Crawley; Department of Family and Community Services
[2000] AATA 557
•7 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 557
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/1129
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And SAMANTHA CRAWLEY
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date7 July 2000
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
(Sgd) EK CHRISTIE
MEMBER
CATCHWORDS
SOCIAL SECURITY – whether in a marriage-like relationship – specified criteria for forming an opinion about relationship – Secretary to have regard to circumstances of the relationship – meaning of "to have regard to" – whether relationship likely to continue indefinitely – meaning of "likely"
Social Security Act 1991: ss4(2), 4(3), 4(3A), 4(4)
Boughey v R (1986) 161 CLR 10
Caswell v Powell Duffryn Associated Collieries 3 (1939) All ER 722
Department of Defence v Fox (1997) 24 AAR 171
Queensland Medical Laboratories & Ors v Blewett & Ors (1988) 84 ALR 615
R v Toohey & Anor Ex Parte Meneling Station & Ors (1982) 158 CLR 327
Waugh v Kippen (1986) 64 ALR 195
REASONS FOR DECISION
7 July 2000 Dr E K Christie, Member
This is an application by the Secretary, Department of Family and Community Services ("the Department") to review a decision of the Social Security Appeals Tribunal ("the SSAT") made on 20 September 1999 which set aside a decision of an Authorised Review Officer of Centrelink made on 10 March 1999 for Ms. Crawley to pay back a debt of sole parent pension in the amount of $12,350.80 for the period 28 November 1996 to 19 March 1998. The SSAT substituted a new decision, viz. "that Ms. Crawley was not a member of a couple during the relevant period"..
In discussing the application of the law, the SSAT concluded:
"….in this case the Tribunal is of the view that the weight of evidence mostly provided by Ms. Crawley, but nevertheless uncontradicted on the Centrelink material, was in favour of a finding that Ms. Crawley and Mr. Doyle were not in a marriage-like relationship during the relevant period."
The applicant now seeks to have the SSAT decision reviewed because "The SSAT erred in finding that Ms. Crawley was not a member of a couple for the relevant period [28 November 1996 to 19 March 1998]". (T2, Folio 1).
At the hearing the applicant was represented by Mr. R. McQuinlan, a Departmental Advocate. Ms. Crawley was represented by Mr. D. O'Gorman of Counsel instructed by Cusack, Galvin and James, solicitors. Mr. McQuinlan called Mr. Stephen Crawley, the former husband of the respondent and Ms. Katy Bloodworth, a former Director of the Mother Duck Daycare Centre Strathpine, to give oral evidence. Ms. Crawley, the respondent, gave evidence on her own behalf. Mr. Kevin Doyle was called as a Tribunal witness and cross-examined by both parties.
At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the "T" documents (Exhibit 1) and the following exhibits:
· Exhibit 2 – Home Loan Application, St. George Bank: Kevin Doyle and related credit applications and employment declaration forms;
· Exhibit 3 – Business and Personal Details, Ms. S. Crawley; and
· Exhibit 4 – Witness statement, Ms. Katy Bloodworth, Mother Duck Daycare Centre, 31 May 2000.
ISSUES BEFORE THE TRIBUNAL
The only issue for the Tribunal to decide was whether Ms. Crawley was a member of a couple for the purpose of the Social Security Act 1991 ("the Act").
THE LAWA person is a member of a couple for the purposes of the Act if that person meets the requirements of subsection 4(2) of the Act. In Ms. Crawley's circumstances, subsection 4(2)(b)(iii) is relevant:
"4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) …; or
(b) all of the following conditions are met:
……(iii)the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship."
Subsection 4(3) of the Act sets out the matters to be considered when forming an opinion as to whether a person is in a marriage-like relationship.
"4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:(i)whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make place for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:(i) the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship.
4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis."
Under subsection 4(3) of the Act, in forming an opinion about the relationship between two people for the purposes of sub-paragraph (2)(b)(iii) of the Act, the Secretary is required to "have regard to all of the circumstances of the relationship". The Act then particularises specific matters. The phrase "have regard to" has been considered judicially on many occasions.
