BISHOP and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2011] AATA 531
•29 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 531
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4750
GENERAL ADMINISTRATIVE DIVISION ) Re REBECCA BISHOP Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date29 July 2011
PlaceHobart
Decision The decision under review is affirmed.
[Sgd Ms A F Cunningham]
Senior Member
CATCHWORDS
SOCIAL SECURITY – parenting payment single – member of a couple – nature of the relationship – multiple residences shared with male person between two and three nights in each week – decision under review finding applicant a member of a couple affirmed – overpayments raised for parenting payment single, family tax benefit and childcare benefit for the relevant period – overpayments recoverable
Social Security Act 1991, ss 4(2), 4(3), 24(2), 1236, 1237
A New Taxation System (Family Assistance) Act 1999, ss 3, 95, 101
Staunton Smith v Secretary, Department of Social Security (1991) 25 ALD 27
Re Utczas and Anor and Secretary, Department of Social Security (1989) ALD 110
Re Roberts and SDSS (1987) 12 ALD 723
Beadle and Director-General of Social Security (1984) 6 ALD 1
REASONS FOR DECISION
29 July 2011 Ms A F Cunningham (Senior Member) 1. The applicant, Rebecca Bishop, was in receipt of parenting payment single (PPS) from 21 May 2003 following the birth of her daughter. Ms Bishop was also in receipt of family tax benefit (FTB) and child care benefit (CCB) at various times since May 2003, calculated on the basis that she was a single person.
2. On 15 December 2008 a Centrelink officer determined that Ms Bishop had been living in a marriage-like relationship with Gary Collier since 2 December 2003 and reassessed Ms Bishop’s entitlement to parenting payment and her FTB and CCB. As a result of the reassessment the following overpayments were raised:
·$63,313.68 parenting payment single paid for the period 25 November 2003 to 1 December 2006;
·$5,265.85 family tax benefit paid for the period 1 July 2005 to 30 June 2006;
·$2,496.30 family tax benefit paid for the period 1 July 2006 to 30 June 2007;
·$4,710.92 family tax benefit paid for the period 1 July 2007 to 30 June 2008;
·$656.77 childcare benefit paid from 22 December 2003 to 3 July 2005
3. The decision of the Centrelink officer was affirmed by an authorised review officer and by the Social Security Appeals Tribunal on 2 September 2009. Ms Bishop now seeks the review of the decision by the Administrative Appeals Tribunal.
ISSUES
4. The issues for the Tribunal to determine are:
a) Whether Ms Bishop was living with Gary Collier and a member of a couple for the purposes of section 4(2) of the Social Security Act 1991 (the Act) since 2 December 2003;
b) Was Ms Bishop overpaid PPS, FTB and CCB;
c) Should the overpayments be recovered.
5. Ms Bishop’s counsel, James Kitto, advised the Tribunal that his client disputes the finding that she was living with Mr Collier as a member of a couple and accordingly contests recovery of the debt. However it is not contested that the overpayment amounts had been correctly calculated in accordance with the Act. Mr Kitto advised that if the Tribunal found that Ms Bishop was living as a member of a couple which would give rise to the overpayments as calculated, it is contended that Ms Bishop has no capacity to repay the debts which should be written off pursuant to section 1236 of the Act and section 95 of the A New Taxation System (Family Assistance) Act 1999 (the FA Act).
LEGISLATION
6. The relevant law is contained in the Social Security Act 1991 and in particular sub-section 4(2) and (3).
7. The rate of parenting payment varies according as to whether or not a person is a “member of a couple” within the meaning of section 4(2) of the Act. If a person is not a member of a couple, the person is entitled to PP (Single) as calculated in accordance with section 1068A at the single rate and the rate is not reduced by the income of the person’s partner. The single rate of parenting payment is higher than the partnered rate and the income test is also more generous.
8. If FTB is received by a member of a couple then pursuant to clause 3 of the FA Act, the rate of the FTB Part A is dependent on the combined income of the couple. In addition, payment of FTB Part B may be made to the member of the couple with the lower income depending on that person’s income.
9. Ms Bishop’s social security payments were made on the basis that she was a single person until the determination made by the Centrelink officer on 15 December 2008.
10. Where a person is not legally married to a partner, section 4(2)(b) relevantly provides that the person is a “member of a couple” for the purposes of the Act where
“4(2)
(a) …
(b) all of the following conditions are met:
(i) the person has a relationship with another person, whether of the same sex or a different 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”.
11. The FA Act definition of a couple is the same as for the Act definition (section 3 FA Act).
12. The criteria to which regard is to be had in informing an opinion about the nature of the parties relationship as set out in section 4(3) is as follows:
(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”.
