out a restraining order. I took out [a] restraining order. I put down that I was living at that address as it seemed simpler and in order to get Scott out of [the] house. Scott has not talked to me since this incident. Scott was furious with Marty and me and threatened to kill Marty. Scott then went to live with Nicole.
33. I visited [XX] Bathgate Loop to see Marty quite regularly, particularly when I was living at [00] Bathgate Loop and we were in the same street, but I never stayed overnight until I rented the house from him and moved in there with John and Krystal.
34. …
35. I had a sexual relationship with [Ms SG] … from sometime early in 2005 until early in 2007. We had been friends for years before we had this relationship and we remain friends after our relationship ceased. I have not been in any other relationships since Marty and my relationship ceased at about the end of 2001.”
In her oral evidence-in-chief Ms Bailey amended her witness statement as follows:
·para 10 – her son, Scott, moved to Geraldton in March 2000 to live with her sister;
·para 35 – she tried to have a sexual relationship with another man in 2004 but she found sexual intercourse too painful and so she discontinued it.
She also gave the following evidence:
· she and Mr G became engaged to be married in 2000;
·she sometimes left jewellery at Mr G’s house in Etwell Street, Victoria Park;
·her youngest children, John and Krystal, used to look upon Mr G as a “father figure”, and there was no other male person in their lives;
·if she and Mr G had had a child together, “maybe [they] would have got married down the track”;
·after her car accident in November 2001 she was incapacitated and Mr G “used to help out a lot” with her bathing, toileting etc;
·by the time she moved to the house in Eastdene Circle, Nollamara in March 2002, her relationship with Mr G was “over”;
·she sometimes visited Mr G at his Victoria Park house for coffee, and he sometimes visited her at her Nollamara house and, if he had had too much to drink, he would stay there overnight, but sleep on the couch;
·Mr G bought the house at [XX] Bathgate Loop in July/August 2002 and he then lived there, and, although she visited him there, she did not stay there overnight;
·she and Mr G used to visit friends together, including friends living in Mandurah, and, because she does not drive, he would drive her there and drive her back home;
·since October 2005 she has resided in Mr G’s house at [XX] Bathgate Loop on a rental basis;
·Mr G works in the north of Western Australia and was previously away from Perth for 5 weeks in every 6-week period but is now away from Perth for 2 weeks in every 3-week period;
·at [XX] Bathgate Loop Mr G has his own bedroom, bathroom and toilet and his bedroom is locked when he is not there;
·she pays for the telephone and for most of the gas and electricity at [XX] Bathgate Loop;
·when Mr G is in Perth he is usually out for meals, and when he has meals at [XX] Bathgate Loop he cooks for himself; she does not cook meals for him;
·she and Mr G have never had sex together since her car accident in November 2001.
In cross-examination Ms Bailey said, or confirmed, that:
·she had had 4-5 sexual “flings” with another man (“Mr MJG”) whom she knew before she met Mr G;
·the last “fling” she had had with Mr MJG was in 2006 but she last saw him by chance in the city in mid 2007 and they then exchanged telephone numbers;
·early in her relationship with Mr G he was “desperate” to have a child and she underwent an operation to have her tubes untied in August 2000 and subsequently had artificial insemination, but she did not become pregnant;
·in October 2000 Mr G had a semen test and it was found that he had a very low sperm count, which came as a shock to him although it did not worry her;
·she and Mr G spent a week together in Sydney in 2000;
·in the relevant period she visited Bali on 7 occasions – namely, May 2002, August 2003, October/November 2003, February 2004, May 2004, November 2004 and November/December 2005 – and on 3 of those occasions she was accompanied by Mr G together with family members and friends, and on one occasion (the date of which she could not recall) she was accompanied by Mr G alone;
·the occasion on which she and Mr G went to Bali together was after they had “split” and they “went over as friends and friends only”;
·on each of the occasions she went to Bali she paid for herself, and on each of the occasions Mr G went to Bali he paid for himself;
·she opened an account with FOXTEL in her name at Mr G’s house in Bathgate Loop, Koondoola in August 2002 and continued that account until May 2005, but Mr G paid for it;
·in the motor vehicle accident on 1 November 2001 she sustained a fractured pelvis and, following her discharge from hospital on 10 November 2001, she was in a wheelchair for 3 or 4 months and then used a walking frame for about 3 or 4 weeks;
·she and Mr G had a sexual relationship up until the time of the motor vehicle accident but since that time she has never attempted any sexual intimacy with Mr G;
·since the motor vehicle accident the only sexual relationship or sexual contact she has had was with Mr MJG and with Ms SG, her female friend.
Ms Bailey was referred to a letter from Dr B Leedman, Obstetrician and Gynaecologist, to Dr J Chamizo, her treating general practitioner, dated 19 March 1999, in which Dr Leedman informed Dr Chamizo that he had seen Ms Bailey, who was “requesting a tubal reanastomosis”, and had advised her that there were “no obvious problems or impediments to doing this” (part of Exhibit A6). Ms Bailey agreed that that letter suggested that in early 1999 she and Mr G were committed to each other and in a “full-on relationship”, and she added that she might have met Mr G in 1998.
Ms Bailey was next referred to clinical records produced under summons by the medical centre in which Dr Chamizo, her treating general practitioner, practises – in particular, clinical notes of Dr Chamizo which record, inter alia, consultations with her as follows:
·25 July 2003 – “difficulty with intercourse” because of pain which she has had since the car accident;
·18 April 2004 – “feeling a little better but still unsure about the relationship and whether partner is telling the truth”;
·7 September 2004 – problems with, inter alia, “relationship”;
·1 April 2005 – “problems with kids, lack of trust of fiancé”;
·6 April 2005 – “chronic depression…worse lately as a result of interpersonal relationship problems”;
·8 May 2006 – “late periods…partner has low sperm count” (part of Exhibit A6).
In response Ms Bailey said that:
·she could not recall with whom she was having, or trying to have, intercourse in 2003 but that it was not Mr G;
·she did not have a “partner” or “fiancé” during the period of those consultations;
·the references to a “relationship” in those clinical notes did not relate to Mr G because she was not with him at that time;
·the reference in the note of 8 May 2006 to “late periods…partner has low sperm count” was “obviously” a reference to Mr G because Dr Chamizo knew that Mr G had a low sperm count;
·she consulted Dr Chamizo on 8 May 2006 “because [she] was late for [her] period” and she had had sex at that time with Mr MJG but she did not know whether he had a low sperm count.
Ms Bailey acknowledged that it appeared from Dr Chamizo’s notes that she had been in a relationship with Mr G but she denied that she had been in a sexual relationship with Mr G from early 1999 to the present time. She confirmed that she had been seeing Dr Chamizo for over 20 years and that she trusted him.
Ms Bailey was referred to documents produced under summons by Sir Charles Gairdner Hospital in respect of her admission to that Hospital on 1 November 2001 following her motor vehicle accident on that date. In those documents the following information (inter alia) about Ms Bailey is recorded:
·her address was … Etwell Street, East Victoria Park;
·her next of kin was Mr G, his relation to her was “spouse”, and his address was also … Etwell Street, East Victoria Park;
·she “lives with fiancé and 2 children (8 and 11 yr) …”;
·she was “discharged home with male friend” at 11.00 am on 10 November 2001 (part of Exhibit A6).
In response Ms Bailey said that:
·at the time of the motor vehicle accident her “only address” was Casserley Avenue, Girrawheen, except that she was then staying 2-3 nights per week at Mr G’s house in Etwell Street, East Victoria Park;
·Mr G picked her up from the hospital when she was discharged and she stayed at his house for “a couple of days” and she then went back to her “own home”.
Ms Bailey was also referred to documents produced under summons by Sir Charles Gairdner Hospital in respect of her admission to that Hospital on 23 May 2002 by reason of abdominal pain. In those documents the following information (inter alia) about Ms Bailey is recorded:
·her address was … Eastdene Circle, Nollamara;
·her next of kin was Mr G, his relation to her was “spouse”, and his address was also … Eastdene Circle, Nollamara;
·on 24 May 2002 “explained to patient and husband possibility of appendicitis”.
Those documents also include a “Financial Election Form”, regarding Ms Bailey’s admission as a “public patient”, signed by Mr G as “partner” of the patient, and dated 23 May 2002. In response Ms Bailey said that:
·she had never stated to anyone that Mr G was her “husband” or her “spouse”;
·Mr G had written the word “partner” on the form but that was “wishful thinking on his part”.
