CARLEEN PRIOR and SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND WORKPLACE RELATIONS

[2009] AATA 995

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 995

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/2356

GENERAL ADMINISTRATIVE DIVISION		)
Re		CARLEEN PRIOR

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Mr S. Webb, Member

Date24 December 2009

PlaceMilton NSW

Decision The decision under review is affirmed.

..................[sgd].....................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - Parenting Payment - Applicant paid at the single rate - primary decision that Applicant was a member of a couple - overpayment debt raised - period of marriage-like relationship and debt reduced on review - unreliable evidence – decision affirmed

Social Security Act 1991 s 4

Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22
Lambe v Director‑General of Social Services (1981) 57 FLR 262
Main v Main (1949) 78 CLR 636
Staunton-Smith v Secretary, Department of Social Security 32 FCR 164

REASONS FOR DECISION

24 December 2009 Mr S. Webb, Member         

1.      Carleen Prior claimed and was paid Parenting Payment at the single rate. She has three children. Paul McPherson is father of two of those children. Following a data-matching exercise with the Australian Taxation Office, in which it came to light that Mr McPherson nominated Ms Prior as his spouse, Centrelink determined that Ms Prior was a member of a couple and was not entitled to be paid Parenting Payment at the single rate from 19 September 2000 to 10 June 2008. A debt was raised against her. Ms Prior sought review of that decision. The Social Security Appeals Tribunal (SSAT) reduced the period in which she was found to be a member of a couple with Mr McPherson, finding that the marriage-like relationship ended by 1 March 2003. Ms Prior was, nevertheless, unhappy with that decision.

2.      It is not disputed that Ms Prior and Mr McPherson had a relationship of a kind that was sufficient to produce two children. The relationship commenced in 2000 and assumed an intimate character in that year. I was informed that the Respondent Secretary does not dispute that the character of the relationship between Ms Prior and Mr McPherson changed by 1 March 2003 to the extent that they were not members of a couple thereafter. That being so, the parties informed me that the only aspect of the decision under review to be addressed in these proceedings concerns the character of the relationship between Ms Prior and Mr McPherson in the period from 19 September 2000 to 1 March 2003. In essence the case is simply put by both parties: if Ms Prior was not a member of a couple with Mr McPherson during the specified period, she was not overpaid and is not liable for an overpayment debt; alternatively, if Ms Prior is found to be a member of a couple during that period, she was overpaid and she is liable for the overpayment debt. Neither party made issue of the amount of the debt. The Applicant did not raise any issue concerning the recovery of the debt if it is found that Ms Prior was a member of a couple during the relevant period. It can be accepted that Ms Prior was not legally married to Mr McPherson at any time.

3.      Thus, proceeding on the basis of the issues agitated by the parties, the issue for determination is whether Ms Prior was a member of a couple with Mr McPherson during the specified period. It is necessary, therefore, to determine whether Ms Prior and Mr McPherson were living separately and apart on a permanent and indefinite basis and, if not, whether their relationship was a marriage-like relationship.

4.      The following background facts arise from the documents and the evidence presented at hearing, and are established on the balance of probabilities:

(a)on 8 February 2000 Ms Prior purchased a residential property at 3 White Sands Place, Surf Beach in New South Wales (“White Sands Place”)  (T18);

(b)at that time Ms Prior was separated from her previous partner, Craig Drury, and was residing in her parent’s house at 2 Graham Street, Milton in New South Wales (“Graham Street”) (T4);

(c)Ms Prior and Mr Drury have one child (“B”), born in 1997;

(d)Mr Drury owned a business, The Cutting Corner (T71 folio 740), in which Ms Prior was employed from time to time (see T67 folio 690 for example);

(e)on 4 April 2000 Ms Prior informed Centrelink that B was enrolled at the Cabbage Patch Child Care Centre in Milton (T67 folio 690);

(f)on or about 19 September 2000 Mr McPherson moved into White Sands Place (T69 folio 718);

(g)Ms Prior and Mr McPherson commenced a sexual relationship soon after Mr McPherson moved into White Sands Place (Exhibits A11 and A12);

(h)on 4 October 2000 Mr McPherson informed Centrelink that he was not living in shared accommodation and was paying $130 per week in rent (T5 folio 37);

(i)on 9 October 2000 Centrelink recorded the following contact with Mr McPherson – “cus enq re elig for nsa if in defacto rel’ship. curr inelig_as moved to area of lesser emp. ptr will be on pps currently. pls f/up & adv.” (T70 folio 719);

(j)on 14 November 2000 Mr McPherson commenced work at Sofas at the Bay in Batemans Bay;

(k)on 11 December 2001 Ms Prior gave birth to her second child (“R”) in the Batemans Bay Hospital – Mr McPherson is the father and attended the birth (Exhibit A11 paragraph 13);

(l)on or about 3 January 2002 Ms Prior made an application for Family Tax Benefit and on or about 4 February 2002 she made an application for Child Support Assessment in respect of R (T67 folios 684-686);

(m)on 5 February 2002 Ms Prior and Mr McPherson lodged statutory declarations with Centrelink in relation to Ms Prior’s on-going claims for Parenting Payment Single – her Parenting Payment Single was restored soon thereafter (I note that the statutory declarations are not in evidence and cannot be found) (T67 folio 683-684);

(n)on 28 February 2002 Ms Prior gave an affidavit in support of her application in the Family Court of Australia for orders in relation to B - in her affidavit Ms Prior recorded her address as 3 White Sands Place, Surf Beach and she stated that “By that time [B’s birthday in June 2000] I had moved from Milton [Graham Street] to Batemans Bay [White Sands Place]” (T6 folio 40);

(o)on 25 June 2002 an amended application was lodged with the Family Court in which Ms Prior listed her address as 3 White Sands Place, Surf Beach (T7 folio 44);

