Day and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 415
•5 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 415
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3513
GENERAL ADMINISTRATIVE DIVISION ) Re TRACEY JANE DAY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Deputy President S D Hotop Date5 June 2009
PlacePerth
Decision The Tribunal affirms the decision under review. ...................sgd S D Hotop...........
Deputy President
CATCHWORDS
SOCIAL SECURITY – parenting payment – applicant received parenting payment at single rate – applicant had relationship with person of opposite sex to whom not legally married – consideration of all circumstances of relationship – relationship a marriage-like relationship – applicant a member of a couple – applicant received overpayment of parenting payment – debt due by applicant to Commonwealth – recovery of debt – debt cannot be waived – debt cannot be written off – debt recoverable in full – decision under review affirmed
Social Security Act 1991 (Cth), s 4(2), s 4(3), s 1223, s 1236, s 1237A and s 1237AAD
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
REASONS FOR DECISION
5 June 2009 Deputy President S D Hotop Introduction
1. From 1995 to 2007 Tracey Jane Day (“the applicant”) initially received sole parent pension, and subsequently received parenting payment, under the Social Security Act 1991 (Cth) (“the Act”). On 12 April 2007, however, a Centrelink officer cancelled the applicant’s parenting payment and determined that she had been overpaid parenting payment in the period from 9 September 1999 to 10 April 2007 in the amount of $83,555.66 and that that amount was to be recovered from her as a debt due by her to the Commonwealth. The basis of the officer’s determination was that the applicant had a “marriage-like relationship” (within the meaning of the Act) with R… B… (“Mr B”) throughout the period from 9 September 1999 to 10 April 2007 (“the relevant period”).
2. The Centrelink officer’s decision of 12 April 2007 was affirmed by an authorised review officer within Centrelink on 28 February 2008.
3. On 2 July 2008 the Social Security Appeals Tribunal (“SSAT”) determined that the applicant and Mr B had a “marriage-like relationship” throughout the relevant period but remitted the matter to Centrelink for the purpose of determining Mr B’s gross income during the relevant period and, on that basis, recalculating the amount of overpayment of parenting payment received by the applicant during that period, which amount was to be recovered from her as a debt due by her to the Commonwealth.
4. On 31 July 2008 the applicant applied to this Tribunal for review of the decision of the SSAT.
The Issues
5. The primary issue for the Tribunal’s determination is whether the applicant had a “marriage-like relationship” with Mr B, and was a “member of a couple” for the purposes of the Act, during the relevant period. If the Tribunal determines that the applicant had a “marriage-like relationship” with Mr B, and was a “member of a couple”, during that period, it will necessarily follow that she was overpaid parenting payment in that period, and the issue of whether the resulting debt (comprising the amount of such overpayment) due by her to the Commonwealth should be recovered from her, or alternatively should be waived or written-off, will then arise.
The Tribunal’s Determination
6.For the reasons which follow, the Tribunal has determined that:
· the applicant had a “marriage-like relationship” with Mr B, and was a “member of a couple” for the purposes of the Act, for the whole of the relevant period;
· the applicant received an overpayment of parenting payment in the relevant period;
· the amount of that overpayment of parenting payment is a debt due by the applicant to the Commonwealth which is recoverable in full from her by the Commonwealth.
The Relevant Legislation – “Member of a Couple”
7. The phrase “member of a couple” is relevantly defined in s 4 of the Act as follows:
“ 4(1) In this Act, unless the contrary intention appears:
…
member of a couple has the meaning given by subsection (2), (3), (3A), (6) and 6A);
…
Member of a couple – general
4(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b)all of the following conditions are met:
(i)the person has a relationship with a person of the opposite sex (In this paragraph called the ‘partner’);
(ii)the person is not legally married to the partner;
(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;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
…
Member of a couple – criteria for forming opinion about 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 plans for, or engage in, joint social activities;
(d)any sexual relationship between the people;
(e)the nature of the people’s commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship.”
The Evidence
8. The evidence before the Tribunal comprised:
· the “T Documents” (T1–T51, pp 1–1177) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
· Exhibits A1–A5 tendered by the applicant;
· Exhibits R1–R13 tendered by the respondent; and
· the oral evidence of the applicant and of Margaret Joan Day.
