Cahill and Secretary, Department of Family and Community Services

[2005] AATA 1147

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1147

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  D2004/22

GENERAL ADMINISTRATIVE DIVISION		)
Re		SELINA CAHILL

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date18 November 2005

PlaceBrisbane

Decision The decision under review is set aside.   The applicant was not living in a marriage-like relationship during the overpayment period.

.......[Sgd].........

BJ McCabe

SENIOR MEMBER

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowances – sole parent pension, family payment and parenting payment (single) – applicant and husband not living in a marriage-like relationship in relevant period – decision under review set aside.

Social Security Act 1991 s 4

Social Security Act 1947 s 43, 44

REASONS FOR DECISION

18 November 2005  Senior Member B J McCabe

introduction

1.      The Secretary says Mrs Selina Cahill was overpaid amounts of sole parent pension, family payment and parenting payment (single) throughout the 1990s. The Secretary claims Mrs Cahill was not entitled to receive the amounts in question because she was a member of a couple during the overpayment period. If that is so, the applicant’s husband’s income should have been taken into account when her entitlement to assistance was assessed. 

2.      It is common ground that Mrs Cahill married her husband on 16 November 1990. It is also clear Mr and Mrs Cahill currently live together as a couple. But both Mr and Mrs Cahill insist they were not living together as a couple during the overpayment period.

3. The case requires that I consider s 4(3) of the Social Security Act 1991 (the Act) and s43(1) of the Social Security Act 1947 (the 1947 Act). Section 4(3) sets out a number of indicia which are designed to assist in the decision as to whether the applicant was a member of a couple for the purposes of s 4(2).

4.      For reasons I will explain, I am satisfied in all the circumstances that the applicant was not a member of a couple during the overpayment period.

material before the tribunal

5. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence at the hearing:

·Statement of Geoffrey Cahill dated 12 November 2004;

·Report of Dr W S Brooks dated 30 July 2004; and

·Report of Dr J Burrow dated 5 May 2005.

6.      The matter was heard in Darwin on 30 June 2005. The applicant gave evidence in person. She suffers from early onset Alzheimer’s Disease. Mrs Cahill was plainly affected by the condition: her recollection was limited and her speech was not entirely coherent. Mr Geoffrey Cahill, her husband, also gave evidence, as did Dr Brooks. Dr Brooks spoke about the onset and effect of Alzheimer’s Disease.

7.      Mrs Cahill was represented by Mr Tranthem of Welfare Rights. Ms Oliver represented the respondent. At the hearing I allowed the parties to lodge further submissions. The applicant’s submissions were received in the Tribunal on 5 August 2005. The respondent lodged a reply on 25 August 2005.

the debt

8.      The Secretary decided to raise and recover three debts on 5 March 2002. The Social Security Appeals Tribunal varied those debts on 25 June 2004. The debts are as follows:

·An overpayment of sole parent pension made to Mrs Cahill during the period 16 November 1990 to 19 March 1998. (The amount of the debt is in the vicinity of $80,000 (see T54, 283ff and T74, 415ff). The exact figure is subject to further calculation.)

·An overpayment of family payment made to Mrs Cahill during the period 1 January 1993 to 16 July 1998. (The amount of that debt is in the vicinity of $33,500 (see T54, 283ff). That figure is also subject to further calculation.)

·An overpayment of parenting payment (single) made to Mrs Cahill during the period 20 March 1998 to 29 September 1999 in the amount of $13,843.10.

the facts

9.      Mrs Cahill was born on 20 May 1954. Her maiden name was Selina Cole. She explained in her evidence that she could not remember when she was married. She could not remember the birthdays of her children. She agreed she had a relationship with Geoffrey Cahill dating back to the mid-1970s, before they were married in 1990. She made it clear the relationship was not a monogamous one: she understood Mr Cahill had a number of lady friends throughout the time she knew him. He fathered the applicant’s children. The oldest was born in 1979. The second child was born in 1982, and the third was born in 1984. The children all lived with their mother during the overpayment period at the family home.

10.     Mrs Cahill said Mr Cahill was a heavy drinker in the past and appeared to concede she also had a drinking problem during those years. They did not live together until recently. Mr Cahill worked in the mines and was absent from Darwin for long periods of time. The applicant said she allowed Mr Cahill to visit her home and see his children when he was in town. She insisted that he never spent the night at the house during these visits.

11.     Mrs Cahill was aware her husband used her address as a mail-box. She said she put his mail in a pile when it was delivered and he collected it when next he visited.

12.     The applicant was unsure about her financial relationship with Mr Cahill. She said she had access to his credit union account. He would occasionally invite her to withdraw money for the children – to buy clothes or items for school or food. She said he did not provide any other assistance.

13.     Mrs Cahill’s evidence was patchy. Her memory is failing and she apparently has increasing difficulty performing daily tasks. She was unable to answer many of the questions about forms she completed for Centrelink during the relevant period.  I note, for example, she could not explain the record of her contact with Centrelink on 6 July 1992 suggesting she and her husband were planning to live together: see document T10 at 65. However I also note the records show she asked for the pension to be regranted because she had not heard from Mr Cahill during the period – which suggests nothing occurred, and tends to confirm she was diligent in keeping Centrelink informed of changes in her circumstances. While her recollection at the hearing was poor and may be unreliable, I am also satisfied she is now incapable of sustained artifice. I note she was adamant that she did not share a home or live as a family with Mr Cahill until recently.

14.     Mr Cahill’s evidence was more useful. He said he decided to marry Mrs Cahill in 1990 because he was concerned his children had different names. While some official documents recording the names of the children suggested they already carried his name, he thought getting married would put the question beyond doubt. He agreed he and his wife had a wedding reception with guests and a honeymoon. He insisted he did not live with Mrs Cahill until recently.

