Caldwell and Secretary, Department of Family and Community Services
[2005] AATA 523
•3 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 523
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/599
GENERAL ADMINISTRATIVE DIVISION
Re: SHIRLEY LYNETTE CALDWELL
Applicant
And:SECRETARY,
DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date: 3 June 2005
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) E.A. Shanahan
Member
SOCIAL SECURITY – disability support pension – in marriage‑like relationship – current society standards – applicant’s concept of a marriage‑like relationship – couple engaged to be married but not yet "committed" – financial support – emotional support
Social Security Act 1991 ss 4(2)(b), 4(3), 132, 1223(1), 1223(5), 1224(1), 1236, s 1237AAD
Social Security (Administration) Act 1999 s 68
Re Donald and Director-General of Social Security (1983) 5 ALN N185
Re Lambe and Director-General of Social Security (1981) 3 ALN N72
Re Stopper and Palombo and Secretary, Department of Social Security (1987) 12 ALD 763
Re Kellie and Director-General of Social Security (1984) 6 ALN N316
Re Smith and Secretary to Department of Social Security (1985) 7 ALN N371
Re Bourke and Secretary, Department of Social Security (1988) 42 SSR 539
Re Secretary, Department of Social Security and Hunt (1990) 21 ALD 415
Re Tang and Director-General of Social Services (1981) 3 ALN N83 (AAT 476, 5 June 1981)
REASONS FOR DECISION
3 June 2005 Miss E.A. Shanahan, Member
1. This is an application by Shirley Lynette Caldwell (the applicant) for review of a decision dated 30 June 2003 by a Centrelink officer, a delegate of the Secretary to the Department of Family and Community Services (the respondent) (the Department), cancelling Mrs Caldwell’s disability support pension (DSP). This decision was affirmed by an authorised review officer (ARO) on 30 October 2003 and subsequently by the Social Security Appeals Tribunal (SSAT) on 6 April 2004. The grounds for cancellation of the applicant’s DSP related primarily to her being a member of a couple, living in a marriage‑like relationship with Mr Graeme Taylor. The commencement date of the relationship was set as 4 October 1996. As a consequence, the respondent raised a debt of $67,824.06 representing the DSP paid to the applicant between 4 October 1996 and 17 June 2003, when she was not eligible for such payment.
2. Mrs Caldwell was represented by Dr Ian Freckleton of counsel, instructed by Mr Robert Davis, solicitor. The respondent was represented by Mr David Perdon, a Centrelink advocate. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1‑T70) (the T‑documents). The applicant, Mr Graeme Taylor, Mr David Caldwell and Mr Colin Jean gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
3. Mrs Caldwell had been in receipt of DSP at the single rate since December 1989. On 21 June 1993, she advised Centrelink that Mr Taylor had moved into her house as a boarder. He was not paying any rent, although he was reimbursing Mrs Caldwell for the cost of his food. In 2002 Centrelink was advised by a member of the public that Mrs Caldwell and Mr Taylor were living in a de facto relationship. Centrelink then undertook appropriate investigations.
4. These investigations revealed that Mr Taylor used Mrs Caldwell’s address of 3 Tarwin Street, Boolarra as his address. He gave that address to the Australian Electoral Commission and Australia Post. That address was entered on his driver’s licence and car insurance premiums, on credit applications, on Centrelink records for payment of his mother’s social security payments and on his income tax returns. In his income tax return for 2001/2002 he had described Mrs Caldwell as his partner. At his workplace Mrs Caldwell is entered as the emergency contact for Mr Taylor. In a loan application Mr Taylor made in 1999, he described Mrs Caldwell as his de facto and provided her personal details.
5. Mrs Caldwell owns the property formerly described as Lot 2 Tarwin Street, Boolarra and now 3 Tarwin Street, Boolarra. Mr Taylor is the registered owner of 42 Pimble Avenue, Inverloch, which was formerly his deceased mother’s home and which was assigned to him in August 2000 prior to her death.