Ms Bailey was then referred to documents produced under summons by Sir Charles Gairdner Hospital regarding her treatment at that Hospital for a crush injury to her right hand at 10.59 pm on 9 June 2003. In those documents the following information about Ms Bailey is recorded:
·her address was … Eastdene Circle, Nollamara;
·her next of kin was Mr G, his relation to her was “spouse”, and his address was [XX] Bathgate Loop, Koondoola;
·the contact person was her “fiancé”;
·she “lives” with her “fiancé”;
·the injury occurred while she was directing “partner car” and her right hand was “squashed between roo bar and brick wall”.
Ms Bailey said that the accident occurred at Mr G’s house in Bathgate Loop, Koondoola when Mr G was reversing his vehicle into the garage after they had returned from visiting friends in Mandurah. She said that Mr G took her to the hospital. She said that she did not tell the hospital staff that Mr G was her fiancé or her partner and she was unable to explain why he was so described in the hospital documents. She denied that she was living with Mr G at his Bathgate Loop house at that time.
The final group of documents produced under summons by Sir Charles Gairdner Hospital to which Ms Bailey was referred comprised documents regarding her treatment at that Hospital for an injury to her left knee at 4.36 pm on 21 March 2005. In those documents the following information about Ms Bailey is recorded:
·her address was [00] Bathgate Loop, Koondoola;
·her next of kin was Mr G, his relation to her was “friend”, and his address was [XX] Bathgate Loop, Koondoola;
·the contact person was “fiancé” who was “here”;
·she “lives with partner and children”.
Ms Bailey said that the accident occurred at Mr G’s house at [XX] Bathgate Loop while she was visiting. She said that she and her young children were then living with her older children nearby at [00] Bathgate Loop, and she denied that she told the hospital staff that she was living with her “partner” and children.
Ms Bailey confirmed that when Mr G sold his house in Etwell Street, East Victoria Park he stayed with her at Eastdene Circle, Nollamara for “a few nights” but he did not “live there on a permanent basis”. Later in her cross-examination she gave the following evidence:
“Ms Bailey, what do you, when you say about whether [Mr G] ever lived with you at the Eastdene property? ---Eastdene, no, he used it as a mailing address.
Yes? ---He stayed there on very rare occasions. When we split if he came over and he had been drinking, I would make him sleep on the couch, as I said, because - - -
But you are saying he never lived there? ---No, he was there – he used to come over a fair bit. I told you that but sleep wise, he would only stay there if he had been drinking.
Can you give me any indication of how often he stayed over? ---It wasn’t very often. I mean, it wasn’t a lot.
Once a week, once a month? ---It might have been once a week. I can’t remember exactly the amount of times or how often.
Would it have been anything more than once a week? ---I don’t think so, no.”
It was then put to Ms Bailey that the SSAT, in its Reasons for Decision, had referred to certain information provided to it by Mr G as follows:
“Mr G … said that he lived at … Eastdene Circle after he sold his house but prior to buying his next house in Bathgate Loop, Koondoola. He lived with Ms Bailey for about six months but they lived in separate rooms and he didn’t pay any rent. Mr G… stated that he and Ms Bailey lived separately and did their own thing and they were not a couple.”
Ms Bailey’s evidence continued:
“---He has never lived at my address.
Can you offer any explanation for why Mr G… has said that to the tribunal? ---He used – as I said, he used to stay there but on occasions but he never lived - - -
Why? ---I don’t know why. I can’t answer his questions but what I am saying is: he has never lived there on a permanent basis at any time.
What does - - - ? ---He has stayed there, yes.
What does living there on a permanent basis mean to you? ---Seven days a week.
And when you say he stayed there, yes, does that mean he stayed there once a week or - - - ? ---It could have been once a week. It might have been twice a week but it varied. It wasn’t just bang all the time. It wasn’t every day because he has always done his own thing since we split up.
Could it have been three times a week? ---Not that I can recall. It may be one, may be two but I can’t recall any more than two.”
Ms Bailey confirmed that, from the beginning of 2006, Mr G was working away from Perth on a 5-week on, 1-week off roster. She was referred to National Australia Bank statements in respect of Mr G’s account from January 2006 (part of Exhibit A6) which indicated a regular pattern of ATM cash withdrawals from that account on approximately a weekly basis at Mirrabooka Square Shopping Centre. Ms Bailey confirmed that she does her own banking at Mirrabooka Square Shopping Centre but denied that she had been accessing Mr G’s account and withdrawing money while he was away. Her evidence continued:
“…I have no control on his keycard or his account, whatsoever. I used to do a little bit of banking for him when we were together, but I have had nothing to do with his banking since we split up.
Tell me about the banking that you did for him when you were together? ---I used to - he used to get me to pay some bills and all that sort of thing for him, so he would give me his keycard to take out money for whatever had to be paid at the time.
Did he give you his PIN number? --- Yes, he did.
Yes, okay, and did you use the card? ---For him, yes I did.
Yes and did you go to this particular ATM to withdraw money? ---I used to go all over the place, I mean it all depends on where I was going on that particular day.
Yes? ---I mean sometimes I had used it in town, like if I was coming into town or things like that I would – it just all depends on where I was at that particular time.
But are you saying – or when do you say that you stopped doing that? ---Well, I know it was when we split up, I know I stopped doing anything, banking, all that for him once we did split up.
But you’ve remained, on your evidence, very good friends? ---Yes, we have.
Why did you suddenly decide it was time to stop? ---Because I don’t want that responsibility any more. I mean when we were together it was different, whereas now it just – to me it’s not right, I mean I shouldn’t have to do things for him, I mean he’s a big boy, he can get somebody else to do it for him. I don’t want the responsibility of carrying his keycard or taking out his money, because I don’t want to – or like this for one, I mean then saying that I’m now taking his money out of his account that stopped when we stopped. I mean I didn’t mind doing it for him before, but as I said when we stopped that stopped.”
Ms Bailey was referred to Commonwealth Bank of Australia statements in respect of her account (Exhibit A13). She confirmed that all her social security payments were deposited into that account, and that it was her usual practice to make ATM cash withdrawals from that account at Mirrabooka Square Shopping Centre as soon as the social security payments had been deposited. She was referred, in particular, to her statement for June 2006 and to Mr G’s statement for June 2006 which indicated that on each of 2, 8, 15, 29 and 30 June an ATM cash withdrawal was made from her account at Mirrabooka Square and from Mr G’s account at either Mirrabooka Square or Yirrigan Avenue Mirrabooka. Ms Bailey denied that she had accessed Mr G’s account on any of those dates and said that she presumed that this had been done by Mr G’s friend, Mr Mangioni. She explained that Mr G had an arrangement with Mr Mangioni whereby Mr Mangioni would pay certain bills for Mr G. She said that those bills did not include the gas, electricity and telephone bills, and that those bills are in her name.
Ms Bailey was questioned about her understanding that Centrelink had a policy to the effect that a person who was in a relationship with another person was permitted to stay over at the other person’s house 2-3 nights per week without affecting their social security entitlements. She said that she had been informed of that “on numerous occasions” by Centrelink staff, and by a person from the Ombudsman’s office when she telephoned that office in order to confirm that information. She said that she had been so informed “a very long time” – even before she met Mr G.
In re-examination Ms Bailey said that she had a sexual relationship with Mr MJG in about 1998 before she met Mr G, and that that relationship continued after she met Mr G but that she then ended the relationship with Mr MJG and “formed a relationship” with Mr G. She said that she “ran into” Mr MJG in the city, they had coffee and they then went back to his place. Her evidence continued:
“What happened when you went back to his place? ---Well, we had – I mean, we were talking and then one thing led to another and to another and then we ended up getting into a sexual thing. I mean, I had a lot of problem – trouble doing it but – it was painful and that sort of thing but that happened and then I hadn’t spoken to him for a while – a long time and then I’d spoken to him again in the city. It was just like a fling here, a fling there.
Right. So you spoke to him again in the city and then did anything follow that? ---Not straight away, no.
Right? ---We just kept in contact, like, we used to speak and talk on the phone. He’d send messages, I’d send messages to him. And then I ran into him again in 2006 because, I mean, he was never here a lot, he used to – well, I know he was working on the mines so he wasn’t here an awful lot but when he was here, he was in the city. I used to – well, not intentionally, I used to actually just run into him in the city, and we used to stop and have a talk and then the same thing again. One thing led to another, and then that was the last time I actually had sexual contact with him, and then I ran into him this year and, as I say, we stopped and we talked and he just said, ‘Well, we have to catch up and have a coffee.’ I said, ‘Yes, sure, no problem’. But the phone number he’d given me was the incorrect number, and I have never spoken to him since.