Background Material
9.The following background material is included in the T Documents:
· a completed Department of Social Security (“DSS”) “Application for payment of Job Search/Newstart Allowance” form, signed by the applicant and dated 26 October 1994, in which the applicant advised the DSS that (inter alia) she had moved to a new home address in Ruse Street, Osborne Park on 16 October 1994 (T4, pp 68–69);
· a form of receipt stating that the sum of $220.00 had been received from the applicant for 2 weeks’ rent for premises in Ruse Street, Osborne Park, dated 16 October 1994 and signed “R B…” (T4, p 70);
· a completed DSS “Living Arrangements” form, signed by the applicant and dated 9 November 1994, in which the applicant advised the DSS that (inter alia) no persons of the opposite sex were living at her current address (T5);
· a completed DSS “Pension Claim” form, signed by the applicant and dated 25 August 1995, in which the applicant claimed sole parent pension and advised the DSS that (inter alia):
- she was “single”;
- her home address was in Tyler Street, Tuart Hill;
- she had been at that address for “3 months”;
- she had a child who was born in August 1995;
- she paid rent of $140.00 per week (T7, pp 79–87);
· a completed DSS “Maintenance/Child Support” form, signed by the applicant and dated 25 August 1995, in which the applicant advised the DSS that (inter alia):
-the father of her child was Mr B;
-she and Mr B had never lived together;
-she did not have (inter alia) a Child Support Agency (“CSA”) assessment or a child support agreement accepted by the CSA;
-she was “trying to get” maintenance or child support, and the action she was currently taking for that purpose was “trying to find the father” (T10);
· a completed DSS “Separation Details” form, signed by the applicant and dated 25 August 1995, in which the applicant advised the DSS that (inter alia):
-the person from whom she was separated was Mr B;
-Mr B’s contact address was “New Zealand”;
-she and Mr B had “never lived together”;
-when she and Mr B separated she was living in Ruse Street, Osborne Park and he was living in Emperor Avenue, Beldon (T11);
· a completed Centrelink “Claim for Family Allowance …” form, signed by the applicant and dated 29 May 1998, in which the applicant advised Centrelink that (inter alia):
- she commenced “living de facto” on 28 May 1998;
- her home address was in Coral Street, Craigie;
-her partner was Mr B;
-she had in her care 2 children (born in August 1995 and May 1998);
-her partner’s employer was “Jayde Transport, Rous (sic) Head, North Fremantle” (T13);
· a completed Centrelink “Claim for Carer Allowance and/or Carer Payment” form, signed by the applicant and dated 21 July 2000, in which the applicant advised Centrelink that (inter alia);
-her home address was in Tomlin Street, West Swan;
-her current marital situation was “separated” as from August 1999;
-her former partner was Mr B;
-Mr B’s home address was “Jaydee (sic) T/sport, Rouse Head, North Fremantle” (T15);
· a completed Centrelink “Claim for Family Tax Benefit …” form, signed by the applicant and dated 29 December 2004, in which the applicant advised Centrelink that (inter alia):
-she did not currently have a partner;
-her home address was in Tomlin Street, West Swan;
-she had 2 additional dependent children in her care, namely, her 2 nieces (born in June 1999 and March 2004) who entered her care on 24 December 2004 (T20).
The Applicant’s Evidence
10. The applicant tendered in evidence her signed written statement of evidence dated 25 February 2009 (Exhibit A1).
11. The applicant confirmed that she has 2 sons – one born in August 1995 (“child No 1”), the other in May 1998 (“child No 2”) – and that their father is Mr B.
12. The applicant said that she first met Mr B in about 1994 through a “possibilities” column in a newspaper. At that time she was living with her mother in Koongamia but she then moved to a house in Ruse Street, Osborne Park where Mr B had been living and took over the lease from him, and she lived there on her own for about 6 months. She then moved to a house in Tyler Street, Tuart Hill and lived there on her own until August 1995 when her first child was born. Mr B moved in “permanently” about 2 months later and they lived there together.
13. Shortly afterwards, the applicant said, Mr B purchased a house in Coral Street, Craigie and they moved into that house. They continued to live there together until about June 1999 when she and the 2 children (the second child having been born in May 1998) moved out and went to live with her mother in Koongamia.
14. The applicant described the circumstances regarding her personal relationship with Mr B from mid-1999 in her abovementioned written statement of evidence as follows:
“9. The relationship broke down so far as I recall when [child No 2] was about a year old in mid 1999. At the time, I believed he was having an affair because at the Christmas 1998 work party, there was a girl there who was all over him. [Mr B] was drunk but he didn’t particularly respond, but then for the next six months or so before I moved out this girl would ring constantly and was quite rude to me if I answered the phone, she would simply say put [Mr B] on. During this period after [child No 2]’s birth and until I left, [Mr B] was at home less and less, he would generally not be home until 11 o’clock at night. He ceased to show any affection towards or interest in me. He would say, I am working, but I believed he was having an affair. He had always been pretty distant but this was much worse. [Mr B] and I were still living in Coral Street in Craigie at this time before I moved back to my Mum.