6. Mrs Caldwell stated that she and Mr Taylor were engaged to be married and had been in a sexual relationship for many years. Mr Taylor would stay with Mrs Caldwell on average two nights per week and she would stay with him at his house in Inverloch two to three nights per week. Both maintain that they operated entirely separate households. Mrs Caldwell drives the two cars owned by Mr Taylor. She has been issued with a personal card (as of 4 October 1996) giving her unfettered access to Mr Taylor’s bank account and she is an authorised signatory to operate the account.
7. Mr Taylor is employed full-time as an open cut operator at Loy Yang Power Station. His income is in excess of the eligibility level to access DSP payments, for a member of a couple.
8. The applicant denies that she and Mr Taylor are in a marriage‑like relationship as they maintain separate residences, separate financial responsibilities and are not committed to each other, despite their engagement and ongoing sexual relationship.
EVIDENCE BEFORE THE TRIBUNAL
9. Mrs Caldwell confirmed she had been in receipt of DSP from 1986 due to ongoing health problems, in particular, bilateral carpal tunnel syndrome and migraine headaches. She said she had met Mr Taylor sometime in 1992 or 1993 through mutual friends. At the time he was very stressed, his marriage had broken up and he was suffering with a mental disorder which had led him to threaten suicide. At the time, Mrs Caldwell’s children were ready to leave home and she had, for some years, involved herself in assisting people with health or financial problems. She said that she offered to take Mr Taylor in as a boarder at her house at 3 Tarwin Street, Boolarra. She had previously had short time boarders resulting from her voluntary work in the prison system. They would generally stay a couple of months until they established themselves in a flat and she would assist with general rehabilitation. Mrs Caldwell was not paid for these services but money was provided for food, and she was paid for her petrol costs. Mr Taylor did not pay any rent, but paid his share of the household costs in the form of food and car costs. From 1993 until 1998 Mr Taylor would stay at Mrs Caldwell’s home on those nights or days when he was on shift work. In particular, he would stay after a 12‑hour shift, two and sometimes three days per week.
10. Mrs Caldwell denied that her sexual relationship with Mr Taylor commenced in 1996 and was definite that it was toward the end of 1998. From 1998 onwards, it was her practice to travel to Inverloch and stay with Mr Taylor at his home, usually for one or two nights each week, and at the most, on one occasion, for four days. Between 1996 and 1998 Mr Taylor was involved with the care of his elderly mother, during which period he stayed with Mrs Caldwell on those nights he was on shift work and then returned to Inverloch because of his mother’s requirements. While not certain of the date, Mrs Caldwell said she thought that Mr Taylor’s mother was placed in a hostel either in late 1998 or early 1999. During the period in which Mr Taylor was a boarder, he would frequently share meals with Mrs Caldwell, but he did his own washing, occasional housework and mowed the lawns, as Mrs Caldwell was incapable of this activity because of her medical condition. Mrs Caldwell confirmed that in 1998 she commenced a sexual relationship with Mr Taylor and in all other respects their relationship remained the same. When she visited Mr Taylor’s home in Inverloch she did not perform any household duties.
11. Mrs Caldwell said that in about 2001 or 2002 Mr Taylor stated that he would like to become engaged and gave Mrs Caldwell a ring. Mrs Caldwell had agreed to marry Mr Taylor when he resolved his problems with respect to his child support payments and his care of his mother. About some six months ago she returned the ring as a result of the stress she had suffered in her dealings with Centrelink and the loss of her DSP.
12. In answer to Dr Freckleton’s question, Mrs Caldwell said that neither she nor Mr Taylor socialised to any degree and rarely saw family members. Occasionally, Mr Taylor would visit her son but they rarely saw his children. Mrs Caldwell was of the opinion that none of her friends, nor three of her four children with whom she still had contact, viewed her relationship with Mr Taylor as being a marriage‑like relationship.
13. Since the cancellation of her DSP, Mrs Caldwell has been without income. Her day‑to‑day expenses have been paid by her two eldest sons and she has received no financial assistance from Mr Taylor.