…
You say that there were – during this period that you had several text messages with him? ---Yes, I had.
Are you aware of anyone who saw those text messages? ---Yes, I am.
Who was that? --- My friend Kerry, because me and her, we do everything together, we show one another messages, she tells me what she does, I tell her what I do, we’re closer than what my own sisters are, I am with my own sisters.”
The evidence of Mr G
In response to questions from counsel for the applicant, Mr G gave the following evidence:
·he and Ms Bailey were engaged when she had her motor vehicle accident in November 2001;
·at that time he was living in Etwell Street and she was living in Eastdene Circle;
·after Ms Bailey was discharged from hospital she stayed with him in Etwell Street for “a few weeks”
·Nicole (Ms Bailey’s daughter) stayed at Etwell Street “occasionally some time to give her mother a hand” because he had to go to work;
·between the time when he sold his Etwell Street house in April 2002 and the time when he bought his Bathgate Loop house in August 2002 he stayed with Ms Bailey at Eastdene Circle “a couple of nights a week” and slept on the lounge, and the rest of the time with his mother in Victoria Park;
·he did not tell the SSAT that he had lived at Eastdene Circle during that period;
·he did not know that Ms Bailey was living at a nearby address in Bathgate Loop after moving from Eastdene Circle, although he sometimes saw her and her children driving along the street in a car, and waved to her, and she often visited him at his house in Bathgate Loop for coffee;
·shortly after he bought the house in Bathgate Loop in August 2002 Ms Bailey began to stay there with him “a couple of nights” but “not in [his] room”;
·Ms Bailey had a FOXTEL account in her name at his house in Bathgate Loop and she paid for it – he never paid her FOXTEL bills;
·for the whole of the relevant period his only bank account was at National Australia Bank and his wages were paid directly into that account by his employers;
·while he and Ms Bailey were engaged he trusted her and allowed her to access his account, by giving her a keycard and his PIN number, so that she could pay his bills for him;
·after he and Ms Bailey “split up” she gave the card back to him but he has never changed the PIN number;
·since then he has not given his account keycard to anyone;
·from January 2006 he was working in Karratha on a 5 weeks on, 1 week off roster;
·while he was in Karratha a friend whom he trusted, Rob Mangioni, was withdrawing money from his account in Mirrabooka in order to pay his bills and he had given Mr Mangioni his keycard and PIN number for that purpose;
·since 1 June 2006 he has been working in Pannawonica on a 2 weeks on, 1 week off roster;
·the arrangement whereby Mr Mangioni withdraws money from his bank account in order to pay his bills has continued;
·Mr Mangioni goes to his house in Bathgate Loop, collects the bills from his letterbox and telephones him to let him know which bills have arrived;
·those bills, which Mr Mangioni pays for him, include electricity bills, gas bills, mobile phone bills, water rates, Council rates, and speeding fines;
·he does not like keeping money in the bank and so Mr Mangioni withdraws nearly all the money in the account and holds it for him in his room and gives it to him when he next sees him;
·he arranges for Mr Magioni, and not Ms Bailey, to pay the gas and electricity bills for his Bathgate Loop house because Ms Bailey “forgets things”, and he does not want the gas and electricity disconnected because of unpaid bills;
·the gas and electricity accounts for his Bathgate Loop house are in his name;
·he deliberately provided a false reference in support of an application by Ms Bailey’s children, Michael and Peta, to rent premises at [00] Bathgate Loop in November 2003;
·he has been to Bali with Ms Bailey and friends on 4 occasions, but he and Ms Bailey were not in the same room;
·he bought his own tickets for Bali from money he had “saved up”, although on one occasion he gave Ms Bailey “the money to go and buy the tickets”;
·the money he saved to pay for his tickets was money withdrawn from his bank account and then kept “in our bedroom…in my bedroom”;
·in January 2007 he borrowed $100,000 to carry out renovations to his house in Bathgate Loop;
·in the weeks when he is not away working, he enjoys being in “my own home”;
·he has “still got feelings” for Ms Bailey but they are “just true good friends”.
In response to questions from counsel for Ms Bailey, Mr G gave the following evidence:
·during their engagement he and Ms Bailey were in a sexual relationship but when she had her motor vehicle accident there was “just nothing more” and he wanted to be by himself and to get on with his own life;
·he then told Ms Bailey that “it’s not going to go any longer” and that it would be best that they “just stay as friends – good friends and only good friends”;
·since then he and Ms Bailey have never at any time had sex, and that remains the case to date – they are “friends and only friends”;
·if he sees Ms Bailey in the shop he says “hello”, “goodbye”, “how’s your mum?”, and he gets along very well with her parents;
·he has not had a relationship with any other woman since the end of his relationship with Ms Bailey;
·in the year prior to Ms Bailey’s motor vehicle accident he was living in his house in Etwell Street, and a “granny flat” at the back was occupied by Ms Bailey’s daughter, Nicole, and Ms Bailey’s 2 youngest children;
·at that time Ms Bailey came to the Etwell Street house twice a week “just to visit” and “she stayed there one night then she went back to her other address”;
·at that time he and Ms Bailey helped each other out financially;
·since Ms Bailey has been living at his house in Bathgate Loop, she has not cooked meals for him when he has been there – he either cooks for himself, eats at fast food restaurants, or goes to his mother’s house for dinner.
The evidence of the witnesses called by the applicants
Melissa Cawdell and John Corbett
Ms Cawdell, who was employed by Centrelink from 1997 to 2007, gave evidence regarding an interview she conducted with Ms Bailey on 6 February 2006 in connection with an investigation by Centrelink into whether Ms Bailey was in a marriage-like relationship with Mr G. Mr Corbett, who is presently employed by Centrelink, confirmed that he attended the abovementioned interview and took handwritten notes of the interview. It is unnecessary to refer in detail to the evidence of either of those witnesses in these reasons.
Brendan Hart
Mr Hart is the Principal at Millen Primary School in East Victoria Park. He confirmed that John Kelly and Krystal Kelly (Ms Bailey’s 2 youngest children) attended the school from April 2000 to April 2002. His evidence, as set out in his Outline of Evidence (Exhibit A3), was as follows:
“…
6I recall that John lived with his mother in Etwell Street, near the corner of Riverview, which was almost visible from the school grounds.
7I have a scant recollection of there being a male being related to John Kelly who was referred to as a father or step-father.
8This man was approximately mid 30s to 40s.
9If John was acting up, the school would telephone Etwell Street and some time later the man would appear.
10I believed that John called him ‘Dad’ and that John had some concerns regarding this man.
11On occasion John would even run away from ‘Dad’ but ‘Dad’ would catch up with him and get him under control.
12I never saw any signs of abuse but believed ‘Dad’ was a strong disciplinarian.
13The school mainly dealt with John’s mother Gail Bailey if there were concerns but ‘Dad’ was the heavy artillery.
14Because of John’s antisocial behaviour most of the school’s dealings with the family were negative and strained at times.
15I do not recall a sister being involved with John.
16I recall that John lived at … Etwell Street because I passed this house on my way home from school and checked the number.
17I also recall seeing Ms Gail Bailey and John outside in the garden of … Etwell Street on occasion and the children walking to and from school to this house.”
Mr Hart said that, while waiting in the Tribunal’s premises to be called to give evidence, he saw a man there whom he recognised as the man referred to in paras 7-13 of his Outline of Evidence.
Tracey Seaton
Ms Seaton is presently the Registrar at Balga Primary School. She said that she was previously School Officer at Montrose Primary School in Girrawheen.
Ms Seaton was referred to Montrose Primary School records which indicate that:
·John Kelly and Krystal Kelly were admitted to the school on 28 May 2002 and their address was … Eastdene Circle, Nollamara;
·John Kelly and Krystal Kelly live with their mother, Gail Bailey;
·the address recorded on the Admission Cards for John Kelly and Krystal Kelly was subsequently changed to [XX] Bathgate Loop, Koondoola on an unspecified date;
·John Kelly left Montrose Primary School in December 2004.
Ms Seaton said that he she did not know when the abovementioned change of address was entered on the Admission Cards but that it would have occurred while the student was still enrolled at the school and not after the student had left the school.
Vicky Perrozzi
Ms Perrozzi has been employed by the Department of Housing and Works, HomesWest since November 1989 and has been the Senior Accommodation Manager, Mirrabooka Region since April 2004.