10.[Mr B]’s initial reaction when I moved out was to try and get me and the children to come back to him. Every day he would come round in the truck and cry and ask us to come back, I now realise it was because he wanted the kids back and that meant asking me to come back. This was typically at about 7 am in the morning and it was quite a nuisance. He continued to deny he was having an affair. I initially moved out for a week and he then persuaded me to move back. I was only back with him in Coral Street for about 4 days when his sister arrived with her daughter. I complained about his sister being with him. He said I was being selfish and she was family. I wasn’t prepared to share the house with her and I moved back with [the 2 children] to my mother’s house.
11.To the best of my recollection the period that I was away on this second occasion, was probably about 2 or 3 months. I can’t now remember the exact period. During this period, I think that [Mr B] sold the Coral Street property and purchased the Tomlin Street property in West Swan. He would still come round in the truck virtually every day and ask us to come back, primarily because he wanted the kids back. It continued to be at about 7 am in the morning, which was pretty disruptive. He continued to deny he was having an affair. By the time I moved back he was already in the Tomlin Street property and his sister had moved out and was living in her own house. When he told me she had left, that is when I decided to give it another go. My mother was also pushing me to leave and go back to him, as she believed the kids should have both parents and at the time she liked [Mr B]. Also my sister … and her children were in the process of moving into my mother’s house and there was really no room for us all and I had nowhere else to go to.
12.During the period that I was living with my mother, [Mr B] would provide me with money for the kids when I asked him for money. Because he wanted the kids back, he didn’t make a fuss about money for them during this period. I was probably still getting some parenting payment as a couple from Centrelink and my mother also assisted.
13.I didn’t notify Centrelink the first time that I left and went back to my mother’s house as that time we were only apart a week. The second time I did notify Centrelink and they sent me the form. So far as I can recall I filled it out but I did not send it in because by this time [Mr B] and my mother had persuaded me to give it another go. When I moved in with [Mr B] at … Tomlin Street, I intended to give our relationship a second chance and at the time I believed that was what [Mr B] wanted as well.
14.After I moved back with [Mr B] at Tomlin Street, I moved back with him intending to be a couple and we were in the same bedroom. However within 3 weeks I realised it wasn’t going to work. He had not changed his behaviour at (sic) and he was continuing to stay out to 11 o’clock most nights and claiming he was working. I did not believe him and would question him and he would say it was none of my business. We argued constantly and I didn’t trust him. I had grown to really dislike him at this time, but I knew I could not survive on my own.
15.When I moved back to [Mr B] at Tomlin Street, for the initially (sic) 3 week period he would leave money on the bench for me to buy food, which was the same arrangement we had previously when we had lived at Coral Street.
16.After a major argument and after 3 weeks of misery, I said I am moving out. He said you can move out, but you leave the kids here, or you move into the spare room. I wasn’t prepared to move without the kids and I had nowhere to take them and I didn’t know how I would survive with them without a place to go to. My sister and her children had moved in with my mother and I knew I could not move back there.
17.I therefore moved into the spare bedroom and so far as I was concerned, [Mr B] and I were now living our separate lives. When I am at home he is usually outside in his shed, he has lights and a TV and a fridge. The house has 4 bedrooms, 2 are a good size and 2 our (sic) smaller but still a reasonable size. The spare room I moved to was the second largest room.”
15.The applicant’s written statement of evidence continues:
“Financials, Centrelink and Child Support 1999-2007
18.After I moved into a spare bedroom [Mr B] said don’t come to me for money for yourself. If the children need anything come to me then or leave a note on the bench. I did not know what to do. I contacted Centrelink and informed Centrelink that we were living in the same house, but not as a couple. I signed a form to this effect. At that time Centrelink accepted that was a correct description of our new arrangements.
19.When I was filling in the Centrelink forms, they also gave me the Child Support forms. There was a lady there, who I knew from the time when I went to school with her daughter and she was helpful and helped me with the Centrelink forms and also the Child Support forms.
20.When [Mr B] received the Child Support Notice he was furious. He said, ‘We could have come to an agreement without getting anyone else involved’. I said, ‘I had to do it, I need money for the children you have your life and I have mine’. He said again, “I told you if you had needed money for the kids, all you had to do was to leave a note on the bench’. He never did realise that kids needed food and a whole range of items, not just major specific items. An argument developed.
21.Once he got the papers, and despite the argument he realised that he needed to make the payments, but he then started charging rent for me and the children, which he deducted from the payments. Initially the rent was most of his child support payments. As I remember at this time, I would get $23 a week from him, which he would pay in cash. He made it very clear to me that I was to come to him for nothing else in relation to the children. Initially at this time he didn’t charge for electricity or telephone. I would pay for my and children’s food and clothes and for my own car (my first car at this time actually belonged to a friend of Grandmother’s, I paid the registration but it was registered in his name). Then I purchased a car in my own name from the mechanic who had looked after this car for me and who had become a friend in the process. I therefore largely survived on the Centrelink payments.
