Bambrick and Anor and Secretary, Department of Education, Employment and Workplace Relations and Clark (Party Joined) and Bambrick (Party Joined)
[2008] AATA 272
•4 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 272
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/2813
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN BAMBRICK Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
SANDRA CLARK
Party Joined
ALSO
No 2007/2814
Re SANDRA CLARK Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
JOHN BAMBRICK
Party Joined
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date4 April 2008
PlaceHobart
Decision The decisions under review are set aside and the matter is remitted to the Secretary for reassessment.
[Sgd A Cunningham]
Senior Member
CATCHWORDS
SOCIAL SECURITY - Widows Allowance - Newstart Allowance - whether members of a couple - parties living under same roof during relevant period - property owned by parties as joint tenants - joint payment of rates and some household expenses - parties maintain no marriage-like relationship - previous sexual relationship - Tribunal concluded parties relationship constituted two long-term friends sharing a house
Social Security Act 1991 - s4(2), s4(3), s408BA(2)(e), s1068B, s1067L-B
Staunton-Smith v SDSS (1991) 25 ALD 27
Cassaroto and Australian Postal Commission (1988) 17 ALD 321
Peck and SDSS (1992) 76 SSR 1107
Re Shearing and Director-General of Social Security (1983) 6 ALN N12
Re Wood and Director-General of Social Security (1984) AATA 1434 6 March 1984
McDonald v Director-General of Social Security (1984) 6 ALD 6
Re Hodgson & SDSS (1988) AAT 4279 11 March 1988
Needer v SDSS (1993) 73 SSR 1074
REASONS FOR DECISION
4 April 2008 Ms A F Cunningham (Senior Member) 1. These were appeals against decisions of the Social Security Appeals Tribunal (SSAT) which both concerned the issue as to whether Sandra Clark and John Bambrick were living in a marriage-like relationship. The appeals were heard together.
2. In appeal number 2007/2813, the applicant John Bambrick seeks the review of a decision made by the SSAT on 15 June 2007 concluding that it did not have jurisdiction to review the decision that he was living in a marriage-like relationship with Sandra Clark for the period 18 October 2000 to 14 April 2006. By decision dated 7 September 2007 the Administrative Appeals Tribunal (AAT) delivered a ruling that despite the SSAT's decision that it did not have jurisdiction, the AAT nevertheless had jurisdiction to hear an application for review against the decision of the SSAT. The Tribunal further ordered that Sandra Clark be joined as a party to the appeal.
3. In appeal number 2007/2814, the applicant Sandra Clark seeks a review of a decision of the SSAT made on 3 February 2006 that Mrs Clark was in a marriage-like relationship with John Bambrick for the period 16 September 2000 to 13 May 2005. John Bambrick has been joined as a party to that appeal.
Issue:
4. The issue for the Tribunal to determine is whether Sandra Clark and John Bambrick were in a marriage-like relationship between 16 September 2000 and 13 May 2005.
Background Facts:
5. Mrs Clark was widowed in 1991 after a nine year marriage. On 15 March 1999 she lodged a claim for Newstart Allowance (NSA) whilst residing in South Australia.
6. On 16 August 2000 Mrs Clark lodged a claim for Widow Allowance which was granted on 18 August 2000.
7. On 19 May 2005 Centrelink decided that Mrs Clark and Mr Bambrick were members of a couple as from 18 October 2000 and cancelled Mrs Clark's Widow Allowance payment. As a result of the determination a debt in the sum of $24,229.95 was raised against Mrs Clark. On a review to the SSAT the decision to raise the debt was set-aside. On appeal to the AAT, the debt was reinstated.
8. On the basis of the finding that Mrs Clark and Mr Bambrick were members of a couple, a debt in the sum of $6,894.72 was raised against Mr Bambrick which was subsequently slightly reduced on review by an ARO.
9. Both Mrs Clark and Mr Bambrick contend that they are not living in a marriage-like relationship and dispute the debt that has been raised against them.
