Cranefield; Secretary, Department of Employment and Workplace Relations and

[2007] AATA 1562

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1562

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2006/163

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

And JOAN ANNE CRANEFIELD

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time Member)

Date18 July 2007

PlaceHobart

Decision The decision under review is set aside and in substitution thereof the Tribunal finds on the balance of probabilities Ms Joan Anne Cranefield was living in a marriage-like relationship during the period 4 November 2005 to 23 May 2006 and therefore not entitled to receive parenting payment single.  A debt of $7,059.96 is therefore owing to the Department.

(Sgd) B Davis...................

Part-Time Member

CATCHWORDS

Social Security - parenting payment single (PPS) - cancellation of benefit - whether marriage-like relationship - member of a couple - SSAT decision - de-novo review by AAT - decision set aside - revised decision substituted

Social Security Act 1991 and Amendments, Section 4 and Section 1068

Social Security (Administration) Act 1999

Staunton-Smith v DGSS (1991) 32 FCR 164

Re  Tang and DGSS (1981) 2SSR15

Peck and SDSS (1992) 76 SSR 1102

SDSS and Bell (2000) AATA 573

Re  Ward and SDFCS (2000) AATA 212

Dempster and SDFCS (2004) AATA 1287

VBH and Anor and SDFCS (2006)

Gordon and DEWR (2006) AATA 792

REASONS FOR DECISION

18 July 2007	Associate Professor B W Davis AM (Part-time Member)
Decision under review

1.      The decision under review is a decision of the Social Security Appeals Tribunal (SSAT) dated 25 September 2006, to set aside the decision Joan Anne Cranefield was a member of a couple during the period 4 November 2005 to 23 May 2006 and therefore entitled to receive Parenting Payment Single for that period.

The issue

2. The issue is whether the respondent was a member of a couple as defined in Section 4 of the Social Security Act 1991, for the purpose of calculating her entitlement to parenting payment in the relevant period, 4 November 2005 to 23 May 2006.

Legislation

3.      The principal legislation is as follows:

Social Security Act 1991 and Amendments, Sections 4(2), 4(3) and 1068 (A) and (B)

Social Security (Administration) Act 1999

Standard of Proof

4.      The standard of proof is on the balance of probabilities and to the general satisfaction of the Tribunal.

Background

5.      The respondent was born on 16 January 1980 and in 1998 commenced a relationship with Mr Benjamin Barrow, although they continued living at their respective parent’s homes.  In August 2000 Joan Cranefield purchased a property at 15 Scott Road, Bridgewater in her own name.  Her partner Mr Barrow moved in with her, but the couple claim to have separated in July 2005.  Ms Cranefield gave birth to Zachary Barrow on 4 November 2005 and was granted parenting-payment single from 4 November 2005 until 23 May 2006.

6.      On 19 June 2006 a Centrelink Officer decided that the respondent was living in a marriage-like relationship with Mr Barrow and a parenting payment single debt of $7,059.96 for the period 4 November 2005 to 23 May 2006 was raised against her.  Ms Cranefield sought review of the decision by Centrelink and subsequently by the Social Security Appeals Tribunal (SSAT), which on 25 September 2006 set aside the initial decision to cancel her parenting payment single (PPS) and substitute its decision that the respondent was not a member of a couple during the relevant period 4 November 2005 – 23 May 2006, and consequently, did not have a parenting payment debt.  Any monies recovered from her should be refunded.

7.      On 2 November 2006, DEWR appealed the decision to the Administrative Appeals Tribunal.

8.      In the course of the above proceedings a number of facts and contentions came to light which are briefly summarised below.

9.      On 28 November 2005 the respondent stated she had been separated from Mr Barrow since 28 February 2005 and that they had been only briefly partnered.  Yet on 13 January 2006 the parties signed a joint loan application for a motor vehicle, Mr Barrow giving the respondent’s address 15 Scott Road, Bridgewater, declaring himself to be a de-facto partner who had resided at that address for 5 years.  A neighbour, Ms Anita Maree Eaves, stated the couple had separated approximately 3 months prior to the birth of Zachary, but nonetheless Mr Barrow stayed one or two nights per week, as well as the weekend at the respondent’s residence.