22.Even the replacement car was old and a bit of a wreck of a car which kept breaking down. [Mr B] bought a 4 wheel drive in about 2006 for me to drive. He did this as he wanted me to use it to take the children to motocross and to tow the trailer. He said that he put this vehicle in my name so that he wouldn’t get any fines. He considered that I would go over the speed limit and incur fines. However when he required that I pay for the registration and insurance and I said that I couldn’t afford to pay for these and he said he would sell the vehicle which he did. He then bought a much cheaper second hand Ford Falcon ute which he still expected me to use to take the children to motocross whilst this continued.
23.So far as I can now recall from about 2001, he made me pay towards the gas. I paid the gas bill. It was bottled gas and it would typically last for about a month. He paid the electricity up until about 4 years ago when his maintenance went up. Then he made me pay a quarter of the electricity account.
24.For a period from about 5 years ago the child maintenance was quite a bit more than what I owed for rent and electricity and he would pay me the balance. For a period, I would get about $200 a month from him as net payment. The amount that I received varied. The most I received was $280 a month. On a few occasions, I would also borrow money off him and he would then take it off my child support payments in repayment. (This was before he learned about the credit card.) At some stage he increased the rent to $180 per week and deducted this amount instead of the previous $150. I also pay part of the phone, this was from 2005 I was required to pay part of the phone bill. This continued until I got a mobile about a year ago. I then stopped using the house phone and I just pay for my mobile.
25.In about 2003, I am not certain of the exact date, I took out a credit card in [Mr B]’s name; I had this card for 3 years until a couple of years ago and he had no idea. I used the credit card to buy things for the kids. I was a shopaholic, I wanted the kids to have everything and [Mr B] would not spend money on them as he said he was paying maintenance for them and that was enough. The largest expenditure included a motocross bike for [child No 1]. I told [Mr B] I had got a loan to buy this for [child No 1]. [Mr B] only discovered the credit card was in his name and that I owed about $16,000 on it when the credit company telephoned him. He abused me but he didn’t report me to the police or to the credit company. I believe that he did not want to be left to look after the children on his own if I went to prison and he didn’t want the bad debt to affect his credit rating. He therefore refinanced the debt with a loan at a lower interest rate. There is now a monthly minimum amount payable on the loan including interest which has to be paid out of the child support payments. At the current time, this amounts to about $350 a month. The total amount owed is reducing slowly and currently stands at about $13,000 down from $16,000.
Contact with [Mr B] and the time he spent at the home 1999 - 2007
26.My recollection of [Mr B]’s behaviour and home life during the first few years following the break-up of our relationship, ie from late 1999 to about 2003, was that he continued his pattern of coming back to the house late in the evening and leaving the house early in the morning for work. He might have spent some nights out all night, as I wouldn’t know for sure, because he would often come home after I was asleep, but as my room was close to the garage I would usually wake briefly and hear the truck come in the driveway. He would just use the house to sleep in.
27.From about 2003 to 2007 [Mr B]’s behaviour changed and during this period, [Mr B] would generally stay out overnight for about 4 nights a week. He had changed his habits and generally, but not always, he would bring the truck home about 6pm and would have a shower and go out in his car or his motorbike and then so far as I knew he would either stay out overnight or sometimes he would come home about 11pm. As I have said I would usually hear him if he returned home late at night as my bedroom is close to the garage, so I would hear the truck, or the car, or motorbike pull in. So far as I was concerned he was living his own life and I was living mine. It did not concern me in any way for myself, but I would have preferred him to have taken more responsibility for the children during the week. However I did not question him, or ask him to do more with the children; it was his life and generally it suited me when he wasn’t there. It avoided arguments and unpleasantness and I preferred not to have around (sic) the house, even if he was in his bedroom or the shed there was still his presence there.
28.Both the children suffer from ADHD. They are a considerable handful and over the years they have required greater care and attention and one on one contact than other children of the same age. For a number of years, I received a Carer’s Allowance until my parents (sic) were stopped in 2007.
29.On the (sic) during the motocross season which runs from February to October during the year and from mid 2000 until 2007, [Mr B] would be regularly involved in motocross. During the summer months and if there was no motocross, he would spend time with the kids during the day or he would be in his shed. He would work in the yard. He put in a below ground pool during the first year at Tomlin Street which he and the kids used during the summer and more recently he has done paving in the yard. In the late afternoon or the evening he would either go out or go to his shed. He has a television and a fridge in the shed and he uses it as his living room at weekends. He would only occasionally eat with us if he was at the house over the weekend. I estimate that this would happen once a fortnight on average.
Motocross
30.[Mr B] involved [child No 1] in motocross from the time that [child No 1] was 5 years old, that was in August 2000, or he may have started a month or so earlier, even before he turned 5. The season runs from February to October, so [child No 1] had started racing for the second half of the first season in 2000. For the remainder of that first season I stayed at home with [child No 2]. However [Mr B] said that he could not both prepare [child No 1] for the racing and to do the flag duties and the Club needed both parents there. Flag duties is basically a safety measure which the Club required of the parents. Parents with flags are stationed round the track and you put a flag up if a kid comes off to warn the other riders and you also get the fallen rider and bike off the track.