Legislation:
10. To determine whether Mrs Clark and Mr Bambrick are members of a couple reference is made to the provisions of sub-sections 4(2) and 4(3) of the Social Security Act 1991 (the Act). Sub-section 4(2) provides that a person is a member of a couple 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".
As the parties are not legally married the applicable provisions are those set out in sub-paragraph (b).
11. The criteria for determining the nature of the relationship between Mrs Clark and Mr Bambrick are set out in sub-section 4(3) which reads as follows:
"(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.
12. The above criteria are expressed in terms of circumstances which suggest a marriage-like relationship. Regard should be had to all of the circumstances. The Federal Court in its decision Staunton-Smith v SDSS (1991) 25 ALD 27 found that the Tribunal had erred by only making findings with respect to those circumstances which suggested a marital relationship and not those suggesting separateness such as the absence of a sexual and social relationship.
13. The legislation does not make provision for an onus of proof. The Tribunal is required to make its decision on the balance of probabilities based on the evidence before it. As noted by the Federal Court in Cassaroto and Australian Postal Commission (1988) 17 ALD 321 at 344, in a practical sense it is the applicant's responsibility "to ensure that there is laid before the Tribunal all material which it will be necessary for the Tribunal to have before it to come to a decision".
Member of a Couple:
14. Section 408BA(2)(e) requires that in order for Mrs Clark to qualify for a Widow Allowance she must among other things, be single. Being a member of a couple would disqualify Mrs Clark from receiving any widow allowance in the relevant period.
15. Both Newstart Allowance and Austudy can be paid to a member of a couple however the maximum rate payable is less than that for a single person (sections 1068B and 1067L-B respectively of the Act). Mr Bambrick's basic maximum entitlement is reduced if he is found to be a member of a couple.
16. It is accepted that the criteria set out in sub-section 4(3) are not exclusive, nor in every case is equal weight given to each of the criteria. As noted by the Tribunal in Peck and SDSS (1992) 76 SSR 1107:
"The Tribunal would note at the outset that s4(3) does not contain an exhaustive list of criteria to be addressed in determining whether a "marriage-like relationship" exists (Re Staunton-Smith and Secretary, Department of Social Security (1990) 21 ALD 456) and the weight to be given each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship. Much will depend, in forming the requisite opinion in any instance, on matters of degree and impression. (Re Bourke and Secretary, Department of Social Security (Dec No 4184: 2 March 1988))".
Financial Aspects of a Relationship:
17. The first criterion under this heading is that of joint ownership of real estate or other major assets as well as joint liabilities. The only significant asset owned by each of the parties is their property at 32-40 Crowther Street, Beaconsfield which they hold as joint tenants. Mrs Clark paid a deposit on the property in July 2000 and the outstanding balance in mid-September 2000. The total purchase price of $90,000.00 was paid by Mrs Clark. The contract for the purchase of the Beaconsfield property was entered into jointly by John Bambrick and Sandra Clark who both signed the documents. It was Mrs Clark's evidence that the property would always be regarded as hers and she did not expect Mr Bambrick to contribute to the purchase price. When asked by Mr Sparkes why Mr Bambrick's name was included on the Contract for Sale, Mrs Clark replied:
"Because the real estate wouldn't take any notice of a woman who they thought wanted to buy a home. So John was like a person that I could talk to, to help me purchase my home. And, yes, he shouldn't have signed the papers when I say it is my home, but because he has done that like that he knows it's my home". (Transcript page 26).
18. Both Mr Bambrick and Mrs Clark attended the solicitor's office to settle the purchase of the property. They acknowledged that the solicitor explained the consequences of joint ownership and the legal differences between ownership as tenants in common and joint tenants. Regardless of the explanation, it would appear that Mrs Clark chose to have the title registered in their joint names as joint tenants. She maintains that it has always been understood that the house is hers and that she trusts Mr Bambrick to do the right thing and recognise her interest. It is apparent that Mrs Clark understands the distinction between joint tenancy and tenants in common. She said that she had owned property with her former husband as tenants in common and the consequences of this was explained by the trustee who prepared their wills.