(p)on 22 August 2002 Ms Prior appeared in the Family Court proceedings and gave her address as 3 White Sands Place, Surf Beach (T8 folio 47);

(q)in the settlement of her affairs with Mr Drury, The Cutting Corner business was to be transferred to Ms Prior, however Ms Prior arranged for the business to be transferred to Mr McPherson on or about 4 March 2002 (T71 folios 740-741);

(r)The Cutting Corner was registered in Mr McPherson’s name for GST purposes from 4 March 2002 to 6 November 2003 (T71 folio 741);

(s)on 9 July 2002 Ms Prior lodged a claim for  in respect of her niece, (“S”) (T67 folio 681) – she was paid Family Tax Benefit in respect of S until 20 December 2002 (T67 folio 676-677);

(t)Ms Prior’s rent assistance payments were stopped in or about 29 July 2002 (T67 folio 680);

(u)on 24 July 2002 Ms Prior lodged a rent certificate stating that she was paying private rent as a non homeowner of $170 per week from 8 June 2002 (T67 folio 680);

(v)on 27 September 2002 Ms Prior acquired a green Lexus motor vehicle (registration AMH64L) that was registered in her name at 2 Graham Street, Milton until at least 24 January 2008 – at that date the vehicle registration was active until 26 September 2008 (T22 folios 129-130);

(w)on 4 February 2003 the registrar of the Local Court in Milton sent Ms Prior a Notice of Listing for Pre-Trial Review to her address at 3 Whitesands Place, Surf Beach (T9 folio 67);

(x)on 6 March 2003 Ms Prior lodged a rent certificate stating that from 27 February 2003 she was paying private rent as a non homeowner of $170 per week (T67 folio 676);

(y)on 14 May 2003 Ms Prior swore an affidavit in civil proceedings against Mr Drury in which she stated that her address was 3 White Sands Place, Surf Beach (T10 folio 68);

(z)on 29 May 2003 Ms Prior gave birth to her third child (“M”) in the Milton Hospital – Mr McPherson is the father of this child but there is no record of who was present at the birth; Mrs Shirley Prior, Ms Prior’s mother, is listed as next of kin residing at 2 Graham Street Milton (T20 folio 118);

(aa)on 13 June 2003 Ms Prior lodged a claim for Maternity Allowance, recording her address as 2 Graham Street, Milton (T11 folio 85; T67 folio 674 refers);

(bb)on 16 June 2003 Mrs Shirley Prior stated that “Carleen Prior rents a flat from me for $170 per week” (T12 folio 95);

(cc)on 25 August 2003 Ms Prior informed Centrelink of her ownership interest in 3 White Sands Place, Surf Beach (T67 folio 670);

(dd)on 13 October 2003 Ms Prior lodged a rent certificate stating that she was paying $170 per week in rent from 2002 and that she does not share accommodation (T67 folio 668);

(ee)on 29 October 2003 Country Energy connected a separate electricity service in Ms Prior’s name at Unit 1 Downstairs, 3 White Sands Place, Surf Beach (T25 folio 135);

(ff)from 3 December 2004 to 2 July 2007 Country Energy provided an electricity service to Mark Tulett at 3 White Sands Place, Surf Beach (Upstairs) (T25 folio 136);

(gg)from 8 December 2000 until 12 April 2007, at least, Mr McPherson’s address on his driver’s licence was 3 White Sands Place, Surf Beach (T28 folio 148);

(hh)on 8 December 2003 Ms Prior attended the Emergency Department of the Batemans Bay Hospital, recording her address as 3 White Sands Place, Surf Beach, telephone numbers 44712207 and 0414244037, and naming Paul McPherson as her partner (telephone number 44712207) (T31 folio 157) – similar details are recorded in admission records from 27 May 2004 and 1 July 2007 (T31 folios 159-160);

(ii)Ms Prior’s mobile telephone number (0414244037) is not a Telstra service (T19 folio 116) and no evidence was adduced in relation to that service. The telephone number at 2 Graham Street, Milton is 44551417 (T19 folio 116).

5.      Ms Prior asserts that her relationship with Mr McPherson was not marriage-like. She says that they did not live together or hold themselves out as a couple; they did not pool resources or jointly own any assets; they lived separately and apart but maintained a sexual relationship for a time; they shared some responsibilities in relation to their children, but only in a manner that is consistent with reasonable parenting in the particular circumstances; during the times when they were together they did not share household duties such as cooking, cleaning and washing clothes; and, despite Ms Prior’s hopes at the time, they did not share a high level of commitment to the relationship – Mr McPherson was not highly committed to the relationship and had an affair with another person in 2003. Ms Prior says that she found out about the affair when she was pregnant with her third child, M, and from that time forward her relationship with Mr McPherson changed: it was no longer intimate or sexual thereafter. In support of these assertions, Ms Prior relies on the evidence of family members and friends as well as Mr McPherson and people associated with Mr McPherson. Ms Prior asserts that the relationship cannot be considered to be a marriage-like relationship if all of the circumstances and evidence is properly taken into account.

6.      Furthermore, Ms Prior asserts that she faces prejudice in these proceedings as a result of the effluxion of time, where memories fade and the reliability of related evidence may reasonably be questioned, and where evidence that was previously available cannot presently be found or obtained. In Ms Prior’s submission Centrelink was informed of all relevant facts and was provided with all relevant information at the time and made appropriate assessments concerning her entitlements at the time. In her submission, to revisit these matters now, nine years after the particular events is profoundly unfair.

7.      Thus, in Ms Prior’s submission, considering the evidence and the prejudice to which she has pointed, the decision under review should be set aside and findings made that she was not a member of a couple during the specified period and she is not liable for any overpayment debt in respect of the parenting payments she received.