· It requires [the Commissioner] to take those matters into account and give weight to them as a fundamental element in making his recommendation: per Gibbs CJ in R v Toohey & Anor Ex parte Meneling Station Pty Ltd & Ors (1982) 158 CLR 327 at 333;
· The mere assertion that [the Committee] had acted would not be conclusive if it were demonstrated that regard had not been had to those matters in any real sense: per Gummow J in Qld Medical Laboratory & Ors v Blewett & Ors (1988) 84 ALR 615; and
· There would be a failure [by the Authority] to have regard to matters nominated in the statute if the regard was not adequate or not sufficient: per O'Loughlin J in Department of Defence v Fox(1997) 24 AAR 171.
Section 4(4) is a further provision of the Act which specifies considerations relevant to the forming of an opinion as to the question of a "marriage-like relationship":
"4(4) [Sole parent pension where persons not legally married] If:
(a) a person claims, or is receiving, sole parent pension; and(b)a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c)the claimant or recipient is not legally married to the other person; and
(d)at least one of the following subparagraphs is satisfied:
(i)a child of both the people also lives in the residence;
(ii)the people have joint ownership of the residence;
(iii)the people are joint lessees of the residence and the original duration of the lease was at least 10 years;
(iv)the people have joint assets with a total value of more than $4,000;
(v)the people have joint liabilities totalling more than $1,000;
(vi)the people have at any time been members of the same couple;
(vii)the people have at any time shared another residence with each other;
the Secretary must not form the opinion that the claimant or recipient does not have a marriage-like relationship with the other person unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient does not have a marriage-like relationship with the other person."
FINDINGS OF FACT BY THE SOCIAL SECURITY APPEALS TRIBUNAL
Having regard to all of the evidence before it, the SSAT made the following findings of fact:
"(i)Ms Crawley and Mr Dunne separated in November 1996 when Mr Dunne moved out of the home in Dobson Street.
(ii)Financial Contribution
· During the separation Mr Dunne made no financial contribution to Ms Crawley apart for the child support he was assessed to pay.
· Ms Crawley paid rent to Mr Dunne for the Dobson Street property in the amount of $140.00 per week.
· There was no joint ownership of property.
· There was no pooling of resources during the separation.
· There is no evidence of any legal obligations in terms of wills or superannuation.
(iii) Nature of the household
· Ms Crawley took no responsibility for Mr Dunne's care during the separation and visa versa.
· Ms Crawley cared for the children entirely on her own and Mr Dunne visited the home to see the children.
· Mr Dunne did not reside with Ms Crawley during the relevant period.
(iv) Social Aspects
· Ms Crawley did not hold herself out as a member of a couple and she considered herself single and free to pursue their own social pursuits, which they did.
(v) Sexual Relationship
· They did not have a sexual relationship during the relevant period and Mr Dunne was free to form other relationships while working interstate.
(vi) Nature of Commitment
· There was no commitment during the relevant period although Ms Crawley had hoped for more.
· Ms Crawley looked to her family and friends for emotional support."
The Social Security Appeals Tribunal on 29 June 2000 amended its Reasons for Decision dated 9 September 1999 to the effect that in the Findings of Fact "wherever 'Mr Dunne' appears this should read 'Mr Doyle'".
ORAL EVIDENCE OF WITNESSES
Mr Stephen Crawley had separated from the respondent in mid-1992 and divorced 12 months later. He said that it was "his impression" that Ms Crawley and Mr Doyle had "lived as a couple". However, in cross-examination he conceded that he was not in a position to know because his direct contact was limited. He said that his belief was based on a response Ms Crawley had given to a query concerning Mr Doyle's whereabouts. In addition, Mr Crawley conceded that he was not in a position to know who was the father of one of Ms Crawley's five children , Dean (born in 1994).
The SSAT in its reasoning process had some difficulty with the evidence provided to them from Mother Duck Daycare Centre, stating:
"They [Mother Duck Daycare Centre] advised that Ms Crawley commenced employment with them on 19 January 1998, but their information in relation to Ms Crawley was provided on 23 March 1997. The only other information before the Tribunal was an enrolment form in respect of Dean Wright to the centre, in which there is no information contained regarding Ms Crawley's marital status. The Tribunal found the evidence in respect of the day care centre to be confusing and therefore of no assistance." (T2, Folio 10 paragraph 34).
Accordingly, the applicant called Ms Katy Bloodworth, a former Director of the Mother Duck Daycare Centre, to give evidence as to her knowledge of the relationship between Ms Crawley and Mr Kevin Doyle. Reference was made to Ms. Bloodworth's responses to a Questionnaire and Enrolment Details for Ms. Crawley's children at this Daycare Centre (T36, Folios 168-171).