13. The above criteria are expressed in terms of circumstances which suggest a marriage-like relationship. Regard should be had to all of the circumstances of the relationship. The Federal Court in its decision Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27 found that the Tribunal had erred by only making findings with respect of those circumstances which suggested a marital relationship and not those suggesting separateness such as the absence of a sexual and social relationship. The list in section 4(3) is not exhaustive and other relevant factors may be taken into account. The existence or absence of any one factor is not conclusive.
14. The following provisions may also be relevant section 4(3A):
“(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis”.
And section 24(2):
“ (2) Where:
(a) a person has a relationship with another person, whether of the same sex or a different sex (the partner); and
(b) the person is not legally married to the partner; and
(c) the relationship between the person and the partner is a marriage-like relationship; and
(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act”.
THE EVIDENCE
15. The Tribunal received evidence from a number of witnesses which included oral evidence and written statements. The T Documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act). Also tendered was a separate bundle of section 37 documents relating to Gary Collier. They were subject to a confidentiality order made pursuant to section 35 of the AAT Act directing that there be no identifying publication of Mr Collier’s bank accounts, date of birth and drivers licence number.
16. Ms Bishop claimed that she had never lived with Mr Collier in a partnered relationship and described their relationship as one of friendship and “really good mates”. Ms Bishop said that she and Mr Collier had known each other since childhood, having lived next door to each other. Whilst she agreed that they had shared residences on a number of occasions, Ms Bishop maintained that they occupied separate bedrooms and did not live together as a couple. Ms Bishop said that Mr Collier never spent more than three nights in each week at the various residences occupied by her, and that he was there mainly to have contact with the couple’s daughter.
17. Ms Bishop’s Centrelink records (which were not contested by Ms Bishop) indicate her home addresses for the various relevant periods as:
Invermay Road, Invermay 22 September 2003 – 4 December 2004
Wylrose Place, South Launceston 5 December 2004 – 3 October 2006
Lambert Street, Ravenswood 4 October 2006 – 22 August 2007
Sorrell Street, George Town 23 August 2007 – 3 October 2007
Cherry Farm Road, Underwood 4 October 2007 – 24 February 2009
INVERMAY ROAD
18. It was Ms Bishop’s evidence to this Tribunal that she lived with her first child at Invermay Road and that her mother and brother would occasionally stay overnight. Ms Bishop maintained that she was not in a relationship with Mr Collier at this time because she was seeing Steve Williams who was the father of her first child.
19. It was Ms Bishop’s evidence that Mr Collier would stay with her a few nights in each week. When asked in cross-examination whether he had stayed at Invermay Road Mr Collier replied, “might have, not often” and in response to whether the frequency was one to two times a week he responded, “not that regular”. Mr Collier disputed that he was in a relationship with Ms Bishop and said that they were “just good friends”. Mr Collier said that he had tried to start a relationship a few times with Ms Bishop but that “it never worked out”. When asked where he was residing at this time Mr Collier replied, at his parents. On the other hand Ms Bishop never agreed that Mr Collier had stayed overnight at Invermay Road.
20. Mr Collier was asked why he had nominated Invermay Road as his address in his application for employment with Hardy Wine Company and gave Rebecca Bishop’s name for emergency contact describing his relationship with her as “girlfriend” (T7 Collier T Docs). In a Centrelink document completed by Mr Collier’s Host Plus Super Fund on 20 December 2007 it is stated that the beneficiary of his policy is Rebecca Bishop and that his address is Invermay Road, Launceston between 21 January 2004 and 22 August 2005 (T8 Collier T Docs). On another document (T6 Collier T Docs) completed by Veda Advantage Information Services, Mr Collier’s address on 22 November 2004 is recorded as Invermay Road and his employment with Hardy Wine Company.
21. Mr Collier said that he had nominated Ms Bishop as his superannuation beneficiary because they had been friends since they were kids. When asked why he had listed Invermay Road as his address in the aforementioned documents, he agreed that he spent between one and two days a week at Invermay Road.
22. It was Ms Bishop’s evidence that it was late in 2003 when she ran into Mr Collier in the street after not seeing him for some ten years as he had been living on the mainland. Ms Bishop said that she had not been aware that Mr Collier had nominated her as his beneficiary and only learnt this in the course of the Centrelink review process. She disputed that she was ever Mr Collier’s girlfriend and said that their daughter had been conceived when they slept together following a party.