8.      As will appear, I do not agree.

9.      Under the Social Security Act 1991 (the Act) a person is a member of a couple if the person has a marriage-like relationship with a member of the opposite sex to whom they are not legally married.[1]  When determining whether or not a person has a marriage-like relationship with another person it is necessary to consider all of the circumstances of the relationship, including:

(a)the financial aspects of the relationship;

(b)the nature of the household;

(c)the social aspects of the relationship;

(d)any sexual relationship;

(e)the nature of their commitment to each other; and

(f)any other relevant matter.

[1] Subsection 4(2)(b).

The relationship cannot be ‘marriage-like’ if Ms Prior and Mr McPherson were living separately and apart from each other on a permanent or indefinite basis.[2] The overall picture of the relationship must be considered.[3]  Each factor must be considered in the context of the evidence as a whole and a determination made concerning the relationship thus revealed.  These are matters on which reasonable minds may differ on the same facts.  Nevertheless, they must be decided to the reasonable satisfaction standard of proof, on the balance of probabilities.  Mere suspicion or possibility is not sufficient. 

[2] Subsections 4(3) and 4(3A) of the Act.

[3] Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22 at 27 para [24]; Lambe v Director‑General of Social Services (1981) 57 FLR 262 at [200].

10.     As will appear, and it is not surprising, there are factors pointing to a relationship that is marriage-like between Ms Prior and Mr McPherson in the period from 19 September 2000 to 1 March 2003, and there are factors weighing against it. 

Credit

11.     It is appropriate at this stage to make some observations about issues of credit.  Ms Prior and Mr McPherson gave oral evidence separately at the hearing.  Each asserted that they were not members of a couple during the relevant period.  Each said that they only ever had a sexual relationship, as boyfriend and girlfriend, and they always lived separately and apart, despite Ms Prior staying overnight with Mr McPherson from time to time each week during the period from October 2000 to March 2003.

12.     Ms Prior informed me that she had previously lied about her residential address and living arrangements in sworn evidence provided to the Family Court of Australia. In that evidence she gave detailed accounts concerning her living arrangements, including her move from Graham Street to White Sands Place in the latter part of 2000, and her subsequent living arrangements at that address. Ms Prior now says that significant aspects of this evidence are incorrect – she did not move from Graham Street to White Sands Place at any time in 2000. She attempted to excuse her purported dishonesty by asserting that she was simply attempting to avoid further contact with her previous partner, who had been violent and abusive. One only has to read the judgement handed down in that case (Prior v Drury [2001] Family Court of Australia SY 3807 of 2001) to comprehend the scope of the issues and evidence before the Court. Ms Prior had ample opportunity to raise her concerns and fears concerning Mr Drury, and to seek related restraining or anti-violence orders.[4] No such orders were sought or made in respect of Mr Drury. In her judgement, Boland J observed that she had difficulties accepting Ms Prior’s evidence concerning cohabitation with Mr McPherson and made orders concerning access and visiting arrangements in respect of both parents and B, including that “The mother and father forthwith advise the other in writing of their residential address and telephone contact numbers…”.[5] It strikes me that such orders are not consistent with the picture Ms Prior attempted to paint in these proceedings concerning her purported intention to avoid further contact with Mr Drury. There are very significant concerns about the reliability of Ms Prior’s evidence; she does not strike me as a credible witness of truth.  As it appears to me Ms Prior changes her evidence to suit her purpose at the particular time, for her own convenience or in order to obtain a benefit. Accordingly, I am not prepared to accept her evidence concerning controversial points as reliable, or to give it any weight in the absence of independent corroboration.

[4]  See T10 folios 68-72.

[5] Prior v Drury [2001] Family Court of Australia SY 3807 of 2001, Order 10 (T8 folio 65).

13.     Mr McPherson also admitted to lying in order to obtain a benefit. In a Customer Declaration Form for Newstart Allowance on 4 October 2000, Mr McPherson stated that his address was 3 White Sands Place, Surf Beach and he paid $130 per week in private rent. In his oral evidence before me he admitted that this was false and was simply designed to obtain a financial benefit from Centrelink. This cavalier approach to the truth – attempting to obtain a financial benefit by deception, by perpetrating a fraud – is a very significant concern, not least in relation to the reliability, or otherwise, of Mr McPherson’s evidence in these proceedings. For this reason Mr McPherson’s evidence must be treated with caution and it, too, cannot be accepted as reliable without independent corroboration.

14.     Furthermore there are apparent inconsistencies in the statements and oral evidence given by Ms Prior and Mr McPherson at various times. For example, Ms Prior staunchly denied any sexual relationship with Mr McPherson after March 2003. Mr McPherson, however, gave evidence that he and Ms Prior recommenced a sexual relationship at the end of 2005 for a period of approximately eight months, as boyfriend and girlfriend. Mr McPherson gave this account as a reason for claiming Ms Prior as his spouse in his 2005-2006 Tax Return.[6]

[6] T80 folio 979.

15.     Thus, one must be cautious when assessing such unreliable evidence in order, properly, to distinguish the kernel of fact from the cloak of fabrication.

prejudice

16.     It is appropriate at this point to make some observations about the issues of prejudice raised by Ms Prior.

17.     Ms Prior’s submissions on this point have some merit – memories fade over time, and after several years it may be difficult to locate witnesses of relevance and documents may be lost. These factors may increase the difficulty of ascertaining the true character of the relationship between Ms Prior and Mr McPherson during the relevant period from September 2000 to March 2003.

18.     Nevertheless, a case for the existence of prejudice resulting from the effluxion of time can be made by both parties in these proceedings. Furthermore, the prejudice to which Ms Prior points cannot, alone, be determinative; it is but one factor that must be taken into account when determining whether Ms Prior was a member of a couple during the relevant period in which she claimed and was paid Parenting Payment at the single rate.

19.     It is apparent that some relevant documents are missing and cannot be found, statutory declarations made by Ms Prior and Mr McPherson on 28 February 2002 for example. This is a matter of concern.