10.     The respondent made a statement to Centrelink on 21 June 2006 in which she stated:

(a)She had separated from Mr Barrow about four months before the birth of Zachary but in April 2006 they had spoken about reconciling but it had not occurred.  She was still hopeful about the matter;

(b)She was separated when she applied for parenting payment single;

(c)Mr Barrow visited her home regularly after work to see their son Zachary; and

(d)Ben Barrow did not aid her financially and did not offer help other than $50.00 per week for the child.

11.     In evidence given to the SSAT on 25 September 2006, the respondent stated:

(a)She and Mr Barrow had engaged in a relationship from 1995 to July 2005, with Mr Barrow residing at 15 Scott Road, Bridgewater from 2000 to July 2005;

(b)Mr Barrow felt responsible for Zachary’s well-being and would visit him and care for him at either the respondent’s residence or that of her sister;

(c)She was not responsible for any failure on Mr Barrow’s part to change his address from 15 Scott Road (The Australian Electoral Commission had recorded both parties address as 15 Scott Road from 17 July 2001 – 5 June 2006);

(d)Mr Barrow did not offer financial assistance other than $50.00 per week for care of the child or household items.

12.     Mr Barrow told the SSAT he had used the Scott Road address and claimed a de-facto relationship in dealings with a finance company, as otherwise Joan Cranefield would not have been able to obtain a loan to purchase a car.  The payments on the car were in lieu of child support payments and this arrangement had been cleared with the Child Support Agency.  He paid $65.00 per week in child maintenance.  Car repayments to Capital Finance were $278.00 per month.

13.     During the SSAT hearing the respondent was recalled to clarify contradictory evidence given by neighbour Ms Eaves and Mr Barrow in comparison with herself.  She agreed Mr Barrow visited her home each day after he finished work, staying two to three hours and sometimes all day at weekends.  She claimed he only stayed overnight once per week and corrected the amount Mr Barrow gave her for child maintenance from $50.00 per week to $65.00 per week.  She agreed she had been to a friend’s home with Mr Barrow.

The AAT hearing

14.     The AAT hearing was conducted in Hobart on 8 June 2007.  The applicant DEWR was represented by Mr Brian Sparkes and the respondent by Mr Ben Bartl of the Hobart Community Legal Service.  A number of witnesses were called and some affidavits submitted as evidence.

15.     Anita Maree Eaves was sworn and stated she had lived at 79 Findlay Street, Bridgewater, for 33 years and became friendly, but not close, to the Cranefield family when they moved to 76 Findlay Street around 1980.  She had known of the relationship which developed between Joan Cranefield and Ben Barrow from the mid-1990s onwards.  He had moved into the house Joan Cranefield purchased and occupied in year 2000.  She had visited Joan there, but did not recall many conversations with Ben Barrow.  She did know what was going on between the couple, as both Joan and herself worked part-time at the Granada Tavern, although in different areas.  Everybody knew and accepted Joan and Ben were members of a couple, although Joan had brief relationships with others and this was one of the causes of their separation in mid-2005.  Ben Barrow continued to dote over his son Zachary and that was his focus of attention.

16.     Ms Eaves said that when Joan considered applying for child support after the pair separated, she had advised against it, as it would initiate investigation into the circumstances of their relationship and the reality Ben was working and capable of providing financial support.  When Centrelink wrote to her, seeking information about the pair, Joan had contacted her, offering to help fill in the form, saying she had helped other referees as to what to say and Ms Eaves said she regarded this as cheating as Joan had also told her that although they lived apart they remained members of a couple and once investigations were over, they would resume living together.

17.     Mr Bartl queried a claim by Ms Eaves that she heard Joan say ‘I will kick him out’ when informed Centrelink were seeking referee reports in March 2006, when the pair were allegedly already separated.  Ms Eaves said she had heard this statement and another from Ms Cranefield saying “I have been caught’ when Centrelink started asking questions.

18.     Joan Anne Cranefield was then sworn and in response to questions put to her by counsel recounted details of her relationship with Ben Barrow and subsequent claim they had separated in February 2005.  She said she had known Ben Barrow at school, they had developed a close relationship in 1995, although living at their respective parents homes, until Ben moved in with her after she had purchased a home at 15 Scott Road, Bridgewater, via a bank loan guaranteed by her parents.  Ben had lived there from year 2000 until they separated in July 2005.