WYLROSE PLACE
23. The lease agreement for Wylrose Place was signed jointly by Ms Bishop and Mr Collier on 5 December 2004. A document completed by the landlord, Philip Goss on 3 December 2007 (T9) states that the rental payments were usually deposited by direct debit from Mr Collier’s account. The rent was initially $175.00 per week rising to $190.00 per week following the installation of a wood heater in June 2005. The premises were occupied until 5 October 2006.
24. It was Ms Bishop’s evidence that Mr Collier had assisted her in obtaining accommodation by offering to put his name on the lease for Wylrose Place. She said that Mr Collier stayed at the residence on a couple of nights a week and spent the rest of his time either at his parent’s house or staying with mates. Ms Bishop explained how they shared the rental payments equally and that she would deposit her money into Mr Collier’s bank account on alternate weeks. Ms Bishop maintained that when Mr Collier stayed overnight it was during the week rather than at the weekend. Ms Bishop said that they shared the power and gas bills equally and that they made their own meals and performed their own washing. The arrangement was that Ms Bishop was responsible for the interior of the house and Mr Collier looked after the garden. Ms Bishop said that Mr Collier would generally spend the evenings in the shed in the garden where he kept many of his belongings.
25. There are a number of documents contained in Mr Collier’s T Documents which record his address as Wylrose Place. They include a TCS record, Vida Advantage document, superannuation fund record, Flexi Rent application, DIER document and employment record for Hardy Wine. When asked about these nominations and whether she was aware of them, Ms Bishop replied “well, he was over a few days a week so, yes. I assume he would use that address”. The documentation reveals that when Mr Collier applied for rental accommodation at Cherry Farm Road, he indicated that he had lived at Wylrose Place for two and a half years. (T15 – Collier T Docs). In this document Mr Collier claimed that he had paid rent of $230.00 per week and nominated Rebecca Bishop as the agent.
26. In a Personal Detail for Child Support Form (at T5) completed whilst she was living at Wylrose Place on 19 October 2005, Ms Bishop nominated Wylrose Place as her home address and Gary Nathan Collier as the father of her child. She nominated 12 February 2005 as the date of their separation and that Mr Collier was not paying any child support “because he has turned violent and I don’t want anything to do with him”. She stated that she paid rent of $190.00 per week to Philip Goss, In answer to the question whether she shared accommodation with a person of the opposite sex other than a relative she stated, ”no”. It was Mr Goss’ evidence that he “visited the property approximately once a month throughout the period of the lease and to my best recollection Mr Collier and Ms Bishop were both present at the property until they vacated it in October 2006”.
LAMBERT STREET
27. The residential tenancy agreement on the file (T7) shows Rebecca Bishop as the tenant with a start date of 4 October 2006 and rent payable in the amount of $165.00 per week. Ms Bishop confirmed that she lived at this address with her two daughters and that Mr Collier would stay one or two nights per week when on shift work. Ms Bishop maintained that for the balance of the week he was living with friends at Lilydale Road, just out of Rocherlea.
28. When asked why the power was connected in Mr Collier’s name Ms Bishop replied that she had asked him to arrange the connection. She said that the only financial support she received from Mr Collier was for their daughter’s needs. She had a private arrangement with Mr Collier in that he would contribute cash towards purchases made for their daughter from time to time.
29. In the ARO’s decision statement of 23 January 2009 it is recorded that Mr Collier had listed Lambert Street as his address with the Tasmanian Motor Registry and the Tasmanian Collection Service on two occasions and that Ms Bishop had advised that Mr Collier “would stay over around three times per week”. Mr Collier had also nominated Lambert Street as his home address with his employer, Heritage Isle.
SORELL STREET, GEORGE TOWN
30. This is the address of Ms Bishop’s mother where Ms Bishop maintained that she lived after vacating Lambert Street.
CHERRY FARM ROAD, UNDERWOOD
31. This property was leased by Mr Collier from 16 August 2007. The power was connected in his name (Collier T Docs T5/2) and the Department of Infrastructure Energy and Resources recorded Mr Collier’s address at 5 December 2007 as Cherry Farm Road (T9/15).
32. In his application for the property Mr Collier listed himself, Ms Bishop’s daughter and their daughter as the occupants adding that his place of work is 15 minutes away and the day care provider 20 minutes away. (Collier T Docs T15). Roberts Rentals reported that an adult female occupant started residing at the property sometime after Mr Collier moved in (T14 Collier T Docs).