20.     The content of the missing documents is not known. It cannot be established, therefore, whether such documents would lend weight one way or the other in the present dispute. Ms Prior says that Centrelink accepted the content of the statutory declarations at the time and continued to pay her Parenting Payment at the single rate. She asserts that it is grossly unfair to revisit Centrelink’s decision in 2002 when these relevant documents cannot be found. The difficulty I have with this submission is that new evidence is available that was not considered by Centrelink in 2002. This includes information provided by Ms Prior concerning her interest in the White Sands Place property in 2003 and taxation information obtained in a data-matching exercise concerning Mr McPherson’s inclusion of Ms Prior as his spouse in his 2005-2006 Tax Return.  This evidence had not previously been available to Centrelink decision-makers in 2002. In the circumstances it is appropriate for Centrelink to conduct investigations to establish that Ms Prior was entitled to payments she received.

21.     It is true that additional and better contemporaneous evidence may have added flesh to the corpus of the relationship between Ms Prior and Mr McPherson during the relevant period that rises from the present evidence. But I am not persuaded that any such evidence would change the essential nature of the relationship that I have found existing between them. As it appears to me the issue of prejudice Ms Prior has raised is but a minor hurdle when compared to the issues of credit that have been raised. If one is to rely on the contemporaneous accounts given by Ms Prior to the Family Court, for example, the conclusions I have reached would be confirmed.

financial aspects of the relationship

22.     There is no evidence that Ms Prior and Mr McPherson held joint accounts or that they jointly owned assets in the form of shares, real property or motor vehicles during the relevant period. There is no evidence that any utilities or services were in their joint names. These factors weigh against the existence of a marriage-like relationship. I note, however, that Ms Prior obtained a separate electricity connection for the ground floor accommodation at White Sands Place on 29 October 2003. It can be inferred from this evidence that a single connection was in use prior to this date.

23.     Ms Prior and Mr McPherson gave evidence that there was no financial pooling or joint financial arrangements between them during the relevant period. But this is not consistent with other evidence that is before the Tribunal.

24.     Mr McPherson moved into Ms Prior’s property at White Sands Place on or about 19 September 2000. Ms Prior and Mr McPherson gave evidence that Mr McPherson did not pay any rent but undertook some maintenance work on the property and contributed to Ms Prior’s mortgage for a time in 2003 or 2004. Their evidence on these points is not supported by any independent corroborative evidence. There is contradictory evidence concerning the payment of rent. On 4 October 2000 Mr McPherson informed Centrelink that he was residing at White Sands Place and was paying $130 per week in private rent. Ms Prior denies that he did and Mr McPherson informed me that the information he gave Centrelink was incorrect – he did not pay rent to Ms Prior at any time. Ms Prior says that she allowed Mr McPherson to reside at White Sands Place rent-free as an act of kindness to a person who was in difficult circumstances. If that is correct, and I make no such finding, one would expect the arrangement to change when the beneficiary’s circumstances changed for the better. The evidence is that Mr McPherson commenced paid employment at Sofa at the Bay in November 2000, but there is no evidence he started paying rent to Ms Prior thereafter. As it appears to me the arrangement to which Ms Prior has pointed is one that is more consistent with co-habitation rather than an act of generosity to Mr McPherson. These factors weigh in favour of the existence of a marriage-like relationship at the time.

25.     On 9 October 2000 Mr McPherson enquired about his eligibility for a Newstart Allowance if he was in a de facto relationship and his partner was receiving Parenting Payment Single.[7] This evidence weighs in favour of the existence of a marriage-like relationship between Ms Prior and Mr McPherson at the time.

[7] T70 folio 719.

26.     There is evidence from Mr McPherson’s employer, Sofas at the Bay, that direct debit payments from Mr McPherson’s wages were made to an account in Ms Prior’s name.[8] Ms Prior denies that any such direct debit payments were made during the relevant period, but she did not test the evidence of Mr McPherson’s employer. Mr McPherson gave evidence that he may have made direct debit payments to Ms Prior’s mortgage account for a time, commencing in 2003 or 2004 and ceasing “when all this started”. On the present evidence I cannot determine the amount or the frequency or the purpose of the direct debit payments Mr McPherson made to Ms Prior, or when they commenced. It is possible that they were payments of rent, but that is not established on the present evidence and Ms Prior and Mr McPherson staunchly deny it. It is also possible that the payments were mortgage contributions, as Mr McPherson alleges. Ms Prior did not adduce evidence in the form of bank account records to clarify or establish the point. The wage records for Mr McPherson that have been filed, however, do not contain payment details and are not complete, commencing on 1 July 2004. Thus, it is not possible to clarify the employer’s evidence concerning direct debit transactions from Mr McPherson’s wages. Nevertheless, I am reasonably satisfied that direct debits were made from Mr McPherson’s wages to an account held by Ms Prior. Mr McPherson commenced employment at Sofas at the Bay on 14 November 2000. The evidence of the employer on 29 April 2008 is that Ms Prior is recorded as Mr McPherson’s former partner.[9] These factors weigh in favour of the existence of a marriage-like relationship at the time.

[8] T39 folio 247.

[9] T39 folio 248.

27.     Ms Prior settled a claim against her previous partner, Mr Drury, in or about March 2002. The terms of settlement included a business - The Cutting Corner. The business, however, was transferred from Mr Drury to Mr McPherson in March 2002. Ms Prior gave evidence that she simply did not want the business. That evidence must be considered in the light of the evidence concerning Ms Prior’s employment in The Cutting Corner business from time to time during the relevant period. The arrangements concerning the transfer of ownership of this business from Mr Drury to Mr McPherson remain opaque. All that can be said is that Mr McPherson benefited to some extent from Ms Prior’s settlement with Mr Drury. These factors weigh in favour of the existence of a marriage-like relationship at the time.