19. It was the evidence of Mrs Clark and Mr Bambrick that Mr Bambrick has since expended monies on improvements to the property which roughly total one half of its purchase price, being $45,000.00. Those improvements have included a garden shed costing between $8,000.00 and $9,000.00, furniture in the form of beds, a lounge suite, tools, a television, drapes and blinds totalling approximately $13,000.00, work on a veranda, paving between $6,500.00 to $7,000.00, fencing of approximately $7,000.00, earthworks of between $4,000.00 and $4,500.00, the hire of an excavator of $1,500.00, the purchase and installation of a water tank which cost between $1,500.00 and $1,800.00.
20. The parties said that they had not discussed or finalised Mr Bambrick's entitlement to a share of the property upon its sale but that he would receive "his fair share".
21. Mrs Clark experienced difficulty in obtaining employment in Tasmania and in 2005 decided to move to Kangaroo Island where she obtained work at the local Health Service. It was her evidence that she decided to place the Beaconsfield property on the market for sale and packed her belongings prior to leaving. The property was placed with Tamar First National Real Estate who sought offers over $345,000.00. The property did not sell. Mr Bambrick continued to reside in the property during Mrs Clark's absence. Mrs Clark said that it was her intention to return to South Australia and that she saw her employment on Kangaroo Island as a stepping stone in the process. Her son was then residing on the Island. Mrs Clark said that she was forced to borrow $3,000.00 to establish herself and that she had not asked Mr Bambrick for any financial assistance. Mrs Clark continued to pay one half of the rates on the Beaconsfield property during her absence. She subsequently returned to Tasmania to reside in the Beaconsfield property.
22. Mrs Clark and Mr Bambrick jointly pay the rates on the Beaconsfield property in the sum of $1,200.00 per annum. The money for the rates, insurance and electricity accounts is saved by the parties on a periodic basis by placing their contributions in a jar. Mr Bambrick described how there are a number of jars into which funds are periodically placed. For example there is a separate jar for the hydro and Mrs Clark has her own jar for Christmas savings. Otherwise the parties purchase their own food although they may attend the supermarket together. They generally cook separate meals as they have different tastes in food. They may share an occasional roast dinner.
23. It was contended by Mr Sparkes on behalf of the Secretary that the evidence supports a finding that the parties pooled their resources to meet joint liabilities. Sub-paragraph 3(1)(ii) refers to "any significant pooling of financial resources especially in relation to major financial commitments". The only significant financial commitment of the parties is with respect to the rates and perhaps the electricity accounts.
24. Apart from the rates commitment, there was no evidence that either party had any major financial commitments or legal obligations. Their arrangement appears to be that they both contribute towards the day to day household expenses and where there is a joint contribution, it represents a shared usage. The only other assets owned by the parties are their motor vehicles which are registered in their separate names. Both parties also have their own separate bank accounts.
Nature of the Household:
25. The evidence from the parties was that they have occupied separate bedrooms during the relevant periods and there was no evidence to the contrary. Mr Bambrick takes responsibility for the cleaning of his bedroom and Mrs Clark attends to the rest of the house. Each has their own bathroom. As stated above, generally they do not cook or eat together but may occasionally share a roast dinner. They purchase their own groceries in separate trolleys although may attend the supermarket together. They pay separately for their own groceries.
26. Both parties attend to the gardening in their own time. They are both currently employed.
Social Aspects of the Relationship:
27. Both Mrs Clark and Mr Bambrick maintained they have not lived in a marriage-like relationship during the relevant periods and that their former relationship ended in 1997.