14. Mrs Caldwell explained Mr Taylor’s use of her postal address as being the most satisfactory arrangement, since his business was conducted in the La Trobe Valley, and also as a result of his mail going missing from his mail box in Inverloch. Mr Taylor’s inability to use an automated teller machine (ATM) had led to her becoming an authorised signatory on his account and having her own ATM card or bank card to access his account. Prior to her obtaining this authority, Mr Taylor would frequently ask friends, relatives or passers‑by to assist him at an ATM. Mrs Caldwell could not explain why she had been named as his partner on a loan application in September 1998, nor as his de facto wife in an application in June 1999. She said that, unbeknown to her, Mr Taylor’s accountant had named her as his spouse for the purposes of his 2001 tax return but this had since been corrected.
15. Mrs Caldwell was adamant that, if she was married to Mr Taylor or living in a marriage‑like relationship, things would be different. She would look after him to the best of her ability, "…cook and clean for him and I would wash his clothes and virtually do everything" (trans p16). Mrs Caldwell said she had a very strong view regarding marriage‑like relationships and that she had never, in her opinion, lived in a de facto relationship with Mr Taylor.
16. In answer to Mr Perdon’s question, Mrs Caldwell stated that she had ceased using Mr Taylor’s ATM card and account when her DSP was cancelled. She continued to help him write out cheques to pay his bills. Mrs Caldwell denied knowing the amount of Mr Taylor’s income. In her experience, he had been struggling to pay for his mother's nursing hostel costs and his child support commitments. Mrs Caldwell indicated that Mr Taylor’s children and siblings were unable to provide any assistance as both his sisters were drug addicts. Mrs Caldwell said Mr Taylor does not see his elder daughter and his younger daughter is only 18 years old. She also said Mr Taylor's two sons suffer from a psychiatric disorder, are undergoing treatment, and only one is capable of working.
17. Mrs Caldwell agreed with Mr Perdon that Mr Taylor had paid for the installation of the hot water service in her home, but claimed that her sister, who now lives with her permanently, had eventually reimbursed him. Mrs Caldwell denied that Mr Taylor had installed a pergola at her house. She said the money had been used to construct fences and gates at Mr Taylor’s Inverloch property and not at her property. Mrs Caldwell informed the Tribunal that she had been present at the times when Mr Taylor had taken out bank loans and credit union loans, but she had been there merely to assist him in filling out of the forms. She believed that she had given her licence number and date of birth at the time that the car loan was negotiated as she was to drive one of the cars purchased, home.
18. The documentary evidence had suggested that Mrs Caldwell spent two to three nights per week at Mr Taylor’s house in Inverloch in order to escape her "feral neighbours". These neighbours, who she described as drug addicts had assaulted her in the past. The neighbours have now moved out of the area and this problem has now been resolved. Mrs Caldwell said it was more likely that she stayed two nights per week at Inverloch at the most and this was not on a regular basis despite reports to the contrary. Mrs Caldwell attributed these comments to her drug‑addicted daughter who had caused a great deal of disturbance and grief to the family.
19. Mrs Caldwell confirmed that she did not have any joint loans with Mr Taylor despite the error in her statement indicating that she had. However, she had acted on Mr Taylor’s behalf in dealings with the Child Support Agency, as he was unable to comprehend these negotiations and reacted to them with severe depression and suicidal intent. Mrs Caldwell said she had no idea why Mr Taylor had claimed in his finance applications that he was paying her $320 per month for his board. While she had initially thought that she may have been named as the beneficiary to his superannuation, it has been clarified that she was not so named.
20. The Tribunal asked Mrs Caldwell to comment on Mr Taylor’s accounts for shopping at Spotlight, a commercial chain that sells materials and craft equipment. Mrs Caldwell replied that he had purchased items for his mother who, while in a nursing home, pursued knitting and tapestry. In addition the pharmacy entries were for Mr Taylor’s mother’s medications. Occasionally these entries were also for his antidepressant medication. Mrs Caldwell confirmed that Mr Taylor’s mother had died approximately two years ago and that she had assigned her home in Inverloch to him prior to her death, as he was paying some of the costs for her care in the hostel. Mr Perdon confirmed that the transfer of the Certificate of Title of the Inverloch property had occurred in August 2000.
Mr Graeme Taylor
21. At the commencement of the hearing Dr Freckleton had acquainted the Tribunal with Mr Taylor’s long‑standing depressive state and his variable ability to provide evidence. Dr Freckleton had been fearful that Mr Taylor would not be able to give any evidence on the day. However, Mr Taylor was able to give evidence.