33. In the ARO’s decision statement it is recorded that Ms Bishop had advised that after she had moved to her mother’s address at George Town, Mr Collier wanted her to stay with him at Cherry Farm Road and that she stayed there around three times per week but they occupied separate bedrooms. Crisco Hampers recorded in a document dated 28 February 2008 that Ms Bishop and Mr Collier both had an account with them and recorded the delivery address as Cherry Farm Road. It is stated that on 22 January 2009 Ms Bishop had advised that generally she does the shopping on her own and cooks meals for herself and the children and that Mr Collier fixes his own meals.
34. When Ms Bishop was asked during cross-examination why her name was listed in the white pages at Cherry Farm Road, she explained that she had arranged to have the telephone connected at her mother’s insistence because there was no mobile phone connection and she was concerned that the children may need medical attention.
35. In a surveillance report dated 5 November 2008 Ms Bishop was observed leaving Cherry Farm Road at 8.41 am on 30 October 2008 in her vehicle. That afternoon she was observed leaving the Lilydale District School at 2.54 pm and returning to Cherry Farm Road at 3.00 pm.
36. It was Ms Bishop’s evidence that she had enrolled her eldest daughter at the nearby Lilydale School although she claimed to be living at her mother’s residence at George Town at the time.
37. In her evidence to this Tribunal Ms Bishop said that she went to Cherry Farm Road occasionally taking her youngest daughter to visit her father. She subsequently stated that between October 2007 and February 2009 she stayed at Cherry Farm Road between two and three nights each week. The SSAT records in its decision that Ms Bishop had stated that she stayed there once or twice a week so their daughter could see her father.
38. The SSAT noted a number of discrepancies in the evidence regarding Ms Bishop’s living arrangements at this time. When Ms Bishop was asked why the children were included in Mr Collier’s rental application she had allegedly stated, because they were going to stay there but she was unable to explain why her name was not also included. She could not explain why Mr Collier had referred to the need to be closer to child care services when at the time, the children were not in care. The Tribunal also commented on the one hundred and forty kilometre round trip that Ms Bishop would have had to have undertaken to enable her 5 year old to attend Lilydale Primary School if she had in fact been residing with her mother at George Town where there are other primary schools. It was Ms Bishop’s evidence that her daughter attended school on three days each week which would be consistent with Ms Bishop spending between two and three nights each week at Cherry Farm Road.
ANALYSIS
39. In forming an opinion about the nature of the parties relationship as required by sub-section 4(3) regard is to be had to the following:
Financial Aspects of the Relationship
40. It was the evidence of both Ms Bishop and Mr Collier that they held no jointly owned assets or liabilities and had never jointly applied for credit. Ms Bishop’s only assets comprised a motor vehicle, some furniture and personal belongings.
41. Ms Bishop and Mr Collier entered into a joint lease for Wylrose Place from 5 December 2004 to 6 October 2006 and equally shared the rental commitment, this was despite their evidence that Mr Collier did not spend any more than three nights per week at the residence. It is notable that Mr Collier had named Ms Bishop as the sole beneficiary of his Host Plus Superannuation on 21 January 2004. It was the parties evidence that other costs such as gas and electricity were shared between them.
42. Mr Collier paid child support for his daughter by way of a private arrangement in that he would contribute towards her expenses and needs. Whilst the lease for Cherry Farm Road was in Mr Collier’s name, the telephone was connected in Ms Bishop’s name.
43. The Tribunal accepts the evidence regarding the couples financial relationship as outlined above.
The Nature of the Household
44. The evidence regarding the nature of Ms Bishop’s various households and in particular the living arrangements, varied as set out above. The Tribunal finds that Mr Collier stayed overnight at each of the residences occupied by Ms Bishop, apart from her mother’s residence at George Town and that the time spent varied between two to three nights in each week. There was no evidence that Mr Collier spent any more than three nights in each week at any of Ms Bishop’s residences. The Tribunal accepts that Ms Bishop restricted her overnight stays at Cherry Farm Road to three nights in each week. Ms Bishop stated in evidence that she had been informed by a Centrelink officer that provided Mr Collier spent no more than three nights in each week at her residence, she would not be regarded as a member of a couple. Whether or not this is fact occurred, it was Ms Bishop’s understanding that in order to remain entitled to parenting payment single, she and Mr Collier should spend no more than three nights in each week under the same roof.
45. Mr Sparkes submitted that no such advice would have been given by a Centrelink officer because this is not in fact a relevant factor in assessing entitlement to parenting payment. Nevertheless the Tribunal accepts that this was Ms Bishop’s understanding and finds that Ms Bishop was intent on ensuring that she did not present as a member of a couple in order to retain her parenting payment single.