19.     Ms Cranefield said she and Ben had kept their own finances and separate bank accounts; he paid hydro accounts, but she paid the rates, mortgage, insurance and all other outgoings.  He would supply approximately $50.00 a week for groceries and around January 2006 they took out a joint loan to purchase a vehicle, so that she could take her son Zachary out, after the child was born in November 2005.  It was an unplanned pregnancy and came at a time when there were stresses between them, with her taking anti-depressants and some separations because of her brief affairs with others, prior to reconciliations.

20.     When asked what involvements Mr Barrow had with their son, she said he was a loving father and visited Zachary as often as possible.  Her family and friends sometimes looked after her son if she was engaged in daytime work, but after Ben Barrow finished his work he would visit Zachary regularly and was sometimes there at weekends.  If he remained overnight he would sleep on the couch and there was no sexual relationship with her.  There were no shared social activities and as both parties had other relationships, it was not a marriage-like situation.

21.     Mr Sparkes questioned her about the claimed date of separation from Mr Barrow.  At least three dates in 2005 had been cited.  She couldn’t remember what she had told Centrelink or others, but it was July 2005 when he actually moved out.  She was then asked if this was so why Mr Barrow quoted her address to the hospital when Zachary was being born, to the Electoral Commission and in arranging the loan for the car.  She said it was not her problem that Mr Barrow had not changed his address on forms, but admitted that some of her evidence given to the SSAT had been changed over time as she recalled more.  She had initially said Ben Barrow visited only at a weekend for an hour, but now admitted he visited frequently and sometimes stayed overnight; he had a right to be there to see his son.

22.     She denied some of Ms Eaves evidence, saying she had never used the phrase ‘… I will kick him out”, and said Ms Eaves could not know the details of her life as she did not discuss her affairs with others.  She had shown Ms Eaves the letter from Centrelink about her welfare payments and considered she was entitled to these; as Ben Barrow only paid the car loan instalments of $65.00 per week in lieu of child support payments for Zachary.  She said she was close to her parents, but would not say why they had not been called as witnesses.

23.     Mr Bartl said it was clear her claim to be separated was correct in June 2006 and even if Ben had sometimes used the phrase ‘de-facto’, it was only a short-cut response to questions about a complex relationship, where some fallings-out occurred and the relationship had now ended.

24.     Benjamin Barrow was then sworn and gave his account of events, saying he tried to help out when Zachary was born and his attention was focussed on his son for whom he felt responsible.  He visited every night unless working and his relationship was reasonably good with Joan, as she accepted his right to visit.  He agreed there had been a considerable period of de-facto relationship, but this had now ended.  He had stayed at Joan’s residence overnight a couple of times, but that was when she suffered illness and Zachary had to be cared for.  Ms Cranefield had re-mortgaged her house to pay off the car debt and since then he had paid $65.00 per week in child maintenance.  He was currently living at his parents place and paying board of $50.00 per week.  He and Joan did not now discuss the relationship, past or current.

25.     Under questioning by Mr Sparkes he said that Anita Eaves may have believed he visited Joan’s home two or three times per week, but whatever the number, they were visits, not staying there.  His mother could not give evidence on his behalf because she was in hospital and he would not drag in friends.  His widespread use of Joan’s address was merely a matter of convenience on nominating one place, but admitted phrases such as ‘partner’, ‘de-facto’ and others were used and gave an impression of close relationship.

26.     Bianca Cranefield, sister of Joan Cranefield, was affirmed and said she had gone to live with her sister in November 2006, to assist in minding Zachary when needed.  Ben Barrow visited almost daily but did not live there.  She only lived at 15 Scott Road for a couple of months but considered Ben and Joan had not been in a real relationship since their separation around July 2005.

27.     Mr Sparkes asked her to be a bit more precise about the relationship between November 2005 and May 2006, the period which Centrelink was interested in.  She said she could not recall any details, being busy at the time with school work, she did not know much about her sister other than through the family.