22. Mr Taylor gave his address as 42 Pimble Avenue, Inverloch. In his evidence-in-chief he was unable to recall when he had moved into Mrs Caldwell’s house as a boarder. However, he did remember it followed the break‑up of his marriage and the consequent high child support payments he was required to make. He could not recall whether Mrs Caldwell cooked or cleaned for him while he was a boarder, or when they started an intimate relationship. He stated that he and Mrs Caldwell had become engaged in 2004 but the engagement had more recently been terminated as a result of the stress caused by Centrelink’s cancellation of Mrs Caldwell’s DSP. Since that time, Mr Taylor said, Mrs Caldwell had been supported financially by her children and he had not provided any support. Mr Taylor was unable to recollect exactly how much time he and Mrs Caldwell were currently spending together, but thought that it was on the odd occasion at Boolarra but rarely at Inverloch. Mr Taylor said that he believed "a marriage should be when you are doing things – a lot of things together and having a bit of…space to do your own things…And you should care about each other" (trans pp31‑32). Mr Taylor indicated that this was not their kind of situation, things had become confused, and this he blamed on decisions made by Centrelink to cancel Mrs Caldwell's DSP. It was his opinion that, if he was in a de facto relationship with or had married Mrs Caldwell, they would have "Start[ed] off a new life…[bought]Buy a new house together and do everything together…" (trans p32). Mr Taylor could not remember the details of the various loans he had taken out and the declarations he made in those loan statements, except for those relating to an ESANDA loan for the purchase of two cars. He denied that he had told ESANDA that Mrs Caldwell was his de facto partner and considered that they had presumed that as Mrs Caldwell had accompanied him.
23. Initially, Mr Taylor denied that Mrs Caldwell had an ATM card to access his account, stating that, while she advised him how to operate the account, she did not have unfettered access. This appears to contradict Mrs Caldwell’s evidence which the Tribunal takes to be more reliable. Similarly, the entry in his 2001 tax return, which stated that Mrs Caldwell was a dependant spouse, was incorrect and had been amended. Mr Taylor agreed that he gave Mrs Caldwell’s telephone number as his, for use in an emergency, as he frequently could not be contacted at Inverloch. Mr Taylor also confirmed that he used Mrs Caldwell’s home address as his postal address because of difficulties with mail delivered to his Inverloch address. Mr Taylor did not think that any of his friends, who were few in number, or Mrs Caldwell’s relatives, would regard them as a couple. Mrs Caldwell did not spend much time with his family and he spent occasional time with her sons, but did not attend events such as weddings, birthdays or Christmas celebrations.
24. Mr Perdon’s cross-examination of Mr Taylor did not provide any major new evidence that Mrs Caldwell assisted him with his banking and finances in general; that he used her address as his mailing address because of his problems with the mail delivery in Inverloch; and that Mrs Caldwell had frequently assisted him with his loan applications and other financial transactions. Mr Taylor said that he had paid for the hot water service installation at Mrs Caldwell’s home by obtaining a credit union loan. He also agreed that a pergola was erected at the Boolarra property, but said that it was paid for by Mrs Caldwell’s children. The loan that he had taken out for home repairs had been spent on his Inverloch property.
25. Mr Taylor thought that he had become engaged to Mrs Caldwell in 2004, but was not certain. He also thought that their engagement had ended in late 2004. Mrs Caldwell had helped him with his communications with the Child Support Agency. At the time he was paying $1000 per month in child support. This has since ceased as his children are now all over the age of 18. Throughout the period he had been earning between $60,000 and $95,000 a year.
26. Mr Perdon (in light of the Tribunal’s questions of Mrs Caldwell) asked Mr Taylor what sort of stuff was purchased at Spotlight. Mr Taylor replied that Mrs Caldwell buys "…drapery for her curtains and materials and things to do with her stuff" as "She is into craft” (trans p40).
27. While Mr Taylor was unaware as to whether he had a named beneficiary for superannuation purposes, he was aware that his superannuation was frozen as a result of his divorce settlement. He confirmed that he had not assisted Mrs Caldwell financially in any way since the cancellation of her DSP.