28. There was no evidence that the parties held themselves out as being married to each other. They socialise little and neither is a member of any social club. The only people that they see on a regular basis are an elderly couple, John and Virginia Graham who they visit once a fortnight. Mr Bambrick described the visits as "common courtesy" as Mr and Mrs Graham suffer fairly significant health problems and have no family members in Tasmania. Mr and Mrs Graham were known to Mrs Clark and Mr Bambrick when they resided in South Australia and it would appear that they feel some sort of obligation to keep in touch. Neither Mr or Mrs Graham were called to give evidence in relation to the nature of the relationship between Mrs Clark and Mr Bambrick.
29. Apart from the fortnightly visits to Mr and Mrs Graham there was no evidence of other occasions when Mrs Clark and Mr Bambrick socialised together.
30. Mr Bambrick described their relationship as "just two friends sharing a house". Both said that either is free to leave at any time of their choosing. There was no evidence of their future plans regarding the living arrangements.
31. Mr Bambrick claimed that they watch their own television programs as he prefers SBS and the ABC. Mr Bambrick said that he looks after himself when he is unwell and that Mrs Clark does not offer him emotional support except as a friend.
Sexual Relationship:
32. Both parties maintained that there has not been any sexual intimacy following the conclusion of their relationship in 1997 and there was no evidence to the contrary. Both said that they would have no difficulty with either of them entering into a new relationship.
Commitment:
33. Apart from the period when Mrs Clark left Tasmania to live and work on Kangaroo Island, Mr Bambrick and Mrs Clark have lived together under the one roof in the Beaconsfield property since mid to late 2000. There was no evidence that either party intended this arrangement to change in the near future. Neither party had any long term plans either to continue or terminate the arrangement.
34. Mrs Clark's departure for Kangaroo Island however is significant in that the Tribunal accepts her evidence that it was her intention that the departure be permanent. It was her desire to obtain employment and perhaps eventually return to South Australia where her daughter resided. Mrs Clark's original reason for coming to Tasmania was so that she could purchase a home that she could afford and obtain employment. When she departed for Kangaroo Island, the Beaconsfield property was placed on the market for sale and Mrs Clark packed up her belongings. The arrangement was that Mr Bambrick would remain in the property until its sale. There were no plans for him to join Mrs Clark on Kangaroo Island or later in South Australia. In the Tribunal's view, these arrangements mitigate against a finding of any strong commitment of a long term relationship between the parties.
Centrelink documents:
35. Mr Sparkes referred to a response included by Mrs Clark in her Widows Allowance Claim Form completed on 11 August 2002 to a question: "Do you share your accommodation with anyone else?" - to which Mrs Clark answered: "No" - despite having described her permanent home address as that of Mr Bambrick. Mrs Clark explained that she was in fact residing with her daughter at the time but that her furniture was stored at Mr Bambrick's residence. She moved to live at Mr Bambrick's residence on a temporary basis after her daughter moved out of her home on 28 August 2000. The Tribunal accepts Mrs Clark's evidence that when she moved into Mr Bambrick's residence it was on a temporary basis pending her move to Tasmania and that she did not live with him as a member of a couple.
36. Mr Sparkes referred to a customer declaration form which had been signed by Mrs Clark on 1 June 2005 in which her marital status was described as "de facto". Mrs Clark disputes that she was ever in a de facto relationship and while she agrees that she initialled the typed form, she disputes that she provided that information. Mrs Clark maintained that once her Widow Allowance was terminated, she was only able to obtain a Newstart Allowance by completing the form.
37. Mrs Clark also maintains that when she attended at the Murray Bridge Customer Service Centre in South Australia prior to her departure for Tasmania she openly disclosed to a Centrelink officer that she intended to move to Tasmania and share a house with Mr Bambrick. The Respondent argued that if such an appointment had taken place there would be a record on Centrelink's file which there is not.
38. Bruce Kelly, a Customer Services Advisor at the Murray Bridge Customer Service Centre gave evidence by telephone. He said that he had a vague recollection of seeing Mrs Clark at reception but did not specifically recall the interview. He also "had a feeling" that Tasmania was mentioned in the discussions but could not recall Mr Bambrick being present. Neither could he recall being shown any documentation relating to a property.