28.     On the evidence before me the only other financial aspects of the relationship between Ms Prior and Mr McPherson concern support for the children they have produced. In January 2002 an assessment of Mr McPherson’s child support obligation was made for the purposes of Ms Prior’s claim for Family Tax Benefit following the birth of R.[10] There is no documentary evidence that Mr McPherson made child support payments during the relevant period prior to March 2003. Child support payments during the relevant period in respect of R were not collected by the Child Support Agency. It is possible that the direct debit payments from Mr McPherson’s wages in favour of Ms Prior included child support, but that is contra-indicated by the commencement of those direct debit payments in 2000, prior to the birth of R. These factors do not weigh for or against the existence of a marriage-like relationship. Ms Prior declared that Mr McPherson was the father of R and in order to determine her eligibility for Family Tax Benefit it was necessary for her to apply for a Child Support Assessment. There is no independent evidence that Mr McPherson made child support payments in accordance with that assessment.

[10] T67 folios 684-687.

nature of household

29.     Ms Prior gave evidence that she has had primary care of and responsibility for the children and that she resided at Graham Street at all relevant times. Ms Prior and Mr McPherson gave evidence that each did their own cleaning, washing and shopping. Ms Prior stated that she would always bring her own food when staying at White Sands Place and she would not cook for Mr McPherson, although she conceded that she and Mr McPherson may have eaten together from time to time in 2001. Mr McPherson gave evidence that he would cook for Ms Prior on occasions during the relevant period and that they would share meals when working together renovating the property at White Sands Place.

30.     As I have said there is contradictory evidence about Ms Prior’s living arrangements during the relevant period. She gave detailed affidavits and oral evidence before the Family Court in which she stated that she lived at White Sands Place with her children from the latter part of 2000 to 14 May 2003.[11] She now disavows this evidence. Her disavowal is supported by Mr McPherson and the evidence of her mother, Shirley Prior, and other lay witnesses. As I have said, there are serious questions about the reliability of the evidence given by Ms Prior and Mr McPherson in these proceedings and I am not prepared to accept it in the absence of independent corroboratory evidence. I am satisfied that no such corroborative evidence has come to light.

[11] T10 folio 68.

31.     The evidence of Shirley Prior indicated that each week Ms Prior spent some time living at Graham Street and that she would spend other nights with Mr McPherson at White Sands Place, with or without B (and later R). On Mrs Prior’s evidence Mr McPherson would also spend some nights at Graham Street during the relevant period with Ms Prior. Mrs Prior told me that the relationship between her daughter and Mr McPherson changed prior to the birth of M in May 2003 and that after that “they were not a couple any more”. This evidence weighs in favour of the existence of a marriage-like relationship prior to May 2003.

32.     The evidence of Kate Prior, Ms Prior’s sister, is that during the relevant period she was residing in Canberra and would ring Graham Street occasionally each quarter. She told the Tribunal that Ms Prior would usually answer the telephone. Her evidence is that Ms Prior never lived at White Sands Place. When asked about the nature of the relationship between Ms Prior and Mr McPherson she stated that they were a couple, they had children and they broke up before M was born. This evidence weighs in favour of the existence of a marriage-like relationship prior to May 2003.

33.     Ken Willmot, Ms Prior’s uncle, gave evidence that she had always lived at Graham Street since the family moved there 32 years ago. He did not think that Ms Prior had ever lived at White Sands Place. This evidence does not weigh heavily one way or the other – whether Ms Prior lived at White Sands Place is but one of a number of factors that must be considered.

34.     John Golbach, a work colleague of Mr McPherson, gave evidence that Mr McPherson lived at White Sands Place alone. Mr Golbach agreed, however, that he had not visited Mr McPherson at White Sands Place prior to 2003 – he said that he did not visit when Ms Prior was there. Mr Golbach told me that he first met Ms Prior when she and her children visited Mr McPherson at work in 2001. This evidence weighs in favour of the existence of a marriage-like relationship prior to 2003.

35.     Harold Nash, Mr McPherson’s work colleague gave evidence that Mr McPherson lived at White Sands Place alone and that Ms Prior only visited to drop off children, and then did not go into the house. Under cross examination Mr Nash conceded that he started visiting Mr McPherson in and after 2003 even though they had been friendly from soon after Mr McPherson commenced employment at Sofas at the Bay. Mr Nash told me that Mr McPherson and Ms Prior fought a lot and he had witnessed Mr McPherson in a distraught and upset state at work as a result of difficulties with Ms Prior. In Mr Nash’s opinion the relationship between Ms Prior and Mr McPherson was “doomed” and was likely to “fall apart, and in 2003 it was “more off than on”. This evidence weighs in favour of the existence of a marriage-like relationship prior to March 2003.

36.     Jody Smith, Ms Prior’s friend, was not called to give oral evidence, but gave a written statement in which she stated that Ms Prior has always lived at Milton and she did not move to White Sands Place. Ms Smith indicated that she was aware of Ms Prior’s relationship with Mr McPherson and saw them together in Milton, although she did not believe that Mr McPherson ever lived with Ms Prior in Milton.[12] This evidence does not weigh heavily one way or the other.

[12] Exhibit A9.

37.     Sylvia Fuller, a friend of Ms Prior, was not called to give oral evidence, but she gave a written statement in which she stated that Ms Prior purchased White Sands Place and intended to move there, but the property was very old and needed a lot of work. By her account Ms Prior did not move to White Sands Place because her father was unwell and needed her help, especially on the family farm at Milton. Ms Fuller’s evidence is that she met Mr McPherson in late 2000 and that she and her husband had stayed at White Sands Place on some weekends with Ms Prior and Mr McPherson. She presumed that Ms Prior and Mr McPherson had a sexual relationship for a few years but they did not live together, and the relationship ended prior to the birth of M in May 2003.[13] This evidence weighs in favour of the existence of a marriage-like relationship prior to May 2003.