Ms Perrozzi confirmed that information contained in Ms Bailey’s HomesWest file indicates that:
·in January 2004 HomesWest received an unsigned letter from a named person informing them that, inter alia, their house at … Eastdene Circle, Nollamara had been occupied by Ms Bailey’s “three teenagers” and not by Ms Bailey who had been living “for the last 3 years” at [XX] Bathgate Loop, Koondoola with her “de facto”;
·a HomesWest officer attended the house at … Eastdene Circle on 30 January 2004 and found that Ms Bailey was there at the time;
·she had written a note at the foot of the abovementioned letter that the allegation contained therein “could not be substantiated, tenant was available at inspection 30.1.04”.
Ms Perrozzi also testified that on 24 May 2007, in response to a request dated 18 May 2007, she informed Centrelink that Ms Bailey had applied to HomesWest for a transfer from the house at … Eastdene Circle, Nollamara on 3 February 2004 on the grounds that the premises were infested with cockroaches, but that her application had been declined.
Mr MJG
Mr MJG’s Statement of Evidence, dated 6 December 2007 (Exhibit A19), which he confirmed in his oral evidence, is as follows:
“1.I have known Ms Gail Bailey since about 1998/1999 after we met at the Hyde Park Hotel where I was working. Ms Bailey often drank at the Hyde Park Hotel and it was one of her haunts.
2. Ms Bailey and I had a sexual relationship in around 1999-2000. The relationship ceased after that time. I recall the year we broke up was 2000 because at that time my father was ill and I had to return to New Zealand a number of times to see him.
3.After Ms Bailey and I ceased our relationship I had a relationship with another woman for approximately 4-5 years.
4. I did not have any further sexual relationship with Ms Bailey after we broke up, although on occasion we bumped into each other and sometimes I would bump into her at the Hyde Park Hotel.
5.On one occasion after I had stopped working at the Hyde Park Hotel I went to see the manager there, Mr Paul Higgins, and I saw Ms Bailey. Ms Bailey told me she had received a big payout from a car accident she was in. She later told me that she had holidayed in Bali several times.
6.I last saw Ms Bailey in the Murray Street mall in Perth city in approximately April 2007. At this time we stopped and spoke to one another and swapped telephone numbers, however, we did not rekindle any kind of relationship.
7.Since meeting Ms Bailey in approximately April 2007 I have not seen or spoken to her. I have not tried to telephone Ms Bailey on the telephone number she gave me nor has she telephoned me. I have since deleted the telephone number Ms Bailey gave me.
8.I have been told Ms Bailey claimed that we had a ‘fling’ or recommenced our sexual relationship in approximately 2006 and that she feared at this time that she might be pregnant as a result. We did not have a ‘fling’ or recommence our sexual relationship at this time or any other time after we split up in 2000. Ms Bailey had previously told me that she could not get pregnant as she had undergone a tubal ligation.”
Mr MJG said that he had lived in a unit on the Great Eastern Highway, near the Burswood Casino, in the period June-December 1999 and that Ms Bailey had “stayed there off and on”. Although he was unsure of the time when he last saw Ms Bailey, prior to his chance meeting with her in the city in about April 2007, he thought that it was at the end of 2002. He also said that he had not telephoned, or sent text messages to, Ms Bailey in 2006 or 2007.
The evidence of the witnesses called by Ms Bailey
Nicole Bailey
Nicole Bailey, a daughter of Ms Bailey, confirmed that she had signed a witness statement dated 3 September 2007 (Exhibit R3) as follows:
“1. I was born [in] November 1979. …
2.I first met Marty [Mr G] through one of my friends. He was only ever an acquaintance. My mother met Marty through me and started going out with him. In about early 2000 I was having problems where I was staying and Marty said that I could rent his granny flat in Etwell Street.
3. I saw my mother staying over at the [Etwell Street] Victoria Park house occasionally when I was living there and I was aware that Marty also stayed over at Eastdene Circle.
4.At this time Mum was having significant problems with John and couldn’t control him. John at that time was much better behaved with me and John and Krystal came to live with me in the granny flat in Etwell Street and were enrolled at Millen Primary School in East Victoria Park. I could watch the children go to the school from the Etwell Street address. This was for approximately 2 years from 2000 to about March 2002. I was looking for work during this period and in receipt of Newstart Allowance.
5.Mum came to Etwell Street and stayed with Marty occasionally during this period and when she came she would assist me with John and Krystal, but most of the time she only had John and Krystal at weekends.
6.After the accident Mum was being looked after by Michael and Peta. I continued to look after the younger children John and Krystal during the week but they still mainly went home at weekends and Michael and Peta would look after them.
7.I knew my mother and Marty had a relationship, they were dating during this period and that they were engaged. I was doubtful if my mother was serious about the engagement as she had pretty disastrous relationships in the past. However the relationship with Marty ended when Mum had her accident. My recollection is that their relationship started going down hill within a week or so of her coming out of hospital and that they started going their separate ways. It was Mum’s attitude that had changed, she was in a lot of pain and was withdrawn into herself when she was not out of it on painkillers.
8.When Marty sold the house in Etwell Street in about early 2002, I moved out and lived for a few weeks with my aunt Donna … in Balga. I was not in a position to continue to look after the children and John and Krystal went back to live with Mum. Donna and I did not get on and I then left and lived with friends in Bunbury for about 2 months and then I went to Esperance for several months. I came back to Perth in 2003, I cannot remember exactly when but I was back in Perth before I became pregnant with my daughter Page who was born … July 2004.
9.When I first came back to Perth I stayed at Eastdene Circle with my mother. The house was [a] dump, the chimney was falling down, the walls were coming down, they refused to do any work. I was there for 18 or more months.
10.I had Page when I was at Eastdene Circle, I managed to get private rented accommodation at … Burbridge Avenue, Koondoola. I moved there in December 2004 and I lived there until June 2007. …
11.I moved out of Eastdene Circle because it was unsafe for the baby and my mother was also moving out.
12.My mother went to live with my brother and sister Michael and Peta at [00] Bathgate Loop. She actually moved out a few days before me and the lease was given up after I moved out and the cleaning had been done. Mum continued to live with Michael and Peta there until the latter part of 2005. I cannot recall the month everyone moved out from there and she moved to Marty’s house.
13.I don’t recall Marty ever staying at Eastdene Circle, when I was living there. I don’t recall him staying overnight at any time during this period.
14.He did visit but very infrequent. Mum visited him at [XX] Bathgate Loop but I don’t recall her staying overnight. I believe that if she had I would have known because she would have asked me to watch the kids overnight and told me where she was.
15.I visited Peta and Michael at [00] Bathgate Loop, also later Mum when she was there, but I did not go to Marty’s house until Mum had moved from [00] Bathgate Loop to [XX] Bathgate Loop.
…”
Nicole Bailey said that she had recently seen numerous text messages received by Ms Bailey from Mr MJG and she had answered the telephone on one occasion when Mr MJG called Ms Bailey.
Nicole Bailey was referred to Centrelink documents (Exhibits A14-A18), regarding her address history from January 1999 to June 2007, which do not record her address as Etwell Street, East Victoria Park at any time and which record her addresses in the period from May 1999 to August 2002 as:
·Kinsella Street, Joondanna from 11 May 1999 to 22 April 2001;
·Thake Court, Koondoola from 23 April 2001 to 23 May 2001;
·Albert Street, Osborne Park from 24 May 2001 to 26 September 2001;
·Casserley Avenue, Girrawheen from 27 September 2001 to 27 January 2002; and
·Earnley Way, Balga from 28 January 2002 to 28 August 2002.
She acknowledged that those were the addresses which she reported to Centrelink but she reiterated that she was living at Mr G’s premises in Etwell Street, East Victoria Park in the period from early 2000 to early 2002 as stated in her witness statement.
Coral Carson
Mrs Carson’s evidence, as set out in her witness statement dated 6 September 2007 (Exhibit R4), was as follows:
“1.I was born [in] May 1937. I am the mother of the Respondent Gail Bailey. My husband Neil James Carson and I are both retired. We have 9 children. They all live in or around Perth. We are close family and we and the children visit frequently.
2.I have known [Mr G] for a number of years; I believe it was about 1999 that I first met him. He was introduced as Marty and I was aware from Gail that they were going out together. I recall that Gail later told me that they had talked about getting married and that they were engaged. I assumed at that time that they would get married. I was aware that Gail many years earlier had had a sterilization operation and I was also aware that she had had it reversed when she was going out with Marty because he wanted children.