Ms. Bloodworth conceded during cross-examination that her knowledge of Ms. Crawley's domestic affairs was "extremely limited" and she could not "put it any higher than an assumption" that Mr. Doyle stayed with Ms. Crawley when in Brisbane. Her response to a Centrelink question as to Ms. Crawley's marital status as being "de facto" was "based on her understanding and her knowledge at that time" [12 February 1999]. In response to a Tribunal question, she acknowledged that this response was outside the relevant period, 28 November 1996 to 19 March 1998.
In relation to Mr. Kevin Doyle's evidence the Tribunal had enormous difficulty identifying the boundary where his evidence could be separated between reliable and unreliable i.e. in terms of assisting the Tribunal's objective for better-informed decision-making. Accordingly, the Tribunal assigns no weight whatsoever to Mr. Doyle's evidence.
Ms. Crawley made the following statements in her evidence-in-chief:
· that she had moved to the Dobson Street, Strathpine home owned by Mr. Kevin Doyle around mid year 1995. She had shared this house with another woman and Mr. Kevin Doyle. Mr. Doyle had moved in as a security measure as she had received threats from her former husband's family;
· that whilst she recognised Mr. Doyle as non-supportive and having an aggressive, violent personality, she had a relationship for a time [outside the relevant period] because of her lack of financial resources as well as the fear of prosecution threats from Centrelink;
· that she received no emotional support from Mr. Doyle;
· that she still went out socially and to nightclubs with her girlfriends; and that she never went out socially with Mr. Doyle;
· that she had a sexual relationship with Mr. Doyle for a very short period "once every six months" and had shared a bedroom with him for the first time from November 1998;
· that Mr. Doyle lived "here, there and everywhere" as he drove road haulage interstate more or less continuously; i.e. Mr. Doyle had no fixed address;
· that she had never owned any real estate with Mr. Doyle nor any capital items such as a television or a refrigerator with Mr. Doyle;
· that no assets were held in joint ownership with Mr. Doyle;
· that there were no debts she had involving Mr. Doyle;
· that she held no bank accounts or deposits of any form with Mr. Doyle, nor had she ever pooled financial resources with him;
· that she had never held herself to be Mr. Doyle's wife; and
· that the only commitment to Mr. Doyle to her and her children was to give some money for food but nothing else.
During cross-examination by Mr. McQuinlan, Ms. Crawley stated:
· that she had moved into Mr. Doyle's Strathpine home because she was unsuccessful in obtaining public housing as she owed money to this government Department;
· that she had separated from Mr. Doyle over the period 28 November 1996 to 19 March 1998 and became independent; that Mr. Doyle's violent "eruptions of anger" had increased during this period and had become "more common";
· that when Mr. Doyle was in Brisbane during interstate road hauls he "may or may not" have called in to pick up mail;
· that she had placed Mr. Doyle's name on the Mother Duck Enrolment Form as a contact name because "she had trouble putting anyone's name on it" as her family lived in Gympie. Whilst she conceded that she had referred to Mr. Doyle as "Dad" on this enrolment form, this was a reference to his role as an "adopted Dad" notwithstanding that he was not the child's father;
· that when she had lived separately from Mr. Doyle she had allowed him to use her home address, as his address for financial and taxation purposes because Mr. Doyle did not have any other address because of the nature of his work and time away interstate; and
· that she agreed with the question of Mr. Klar (Centrelink) that she was a member of a couple (T53, Folio 23, 9 March 1999) because she thought that was the situation because Mr. Doyle used her address as his mailing address.
CONTENTIONS AND SUBMISSIONS OF THE PARTIES
Mr. McQuinlan submitted that the relationship between Ms. Crawley and Mr. Doyle was an "unusual relationship". Mr. Doyle held himself out to be a married person to members of the community, banks and potential employers. During the relevant period, Mr. Doyle had completed a number of documents attesting to him as being married with dependent children.
Furthermore, the evidence of Mr. Crawley and Ms. Bloodworth was such that their view was that Ms. Crawley and Mr. Doyle were a de facto couple.
Mr. McQuinlan submitted that in terms of their relationship it was an "indefinite sort" of a marriage-like relationship. He referred to the two children of the relationship who were acknowledged to be the children of Kevin Doyle, as well as other children who Ms. Crawley seemed to be allowing him [Kevin Doyle] to perform the role as father even though he may not have been their biological father. Mr. McQuinlan contended that these parties gave weight to the existence of a marriage-like relationship during the period November 1996 to March 1998. Moreover, Mr. McQuinlan contended that the relationship between Mr. Doyle and Ms. Crawley after November 1996 was "not much different" to the situation prior to November 1996 when they were claiming to be a couple.