46. The number of nights that two people spend together under the one roof is not determinative of the issue as to whether or not they are in a marriage like relationship. The Tribunal in Re Utczas and Anor and Secretary, Department of Social Security (1989) 19 ALD 110 held that despite a couple’s maintenance of separate residences, they were not found to be living separately and apart and should be treated as still married to one another.
47. Ms Bishop’s intentions and attitude to their living arrangements are confirmed in the Assessment of Living Arrangements form at T3 page 24, which she completed some three days after first occupying Wylrose Place. In the form she stated that her friend, Gary Nathan Collier first stayed at the residence from 5 December 2004 and stays away four days a week with friends and family. When asked during cross-examination whether she had stated that Mr Collier stayed away from the premises on four days a week so that she would continue to be assessed as a single person she replied, “no that wasn’t the only reason”.
48. Ms Bishop has maintained that Mr Collier did not share her residence at Invermay Road whereas it was Mr Collier’s evidence that he spent between one and two nights per week at the residence and slept in the sunroom.
49. It was during Ms Bishop’s occupation of Invermay Road that Mr Collier nominated her as his sole beneficiary for his superannuation entitlements and nominated Invermay Road as his address with his employer. Whilst Mr Collier was guarded in his responses regarding the time spent at Invermay Road, the Tribunal accepts that he spent at least one to two nights each week at that residence and rejects Ms Bishop’s evidence that he had never stayed overnight at Invermay Road.
50. The evidence of Ms Bishop and Mr Collier was more consistent regarding their living arrangements at Wylrose Place which they jointly leased and shared the rent and other outgoings equally. This is despite their evidence that Mr Collier spent approximately four nights in each week away from the residence. The Tribunal accepts that whilst on occasions it may have been convenient for Mr Collier to stay overnight with friends following a drinking party or because of work arrangements, the main reason why Mr Collier chose not to spend every night at Wylrose Place was to give the impression that Ms Bishop was not living in a marriage like relationship.
51. It was during their occupation of Wylrose Place that their daughter was conceived and born. Whilst Ms Bishop maintains that she had a number of sexual partners from time to time, this does not in the Tribunal’s view, necessarily avoid a conclusion that she was living in a marriage like relationship with Mr Collier. It was Ms Bishop’s evidence that she had never had a proper partner since she was 19 years old however the ARO recorded in her decision that Ms Bishop had later moved to (Lambert Street) Ravenswood when the lease expired for Wylrose Place to “try and sort things out” with Mr Collier and see “if a relationship would work”. The ARO notes of interview with Ms Bishop (T23) state that when they moved to Lambert Street they had a sexual relationship “roughly once per week” and that Mr Collier would stay at her house around three nights per week.
52. On the Details of Child Support Form (at T5), Ms Bishop had stated on 19 October 2005 which was mid-way through the lease at Wylrose Place, that because Mr Collier had turned violent, she did not want anything to do with him and this is the reason why she did not receive child support. There was no evidence however that Mr Collier ceased to spend several nights each week at Wylrose Place during this period or that he ceased his financial contributions towards his daughter’s support. There is simply no evidence to support Ms Bishop’s statement in her child support form.
53. It was the evidence of Ms Bishlop and Mr Collier that Ms Bishop was generally responsible for the interior of the home at Wylrose Place and Mr Collier attended to the outside area. This arrangement is consistent with that of a married couple who jointly lease a property.
54. Mr Collier listed Lambert Street as his address with the Motor Registry as well as the TCS and his employer Heritage Isle. It was Ms Bishop’s evidence that he would stay over around three times per week. The Tribunal considers that Ms Bishop and Mr Collier maintained the same living arrangements as they had shared at Wylrose Place.
55. Whilst the lease for Cherry Farm Road was in Mr Collier’s name, it is the Tribunal’s finding that Ms Bishop spent between two and three nights per week at this address. She arranged to have the telephone connected in her name and enrolled her daughter at the local school. She was also observed leaving Cherry Farm Road and delivering her daughter to the Lilydale District School and returning to Cherry Farm Road that afternoon.
Whilst it may have been Ms Bishop’s understanding that she would still be entitled to parenting payment single if she spent no more than three nights under the same roof as Mr Collier, there are many more elements to the assessment of the nature of a person’s relationship.
Social Aspects of the Relationship
56. Both Mr Collier and Ms Bishop were adamant that they had never held themselves out as married to each other and the evidence of Ms Bishop’s friends confirms this. It was their evidence that they only socialised occasionally to celebrate their daughter’s birthdays. There is other documentary evidence however, which suggests that their relationship was more than that of “just friends” and evidences a stronger commitment and sense of responsibility.