3.I was aware that Gail was living at Casserley Avenue, Girrawheen at this time. I know that Marty was living in Victoria Park. I can’t remember his address there; however I have visited his home there.
4. I remember going to Marty’s Victoria Park home occasionally, but not very often, probably every few months. I remember specifically going on a couple of occasions to see the Australia Day fireworks from there. So far as I knew Gail never lived with Marty there. I would have heard if she had moved in to live with him.
5.I was aware that Nicole was living in the granny flat at the back of the house at Marty’s house in Victoria Park. I was also aware that Nicole was looking after Gail’s 2 youngest children during the week at this time and that the children would come back to Gail at Casserley Avenue at weekends. This arrangement was in place because Gail could not cope with John and his misbehaviour at the time and Nicole took on a large part of the burden to give Gail a break from him. John was and is still extremely difficult. So far as I recall this arrangement was in place for about 18 months to 2 years.
6.Gail and Marty’s relationship changed after she suffered serious injuries in a motor vehicle accident. I recall it was in 2001. I can’t remember the exact date but I have been told by Gail that it was on 1 November 2001.
7.Gail was very seriously injured and was in a very bad state after the accident. She was in a lot of pain and on a lot of tablets. I was already in a wheelchair and I couldn’t provide any real practical assistance. Gail was mainly looked after by Michael and Peta and also Nicole when she was there. I believe that Marty also provided some assistance. Marty had a talk to me at this time and told me that things had changed because of Gail’s accident. Gail also told me that the relationship was finished but she did not go into any detail.
8.When I visited Gail sometimes Marty was there but much more often he wasn’t there. So far as I was aware Marty never lived at Gail’s houses either at Casserley Avenue or when she moved to Eastdene Circle. I would have known if Marty was living in either house. I was seeing Gail at least once a week, often more often. When she was at Eastdene Circle we would meet at the Mirrabooka Shopping Centre and then go back to the house in Eastdene Circle.
9.I am aware that Gail with John and Krystal went to live with Peta and Michael at Bathgate Loop where she was for about 12 months or a bit less and that Gail then went to live at Marty’s house which was also in Bathgate Loop. She needed to get away from Michael and Peta as there wasn’t enough space and I believe that the lease was coming to an end and that Michael and Peta also had to find somewhere new. I understood that the arrangement for Gail to move to Marty’s suited Marty because he would have someone to look after his house and that Gail paid rent but that Marty kept a room in the house for himself. Marty has been working up North away from Perth on a fly in/fly out arrangement for most of the time that Gail has been at his house. I cannot remember exactly when this started. I visit Gail where she is at Marty’s house in Bathgate Loop at least 3 times a week, sometimes virtually every day. Gail changes my dressings when the hospital is not available and she washes my hair and does other minor things. Marty is sometimes there, but very rarely. If he is there, he will come and say hello. We remain on a friendly basis. However I am quite certain that there is no ongoing relationship between Gail and Marty. I would know from both of them if there was. I am certain that the previous relationship ceased shortly after the accident.
10.I am close to Marty and we remain good friends. We get on very well but don’t see much of each other and not as much as [we] did during the period that Gail and he were in a relationship before Gail’s accident. Marty doesn’t usually speak to me about his parents (ie his adopted parents) other than to say that they are well if ask after him (sic). I knew that he was an adopted child. I also knew that he had found his natural father only a couple of years ago and only shortly before his natural father’s death. Marty came to visit me on the evening that his natural father died and we had a long conversation on that night. He has never talked about his natural mother.
11.I am aware that Gail has been [in] another relationship with a female in more recent years. I have not met the other person. I [am] not happy about it, but I realise that it is Gail’s life and it is not for me to say what she should do.”
Kerry Allday
Ms Allday confirmed that she had signed a witness statement, dated 5 September 2007 (Exhibit R5), as follows:
“1. I met Gail about 25 years ago. I am Gail’s best friend and she confides in me about everything.
2. I was aware of Gail’s relationship with [Mr G] (who I know as Marty) before her car accident. I knew that they were engaged but I wasn’t sure that Gail wanted to be married or that they would eventually marry. I was aware that she had her tubes untied and that she wanted another child and presumably would have had further children, if Marty had been able to.
3.However after the car accident there were a lot of changes when I saw them together. Initially they were distant with each other. I asked Gail what was wrong and she said she was going to split up with Marty. She said that it wasn’t the right thing for him or her any more and that he was young enough to find someone else. I was aware the relationship came to end within a short period of this conversation, but they remained friends.
4.At the time when Marty and Gail split up I was already living in Mandurah. I moved down to Mandurah in 2001. Prior to going to Mandurah, I lived close to Gail and we saw each other virtually every day. Once I moved to Mandurah I would see Gail about once a week, maybe once every 2 weeks when I would come up to Perth or she and one of the elder children would drive to Mandurah (Gail doesn’t drive herself). For many years, really throughout our friendship, but more so when we are not seeing each other so frequently, we have continued to speak very frequently on the phone, usually once a day, and often more frequently.
5.Some time after she had broken up with Marty, Gail told me that she had started a sexual relationship with a female friend, [Ms SG], who I know as an acquaintance. I cannot recall when this relationship started, but it was now some time ago. I believe that this relationship continued for a couple of years or so and from what I have been told by Gail, they have remained friends, but that some months ago the sexual relationship ceased. So far as I am aware, Gail has not been in any other sexual relationship apart from with [Ms SG] after her relationship with Marty ceased.
6.When I moved to Mandurah, Gail was living at Casserley Avenue in Girrawheen. I was living close by in Balga. She then moved to Eastdene Circle in Nollamara and a couple of years or so later, I don’t remember exactly when, Gail moved from Eastdene Circle to the house where her children, Michael and Peta, were living in Bathgate Loop, Koondoola. She moved out of that house when it was due to be sold and she then moved into Marty’s place, which she rented from him but at a reduced rent, and he had a room for himself there. I am not good with dates, so my recollection when these movements occurred is only approximate.
7.I have visited Gail at Eastdene Circle and at both houses in Bathgate Loop, ie the house where she was living with her children and later at the house rented from Marty. I had never been to Marty’s place until Gail rented it from him and she had moved there. I am aware she had to move from the house that the children had been renting because the house was being sold. Marty told me that Gail could rent from him, that he had his room and that he was never there. I said that that was good of him I had discussed with Gail, Gail coming down to Mandurah at about this time, but that was not practical because of John’s schooling needs.
8.I visit Gail at her home about once or twice a month when I am in Perth. I don’t recall Marty being at the house when I have been there. I understand that Gail and Marty are friends and nothing more. Not close friends as Gail and I are, but they are friends. They used to be boyfriend/girlfriend and during that period I considered them close friends and sexual partners, but that changed after Gail’s accident and the break up of their relationship. They continued as friends, but no longer as close friends. I do not consider that they ever lived together in a de facto relationship.
9.I am aware that Marty used Gail’s address as his mailing address after he sold his house and before he purchased his current house. I am aware of this because he told me. I recall being told that he used the address. I believe I heard this separately from both Marty and Gail. I knew about the arrangement from Marty, because he asked me at the time whether I thought that it would be ok for him to use Gail’s address as a mailing address and whether I thought it could cause any problems for her. He said he needed an address because otherwise he would have no privacy from his parents. I have personally seen his parents go through his mail. He has told me that his parents wouldn’t leave him alone and that he had no privacy. He is an only son and they are quite obsessive about him.
10.When Gail and Marty were in a relationship, I saw a fair bit of Marty. Since they split, I have seen him [on] occasions, but not so often. We are friendly acquaintances.
11.After the accident and when Gail came out of hospital she was pretty incapacitated for quite a few weeks. I helped Gail a bit on occasions when I came to Perth, but we were living in different cities and it was primarily her elder children and her Mum and Dad who helped her out during this period. I was speaking to her by telephone and trying to help her and keep her spirits up. It was a tough period for her. I was not aware that Marty was looking after her to any great extent. My conversations with Gail at this time which concerned Marty were much more on the subject that she had decided to bring the relationship to an end and then that she had brought it to an end. I gathered that he wanted the relationship to continue, but that was not what Gail wanted.
12.I am aware that members of Gail’s family, ie both her parents and her elder children, have helped Gail out with money. I have never heard that Marty did.”
In her oral evidence Ms Allday confirmed that she had recently seen numerous text messages received by Ms Bailey from Mr MJG.