31.I therefore had to go along and do the flag duties from the beginning of the 2001 season. Then [child No 2] would be in the Pits with [child No 1] and [Mr B]. Single dads would find it very difficult. I sometimes did flags for them to help them out, as you are only meant to do flags for half a day. I did flags for a couple of years and then ran in (sic) the canteen for about 2 years and then a year of being in charge of flags and being Vice-President of the Club and then I went back and ran the canteen for about another 2 years.
32.The motocross was mainly in the Perth metropolitan area. [Child No 1] and [child No 2] belonged to Wanneroo which was their main club and also to Chidlow. There were 8 meetings at each club during the season but sometimes they overlapped. The clubs would also travel to other clubs in the metropolitan area and in the country. Particularly in the early years, if the children were going to [a] club in the metropolitan area then [child No 1] would go with [Mr B] and I would go later with [child No 2]. Later on sometimes I would take both children and tow the trailer with the bikes and [Mr B] would meet the children there.
33.We would travel in the same vehicle, if it was outside Perth because I couldn’t afford the petrol to travel on my own.
34.When I first started to go to motocross, if it was in Perth, I would usually borrow my mother’s car and go separately, this was because I did not want to get up that early and get [child No 2] ready as well. We didn’t talk about our relationship to other people. The correspondence was always addressed to the kids.
35.[Mr B] attended at the Wanneroo Club’s Busy Bees which involved getting the track ready on the Saturday on the weekends that the Club had a meeting. I only did Busy Bees a few occasions in one year when I was sucked into painting all the fences. Which nearly killed me. When I ran the canteen it was only for the 8 race meetings at Wanneroo. On those weekends, I would drop food off on the Saturday and would prepare food for the workers there. The race meetings at the Perth Clubs were on the Sunday, but occasionally in the country meetings they were on the Saturday.
36.From the time that I was in a steady relationship with P… M… [Mr M], ie from 2003 onwards, [Mr M] would come to the meetings when they would be held in Perth.
37.For the country race meetings, there were often long distances to travel (Esperance, Geraldton, Dongara, Kalgoorlie, Bunbury, Collie and Busselton are the country ones that I remember). Initially we travelled throughout the night for the distant meetings. For the slightly closer meetings, we would get up at 3 in the morning. [Mr B] didn’t mind driving through the night; the children and I disliked it. After a while, I said this was unfair on [child No 1] because he would be racing when he was tired. From the time when [child No 1] started getting serious and winning a lot of races, which was from about 2003 season onwards, I then insisted that we go the night before. At the town where the meeting was we would take a motel family room, some of which had separate bedrooms, in which case [child No 2] and I would take one bedroom and [Mr B] and [child No 1] the other. Sometimes it would be a large room with a double and 2 singles, in which case [child No 2] and I would sleep in the double and [Mr B] and [child No 1] in the singles. We would have a country overnight trip about once a month during the motocross season.
38.We also travelled once to Queensland for motocross after [child No 1] finished third in the State and he was picked as part of the top 3 to represent WA in Queensland. [Mr B] obtained the primary sponsorship came (sic) from his boss who paid for the ute hire in Qld and shipped a bike across and paid for the airfares and accommodation in Burleigh Heads. We stayed in a motel there. We had 2 rooms; [child No 2] and I shared one room and [Mr B] and [child No 1] had the other room
39.I stopped any involvement with motocross at about the end of the 2007 season after my Centrelink payments had been stopped and I had to work at weekends in order for me and the children to survive. [Child No 1] and [Mr B] did about 3 race meetings in 2008 and then [child No 1] and [child No 2] changed over to football and [Mr B] took [child No 1] and I would take [child No 2] to play on their Sunday matches, as they would play at different places. I took the boys to training during the week. On [child No 1]’s training nights I wasn’t my work day (sic), so there was not a problem. On Wednesdays, which was [child No 2]’s training night and I did work and I had to be at work by 6.00 pm and therefore I would take [child No 2] and [child No 1] to the training and I would leave the training at about 5.30 pm and [child No 1] would stay with the coach whilst [child No 2] was doing his training and [Mr B] would pick them up from there.
Overseas Trips
40.Since the relationship broke down in 1999, I have been twice to Bali with [Mr B] and the kids and twice to NZ. He is from NZ. I am from Perth.