28.     In closing submissions Mr Sparkes said the evidence pointed to a marriage-like relationship between Joan Cranefield and Benjamin Barrow during the relevant period 4 November 2005 to 22 May 2006, even though the couple had depicted themselves as separating around July 2005.  Ms Cranefield was not entitled to parenting payment single during that period and there was a debt of $7,059.96 owing to Centrelink as a result.  It was a sham separation, but had been tested under provisions of the Act and criteria used in such cases as identified in prior determinations such as Staunton-Smith v SDSS (1991) 25 ALD 27 and Peck and SDSS (1992) 26 SSR 1107.

29.     The evidence was set out in the Secretary’s Statement of Facts and Contentions, but he would summarise it again under the headings of financial arrangements, nature of the household, social aspects of the relationship, sexual relationship and nature of commitment.  There was no consistent evidence by the respondent, no credible witnesses were called by either party and the correct and preferable decision for the Tribunal to make was that the SSAT decision of 25 September 2006 should be set aside and the original Centrelink decision to cancel parenting payment single during the relevant period be reinstated as a debt was owed.

30. Mr Bartl rejected this view saying the couple had separated in mid-2005 and Mr Barrow’s role was the appropriate role of caring for his son. If one looked at the individual factors identified within Section 4 of the Social Security Act 1991, it was clear in Ms Cranefield’s case there was no financial relationship with Ben Barrow other than minor household contribution, no social relationship in the sense of sharing activities together, no sexual relationship but some involvement with others, and no commitment other than the shared caring for their son.  It was true the parties sometimes had trouble recollecting dates and partner-like phraseology had been used at times, but this did not and does not prove a marriage-like relationship existed between November 2005 and May 2006.  Ms Cranefield was entitled to parenting payment single during that period and it should be reinstated.

Analysis

31.     The Tribunal is required to conduct a de-novo review, taking into account all available evidence, statutory and policy provisions and any relevant prior case determinations.

32. The term ‘member of a couple’ is defined in sub-section 4(2) of the Act as including someone who is in a ‘marriage-like relationship’ with a person of the opposite sex. In order to determine whether someone’s relationship is ‘marriage-like’, sub-section 4(3) states that the Secretary must consider all the circumstances of the relationship, specifically including the following factors, each of which has several sub-factors:

(a)the financial aspects of the relationship;

(b)the nature of the household;

(c)social aspects of the relationship;

(d)any sexual relationship between the people; and

(e)the nature of the people’s commitment to each other.

This is not a simple matter in an era where ‘relationships’ may take different forms, temporary or permanent.

33. The criteria particularised in Section 4(3) of the Act are not exhaustive. The weight to be given to each factor depends upon the circumstances of each case. See Staunton-Smith v SDSS (1991) 32 FCR 164 and Peck and SDSS (1992) 72 SSR 1102.  In Re Bourke and SDSS (1988) AATA 4184, the Tribunal said that the weight to be given to each factor would vary not only in respect of the situation involved, but the need to determine the presence or absence of the essential character of a marriage-like relationship, much depending on forming the requisite opinion on matters of degree and impression.

34.     In addition to the above the Tribunal must also have regard to the method of calculating parenting payment if this applies.  The rate is worked out by reference to Section 1068A if a person is not a member of a couple, but by reference to Section 1068B of the Act if a person is a member of a couple.  Parenting payment single (PPS) under Section 1068A is paid a higher rate than parenting payment (partnered) (PPP) which is paid under Section 1068B.  The rate of PPP is also affected by the person’s partner’s income.

35. Turning more directly to the current case, the Tribunal has considered the criteria for assessing whether a marriage-like relationship does nor does not exist within the meaning of Section 4(3) of the Act.

Financial aspects of the relationship

36.     The SSAT was unable to identify any sharing of assets and liabilities between Joan Cranefield and Benjamin Barrow.  The residence at 15 Scott Road is owned by Ms Cranefield and the only other linkage during their period together was that Mr Barrow used his name for electricity supply and helped negotiate purchase of a motor-vehicle, which Ms Cranefield subsequently paid off by re-mortgaging her house.  Mr Barrow was described as de-facto at the time.

37.     Nonetheless the two lives have been intertwined since 1995 and this continues.  Mr Barrow contributed $50.00 per week for household expenses during their period together and he has continued to contribute $65.00 per week in child support via private collect, so that the Child Support Agency is not involved.  Whether the couple are now separate or not, the ongoing relationship does appear marriage-like to the Tribunal.