39. This is not surprising as Mr Kelly said that he would see on average up to fifty people each day when on reception and conduct between ten and fifteen interviews, so potentially he would see ten thousand people per year. When asked by Mr Bartle whether he had suggested that Mrs Clark apply for a Widows Allowance during the course of the interview with Mrs Clark, he said it was possible. He also confirmed that he was not required to make a record of any discussions that he held with Mrs Clark.
40. In light of Mr Kelly's evidence the Tribunal has no basis on which it would not accept the evidence of Mrs Clark and Mr Bambrick regarding this appointment.
Conclusion:
41. Whilst neither Mrs Clark nor Mr Bambrick regard their relationship as marriage-like, the relevant criteria in section 4(3) are to be looked at objectively and the weight to be attached to each varies from case to case. As the Tribunal stated in Re Peck (Supra):
"Section 4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a marriage-like relationship exists
...
and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship".
42. Mr Sparkes argued that the circumstances of the parties financial relationship is significant. Whilst he agreed that the provision of financial support can never be determinative in itself, he argued that in this case, there was and remains a significant degree of ongoing interdependence. Mr Sparkes referred to the parties joint purchase of the Beaconsfield property and their ongoing financial commitments in relation to the outgoings on the property.
43. It is true that the only significant financial asset of the parties is their home and that it is registered in both names as joint tenants. Both Mrs Clark and Mr Bambrick insist that the property is the applicant's and that Mr Bambrick will only receive his fair share on its disposition. They concede that the "fair share" is not necessarily one half of the value of the property but would represent at least Mr Bambrick's contributions which to date amount to approximately $45,000.00. Given the legal consequences of the joint tenancy, Mrs Clark's level of trust in Mr Bambrick is considerable. The Tribunal has difficulty in accepting the rationale behind the joint tenancy arrangement particularly when Mrs Clark would have been aware of its legal status.
44. Mrs Clark does not currently have a valid will as her former will became invalid following the death of her husband. She has two children and said that it is her intention to leave her share of her property to them.
45. In the Tribunal's view there is little other evidence apart from the financial relationship between the parties to support a finding that they are living in a marriage-like relationship. The absence of a sexual relationship is not determinative of the relationship, but is a relevant factor together with the evidence as to the living arrangements, emotional support, social aspects and level of commitment. The Tribunal has examined each of the relevant criteria and concludes that the circumstances of this case support a finding of mutual friendship rather than a marriage-like relationship.
46. The Tribunal is unable to make positive findings in relation to the relevant criteria in section 4(3). For instance there is no evidence that the parties hold themselves out as being married to each other or that they live in a marriage-like relationship. There is no evidence of mutual emotional support or companionship or any particular commitment one to the other. There is no evidence of a sexual relationship nor is there any evidence that the parties socialise together for their only social outing is to visit Mr and Mrs Graham. The wording of section 4(3) suggests that the evidence should support positive findings with respect to the individual criteria. Whilst the legislation does not provide for an evidentiary onus of proof, it is on the whole accepted that it is incumbent upon the Department to adduce sufficient evidence to satisfy the Tribunal where it has decided to cancel a pension benefit. As stated in the decision Re Shearing and Director-General of Social Security (1983) 6 ALN N12, mere suspicion is not sufficient in order to cancel a pension or benefit. In Re Wood and Director-General of Social Security (1984) AATA 1434 6 March 1984 the Tribunal was unable to determine the status of the relationship and said at page 14:
"I find it extremely difficult to draw a clear line of definition between the contention on the one hand that the relationship is one of de facto marriage and on the other that it is similar to that of mother and child ...or to that of brother and sister ..." (Transcript page 14).
The Tribunal said that the applicant was not required to satisfy the Secretary as to the status of the relationship and found that the applicant was entitled to have his rate of benefit calculated on the basis that he was not living in a de facto relationship.