41.We have been to NZ 3 times in total, twice since we broke up our relationship. The first time I believe was in January 2003. We stayed with [Mr B]s’ family house (sic), ie his mother and stepfather. They had a self contained unit below the main house with 3 bedrooms, kitchen, lounge, bathroom etc. I shared with [child No 2] as he was scared to sleep on his own. [Mr B] had his own room. I remember that [child No 1] went upstairs and slept with his grandmother. During this trip we travelled to Wellington as [Mr B] wanted to show the children something of New Zealand. As I recall this was about an 8 hour drive which we did in a day and we stayed in a motel in Wellington. It was a family room with 2 singles and a double; I slept with [child No 2] in the double bed and [Mr B] and [child No 1] had their own beds.
42.In Christmas 2006, we again travelled to NZ and we stayed with [Mr B]’s mother for 2 days. She had separated from her husband and had a smaller house. She had 2 spare rooms; I stayed with [child No 2] in one room and [child No 1] and [Mr B] in the other. She knew but we didn’t discuss it with her and she assumed it was because [child No 2] was a scaredy cat. Then we went to Coramandel, it was big holiday house and everyone had their own rooms. In Coromandel it was a huge house and everyone had their own rooms (sic). We fished off the wharf and the beach, then once we went to Coromandel his sister and her daughter came as well. On the way back from Coramandel, we stayed one night on the way back to [Mr B]’s Mum (sic). We stayed in a single family room motel, we couldn’t get one bigger, it only had 1 bed left, we hadn’t booked and when we stopped (sic). [Mr B] knew someone there, that is why we stopped, the kids were allowed to have a drive of the ferry. [Mr B] slept on the floor. I was in the double bed with [the 2 children].
43.In November 2005 [Mr B] and the children, [Mr M] and I went to Bali. [Mr B], the children and I stayed in a double family room apartment with 2 bedrooms with a concertina door between the rooms, but each room with their own bathroom and on (sic) separate entrance and [Mr M] had an adjoining room. [Mr M] and I only had some personal time together when the kids were with [Mr B] at the pool. There was quite a bit of conflict between the children and [Mr M] on this trip which made the trip a bit awkward. It was the first time that he had had several days in a row in their company and he found them a handful. Also I think [child No 1] was becoming a bit more aware and he started to play up with [Mr M].
44.Then in 2006 [Mr B] and the children and I went again to Bali. This was a trip which [Mr B] organised without telling me or discussing it with me in advance. He just announced after he had bought the tickets, I basically went along because the kids were so keen to go and I do like Bali, but I wasn’t keen on going with [Mr B]. However it worked out ok. [Mr B] stayed at the hotel by the pool with [child No 2], whilst [child No 1] and I would go exploring. The four of us would occasionally eat together in the evening, but usually not. The kids and I would go out and [Mr B] would stay at the hotel. If I the kids ate just with me, I would pay for their meals, but if [Mr B] was there, then he would pay half the bill (except for alcohol which he would pay as I don’t drink and I wasn’t paying for his drinks) and I would be required to pay the other half of the food bill. The kids also had pocket money; I think [Mr B] gave them $100 each.
45.I have also been to Bali with my Mum and one of her female friends about 2 years ago. I also went with my sister in 2004, on that occasion there was just the 2 of us. When I went on these trips, the children stayed with [Mr B]. He took time off work. I paid for my own airfares and expenses on these trips.
Co-operation with [Mr B] relating to [the 2 children]
46.[Mr B] and I have a level of communication over the kids. We argue about them and eventually either agree, or agree to disagree, over the kids. In more recent times and now that he has more contact with them since I started work in 2007, I have noticed differences in our respective approaches. [Mr B] doesn’t approve of some of [child No 1]’s friends. He makes them go to bed earlier than I. I had an old wreck of a car which kept breaking down; he bought a 4-wheel drive for me to drive. He put it in my name so that he wouldn’t get any fines. He required that I pay for the registration and insurance. He sold it when I couldn’t pay for these and he said. (sic) He had a Ford Falcon ute.
47.Early on following our break-up in 1999, we discussed other sexual relationships. I said that I didn’t care what he did, but we agreed not to bring anyone home to stay overnight. So far as I am aware [Mr B] has kept to that bargain. [Mr M] has very occasionally stayed overnight but only when neither the children nor [Mr B] were there. The children would sometimes go and stay with my mother. [Mr B] never had any objection to me having a sexual relationship with [Mr M] providing it was away from the home and we never attempted to hide our relationship from him. [Child No 1] is now aware that [Mr B] and I are living apart. So far, I haven’t had any specific discussion with [child No 2]. I don’t intend to until he is older or unless he raises it.
48.Since the break down of our earlier relationship in 1999, so far as I am concerned I try to co-operate with [Mr B] in order to keep the peace and for the sake of the children. I do not consider that we have any relationship other than that similar to estranged parents who need to co-operate for the sake of the children and with the further difficulty that I and the children are tenants in a house owned by him. [Mr B] and I generally avoid each other’s company and he will go to another part of the house. We only speak about the children or when we having (sic) an argument. The motocross and the trips to NZ and to Bali have been important to 2 very demanding children and I have gone along with the arrangements for the sake of the children and because I knew that if I refused to go and tried to stop the children going without me that would cause serious conflict.