Nature of the household

38.     Ms Cranefield’s evidence is that for the period under review (4 November 2005 – 23 May 2006) she and Mr Barrow did not reside at the same address.  After more detailed questioning the respondent did admit Mr Barrow frequently visited 15 Scott Road and did stay overnight at times.  It is clear Mr Barrow claimed this address for several years and it is recorded as such by the Royal Hobart Hospital, the Australian Electoral Commission, and Capital Finance when the loan to purchase a car was being negotiated.  The SSAT considered Ms Cranefield’s evidence about the household situation was not straightforward, but did accept Ms Eaves’ view Mr Barrow did not permanently reside at 15 Scott Road after the pair separated in mid to late 2005.  Nonetheless he was there almost every day and did stay overnight on several occasions, so classifying this regime was somewhat difficult.

Social aspects of the relationship

39.     Ms Cranefield has claimed she and Ben did not socialise together, apart from family gatherings and their engagement party, but there is some indication of jointly visiting friends.  There is a lack of specifics here which prevents drawing any clear conclusion; they do not give the appearance of a gregarious couple, but the  SSAT considered it could not be satisfied Ms Cranefield had ceased all social activities with Mr Barrow.

Any sexual relationship

40.     Ms Cranefield and Mr Barrow deny any sexual relationship since separation in July 2005, but have admitted some affairs with others before and after the breakup occurred.  There is no evidence to clarify the situation.

Nature of the commitment

41.     The SSAT noted the couple had accepted a long association with each other, including residing together for five years before their son Zachary was born.  Their evidence was that they separated twice, once for three months when Ms Cranefield became involved with a third party.  Mr Barrow indicated it was this, the stresses of pregnancy and Ms Cranefield’s moods and arguments which led to final break-up in July 2006.  Yet both continue to accept Mr Barrow’s right to visit his son whenever he wishes to do so and this keeps them in a situation of shared lives, however the relationship may be classified.  There is a strong and enduring commitment between them, which again seems ‘marriage-like’ in character.

Summary

42.     Having weighed all available evidence the SSAT concluded in September 2006 Ms Cranefield and Mr Barrow were not living in a marriage-like relationship during the relevant period 4 November 2005 – 23 May 2006 and she was therefore entitled to parenting payment single at that time.  They admitted to some doubts about the veracity of Ms Cranefield’s evidence, given her attempts to cover up the frequency and duration of Mr Barrow’s visits to 15 Scott Road, Bridgewater, but decided in the end they could not find concrete evidence that a marriage-like relationship existed at the time.

43.     The Tribunal is not constrained by the SSAT decision, given that a de-novo review is involved and the Tribunal must find the ‘correct and preferable’ decision based on all the evidence and circumstances of the case.  This is not a simple task, given the many types of relationships between individuals that are accepted today, rendering it difficult to decide what is ‘marriage-like’ in character.

44.     Nonetheless, having conducted its review, the Tribunal has formulated a view that a marriage-like situation did exist during the period November 2005 – April 2006.  The fact that the couple did not jointly and fully reside at the same house is not determinative, their lives remained entwined with Mr Barrow at Ms Cranefield’s house for a period almost everyday and him contributing financial payments for welfare for his son, rather than acting through the Child Support Agency.  Given this situation it would have been more appropriate for parenting payment to be based on joint incomes (Section 1068B of the Act) rather than parenting payment single (Section 1068A).

Decision

45.     The decision under review is set aside and in substitution thereof the Tribunal finds on the balance of probabilities Joan Anne Cranefield was living in a marriage-like relationship during the period 4 November 2005 to 23 May 2006 and not entitled to receive parenting payment single.  There is therefore a debt of $7,059.96 owing to Centrelink for that period.

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-Time Member)

Signed:   H Healy (Administrative Assistant)

Date/s of Hearing  8 June 2007
Date of Decision  18 July 2007
Counsel for the Applicant         Mr Brian Sparkes
Solicitor for the Applicant          Centrelink Legal Services
Counsel for the Respondent     Mr Ben Bartl
Solicitor for the Respondent     Hobart Community Legal Service