57. As referred to above, Mr Collier had nominated Ms Bishop as his girlfriend and emergency contact in his application with Hardy Wine Company and his employer had noted Ms Bishop as Mr Collier’s partner as did the Host Plus Super Fund document. When Ms Bishop was admitted to the Queen Victoria Maternity Unit for the birth of her daughter, the hospital recorded her partner as Mr Colier (T10/66) and Ms Bishop’s emergency contact was changed from her mother to Mr Collier for the same admission (T10/66). Mr Collier was present at his daughter’s birth.
58. It is also recorded that Ms Bishop had told the ARO that she and Mr Collier had mutual friends and attended a rare barbecue together and occasionally went out together with the children but paid separately (T23/108).
Sexual Relationship between the Couple
59. The evidence from Ms Bishop’s witnesses who gave evidence at the hearing was that they understood that Ms Bishop had only had a one night stand with Mr Collier which resulted in the birth of their daughter. Mr Collier maintained that this was the case in his evidence to the Tribunal even when informed of Ms Bishop’s evidence that they had sexual relations whenever she chose.
60. It was submitted by Ms Bishop’s counsel that the reason for the discrepancy in their evidence may have been Mr Collier’s embarrassment and that Ms Bishop had at all times answered questions put to her truthfully and to the best of her knowledge. The Tribunal does not accept that Ms Bishop truthfully answered all questions put to her as there are considerable discrepancies in the accounts that she has given to Centrelink officers, the SSAT and this Tribunal. It is the Tribunal’s view that Ms Bishop provided the answers which she considered best supported her claim that she was not living as a member of a couple. Mr Collier admitted during the course of his evidence that he had provided false information in documentation when applying for a housing tenancy and freely admitted having done so.
61. On this occasion the Tribunal prefers the oral evidence given by Ms Bishop that she had a fairly regular sexual relationship with Mr Collier which she said commenced early in 2005. The ARO Notes of Interview (T23) record that Ms Bishop advised that “when they moved to Lambert Street, they had a sexual relationship, roughly once per week. Gary was there on and off a bit, but not on the lease. Gary was living at Lilydale with a friend. Gary would stay at her house around three nights per week.
62. It was Ms Bishop’s evidence to this Tribunal that they had sexual relations initially “roughly once per week … whenever I wanted it”. Ms Bishop went on to state that she was actually sleeping with a number of men during this period and that she had never really ceased her sexual relationship with Mr Williams which commenced when she was around 20 years of age.
63. The decision of the SSAT records that Ms Bishop had stated in evidence that she had only slept with Mr Collier three times since the birth of their daughter. The Tribunal however prefers the evidence contained in the documented record of interview with the ARO, Allison Devine. Ms Devine gave evidence before this Tribunal and stated that she had taken notes during the course of the interview with Ms Bishop. In the course of her evidence to this Tribunal, Ms Bishop said that whenever she felt like sex she went to Mr Collier.
The Nature of the Commitment
64. The period in question commences 25 November 2003 through to 30 June 2008 from which time it is agreed that Ms Bishop no longer stayed overnight at Cherry Farm Road. Ms Bishop said that she met up with Mr Collier, a childhood friend towards the end of 2003 when he returned from living on the mainland. In September 2003 Mr Collier had declared to Centrelink that he was living with his parents in Ravenswood. However from 22 December 2003 he recorded his address with his employer, Hardy Wine, as Invermay Road and stated that he was living with his “girlfriend”, Rebecca Bishop. Despite Ms Bishop’s evidence that Mr Collier did not share her residence, Mr Collier said that he spent between one and two nights per week at Invermay Road. The Tribunal rejects Ms Bishop’s evidence that Mr Collier did not stay at Invermay Road and prefers his evidence on the basis that he had no reason to state that he was living there if this was not in fact the case. His oral evidence is corroborated by the documentary evidence referred to above.
65. One of the relevant aspects of the nature of people’s commitment to each other is the length of the relationship. The Tribunal finds that from when Ms Bishop met up with Mr Collier in late 2003 until she decided not to stay overnight at Cherry Farm Road, they maintained a marriage like relationship, although it may not have been a sexual relationship throughout this period. The evidence supports a finding that Ms Bishop and Mr Collier were living under the same roof at the various residences occupied by Ms Bishop for several days in each week. Both of them nominated and therefore considered the various residences as their place of abode from to time. The Tribunal considers that the reasons why Mr Collier did not spend every night of each week at the various residences were partly because of work commitments and when out partying with friends, but principally because Ms Bishop was intent on ensuring that he only appeared to spend a maximum of three nights in each week at each of her residences in order to retain her social security benefits on the basis of being a single parent.