DAVID PETER CALDWELL
28. Mr David Caldwell is the applicant’s son. He lives in Boolarra and services conveyor belts. Mr Caldwell’s evidence was of limited relevance in that he had not asked his mother about, or assessed for himself, her relationship with Mr Taylor. However, he had concluded that it was one of friendship. He believed Mr Taylor had begun boarding with his mother in approximately 1992, by which time he had left home. He did state that he had assisted Mr Taylor on several occasions with ATM withdrawals.
29. Mr Caldwell had socialised with Mr Taylor on a few occasions and was also acquainted with him in the work sphere as he himself was a contractor at Loy Yang.
30. Mr Caldwell told the Tribunal that he kept his small boat on Mr Taylor’s property at Inverloch. On occasions, he would stay there overnight, and frequently he would travel to Inverloch on a daily basis, when he went there to fish. Mr Caldwell confirmed that, since the cancellation of his mother’s DSP, he and his brother had paid her expenses and recompensed Mr Taylor when he had paid any of her costs. Mr Caldwell could not recall when his mother and Mr Taylor had become engaged, nor had he noticed that she was wearing an engagement ring. Mr Caldwell did not regard his mother as being in a marriage‑like relationship.
KENNETH COLIN JEAN
31. Mr Jean is a retired engineer who apparently worked in the La Trobe Valley for many years and he resided in Boolarra from 1975 to the mid‑1990s. He was acquainted with Mrs Caldwell through his community activities and his wife’s involvement in charitable organizations. He encouraged Mrs Caldwell to obtain a university qualification in welfare work, but unfortunately, Mrs Caldwell could not cope with the demands of this course. Mr Jean had first met Mr Taylor in about 1995 after Mrs Caldwell had sought his assistance with respect to Mr Taylor’s marital problems. Mr Jean had perceived Mr Taylor to be a boarder at Mrs Caldwell’s home and had not enquired further into their relationship. He regarded the relationship between Mrs Caldwell and Mr Taylor as a friendship. Mr Jean was unaware that Mrs Caldwell and Mr Taylor had become engaged until after the event, which he dated as being in 2003. Mr Jean regarded Mrs Caldwell as a very independent person who had assisted Mr Taylor to get on his feet…out of friendship. He was unable to comment as to whether they were in a marriage‑like or de facto relationship, but he pointed out that he had only seen Mr Taylor twice in a 12‑month period, whereas he had seen Mrs Caldwell about 10 times in the same period. He said had they been married, in a marriage‑like relationship or de facto relationship, he would have expected to have seen them together on every occasion.
32. Dr Freckleton asked Mr Jean if there was an engagement party celebration or announcement. Mr Jean stated that he thought it was a fairly quiet occasion, but as he had not attended, he could not comment accurately. Mr Jean was unaware that Mrs Caldwell had returned the so‑called engagement ring to Mr Taylor.
33. Mr Perdon asked Mr Jean how often he had seen Mr Taylor since their first meeting in 1995. Mr Jean said, to his recollection, he had seen Mr Taylor on approximately four occasions, at either his home or, more often, Mrs Caldwell’s home. Mr Jean said that by his standards, which he referred to as "old fashioned standards", Mrs Caldwell and Mr Taylor were close friends but did not live in a marriage‑like relationship. Mr Jean admitted that his knowledge of Mrs Caldwell and Mr Taylor’s financial arrangements were derived from conversations with Mrs Caldwell. While Mr Jean had no exact knowledge of how often Mrs Caldwell and Mr Taylor stayed at each others homes, he would have contemplated that it was of the order of 20 per cent of the time. Mr Jean had no knowledge of the couple’s sleeping arrangements.
34. The Tribunal asked Mr Jean to expand on his earlier statement that Mrs Caldwell had telephoned him in 1995 to enlist his support. The Tribunal asked him in what form did she require this support. Mr Jean informed the Tribunal that Mr Taylor had wished to visit his former marital home to lay claim to some of his possessions. Mrs Caldwell thought that there could be some difficulty and some confrontation, and Mr Jean met Mrs Caldwell and Mr Taylor at the house in question. He said he believed his role was that of a back up or a witness if something did occur. However, no one was living at the home and Mr Taylor retrieved most of his belongings without incident.