Ms Allday was referred to a Centrelink record of a communication in February 2004 (Exhibit A20) according to which:
·a Centrelink officer advised her that there was no provision in the social security legislation whereby she could “have her husband … sleep over 3 nights a week and it’s ok”;
·she informed the Centrelink officer that the Ombudsman had advised her to the contrary;
·the Centrelink officer then warned her that there was “no approved number of nights males can sleep over” and that she must advise Centrelink of “any male person who regularly stays at her address”.
Ms Allday did not dispute the contents of that record.
Other relevant material
The Tribunal will refer to other relevant material in the course of the following analysis of the evidence before it.
Analysis
In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 French J, after considering various authorities relating to former statutory provisions corresponding to s 4(2) and s4(3) of the SS Act, said (at 555-556):
“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.”
For the purpose of forming an opinion about the nature of the relationship (if any) between Ms Bailey and Mr G – and considering, in particular, whether they were in a “marriage-like relationship”, within the meaning of s 4(2)(b)(iii) of the SS Act, during the relevant period – the Tribunal will have regard to the matters and associated factors specified in s 4(3) of the SS Act and to any other relevant circumstances.
The credibility of Ms Bailey, Mr G and the witnesses called by Ms Bailey
The applicants submitted that credibility was a critical issue in this case – in particular, the credibility of Ms Bailey, Mr G and the witnesses called by Ms Bailey – and it is appropriate that the Tribunal comment on that issue before embarking on an analysis of the evidence before it and forming relevant opinions and making relevant findings on the basis of that evidence.
Having observed Ms Bailey and Mr G give their evidence, and having considered the content of their evidence in the context of the whole of the evidence presented in this case, the Tribunal is of the opinion that their evidence was substantially lacking in credibility in material respects. More specifically, there were significant inconsistencies in their evidence and, when on occasions they were confronted in cross-examination with contemporaneous objective or independent documentary material which was inconsistent with aspects of their evidence-in-chief, they provided certain novel explanations which, in the opinion of the Tribunal, were highly implausible. In short, the Tribunal does not regard either Ms Bailey or Mr G as a witness of truth. The Tribunal likewise regards the evidence of the witnesses called by Ms Bailey – namely, her daughter, Nicole Bailey, her mother, Coral Carson, and her closest friend, Kerry Allday – as lacking in credibility or reliability to the extent that it corroborated the evidence of Ms Bailey in relation to relevant matters.
In these circumstances the Tribunal regards it as appropriate, in analysing the evidence before it for the purpose of forming opinions and making findings in relation to the existence, or non-existence, of a marriage-like relationship between Ms Bailey and Mr G in the relevant period, generally to place greater reliance on the relevant objective or independent material than on the evidence of Ms Bailey, Mr G and the witnesses called by Ms Bailey.
The places of residence of Ms Bailey and of Mr G in the relevant period
According to Ms Bailey’s evidence, she resided at the following places at the following times within the relevant period:
·Casserley Avenue, Girrawheen until March 2002;
·Eastdene Circle, Nollamara from March 2002 to November 2004;
·[00] Bathgate Loop, Koondoola from November 2004 to October 2005;
·[XX] Bathgate Loop, Koondoola from October 2005.
According to Mr G’s evidence, he resided at the following places at the following times within the relevant period:
·Etwell Street, East Victoria Park until April 2002;
·Ms Bailey’s residence in Eastdene Circle, Nollamara, and his parents’ residence in Victoria Park, from April 2002 to August 2002;
·[XX] Bathgate Loop, Koondoola from August 2002.
According to Ms Bailey’s evidence, she and Mr G stayed at each other’s residential accommodation in the following circumstances during the relevant period:
· from late 1999 until the date of her motor vehicle accident in November 2001, Mr G would stay with her at Casserley Avenue, Girrawheen, and she would stay with Mr G at Etwell Street, East Victoria Park, “but never more than 3 nights a week”;
· from the date of her discharge from hospital (10 November 2001) following the motor vehicle accident, she stayed at Mr G’s house in Etwell Street, East Victoria Park for “a couple of days” and she then went back to her place in Casserley Avenue, Girrawheen;
· from April 2002 (when Mr G sold his Etwell Street house) to August 2002 (when he bought his Bathgate Loop house), Mr G would stay overnight at her place in Eastdene Circle, Nollamara, but only if he had been drinking, no more than 2 nights per week, and he would sleep on the couch;
· from October 2005 she has resided, with her 2 youngest children, in Mr G’s house in Bathgate Loop on a rental basis at a rent of $130 - $150 per week, although Mr G has continued to occupy his own bedroom and bathroom for his use when he is not working away from Perth.
According to Mr G’s evidence, he and Ms Bailey stayed at each other’s residential accommodation in the following circumstances during the relevant period:
· in the year prior to Ms Bailey’s motor vehicle accident in November 2001, she would visit him at his Etwell Street house twice a week and stay for one night and then return to her “other address”;
· after Ms Bailey was discharged from hospital following her motor vehicle accident in November 2001 she stayed with him at his house in Etwell Street for “a few weeks”;
· between the sale of his Etwell Street house in April 2002 and the purchase of his Bathgate Loop house in August 2002, he stayed with Ms Bailey at Eastdene Circle “a couple of nights a week”, sleeping on the lounge, and the rest of the time he stayed with his mother in Victoria Park;
· shortly after he bought the house in Bathgate Loop in August 2002, Ms Bailey began to stay there with him “a couple of nights”, but “not in [his] room”.
The Tribunal notes, however, the following relevant documentary material in evidence before it:
· Sir Charles Gairdner Hospital documents, in respect of Ms Bailey’s admission on 1 November 2001 following her motor vehicle accident, in which it is recorded that Ms Bailey’s address, and Mr G’s address, was the same address in Etwell Street, East Victoria Park and that she “lives with fiancé and 2 children”;
· Sir Charles Gairdner Hospital documents, in respect of Ms Bailey’s admission on 23 May 2002, in which it is recorded that Ms Bailey’s address, and Mr G’s address, was the same address in Eastdene Circle, Nollamara;
· Sir Charles Gairdner Hospital documents, in respect of Mr Bailey’s treatment on 9 June 2003, in which it is recorded that her address was in Eastdene Circle, Nollamara, and that Mr G’s address was in Bathgate Loop, Koondoola, and that she lives with her “fiancé”;
· Sir Charles Gairdner Hospital documents, in respect of Ms Bailey’s treatment on 21 March 2005, in which it is recorded that her address was [00] Bathgate Loop, Koondoola, and that Mr G’s address was [XX] Bathgate Loop, Koondoola, and that she “lives with partner and children”.
The Tribunal also notes the objective evidence that Ms Bailey’s 2 youngest children, John (born in 1992) and Krystal (born in 1993), attended Millen Primary School – which is very close to Mr G’s house in Etwell Street, East Victoria Park, and on the other side of the city from Girrawheen and Nollamara – from April 2000 to April 2002. That evidence was sought to be explained by Ms Bailey by her evidence that, because she was “unable to cope” with looking after her son, John (then aged 7-8 years), her daughter, Nicole (then aged 20 years), who was living in a “granny flat” at the rear of Mr G’s Etwell Street house, agreed to look after John and his younger sister, Krystal (then aged 6 years), and these 2 children then stayed with Nicole from Monday to Friday each week, and attended the nearby Millen Primary School, from April 2000 to April 2002. That evidence was corroborated by Nicole Bailey. The Tribunal, however, notes that the documentary material before it includes:
· a Centrelink record of Nicole Bailey’s address history from January 1999 to June 2007 (as contemporaneously provided by her to Centrelink) which does not include Etwell Street, East Victoria Park, and which indicates that, in the period from 1999 to August 2002, her home addresses were in Joondanna, Koondoola (not in Bathgate Loop), Osborne Park, Girrawheen (Casserley Avenue) and Balga (Exhibit A14);
· statements provided to Centrelink in June 2001 by Nicole Bailey and another person to the effect that they were living at the same address in Joondanna from May 1999 to April 2001 and were presently living at the same address in Osborne Park (Exhibits A16 and A17).
Mr G sought to corroborate the abovementioned evidence of Ms Bailey and Nicole Bailey but, the Tribunal notes, he also referred in his evidence to Nicole Bailey staying at Etwell Street “occasionally some time to give her mother a hand” because he had to go to work.