[13] Exhibit A10.

38.     I note the evidence of John Murray, Mark Webb, Rita Appleyard, Dr Timothy Devlin, Pamela Christie and Lindy Sandrey in Exhibit A7. None of these witnesses were called to give oral evidence. Insofar as their statements are relevant, they suggest that Ms Prior has always lived at her parent’s house in Milton (Graham Street), she has not lived at White Sands Place or with Mr McPherson, even though they were in a sexual relationship as boyfriend and girlfriend for a time. I also note the high regard in which some of these witnesses hold Ms Prior. Some aspects of this evidence weighs in favour of the existence of a marriage-like relationship, and other aspects weigh against such a relationship during the relevant period.

39.     On 8 December 2003 Ms Prior recorded her address as White Sands Place, her phone number as 44712207 and Mr McPherson as her partner.[14] This evidence weighs in favour of the existence of a marriage-like relationship at the time.

[14] T31 folio 157.

40.     I accept that during the period in question her eldest child B attended day care in Milton for one or two days per week and, in all likelihood, stayed with his mother at Graham Street on those days. This evidence does not weigh heavily one way or the other, as it concerns only one or two days each week.

41.     Ms Prior asserts that she stayed ‘downstairs’ and Mr McPherson lived ‘upstairs’ when she visited the White Sands Place property and both maintained separate arrangements in relation to domestic chores. The evidence from Country Energy reveals that an electricity connection in Ms Prior’s name commenced on 29 October 2003 at Unit 1 Downstairs, 3 White Sands Place, Surf Beach.[15] The evidence concerning the payment of electricity accounts during the relevant period is far from clear. Ms Prior agreed that she had paid utility bills for Mr McPherson during the early period of his residence at White Sands Place, as he had no money. Mr McPherson maintains that he and Ms Prior paid their own utility accounts. No independent evidence was adduced to corroborate these payments and I am not able to establish the truth.

[15] T25 folio 135.

42.     Ms Prior gave evidence before the Family Court that her son B referred to Mr McPherson as ‘Dad’ and that they had a close relationship.[16] She confirmed this in her oral evidence. Mr McPherson, however, denied that he had taken B fishing and could not recall B calling him Dad. Mr McPherson agreed, however, that he had a good relationship with B. This evidence weighs in favour of the existence of a marriage-like relationship during the relevant period.

[16] T8 folio 52.

43.     The Roads and Traffic Authority, New South Wales records in evidence reveal that Ms Prior recorded her address for many years before and after the relevant period as 2 Graham Street, Milton for the purposes of her driver’s licence and motor vehicle registrations.[17] Mr McPherson recorded his address for similar purposes from 2000 as 3 White Sands Place, Surf Beach. This evidence weighs against the existence of a marriage-like relationship during the relevant period, but not heavily.

[17] T61 folio 386.

social aspects

44.     Ms Prior and Mr McPherson gave evidence that they socialised together only rarely and they did not hold themselves out as a couple at any time during the relevant period. 

45.     That evidence is not consistent with the evidence of other lay witnesses. It is apparent from the evidence given by Shirley Prior, Kate Prior, Sylvia Fuller, Jody Smith, Harold Nash and Lindy Sandrey that the relationship between Ms Prior and Mr McPherson was known to them. Shirley Prior gave oral evidence that the character of the relationship between Ms Prior and Mr McPherson changed in the latter months of 2000 – they were friends and then they started going out together – and changed again early in 2003 – they were not going out as a couple after that. Kate Prior told the Tribunal that Ms Prior and Mr McPherson “were a couple”, but they broke up before M was born. Sylvia Fuller stated that “Carleen had a relationship with Paul McPherson from late 2000 to early 2003”; she described staying with Ms Prior and Mr McPherson at White Sands Place occasionally on weekends and other social occasions “in the early 2000’s”.[18] Jody Smith stated that she knew of the relationship between Ms Prior and Mr McPherson and that she recalls seeing them together.[19] It is clear from Harold Nash’s evidence that he was aware of a relationship between Ms Prior and Mr McPherson and that he understood the relationship ended during Ms Prior’s pregnancy with M. Mr Nash stated “I do not know the reason for the split but it was not [sic] surprise to me or others that knew them because the relationship seemed doomed for as long as we knew about it”.[20] Lindy Sandrey stated that “For a while they [Ms Prior and Mr McPherson] presented as boyfriend and girlfriend”.[21]

[18] Exhibit A10, pp2-3.

[19] Exhibit A9, p2.

[20] Exhibit A5, p2.

[21] Exhibit A7, T61 folio 375.

46.     On this evidence I am reasonably satisfied that the relationship between Ms Prior and Mr McPherson was known to their family and friends, and that they were recognised as a couple during the relevant period. I so find.

47.     In sum these social factors weigh in favour of the existence of a marriage-like relationship during the relevant period.

sexual relationship

48.     It is plain enough that Ms Prior and Mr McPherson maintained a sexual relationship during the relevant period.

49.     There is conflicting evidence concerning the commencement of the sexual relationship. Ms Prior informed the SSAT that she met Mr McPherson through friends early in 2000, he moved to Batemans Bay from Victoria and she agreed to him moving into White Sands Place, rent-free, because he was short of money. By her account to the SSAT she and Mr McPherson commenced a sexual relationship shortly thereafter.[22] Her evidence before me is that the sexual relationship commenced around Christmas 2000, about three months after Mr McPherson moved into White Sands Place.[23] Mr McPherson stated that the sexual relationship started about one month after he moved into White Sands Place and became “more serious” over the following three or four months.

[22] T2 folio 7.

[23] Exhibit A1, p1.

50.     On 28 February 2002 Ms Prior gave affidavit evidence to the Family Court that she had been in a relationship with Mr McPherson for 18 months.