66. The Tribunal does not necessarily accept Ms Bishop’s evidence that she and Mr Collier always occupied separate bedrooms. There were discrepancies in their evidence as to which of the rooms Mr Collier actually occupied. In any event the Tribunal does not consider their sleeping arrangements to be a critical element to a finding as to whether or not Ms Bishop was a member of a couple. The Tribunal accepts that from time to time during the relevant period Ms Bishop had a number of sexual partners. The Tribunal does not consider that a finding of a marriage like relationship is necessarily negated because a person has other sexual partners. Regard has to be had to all of the circumstances of a relationship and as found by the Federal Court in Staunton Smith (supra), the existence or absence of any one factor listed in section 4(3) is not conclusive.
67. Because both Ms Bishop and Mr Collier disputed that they had a marriage like relationship, there is no evidence as to what they considered the duration of the relationship. There was also little evidence regarding the nature of any companionship and emotional support except that they supported each other in the living arrangements as outlined above. The Tribunal is assisted by the documentary evidence in which Ms Bishop and Mr Collier have nominated one another for contact purposes on various occasions and in particular, the fact that Ms Bishop nominated Mr Collier as her next-of-kin for the purposes of her hospital admissions.
68. The Tribunal rejects Ms Bishop’s evidence that their relationship was merely one of good friends and accepts that Ms Bishop informed the SSAT that she and Mr Collier had tried to make their relationship work up until the time she moved out of Wylrose Place and that what she meant was, “tried to make it work as a couple” as she needed a father around for her child. She later stated that she never considered herself as a member of a couple with Mr Collier and that she and Mr Collier had only slept together three times since the birth of their daughter which is inconsistent with her other evidence.
69. The Tribunal considers that one of the major reasons for the discrepancies in the statements and evidence from Ms Bishop is her confusion regarding the meaning of the phrase “member of a couple”. She informed Ms Devine on 21 January 2009 that she thought the term “de facto” meant that a couple lived at the same house permanently. As stated above, the Tribunal rejects Mr Kitto’s submission that at all times Ms Bishop provided truthful answers to the best of her ability and instead considers that she gave the answers that she believed best supported her case.
70. Nor was the Tribunal assisted by the evidence of the other witnesses who were called to give evidence on behalf of Ms Bishop. One of the witnesses included the applicant’s mother, Dawn Bishop, who said that the only place that she knew Mr Collier shared with her daughter was Wylrose Place. There is convincing evidence however that he spent between two and three nights at each of her other residences.
71. It was Mrs Bishop’s evidence that Ms Bishop and Mr Collier had not acted like they were in a relationship because she is ”too independent” for that. The Tribunal accepts that this may have been the case because Ms Bishop was careful not to give the impression that she and Mr Collier were living in a marriage like relationship.
72. Mrs Bishop said that her daughter had returned home to live with her on occasions when she was unable to afford the rent. This evidence is rejected as it is inconsistent with all of the other evidence received by the Tribunal which indicates that there were no breaks in the rental commitments for each of the various properties occupied by Ms Bishop. Mrs Bishop stated that she understood that her daughter had only had a “one night stand with Mr Collier”. Under oath she testified that Mr Collier was not at the birth of their daughter when in fact he was. Despite the fact that she did not know this to be a fact, she was adamant that he was not there until it was put to her in re-examination that Mr Collier could have been present and had left by the time she arrived.
73. The Tribunal is not assisted by the evidence from Karen Booton who said that she had only visited Ms Bishop at her residence on one occasion and had not known her prior to May 2008. Another friend, Lorinda Allen, had known Ms Bishop for a number of years but her contact with her was approximately once every three months. She said that Ms Bishop had informed her that she had had a one night stand with Mr Collier. She said that she had seen Mr Collier at the birth of their daughter.
74. Ms Sarah Jane Denman also said in evidence that she understood that Ms Bishop and Mr Collier had a one night stand. She saw Ms Bishop between two and three times a week, which was generally at weekends when they would go out on “drinking sessions” and occasionally to clothing parties. Ms Denman said that they had not discussed living arrangements and that all that she could say in relation to Lambert Street was that Mr Collier was not present when she attended. In her statement however, she testified after stating that Mr Collier was not living at Wylrose Place fulltime and was just not there that often, “in relation to the other addresses, I can say that Gary was just not living there at all”. The Tribunal however has heard much evidence to the contrary.