47. In referring to the Federal Court's decision in McDonald v Director-General of Social Security (1984) 6 ALD 6, the Tribunal in Re Hodgson & SDSS (1988) AAT 4279 11 March 1988, concluded:
"Thus, I had no alternative but to resolve the very real uncertainty that I felt existed on the material before me in favour of the applicant. I could not find that they were in a de facto relationship at the relevant time. But equally, I could not find that they were not".
48. Where some uncertainty exists as to the nature of the relationship in the case where the review is with respect to a decision to cancel a pension, the discretion is ordinarily exercised in favour of the applicant.
49. The Tribunal is not persuaded that the parties meet the legal definition of a marriage-like relationship as articulated by the criteria set out in section 4(3). The Tribunal does not accept that the joint ownership of the Beaconsfield property is a determinative factor. The arrangement could be likened to that of a brother and sister who live together in a jointly owned property. The parties arrangement certainly invokes a high level of trust which Mrs Clark apparently has for Mr Bambrick's intentions regarding his legal interest in the property. The fact that the parties pool their resources in the form of contributing money by placing it in various jars to pay for various financial expenses does not in the Tribunal's view, support a finding of a significant pooling of resources such as to found a marriage-like relationship. It is no different from an arrangement commonly used by flat-mates to pay for jointly incurred household expenses.
50. The Tribunal in Needer v SDSS (1993) 73 SSR 1074 had no difficulty in concluding the absence of a marriage-like relationship despite the evidence of a jointly owned house in which the parties resided as well as an investment property and a prior "casual intermittent sexual relationship" which had fizzled out in recent years. Mr Hatchett had also asked Ms Needer to marry him ten years hence. Together they had taken out an interest only loan to purchase the investment property. Mr Hatchett had also given Ms Needer some assistance in helping to care for her invalid son. They also sometimes engaged in joint social activities and had been on holidays together. The Tribunal accepted that they supported each other emotionally and were good friends. There was some evidence that Ms Needer would probably terminate the relationship soon because she wished to move to Bundaberg to care for her son. The Tribunal concluded that the relationship was one of friendship which may be greater than that of many married couples and said at paragraph 6:
"It seems to me that when single people are in their mid-t0-late 50's and beyond they are looking for security, companionship and living accommodation which they will be able to afford for the years ahead of them. They avoid, if they can, mingling their finances, pooling their resources (other than in obtaining accommodation), and consulting each other on a day-to-day basis about everyday affairs. They wish to be independent so far as they are able".
In referring to this quotation, Peter Sutherland in Social Security and Family Assistance Law commented at page 32:
"The Tribunal suggested that the statutory criteria are more appropriately applied to younger couples".
51. The Tribunal similarly concludes in the present case that the joint ownership of property is not a decisive factor for this middle-aged couple where all other aspects of the relationship do not lead to a conclusion that the parties are living as members of a couple. Rather, the relationship constituted two long term friends sharing a house.
52. The Tribunal rejects Mr Sparkes' suggestion that both parties had attempted to hide the true nature of their relationship to Centrelink. The Tribunal accepts the parties evidence that they did not have a relationship to hide. At no time did they view their relationship as marriage-like. The Tribunal accepts the evidence of both Mrs Clark and Mr Bambrick and in particular found Mrs Clark a credible and honest witness. The lack of corroboration of their evidence should not be held against them because there was no suggestion that there were any other available witnesses apart from Mr and Mrs Graham who could give evidence in support. The Tribunal understands the parties reluctance to involve Mr and Mrs Graham in these proceedings and doubts whether their evidence would have been of much assistance in any event.
53. For the above reasons the Tribunal finds that Mrs Clark and Mr Bambrick were not living in a marriage-like relationship during the relevant period. The Tribunal sets aside the decisions under review, and remits the matter to the Secretary for reassessment in accordance with the Tribunal's finding..
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 6 & 18 December 2007
Date of Decision 4 April 2008
Counsel for the Applicant Mr Ben Bartl
Solicitor for the Applicant Hobart Community Legal Service
Counsel for the Respondent Mr Brian Sparkes
Solicitor for the Respondent Centrelink Legal Services
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