DOCUMENTARY EVIDENCE
35. The T‑documents contain various documents relating to Mr Taylor’s bank account, his loan applications, tax returns and the assignment of the property at 42 Pimble Street, Inverloch to him by his mother.
SUBMISSIONS
The applicant
36. Dr Freckleton submitted that the indicia of a marriage‑like relationship with respect to Mrs Caldwell and Mr Taylor are somewhat complex, as they are firmly of the view they are not in a marriage‑like relationship. Based on the evidence, there appears to have been little sharing of finances with only the occasional assistance provided by Mr Taylor in paying for his share of the utilities, the food he consumed and providing financing for household commodities such as a hot water service and a pergola, although the sums paid for both of these were recompensed by Mrs Caldwell’s relatives. Since the cancellation of Mrs Caldwell’s DSP, she has not received any financial assistance from Mr Taylor and all her expenses have been paid by her children. This is despite Mr Taylor’s quite significant income.
37. Dr Freckleton submitted that Mrs Caldwell and Mr Taylor maintained quite separate households and each of them is responsible for the upkeep of their own house.
38. Dr Freckleton submitted that, in terms of social aspects of Mrs Caldwell’s relationship with Mr Taylor, there was no doubt that Mr Taylor had interacted with members of Mrs Caldwell’s family; but these had essentially been the Caldwell family endeavouring to render Mr Taylor assistance. The social aspects of the relationships are limited.
39. Dr Freckleton stressed the unusual nature of the case in that Mrs Caldwell had, for many years, provided a very supportive role following Mr Taylor’s marriage disintegration, his development of severe depression, his need for assistance in simple tasks such as operating an ATM machine and properly supervising his own banking. The applicant did not deny that, as from approximately 1998, there had existed a sexual relationship which is ongoing. Mrs Caldwell and Mr Taylor strongly believed that their relationship is not a marriage‑like relationship, but that of fiancés in anticipation of marriage. Neither has made a final commitment and both perceive marriage to be a far closer and interdependent relationship than the one that exists currently.
The respondent
40. In its statement of facts and contentions the respondent submitted that the correct approach in forming an opinion as to whether Mrs Caldwell was in a marriage‑like relationship with Mr Taylor, the Tribunal should take into account all facets of the interpersonal relationship, current society standards as to what constitutes a marriage‑like relationship, having regard to the cultural background of the parties and that no single factor is conclusive in any circumstance.
41. The matters to be taken into account include:
(a)financial aspects of the relationship.
(b)the nature of the household.
(c)the social aspects of the relationship
(d)any sexual relationship between the persons.
(e)the nature of the people’s commitment to each other.
For the purposes of item (e), the respondent relied on "…the commitment of each to the other [is] to a greater extent than, and in a manner qualitatively different from, the commitment of either to anyone else" (Re Donald and Director-General of Social Security (1983) 5 ALN N185.
42. Mr Perdon submitted that Mr Taylor had provided some financial assistance to Mrs Caldwell in that she had access to, and was a signatory to Mr Taylor's bank account; Mr Taylor had taken out loans to repair fixtures or to install fixtures in the applicant’s house, and Mrs Caldwell used his motor vehicles frequently. On several occasions Mr Taylor had nominated Mrs Caldwell on loan applications as his partner, his de facto, or in one instance, a dependant. While Mrs Caldwell and Mr Taylor owned separate houses, they shared them, spending significant time with each other at one or the other address. Mr Taylor had nominated Mrs Caldwell’s address as his residential address to many civil authorities since 1993. Mrs Caldwell and Mr Taylor have been engaged and Mr Taylor had given Mrs Caldwell a ring. They regarded themselves as fiancés but they do not socialise together to any degree. Mr Taylor does appear to have a friendship with Mrs Caldwell’s son. Mrs Caldwell and Mr Taylor have confirmed an ongoing sexual relationship; although the exact date at which this commenced is uncertain. Mrs Caldwell and Mr Taylor have known each other since 1993, and a sexual relationship developed in approximately 1996. Mr Perdon submitted that there was no evidence that their relationship was not likely to continue indefinitely.