Having regard to the whole of the evidence before it, the Tribunal regards the abovementioned evidence of Ms Bailey, Nicole Bailey and Mr G, to the effect that from April 2000 to April 2002, Nicole Bailey – and not Ms Bailey – was residing at Mr G’s Etwell Street property and looking after the 2 young children, John and Krystal, during the week while they attended Millen Primary School, as implausible, and it does not accept that evidence. The Tribunal is, however, prepared to accept that Nicole Bailey stayed at the Etwell Street property occasionally to assist Ms Bailey – especially in the period immediately following Ms Bailey’s discharge from hospital following her motor vehicle accident in November 2001. On the whole of the evidence before it, the Tribunal is reasonably satisfied that at the commencement of the relevant period, and from that date until April 2002, Ms Bailey’s principal place of residence – if not her sole place of residence, given her (then) HomesWest tenancy at Casserley Avenue, Girrawheen – was Mr G’s house in Etwell Street, East Victoria Park where she cohabited with Mr G.
It is common ground that Ms Bailey obtained a new HomesWest tenancy at Eastdene Circle, Nollamara early in 2002, and the Tribunal is reasonably satisfied, on the basis of the whole of the evidence before it, that she commenced to reside there in April 2002. The Tribunal is also reasonably satisfied that Mr G cohabited with Ms Bailey at the Eastdene Circle house from April 2002 (when he sold his house in Etwell Street, East Victoria Park) until August 2002 (when he purchased the house in Bathgate Loop, Koondoola). The Tribunal does not accept the evidence of Ms Bailey and Mr G that Eastdene Circle was merely a postal address for Mr G (so that his prying mother could not access his mail) and that he only stayed there overnight once or twice a week when he was too drunk to drive to his mother’s house.
It is common ground that Mr G purchased his house in Bathgate Loop in August 2002 and that he has resided there since that date. It is also common ground that Ms Bailey has resided there from October 2005 to date (although the basis on which she has resided there in that period is in dispute). The parties are in dispute, however, regarding Ms Bailey’s place(s) of residence in the period from August 2002 to October 2005. The applicants submit that Ms Bailey was cohabiting with Mr G at his Bathgate Loop house for the whole of that period, whereas Ms Bailey claims that she continued to reside at Eastdene Circle until November 2004 and then moved in with her children, Michael (then aged 26 years) and Peta (then aged 24 years) at a house which they were renting in Bathgate Loop (close to Mr G’s house in that street) where she and her 2 youngest children (John and Krystal) stayed until October 2005 when they moved to Mr G’s house.
Finally, although Ms Bailey and Mr G have asserted that, for the whole of the relevant period, their relationship has been that of friends only and not a marriage-like relationship, the Tribunal, as previously indicated, does not accept that the true nature and character of the relationship between Ms Bailey and Mr G was merely that of friendship. In the Tribunal’s opinion Ms Bailey and Mr G have falsely represented the nature of their relationship in the relevant period and, accordingly, their assertion that their relationship was not a marriage-like relationship carries no weight. It seems, furthermore, that, whatever the true nature and character of their relationship in the relevant period, neither Ms Bailey nor Mr G has had any intention, at least from 2002 onwards, of terminating their relationship and that each of them has, accordingly, considered that their ongoing relationship was likely to continue indefinitely.
Was there a marriage-like relationship between Ms Bailey and Mr G in the relevant period?
Having considered the whole of the evidence relating to the circumstances of the relationship between Ms Bailey and Mr G – and, in particular, the relevant matters and factors referred to in s 4(3) of the SS Act – it is clear that some of those circumstances, matters and factors militate in favour of there having been a marriage-like relationship between them in the relevant period, while others militate against that proposition. Accordingly, it is necessary for the Tribunal appropriately to weigh those competing considerations against each other and thereby form an opinion whether, on balance, they point, or do not point, to the existence of a marriage-like relationship between Ms Bailey and Mr G in the relevant period.
Financial Aspects
Relevant factors militating against the existence of a marriage-like relationship between Ms Bailey and Mr G in the relevant period include:
· no evidence of joint ownership of real estate or of other major assets, no evidence of any joint accounts at banks or other financial institutions, and no evidence of joint liabilities;
· no evidence of any legal obligation owed by either of them in respect of the other.
On the other hand, a very significant factor which, in the Tribunal’s opinion, militates strongly in favour of the existence of a marriage-like relationship between Ms Bailey and Mr G in the relevant period is the financial interdependence which existed between them, including the provision by Mr G of very substantial financial support to Ms Bailey and her 2 youngest children who lived with him, and the management by Ms Bailey of their combined income by regularly accessing each of their bank accounts for the purpose of paying the day-to-day expenses of running their household (see paragraphs 64-67 above).
Nature of the household
Having regard to the considerations referred to in paragraphs 68 and 69 above – in particular, Ms Bailey’s and Mr G’s cohabiting, together with Ms Bailey’s 2 youngest children, as a family unit in the relevant specified premises – the Tribunal is of the opinion that this matter militates strongly in favour of the existence of a marriage-like relationship between Ms Bailey and Mr G in the relevant period.
Social Aspects
Although there is evidence before the Tribunal from 2 family members, and a very close friend, of Ms Bailey to the effect that, as from late 2001, they have regarded the relationship between Ms Bailey and Mr G as no more than a friendship (see paragraph 70 above), the Tribunal attaches little weight to that evidence. The Tribunal attaches greater weight to the relevant independent documentary material before it, from which it might reasonably be inferred that Ms Bailey and Mr G held themselves out as being in a spousal or de facto relationship to certain bodies in certain circumstances at certain times in the relevant period (see paragraph 71 above). There is also evidence before the Tribunal that Ms Bailey and Mr G holidayed together in Bali on 4 occasions, and visited friends together from time to time, in the relevant period.
In the Tribunal’s opinion this matter militates in favour of the existence of a marriage-like relationship between Ms Bailey and Mr G in the relevant period.
Sexual relationship
Suffice it to say that, having regard to the considerations referred to in paragraphs 72-77 above, this matter is, in the Tribunal’s opinion, consistent with the existence of a marriage-like relationship between Ms Bailey and Mr G in the relevant period.
Nature of mutual commitment
Having regard to the considerations referred to in paragraphs 79 and 80 above, the Tribunal is of the opinion that this matter militates very strongly in favour of the existence of a marriage-like relationship between Ms Bailey and Mr G in the relevant period.
Finding
Having considered the whole of the evidence before it relating to the circumstances of the relationship between Ms Bailey and Mr G as a whole, including, in particular, the matters and factors specified in s 4(3) of the SS Act, in the relevant period, the Tribunal is of the opinion that, for the whole of the relevant period, the nature of that relationship was defined by the following characteristics:
· Ms Bailey’s and Mr G’s cohabiting, together with Ms Bailey’s 2 youngest children, as a family unit;
· Ms Bailey’s and Mr G’s providing constant physical and emotional support and companionship to each other in a committed, mutually respectful, intimate and caring relationship;
· financial interdependence between Ms Bailey and Mr G, with Mr G providing very substantial ongoing financial support to Ms Bailey and her children as the members of his family unit.
Those characteristics are, in the Tribunal’s opinion, strongly, if not decisively, indicative of a marriage-like relationship.
Accordingly, the Tribunal is reasonably satisfied, and finds, that there was a marriage-like relationship, within the meaning of s 4(2)(b)(iii) of the SS Act, between Ms Bailey and Mr G for the whole of the relevant period.
Ms Bailey was a “member of a couple” for the purposes of the SS Act and the FA Act
It is common ground that the conditions specified in subparas (i), (ii), (iv) and (v) of s 4(2) of the SS Act are met in Ms Bailey’s case. By reason of its abovementioned finding that a marriage-like relationship between Ms Bailey and Mr G existed for the whole of the relevant period, the Tribunal has found that the condition specified in subpara (iii) of s 4(2)(b) is also met in Ms Bailey’s case. It follows, in accordance with s 4(2) of the SS Act, that Ms Bailey was a “member of a couple”, for the purposes of the SS Act, for the whole of the relevant period, and the Tribunal so finds. It also follows that Ms Bailey was a “member of a couple”, for the purposes of the FA Act, for the whole of the relevant period, and the Tribunal so finds.
Ms Bailey owes debts to the Commonwealth
The Tribunal understands it to be common ground that, in the event of a finding by it that Ms Bailey was a “member of a couple”, for the purposes of the SS Act and the FA Act, for the whole of the relevant period, it would follow that she had received overpayments of parenting payment and disability support pension under the SS Act, and overpayments of family tax benefit under the FA Act, during that period, and that the amounts of those overpayments constitute debts due by her to the Commonwealth under, respectively, s 1223 of the SS Act and s 71 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“FAA Act”). The Tribunal so finds.