51.     Weighing this evidence and the evidence of other witnesses, I accept that Ms Prior first met Mr McPherson through mutual friends early in 2000 and maintained contact with him when he returned to Victoria. I am reasonably satisfied that the sexual relationship between Ms Prior and Mr McPherson commenced before September 2000, and intensified when he moved into White Sands Place on or about 19 September 2000.

52.     On the evidence of Ms Fuller it appears that Ms Prior and Mr McPherson slept together at White Sands Place, at least during periods when Ms Fuller visited them there. On the evidence of Shirley Prior Ms Prior and Mr McPherson slept together at Graham Street when visiting there during the relevant period. Ms Prior and Mr McPherson suggest that these arrangements occurred on only a few nights each week in some but not all weeks during the period in question, either when Ms Prior visited White Sands Place, or when Mr McPherson visited Graham Street. On their uncorroborated evidence Ms Prior slept in the downstairs unit at White Sands Place when visiting with her children. No independent evidence to corroborate this account was adduced.

53.     Nevertheless, on Ms Prior’s evidence, she wanted her relationship with Mr McPherson to grow and informed him that “I was stopping contraception before [R] was conceived”.[24] Mr McPherson denies this. Ms Prior asserts that her second pregnancy to Mr McPherson was the result of contraceptive failure. Mr McPherson stated that he was initially furious but then accepted what had happened.

[24] Exhibit A1, p2.

54.     Mr McPherson gave oral evidence that he commenced a sexual relationship, “an affair”, with a co-worker at the fire brigade in early 2003. This, he said, lasted for a number of months before Ms Prior found out about it, whereupon they had “a huge argument and from that time my relationship with Carleen ended”[25] – “She immediately ended our sexual relationship”.[26] The person with whom Mr McPherson allegedly had the affair was not identified or called to give evidence.

[25] Exhibit A2, pp 3-4.

[26] Exhibit A12, p2.

55.     Mr McPherson stated that his sexual relationship with Ms Prior “has not resumed” and that when the sexual relationship ended Ms Prior “stopped coming down to [White Sands Place]”.[27] Under cross-examination, however, Mr McPherson gave evidence that he and Ms Prior resumed their sexual relationship “as a couple” in 2005 for a period of several months, and it was for this reason that he recorded Ms Prior as his spouse in his 2005-2006 Tax Return. Ms Prior staunchly denies this.

[27] Exhibit A12, p2.

56.     The evidence of Shirley Prior, Kate Prior, Sylvia Fuller, Harold Nash and John Golbach points to a change in the nature of the relationship between Ms Prior and Mr McPherson in 2003. I accept that this change involved the cessation of their sexual relationship, at least for a time. I so find.

57.     In sum these factors weigh in favour of the existence of a marriage-like relationship during the relevant period.

commitment

58.     Ms Prior and Mr McPherson stated that they did not see their relationship as marriage-like during the relevant period, although Ms Prior conceded that she hoped the relationship would become full-time.  

59.     Mr Nash characterised their relationship as “doomed” and asserted that he and “others that knew them” were not surprised when the relationship ended during Ms Prior’s pregnancy with M. On his evidence Mr McPherson treated the relationship as a sexual convenience and “he had no commitment to it”.[28]

[28] Exhibit A5, p2.

60.     I am satisfied that Ms Prior and Mr McPherson held themselves out as members of a couple from time to time, using words such as ‘partner’ and ‘boyfriend/girlfriend’ during the relevant period.  It appears that Ms Prior viewed their relationship, perhaps with undue optimism, as an engagement. Mr McPherson, on the other hand, enquired on 9 October 2003 about his entitlement to a Newstart Allowance if he was in a ‘de facto’ relationship with a person who was receiving Parenting Payment Single. One can only conclude that he was referring to his relationship with Ms Prior at the time.

61.     As it appears to me Ms Prior relied upon Mr McPherson for emotional, financial and other support during times of crisis.  Mr McPherson attended the birth of R at the Batemans Bay Hospital, he made direct debit payments to Ms Prior from his wages, he maintained a close relationship with Ms Prior’s first child B and he developed and maintained a familial relationship with Ms Prior’s parents.  For his part, Mr McPherson obtained emotional, financial and other support from Ms Prior during the period in question. Ms Prior offered intimacy and companionship to Mr McPherson in a town and community that was new to him, she provided free accommodation and aspects of family life, including visiting him at work from time to time. These matters may appear trivial and inconsequential, but they indicate a commitment between Ms Prior and Mr McPherson during the relevant period that aspects of their oral evidence purport to belie.

62.     In sum these factors weigh in favour of the existence of a marriage-like relationship during the relevant period.

living separately and apart

63.     Ms Prior asserts that at all relevant times she was living separately and apart from Mr McPherson, and their relationship was no more that boyfriend and girlfriend.

64.     As it appears to me the present evidence does not support that conclusion.

65.     The test to be applied for present purposes is not whether two people live together permanently in the same house, it is whether their interpersonal relationship is marriage-like.  The relationship cannot be marriage-like if the two people concerned are living separately and apart on a permanent or indefinite basis.

66.     There are many examples of married couples who spend periods of time living in different places without disturbing the marriage-like nature of their relationship. I am satisfied that Ms Prior and Mr McPherson did not live together in one house during the entire period from October 2000 to March 2003 – the evidence suggests that they conducted their relationship in two houses during this period. I am also satisfied that they maintained separate lives to some degree for parts of each week. 

67.     The concept of ‘separately and apart’ was discussed by the High Court in Main v Main[29] and by the Federal Court in Staunton-Smith v Secretary, Department of Social Security[30].  What must be considered is not only whether the parties live separately, in physical terms, but also, and perhaps more importantly, whether the marital relationship (the consortium vitae) has not been forged or has broken down.  These are matters of fact and degree. 