43. Mr Perdon acknowledged that Mrs Caldwell and Mr Taylor do not consider themselves to be in a marriage‑like relationship, despite the nature of their commitment to each other pointing to them being in such a relationship.
THE TRIBUNAL’S DELIBERATIONS
44. The single issue before the Tribunal is whether Mrs Caldwell and Mr Taylor are in a marriage‑like relationship. Section 4(3) of the Social Security Act 1991 (the Act) provides the criteria for forming an opinion about a relationship. The Tribunal has considered the matters outlined in s 4(3) of the Act as follows:
(i) the financial aspects of the relationship.
45. Mrs Caldwell and Mrs Taylor do not have joint ownership of any real estate or major assets; nor do they have joint liabilities. Both own their own houses and accept individual responsibility for the running and maintenance of those properties. On the evidence, they inhabit both properties together for various periods during any one week. Mr Taylor stays at Mrs Caldwell’s house while he is working in the La Trobe Valley and then returns to his property in Inverloch, frequently accompanied by Mrs Caldwell. At each residence they appear to pay their own expenses and perform various items of upkeep individually. Mr Taylor does mow Mrs Caldwell’s lawns as her physical impairment prevents her from doing so. They occasionally share day‑to‑day household expenses such as the cost of utilities and food expenses, but generally maintain separate financial liabilities. There is no pooling of financial resources or any legal obligation owed by one in respect of the other. Mr Taylor has not provided financial support to Mrs Caldwell since her DSP was cancelled.
(ii) the nature of the household
46. There are no children in the care of either party so that s 4(3)(b)(i) of the Act is irrelevant. At both properties, both parties have access to all areas of the home; but on their evidence, each is responsible for the cleaning and upkeep of their own premises, each performs the housework at their own premises, but each will provide meals to the other depending on where they are living at the time.
(iii) the social aspects of the relationship
47. Mrs Caldwell and Mr Taylor have held themselves out to be engaged to be married. Mr Taylor has given Mrs Caldwell what is described as an engagement ring which she has recently returned following the cancellation of her DSP. Both insist they do not hold themselves out to be a married couple or living in a marriage‑like relationship. They claim that their friends and associates would agree that they are not in a marriage‑like relationship. The sole evidence before the Tribunal is that of Mr David Caldwell, the applicant’s son, and Mr Kenneth Jean, a friend of Mrs Caldwell’s, both agree that it is not a marriage‑like relationship. Both admit to little knowledge, in a direct sense, of the nature of the relationship. Neither Mrs Caldwell nor Mr Taylor engage in social activities, let alone joint social activities, but Mr Taylor does have social contact with Mrs Caldwell’s son David; and David in turn keeps his boat at Mr Taylor’s Inverloch home and stays there on occasions when he goes fishing.
(iv) any sexual relationship between the people
48. Mrs Caldwell and Mr Taylor have had an ongoing sexual relationship since 1996 according to Centrelink investigations and from 1998 according to Mrs Caldwell’s evidence. The sexual relationship continues.
(v) the nature of the people’s commitment to each other
49. Mrs Caldwell has provided a very supportive relationship to Mr Taylor since 1993 and, as from 1996 or 1998, there has been a sexual relationship. It is obvious that they enjoy their companionship and are emotionally supportive of each other. The relationship culminated in a formal engagement in probably 2003, while the evidence is conflicting, with an intention to marry. They see their relationship as ongoing, but recently deleteriously affected by the cancellation of Mrs Caldwell’s DSP and the enquiries surrounding the cancellation. Both have expressed hope that their relationship will be resuscitated and continue. Neither party sees their relationship as being marriage‑like, on the basis that they have not formerly committed themselves to each other. Both perceive a marriage‑like relationship as one in which Mrs Caldwell would provide household maintenance; care of Mr Taylor in all respects; and that they would sell their current properties and purchase a jointly owned property.