DISCUSSION AND FINDINGS
75. The decision under review was made by a Centrelink officer in December 2008 after an investigation following a “tipoff” on 8 October 2007 that Ms Bishop and Mr Collier were living in a de facto relationship. (T12 page 76). Although Ms Bishop and Mr Collier may not have regarded themselves as living in a marriage like relationship and did not present to the outside world as such, it is the Tribunal’s finding that the nature of their relationship was one of domesticity and contains the elements that satisfy the criteria listed in sub-section 4(3) of the Act determining a marriage like relationship, each of which have been discussed above. As stated by the Tribunal in Re Roberts and SDSS (1987) 12 ALD 723:
“In assessing all the circumstances, the parties’ subjective perceptions of themselves and their relationship will not be a determining factor because the actual objective circumstances must be looked to as in the case of Re Tang and Director-General of Social Services (1981) 3 ALN N83 and Re Pearce and Director-General of Social Security (1983) 5 ALN N142 cited (but perhaps erroneously) in Re Johnson and Secretary, Department of Social Security (unreported, No 2354, 11 October 1985)”.
76. There is no basis for a finding pursuant to section 24(2) that there is any special reason for not treating Ms Bishop as a member of a couple.
77. For the aforementioned reasons the Tribunal accordingly finds that Ms Bishop was living with Mr Collier as a member of a couple for the purposes of section 4(2) of the Act from 2 December 2003 and was as a result overpaid parenting payment single, family tax benefit and childcare benefit in the amount determined by Centrelink.
78. The remaining issue is whether the overpayments should be recovered. There are a number of provisions in Part 5.4 of the Act and in Division 4 of Part 4 of the FA Act that provide for the non-recovery, either temporarily or permanently of debts.
79. The Tribunal accepts the submissions made on behalf of the respondent that the provisions of section 1237A of the Act have no application because the debt was not the sole consequence of administrative error.
80. Pursuant to section 1236 a debt may be written off in accordance with the following provisions:
“(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”.
81. It was submitted by Mr Kitto that Ms Bishop has no capacity to repay the debt and therefore it should be written off pursuant to this section.
82. It was Ms Bishop’s evidence that she is currently in receipt of $1,169.00 per fortnight from which the sum of $94.10 is deducted in repayment of the overpayments. Her major commitment is $200.00 per week rent and she has no other outstanding debts. She has approximately $30.00 left in the bank each week.
83. Ms Bishop said that the fortnightly repayments of the debt have been deducted since July 2009. Although the outstanding amount is still significant, the Tribunal does not accept that there is no capacity to repay it over time. In the event that Ms Bishop‘s financial circumstances change she would be eligible to apply for reassessment of the rate of repayment.
84. The remaining consideration is whether the debt should be waived pursuant to section 1237AAD of the Act and section 101 of the FA Act in the special circumstances of the case. The term “special circumstances” has been considered on a number of occasions by the Tribunal and the Federal Court. In Beadle and Director-General of Social Security (1984) 6 ALD 1, Toohey J stated:
“An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they have a particular quality of unusualness that permits them to be described as special”.
85. The Tribunal has found that throughout the relevant period Ms Bishop was living as a member of a couple with Mr Collier. Ms Bishop maintained that she was not living in a marriage like relationship with Mr Collier and claimed that on no occasion did they stay together under the one roof for more than three nights in each week. This was because of her understanding of the eligibility provisions for entitlement to parenting payment single. The Tribunal has found however, that on occasions Ms Bishop gave untruthful and misleading evidence both to this Tribunal and in the course of other interviews. For instance, she denied that Mr Collier stayed overnight at Invermay Road and on other occasions had to be persuaded that the time that they spent together under the one roof was greater than she had originally indicated. She also gave misleading and conflicting information regarding the nature of their sexual relationship.
86. Throughout the period in question Ms Bishop was in receipt of social security benefits on the basis that she was a single parent. In addition she was in receipt of rent assistance despite her evidence that she was not. For almost a two year period during her occupation of Wylrose Place she was only paying one half of the rent and sharing the other outgoings with Mr Collier.
87. Sub section A of section 1237AAD requires that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation. For the reasons outlined above Ms Bishop does not qualify for a waiver on these grounds nor does the Tribunal consider that there are any special circumstances that would make it desirable to waive the debt.
88. The Tribunal determines that the decision under review be affirmed.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Associate)
Date/s of Hearing 19, 20 April & 24 May 2011
Date of Decision 29 July 2011
Counsel for the Applicant James Kitto
Solicitor for the Applicant James C Kitto, Barrister & Solicitor
Counsel for the Respondent Brian SparkesSolicitor for the Respondent Centrelink – Program Litigation & Review Branch
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