[29] (1949) 78 CLR 636 at 641.

[30] 32 FCR 164 at 175.

68.     When the overall picture of the relationship between Ms Prior and Mr McPherson is considered, and all of the indicia are taken into account and are considered together, the character of the relationship between Ms Prior and Mr McPherson during the relevant period can be seen.  I am reasonably satisfied that the vital relationship between Ms Prior and Mr McPherson was forged on or before the date on which Mr McPherson moved into White Sands Place, on or about 19 September 2000, and it broke down when Ms Prior discovered that Mr McPherson was having an affair with another woman, in or soon before May 2003.  This can readily be seen on the present evidence.

69.     I am reasonably satisfied that during the intervening period Ms Prior was a frequent and regular visitor to White Sands Place and Mr McPherson was a less frequent visitor to Graham Street. During these times it cannot be said that Ms Prior and Mr McPherson were either separate or apart. As I have said, their uncorroborated evidence on this and other subjects in these proceedings is not reliable. Furthermore, when all of the relevant factors, circumstances and indicia are considered together, the character of the relationship between Ms Prior and Mr McPherson during the relevant period can be seen. On that basis I am satisfied that the relationship thus revealed is not one that can be characterised as two people living separately and apart on a permanent or indefinite basis.  The contrary is established as a matter of probability, and I so find.

marriage-like relationship

70.     Doing my best with the available evidence, considering all the relevant factors and the overall picture of the interpersonal relationship between Ms Prior and Mr McPherson, I am reasonably satisfied that their relationship was marriage-like from on or about 19 September 2000 to at least 1 March 2003. 

71.     At least two children were conceived in their relationship during this period. Carefully considering the evidence I am satisfied that Ms Prior and Mr McPherson have not been entirely truthful or frank about the history of their relationship and all of the circumstances of relevance, to which I must have regard.

72.     There is significant evidence of financial pooling, in relation to the rent-free accommodation arrangement for Mr McPherson, his payments to Ms Prior by direct debit from his wages and the transfer of The Cutting Corner business for example. I do not accept that the existence of a Child Support Assessment in respect of R is a reliable “indicator of alienation” between Ms Prior and Mr McPherson.[31] The Centrelink records suggest that this was required for the purposes of Ms Prior’s Family Tax Benefit assessment on the basis that she and Mr McPherson maintained that they were not members of a couple. It was on that basis that Ms Prior claimed a Parenting Payment at the single rate.  There is no compelling evidence that Mr McPherson made child support payments during the relevant period. In the circumstances a Child Support Assessment is not reliable evidence of alienation between Ms Prior and Mr McPherson, as alleged. Plainly enough their relationship continued and a second child was conceived during the relevant period. An alternative explanation is that the child support assessment was necessary in order to maintain the appearance of separateness between Ms Prior and Mr McPherson so that Ms Prior could continue to receive Parenting Payments at the single rate.

[31] Applicant’s Statement of Facts, Issues and Contentions, 13 October 2009, p18.

73.     I am satisfied that Ms Prior was a frequent and regular visitor to White Sands Place during the period in question. In all likelihood she frequently stayed overnight and maintained a sexual relationship with Mr McPherson for at least two or three nights each week.  Ms Prior was primarily responsible for the care of the children, even though Mr McPherson may have had care of the children B and later R from time to time. 

74.     Considering all of these factors and all of the evidence regarding the period in question it can be seen that Ms Prior and Mr McPherson were committed to each other in a number of important ways. They had one child and conceived a second child. The relationship was sexual. They obtained companionship and support from each other. They collaborated to provide support and care for B and later R at times when they were together. They conducted their relationship between two homes in reasonably close proximity to each other – White Sands Place is approximately 50 kilometres from Graham Street on Ms Prior’s evidence.  They had convenient and mutually beneficial arrangements of a financial nature.  They were recognised as a couple by family members and friends.

75.     Having considered the evidence, the total picture of the relationship between Ms Prior and Mr McPherson and the arrangements between them, I am reasonably satisfied that their relationship was marriage-like, as that term is used for the purposes of the Act, in the period from 19 September 2000 to, at least 1 March 2003. It follows that I am satisfied that Ms Prior and Mr McPherson were members of a couple during that period.

76.     There is difficulty attaching to cases such as this when much of the evidence is principally derived from the two people concerned and is otherwise largely circumstantial.  Furthermore, interpersonal relationships between parents take many forms in a modern society.  Even though evidence of occasional cohabitation, or financial cooperation and performance of parenting responsibilities in the context of a child support agreement, or engaging in occasional sexual intimacy in some cases may not lead to a conclusion that a relationship is marriage-like, one must look to the circumstances of the relationship as a whole and to the nature of the inter-relationship between the two people concerned. 

77.     In this case, even though much of the evidence is ambiguous and open to different interpretation, and being mindful that circumstances change, I am satisfied that sufficient indicia of a marriage-like relationship arise from the evidence to conclude that such a relationship existed between Ms Prior and Mr McPherson during the relevant period. 

78.     It follows that the decision under review is affirmed.

79.     That being so Ms Prior was not entitled to Parenting Payment Single in the period from 19 September 2000 to 1 March 2003 and she was overpaid. The amount of the overpayment constitutes a debt due to the Commonwealth for which she is liable. The quantum of the debt is not in dispute.

80.     Issues concerning the recovery of the debt were not agitated in these proceedings. That being so I have not considered whether there are grounds that would render it appropriate to waive or write-off the debt in whole or in part. As I understand the submissions of the parties, it is accepted that there are not.

I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of Member S. Webb.

Signed:  .....................[sgd]....................................
  J. Lakin, Associate

Date of Hearing  7 & 8 December 2009
Date of Decision  24 December 2009
Solicitor for the Applicant                Stephen Hodges Solicitor
Advocate for the Respondent       Centrelink Legal Services