49.I feel no commitment towards [Mr B]. From the time before we split up he was secretive, distant and always determined to have his own way. I grew to hate him during this period and my feelings haven’t changed other than the intense dislike has subsided to a chronic dislike and irritation. I wouldn’t go out of my way to help him except to the extent necessary in recognising that he is the father of my children and that in his own way he is quite a good father to them and clearly loves them. I would much prefer to rent my own place and with changes in my work and increased income I believe that I should shortly be able to achieve this.
Sexual contacts with [Mr B]
50.When it stated in the notes of my Centrelink interview on 10 April 2007, that I said that I was in casual sexual relationship with [Mr B] this was not correct. I cannot now recall exactly what was said as I was very stressed at the time. I do not remember exactly what I said. I was devastated by this allegation being made against me 7 years after [Mr B] and I separated. However, I do not believe this accurately reflects what I said or all that was said. The officers at the hearing (sic) were quite intimidating; I believe that their intention was to bully me into admitting that [Mr B] and I were in a relationship, they kept saying ‘You are partners’. They kept repeating it despite that I kept saying ‘We are not’. I am sure I said that [Mr B] and I had had sex 3 times since we broke up. These 3 incidents had occurred much earlier and a long time before the interview. They arose when I had had a moment of weakness and I had thought that we might get back together. The first 2 times were quite early on, in the first year or so. The last time was in 2003 so far as I can remember. I remember on the 3rd occasion I was already in a relationship with [Mr M]. [Mr B] was drunk on each occasion and went along with my approach. On each occasion I regretted it as soon as I did it. However that is how I am. I do silly things occasionally, then regret it and think to myself ‘How could you be so stupid?’ We co-exist but there are constant irritations and I don’t even like the man. I prefer not to be in his presence and I certainly no longer find him physically attractive. The last time we did it, he didn’t have a proper erection and I accused him of being queer. I said this just to be nasty. I didn’t actually think it was true and in reality I was more disgusted with myself than with him. We have not had any physical contact of any sort apart from these 3 times and the last time was about 6 years ago and 4 years before the interview with (sic).
Relationship with [Mr M]
51.[Mr M] and I started a relationship in about 2002 so far as I can remember and it lasted for 6 or 7 years. He has never been married so far as I know. He is in his 50s. We met at a pub so far I can recall (sic). He knew [Mr B] as well back then. He started visiting me at Tomlin Street and after a while we started a relationship. He clearly (sic) keen on me, but he couldn’t cope with the kids. I called him Uncle … to the kids. They seem to get on well enough to start with, but he believed that they were spoilt and that they should be disciplined. During our relationship he would visit during the weekends and sometimes during the week. He worked for a soft drink company and initially when he was pursuing a relationship, he would drop in cool drinks for the kids as an excuse to come and visit. It then became a regular thing we would see each other every weekend and usually during the week as well. For our sexual relationship, I would go to his house. I would say I was going to my Mum’s and ask [Mr B] to look after the kids. Later when I was working I would say I was working later than I was. [Mr B] was aware that [Mr M] had a relationship but he didn’t want us to be open about it in front of the kids. Sometimes [Mr M] would stay over, but only if the kids were not there.
52.My relationship with [Mr M] started to break down at about Christmas 2007. He said to me, ‘You should move out and live with me, but I am not having your kids’. He wanted me to live him but without the kids and there was also some discussion in 2007 that I and the kids could move into his other duplex unit which he rents out. However if I did that he said I would have to pay the full rental which was $280 a week which I could not afford and his real preference was that I moved in with him on my own without the kids. This was not an option for me, I was not giving up my kids and he didn’t like me putting the kids before him. The relationship continued off and on during 2008; we were arguing a lot, but it continued out of habit. Then I discovered that I was pregnant in November 2008. He went a bit funny; he stopped seeing me as frequently and then rang me after a couple of weeks to say that I had to have an abortion. He made it clear that he didn’t want to have a child, he took me to the clinic in January 2009 and he paid for the cost of the abortion. When I last spoke to him after the abortion he told me to lose his telephone number and that I owed him for half the cost of the abortion. I didn’t want to have a child either, but I was torn in 2 minds about having the abortion. I found his conduct pretty unpleasant. I have not attempted to contact him since and he has not contacted me.
Care of my sister …’s 2 daughters … and the DCD( Department for Community Development)
53.… stayed with me for about 12 months, or a bit more altogether, in 2004/5. They are my sister …’s children (she also has 2 boys who were with Mum). They stayed initially without payment and welfare was helping [my sister] who was a drug addict. Mum grew up at Parkerville Children’s Home and she hated the thought of children in an institution or foster home.