15.     Mr Cahill explained he worked in various mines throughout the overpayment period. When he was in Darwin, he stayed with his mother at Millner or with the parents he grew up with at Berrimah. He agreed he would visit his wife’s home on occasions to see his children. He said he did not stay overnight when that occurred. He also agreed he drank a lot during this period and saw other women. He made it clear in his oral evidence that he maintained contact with Mrs Cahill and felt a sense of obligation towards her because she was looking after his children. He agreed Mrs Cahill was able to access his bank account from time to time to make purchases for the children. It appears these contributions to the living expenses of the household were made on an ad hoc basis. He also agreed he nominated his wife as the beneficiary of his superannuation because if he died he wanted his children to be looked after. He identified his wife as his next of kin in his employer’s records. Once again, he suggested he wanted her to know if anything happened to him and be in a position to collect any monies owing to him for the benefit of the children.

16.     Mr Cahill agreed he gave out his wife’s address as his own address for mailing purposes. He told the Australian Tax Office he lived there, and his licence and registration also bore that address. He said he was uncomfortable having mail delivered to his usual addresses in Darwin because he feared for his privacy. When he was asked why he did not make use of a post box, he admitted that having the mail delivered to his wife’s home gave him an excuse to visit and see his children.

17.     Mr Cahill pointed out his tax returns did not refer to Mrs Cahill or anyone else as his spouse: see document T36 at pp196-198.

18.     It was unclear whether Mr and Mrs Cahill maintained any sort of sexual relationship during the overpayment period.

19.     There was a reference to a joint bank account. Mr Cahill said the account was for the benefit of the children. Ms Oliver also asked Mr Cahill about two loan applications – one to Esanda, and one to a credit union. In both applications, he indicated he was married and living together with his wife. He sheepishly explained that he had not told the truth about his domestic circumstances in those applications because he felt he stood a better chance of approval if he were seen to have a stable marriage.

20.     Ms Oliver suggested Mr Cahill’s admission that he was prepared to lie in order to obtain an advantage made him an unreliable witness. I agree the admission suggests I should treat his evidence with caution. However after having the opportunity to observe his demeanour and hear his answers in the witness box, I am satisfied he was telling the truth.

the legislation

21. Section 4(2) of the Act says a person is a member of a couple for the purposes of the legislation if she is legally married to another person (which is the case here) and she is not, in the Secretary’s opinion, living separately and apart (either permanently or indefinitely) from the other person under the one roof. The decision is to whether or not the person is living separately and apart under one roof must be made having regard to the indicia set out in s 4(3). That sub-section provides:

In forming an opinion about the relationship between 2 people…, 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.

22. Section 4(3) does not purport to provide an exhaustive list of factors. The sub-section emphasises it is important to have regard to all the circumstances of the relationship. The decision-maker must avoid a simple box-ticking exercise: it is possible a decision-maker might decide the individual is a member of a couple even though she does not satisfy all or even the majority of the criteria. Conversely, many of the indicia referred to in sub-section (3) might be present yet the circumstances as a whole might justify a conclusion that the couple live separately and apart, albeit under one roof.

23.     The overpayment period in this case spans from 1990 to 1999. I must therefore also have regard to the provisions of the Social Security Act 1947 for the portion of the debt arising before the enactment of the current legislation in 1991. The 1947 Act requires a person in receipt of sole parent pension to be a “single person”: see s 44. A single person is defined to mean, amongst other things, a person who is legally married but who lives separate and apart from their spouse: see s 43(1). Section 43(1) does not give any guidance as to how this requirement should be interpreted. I am satisfied the criteria in s 4(3) of the 1991 Act assist in the interpretation of the earlier provision.

was mrs cahill a member of a couple at the relevant time?

24.     The financial aspects of the relationship suggest limited ongoing involvement between Mr and Mrs Cahill. There is no evidence of joint ownership of major assets or significant pooling of financial resources. The pair do not appear to have legal obligations with respect to each other. Mr Cahill made an ad hoc contribution to household expenses.

25.     The nature of the household strongly suggests Mr and Mrs Cahill were not members of a couple. Mrs Cahill assumed responsibility for looking after the children and for household chores. Mr Cahill provided ad hoc financial support but saw them only occasionally for limited periods. Mr and Mrs Cahill did not live together.

26.     The social aspects of the relationship tend to suggest the applicant and her husband were not members of a couple. Mr Cahill in particular did hold them out as a couple to his employers and to various authorities, and Mrs Cahill did take her husband’s name. There was no evidence of joint social activities (apart from the wedding) and it is unclear whether associates would regard Mr and Mr Cahill as being married.

27.     There was little evidence about an ongoing sexual relationship.

28.     The nature of the commitment at the time suggests Mr and Mrs Cahill did not regard themselves as a couple during the overpayment period. The relationship – such as it was – appears to have been sustained by Mr Cahill’s desire to retain access to his children. He did not appear to have any commitment to the applicant as such at the time.

29.     The relationship between the applicant and Mrs Cahill has since evolved into a conventional marriage relationship now that Mr Cahill has stopped drinking, returned to Darwin and moved in with the family, and since Mrs Cahill’s condition has begun to deteriorate. But I am satisfied that is a recent development.

30.     When I consider all of the circumstances, I accept the applicant was not a member of a couple during the relevant period. In those circumstances, the debt should not have been raised against her.

conclusion

31.     The decision under review is set aside.

I certify that the 31 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:     Sam J Appleton

Date of Hearing  30 June 2005, Darwin
Date of Decision  18 November 2005, Brisbane
The applicant was represented by Mr Trantham, solicitor.
The respondent was represented by Ms Oliver, departmental advocate.