Should the debts owed by Ms Bailey to the Commonwealth be recovered from her?
Ms Bailey submitted that any relevant debt or debts found to be owing by her to the Commonwealth should not be recovered from her and should instead be waived because of special circumstances, or, alternatively, should be written off, under the relevant provisions of the SS Act and/or the FAA Act.
Part 5.4 of the SS Act and Div 4 of Pt 4 of the FAA Act contain provisions dealing with the non-recovery of debts which are recoverable by the Commonwealth under those Acts.
Part 5.4 of the SS Act contains the following relevant provisions:
“1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:
(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.
1236(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a)the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or
(aa) the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt
1236(1C)For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a)deductions from the debtor’s social security payment; or
(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c)setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
…”
“1237AAD 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 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.”
Division 4 of Pt 4 of the FAA Act contains relevant provisions, namely, s 95 and s 101, whose terms are relevantly similar to those of s 1236 and s 1237AAD, respectively, of the SS Act.
Waiver
Ms Bailey submitted that the following circumstances of her case should be regarded as “special circumstances” by reason of which any relevant debts owed by her to the Commonwealth should be waived under s 1237AAD of the SS Act and s 101 of the FAA Act:
· full recovery of such debts (whose total amount, as calculated by the applicants, is very large), even by instalments, will cause her severe financial hardship, presumably over a very long period of time;
· in 2003 she was found by Centrelink not to be in a marriage-like relationship with Mr G and continued thereafter to receive social security payments on that basis, thereby ultimately exposing her to a much larger debt which she now does not have the capacity to repay (although in 2003 she did have the capacity to repay a relevant debt had she been found to owe such a debt at that time);
· her physical disability, namely, ongoing back pain which renders her incapable of working, and her mental disability, namely, ongoing depression;
· the “severe medical condition and behavioural difficulties” of her son, John (born in 1992).
In Secretary, Department of Social Security v Hales (1998) 82 FCR 154 the Federal Court of Australia (French J), referring to s 1237AAD of the SS Act, said (at 155, 162):
“From time to time in the administration of social security benefits overpayments occur. Sometimes these are the result of innocent non-compliance with the requirements of the law which can be affected by the stress associated with the circumstances that led to the receipt of benefits in the first place. The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the person concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth. …
…
The concept of special circumstances is broad. A constellation of factors, including financial circumstances, may fall within it. The express exclusion of financial hardship alone as a special circumstance is an indicator that it would otherwise be included. This gives some measure of the range of circumstances which will qualify as special. But as a matter of grammar and ordinary logic, the exclusion of financial hardship alone as a special circumstance does not mandate its inclusion in the range of matters constituting such circumstances for the purpose of enlivening the Secretary’s discretion.
…
The evident purpose of s 1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship or unfairness in the event of a rigid application of a requirement for recovery of debt. It is inappropriate to constrain that flexibility by imposing a narrow or artificial construction upon the words. It may be that there will be few cases in which the Secretary will be satisfied that there are special circumstances in the absence of financial hardship. It may be that there are few cases in which having found special circumstances to exist, the Secretary would exercise the discretion to waive in the absence of financial hardship. But to anticipate the limits of the categories of possible cases by imposing on the language of the section a fetter upon its application which is not mandated by its words, is to erode its useful purpose.”
In the Tribunal’s opinion, the evidence before it regarding Ms Bailey’s financial circumstances, her physical and mental disabilities, and the medical condition and behavioural difficulties of her son, John, is clearly insufficient for it to be satisfied that, by reason of those circumstances, it would be desirable to waive all or part of the relevant debts due by her to the Commonwealth. Nor is the Tribunal satisfied that the administration of the relevant legislation by Centrelink in Ms Bailey’s case has been such that it would be unjust, unreasonable or otherwise inappropriate for the Commonwealth now to recover the full amount of the relevant debts owed by her. In particular, the determination made by Centrelink in 2003 that Ms Bailey was not in a marriage-like relationship with Mr G was made in good faith on the basis of information provided to Centrelink by Ms Bailey (see T9, T10) – information which, the Tribunal is satisfied, was false in several material respects, including false information regarding their living arrangements and their financial arrangements. In those circumstances Ms Bailey cannot reasonably complain that, as a result of this Tribunal’s determination on the basis of the evidence before it, she now owes a considerably greater total debt to the Commonwealth than would have been the case had Centrelink determined in 2003 that she was in a marriage-like relationship with Mr G.
Accordingly, the Tribunal is not satisfied that, in Ms Bailey’s case, there are any “special circumstances … that make it desirable to waive”, within the meaning of s 1237AAD(b) of the SS Act and s101(b) of the FAA Act, in whole or in part, the relevant debts due by her to the Commonwealth.
The Tribunal is, furthermore, satisfied that the relevant debts due by Ms Bailey to the Commonwealth resulted wholly from her knowingly making false statements to Centrelink regarding, inter alia, her living arrangements with Mr G and their financial arrangements in the relevant period. Accordingly, the Tribunal is satisfied that s 1237AAD (a) of the SS Act and s 101(a) of the FAA Act are also not met in Ms Bailey’s case.
It follows that the relevant debts due by Ms Bailey to the Commonwealth cannot be waived, in whole or in part, under s 1237AAD of the SS Act or s 101 of the FAA Act
Write off
The discretionary power to write off a debt under s 1236(1) of the SS Act and s 95(1) of the FAA Act is expressly conditioned on the existence of any one of the alternative circumstances specified in paras (a) – (d) of s 1236(1A) of the SS Act and, relevantly, paras (a) – (d) of s 95 (2) of the FAA Act.
There is no suggestion that either of the conditions specified in paras (c) and (d) of s 1236(1A) of the SS Act and s 95(2) of the FAA Act is satisfied in this case. As regards the condition specified in para (a) of each of those subsections, the Tribunal understands that Ms Bailey continues to be in receipt of social security payments from which the relevant debts can be recovered by deductions and that, in accordance with s 1236(1B) and s 95(3), the debts are, therefore, not “irrecoverable at law”, within the meaning of s 1236(1A)(a) and s 95(2)(a). As regards the condition specified in para (b), the Tribunal, on the basis of the evidence before it, is not satisfied that recovery of the relevant debts from Ms Bailey by means of deductions (the amounts of which may be negotiated by her with Centrelink) from her ongoing social security payments would result in her being in, or would cause her, “severe financial hardship”, within the meaning of s 1236(1C) and s 95(4), and, pursuant to those subsections, the Tribunal is not satisfied that Ms Bailey “has no capacity to repay” the relevant debts, within the meaning of s 1236(1A)(b) and s 95(2)(b).
It follows that the relevant debts due by Ms Bailey to the Commonwealth cannot be written off under s 1236(1) of the SS Act or s 95(1) of the FAA Act.
Conclusion
The Tribunal notes that it is common ground that none of the other non-recovery provisions in Pt 5.4 of the SS Act and Div 4 of Pt 4 of the FAA Act is applicable in this case.
The Tribunal concludes, therefore, that the relevant debts due by Ms Bailey to the Commonwealth are recoverable in full from her by the Commonwealth in accordance with Pt 5.3 of the SS Act and Div 3 of Pt 4 of the FAA Act.
Decision
For the above reasons the Tribunal sets aside the decision of the SSAT dated 5 October 2006 and, in substitution therefor, decides that:
· Ms Bailey was a “member of a couple”, for the purposes of the SS Act and the FA Act, for the whole of the relevant period;
· the amounts of overpayments of parenting payment and disability support pension under the SS Act, and the amounts of overpayments of family tax benefit under the FA Act, received by Ms Bailey during the relevant period are debts due by Ms Bailey to the Commonwealth under, respectively, s 1223 of the SS Act and s 71 of the FAA Act;
· those debts are recoverable in full from Ms Bailey by the Commonwealth in accordance with Pt 5.3 of the SS Act and Div 3 of Pt 4 of the FAA Act.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: ....................[C Skinner]................
Associate
Dates of Hearing 18-20 September 2007, 21-23 January, 7 February 2008
Date of last Written Submissions 29 February 2008
Date of Decision 4 April 2008
Counsel for the Applicants Ms P Giles
Solicitor for the Applicants Sparke Helmore
Counsel for the Respondent Mr H Christie
Solicitor for the Respondent Henry Christie
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