50. Mr Taylor’s evidence has obviously been limited by his depressive state and his inability to recall various dates or the reasons why he has, at times, named Mrs Caldwell as his dependant, de facto or partner. He has explained these entries on various documentation as being an assumption by the persons completing the documentation for him. Mr Taylor has said that he would assist Mrs Caldwell financially if she asked him to do so. As she has not asked, her children continue to provide her with the financial support.
51. In Re Lambe and the Director-General of Social Services (1981) 3 ALN N72, the Tribunal said (at N76):
…for the purposes of making the necessary comparisons, regard may properly be had to what, within the legal bonds of marriage, current society standards recognise as constituting a relationship of man and wife.
In Re Tang and Director-General of Social Services (1981) 3 ALN N83 (AAT 476, 1981), the Tribunal discussed the nature of "marriage" at paragraph 14 as follows:
…
The difficulties inherent in approaching the problem are obvious, for it involves a comparison of a relationship with a very imprecise standard, namely marriage. The day has long passed (if it in fact ever existed) when one could safely generalize about what constituted a typical marriage….
In relation to the subjective element of what was a marriage‑like relationship, the Tribunal (at N84) said:
…while the subjective opinion held by the parties of their relationship is important, a subjective belief manifests itself in the objective indicia which the relationship exhibits and it is to these that the Tribunal should primarily look.
52. While generally speaking Mrs Caldwell was a creditable witness, the Tribunal was perturbed by the conflicting evidence she and Mr Taylor gave regarding purchases at Spotlight in Morwell. Mrs Caldwell stated that these purchases, as evidenced in the bank statements, were for his mother’s use. In contrast, Mr Taylor said these purchases were for drapes and craft items, as Mrs Caldwell was "into craft work". In addition, some of Mr Taylor’s responses to questions were couched in terms that suggested that he may have been coached by others as to how he should reply.
53. Overall, the evidence would indicate that Mrs Caldwell and Mr Taylor have been living in a marriage‑like relationship since either 1996 or 1998 and they continued to do so until Mrs Caldwell’s DSP was cancelled and a debt of $67,824.06 was raised to the Commonwealth.
54. The Tribunal finds that there has been an ongoing caring and supporting relationship between Mrs Caldwell (the applicant) and Mr Taylor since 1993. The Tribunal also finds that this relationship became a sexual relationship in either 1996 or 1998, leading ultimately to their engagement in or about 2003. While Mrs Caldwell and Mr Taylor deny any financial relationship or support for one or the other, there is no independent evidence to confirm this. While the Tribunal notes that the applicant claims that the expenses Mr Taylor outlaid regarding the hot water service and the erection of a pergola were repaid by other people; there is no evidence to support this statement either. Their day‑to‑day living arrangements were very similar to those of many Victorians, when they spent their working days at Mrs Caldwell’s home in Boolarra and their days off work at Mr Taylor’s seaside home in Inverloch. While Mrs Caldwell and Mr Taylor own their own homes and meet the costs and upkeep associated with such ownership, this is not unusual in 2005.
55. Mrs Caldwell and Mr Taylor have declared their commitment by becoming engaged and have both stated that they hope their relationship will be ongoing and perhaps lead, in the future, to marriage. Both acknowledge the sexual relationship that has existed for the past seven or nine years, depending on which documentation is accurate.
56. The Tribunal finds that Mrs Caldwell and Mr Taylor were living in a marriage‑like relationship from 1996 or 1998 until now; that the decision of the primary delegate of Centrelink was correct; and that Mrs Caldwell owes a debt of $67,824.06 to the Commonwealth for overpayment of DSP. The Tribunal recommends that Centrelink review the dates at which the marriage‑like relationship commenced, either in 1996 or 1998; and, if it is found that this relationship has existed from 1998, the debt owing to the Commonwealth should be proportionately reduced.
DECISION
57. The Tribunal affirms the decision.
I certify that the fifty‑seven [57] preceding paragraphs are a true copy of the reasons for the decision herein of
Miss E.A. Shanahan, Member
(sgd) Catherine Thomas
ClerkDate of Hearing: 08 April 2005
Date of Decision: 03 June 2005
Counsel for the applicant: Dr I. Freckleton
Solicitor for the applicant: Robert DavisAdvocate for the respondent: Mr D. Perdon
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