Finally, Mr. McQuinlan by reference to ss4(4) of the Social Security Act 1991, submitted that if there were any doubt about whether or not a marriage-like relationship existed then the Tribunal was "compelled to make a decision that they in fact are in a marriage-like relationship".
In response to a Tribunal question as to whether the relationship was "likely to continue indefinitely", Mr. McQuinlan submitted that this was the case because the relationship "never stopped" and that there was a "continuing relationship from April 1995 right through until the present".
Mr. O'Gorman referred to the central issue for the Tribunal to decide as one of whether a marriage-like relationship existed from November 1996 to March 1998. He contended that one unusual feature, in this regard, was that the evidence of the applicant's witnesses – Ms. Bloodworth and Mr. Crawley, "could take the matter nowhere".
Mr. O'Gorman contended that the relationship between Ms. Crawley and Mr. Doyle was a relationship "of necessity" for Ms. Crawley and "of convenience" for Mr. Doyle. For Ms. Crawley, the relationship provided "life necessities" for her and her children.
Mr. O'Gorman contended that the following circumstances, when taken together, show that Ms. Crawley was not in a marriage-like relationship with Mr. Doyle, or anyone else, between 28 November 1996 and 19 March 1998:-
(a)The financial aspects of the relationship
· Ms. Crawley and Mr. Doyle had never jointly owned real estate together.
· they had not had joint ownership of any other major assets.
· they had never had joint ownership of any assets, major or otherwise.
· they had never had any joint liabilities.
· there had been no joint application for credit.
· they had never had a joint account with any financial institution.
· they had never been joint financial cardholders.
· during the period in question they did not pool their finances.
· neither Ms. Crawley nor Mr. Doyle had ever owed any legal obligations to the other.
· they had never signed any guarantee in favour of the other.
· during the period in question they did not share day-to-day household expenses.
(b)The nature of the household
· during the period in question Ms. Crawley provided all care and support for the children.
· during the time in question they did not share a bedroom.
· during the period in question Ms. Crawley had responsibility for the housework and received no assistance from Mr. Doyle.
(c)The social aspects of the relationship
· during the period in question Ms. Crawley and Mr. Doyle did not hold themselves out as married to each other.
· during the period in question they did not go out socially or partake in any joint social activities.
(d)Sexual Relationship
· during the period in question Ms. Crawley and Mr. Doyle had occasional casual sex with each other.
(e)The nature of commitment to each other
· during the period in question Ms. Crawley did not receive any emotional support from Mr. Doyle.
· Mr. Doyle never really had any commitment to Ms. Crawley or her family.
· Ms Crawley has seen Mr. Doyle as being disloyal to her.
(f)Other matters
· Ms. Crawley had a history of informing the applicant of a change in her circumstances.
· the Pine Rivers Shire Council was required to take legal action against Mr. Doyle to recover outstanding rates.
· during the period in question Ms. Crawley provided to the Department the address of Mr. Doyle as being "the highways of Australia".
Mr. O'Gorman concluded by reference to a Social Work Report (T35 5 December 1996 at Folio 138) where the Report stated:
"Samantha is disappointed that their relationship had to end like this but is not prepared to accept a relationship where her partner is rarely available/supportive and not committed to family life. Samantha Crawley is aware that she has experienced this repeated pattern with each of her relationships."
Mr. O'Gorman submitted that the last section was "particularly accurate". That is, at the start of the relevant period, Ms. Crawley's account to the social worker was "basically an identical account to that provided in her evidence today".
CONSIDERATION OF THE ISSUES
The objective of the Tribunal is to review administrative decisions, not only on their merits, but in accordance with the law at all times.
In terms of the evidence of Mr. Crawley and Ms. Bloodworth, the Tribunal cannot find any positive facts, at the requisite level of proof, on which on inference could be founded that Ms. Crawley was in a "marriage-like relationship" or a "member of a couple". Rather, that the evidence before the Tribunal provided by those two witnesses was speculative.
In reaching this conclusion the Tribunal has found the following observations of LJ Wright in Caswell v Powell Duffryn Associated Collieries 3 (1939) All ER 722 at 733 to be particularly relevant in relation to the question of the evidentiary requirements for establishing an inference which can be relied upon as part of the decision-making process of an adjudicative forum:
"There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish….But if there are no positive proved facts, from which any inference can be made, the method of inference fails and what is left is mere speculation or conjecture."
Given this finding on the evidence of Mr. Crawley and Ms. Bloodworth, together with the earlier findings on the evidence of Mr. Doyle (see paragraph 16), the Tribunal has no other alternative than to consider the findings of fact by the SSAT in its decision-making process and the evidence of Ms. Crawley.
In applying the common law interpretation of the phrase "to have regard to" (see paragraph 9), the Tribunal has used the following approach in its consideration of the criteria specified in subsection 4(3) of the Act in order to form an opinion whether a marriage-like relationship existed:
· to give regard to the specified criteria in a real sense, i.e. to ensure sufficient and adequate regard is given to all the specified criteria; and
· to take the criteria specified by the statute into account and to give weight to them as a fundamental element in the decision-making process.
Accordingly, in forming its opinion about the nature of Ms. Crawley's relationship – in the context of her particular fact situation, the Tribunal has given weight to the following specified criteria over the relevant period 28 November 1996 to 19 March 1998:
FINANCIAL ASPECTS OF THE RELATIONSHIP
The Tribunal concludes that in considering the specified matters in ss.4(3)(a) of the Act, that there was no evidence, at the requisite standard, to suggest that this criterion could be applied to justify the existence of a marriage-like relationship;
THE NATURE OF THE HOUSEHOLD
The Tribunal concludes that in considering the specified matters in ss.4(3)(b) of the Act, that there was no evidence, at the requisite standard, to suggest that this criterion could be applied to justify the existence of a marriage-like relationship;
THE SOCIAL ASPECTS OF THE RELATIONSHIP
Given the Tribunal's finding on the evidence of Mr. Crawley and Ms. Bloodworth, the Tribunal concludes that this criterion cannot be applied to justify the existence of a marriage-like relationship;
ANY SEXUAL RELATIONSHIP BETWEEN THE PEOPLE
The Tribunal concludes that the sexual relationship between Ms. Crawley and Mr. Doyle, over the relevant period, could be described as sporadic or "occasional, casual" sex; and
THE NATURE OF THE PEOPLES COMMITMENT TO EACH OTHER
The Tribunal agrees with the SSAT's conclusions "that there had been little commitment to the relationship, particularly from Mr. Doyle, from the very start" and that the "emotional content of their relationship was more negative than supportive".
In addition, the Tribunal considers that with respect to whether "the relationship is likely to continue indefinitely", sufficient regard must be given to the meaning of "likely". In relation to Occupational and Health Safety legislation, it has been held to mean "something less than a probability but more than a remote possibility":Waugh v Kippen (1986) 64 ALR 195. The High Court has adopted the same approach in relation to criminal law: Boughey v R (1986) 161 CLR 10 at 21. Accordingly, applying the common law construction of "likely" the Tribunal concludes that at the relevant period, that Ms. Crawley's relationship with Mr. Doyle was not one which would be "likely" to continue indefinitely. The Social Work Report (see paragraph 27) and Ms. Crawley's oral evidence are relevant in this regard.
In forming its opinion whether a marriage-like relationship existed in the content of Ms. Crawley's fact situation, the Tribunal attaches weight to its conclusions made in paragraphs 29-34. The Tribunal finds that Ms. Crawley and Mr. Doyle were not in a marriage-like relationship.
The Tribunal recognises that in order for there to be a finding that there was not a marriage-like relationship, the weight of the evidence would need to support this fact. Where there is a degree of uncertainty, then section 4(4) requires that the Tribunal form the opinion that there is a marriage-like relationship. However, in this regard, the Tribunal is of the same view as the SSAT that the weight of the evidence before the Tribunal "was in favour of a finding that Ms. Crawley and Mr. Doyle were not in a marriage-like relationship during the relevant period" (see paragraph 2).
For all of the above reasons the Tribunal affirms the decision under review. This means that the application for review by the Secretary, Department of Family and Community Services is unsuccessful.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr E K Christie, Member.
Signed: Denise Burton
SecretaryDate/s of Hearing 5 June 2000
Date of Decision 7 July 2000
Counsel for the Applicant Mr. D. O'Gorman
Solicitor for the Applicant Mr. M. James
Respondent Mr. R. McQuinlan, Departmental Advocate
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