54.The woman from DCD who came to the house didn’t actually ask about [Mr B]’s and my relationship; she just presumed were (sic) in a relationship. She introduced a trainee with her she introduced us as Tracey and her partner [Mr B]. We didn’t correct her.
55.Initially Centrelink made the payments to [my sister] and DCD said [my sister] should make the payments to me, which of course she did not, then I applied to Centrelink for the payments and DCD gave me a letter for Centrelink saying the children were in my care. I got payments for about 7 months or so; when the girls’ father started threatening my sons and I didn’t regard it was safe for the girls to continue to live with me, then one of [my sister’s] daughters went to my Mum and other (sic) went to my older sister.
Changes that occurred in 2007 because Centrelink payments ceased and I commenced work
56.I started working in July 2007 because my parenting (sic) was cut off. I spoke to [Mr B] about this and said he had to take more responsibility for the children. I work Monday, Wednesday and Friday nights 6.30 to 1.00 am and Saturday lunch time to 8 and Sunday I work 2 pm to 10. I usually have to take the kids to where [Mr B] is in the truck and then go to work. I usually get the children to him by about 5.45. He usually cooks something when he gets home. I have applied for a job for more hours but we are arguing because he won't look after them more than he does.
57.After I was forced to work a different arrangement was made. I said that he had to look after the kids.
58.In July 2007 I started work at IGA at Helena Valley doing night fill work. I would start at 6 pm and work until the work was done. Often I would get home until 3 or 4 am (sic). In addition I started Saturday and Sunday work in the deli. About 2 months until I was working about 40 hours a fortnight (sic). I then stopped doing motocross. I had to stop doing Sunday because of football during 2008 and did night fill and Saturday. Then in November 2008 I did night fill 3 nights and started to work in a cafe and then in January I finished the night fill and do Cafe Meanbean in Bullsbrook. The kids go to school there. I do Tuesday, Thursday and Saturday nights from 4.30 to 10 pm and I do Wednesday from 11.30 to 5 pm and Sunday 9.30 to 3.00. That gives me 28 hours. I now get about $500 a week before tax and I can now at last make realistic arrangements to get a place of my own. [Mr B] is now taking $200 a week for rent plus the monthly payment for the card. He has to give me roughly $100 being the balance, which he gives me in cash and he now demands a written receipt. The requirement for the written receipt started about 6 months ago.
59. Previously [Mr B] would buy his own food. Now on the occasions that he is cooking for the children when I am working he will use the food that I buy to cook for the children. He has not changed. As far as he is concerned his payment of child support covers all his financial expense towards the children unless he is taking them somewhere.
60.I believe that [child No 1] gets $5 a week from [Mr B] by way of pocket money but he has to earn it. [Child No 2] doesn’t get pocket money; he does not want to work for it, so [Mr B] doesn’t consider he should get anything.”
16. The applicant was referred to a document (Exhibit R11) whereby the Department of Housing and Works (WA) had recently informed Centrelink that the only application made to it by the applicant for rental accommodation was in March 1989 and that a rental property was allocated to her in 1990. The applicant said that she had applied many times for a Homeswest house both before she met Mr B and after 1999 when they “split up”. She said that she had been informed by Homeswest that there was a waiting list and that the waiting period was 3 – 5 years. She said that she had since telephoned Homeswest “a few times” and had been told that she was still on the waiting list and would be notified “when something comes up”.
17. In cross-examination the applicant denied that she had not contacted Homeswest since 1999 and she said that she had telephoned them every 6 months since that time. She acknowledged that she had not taken much action to leave Tomlin Street, West Swan because her children are settled there and they are with their father.
18. The applicant said that when she was living in Tyler Street, Tuart Hill before child No 1 was born, Mr B also stayed there “on and off”, and when child No 1 was 2 months old (October 1995) Mr B moved in “permanently”.
19. The applicant said that, when she claimed sole parent pension in August 1995, she had been living in Tyler Street, Tuart Hill for about 3 months, and Mr B was living in Beldon.
20. The applicant said, however, that from 1995 to 1999 she received parenting payment on the basis that she was a member of a couple with Mr B. She was referred to her claim for family allowance, dated 29 May 1998, in which she advised Centrelink that she had “commenced living de facto” with Mr B on 28 May 1998. She then acknowledged that she had in fact been receiving sole parent pension as a single person from 1995 to 1998 although she was living as a couple with Mr B throughout that period. She agreed that she and Mr B were living as a couple from 1995 to 1999.
21. As regards the reference, in para 25 of her statement of evidence, to her obtaining a credit card in Mr B’s name, without his knowledge, in or about 2003, the applicant said that it was a Virgin credit card and that she had applied for it on line and had not been required to provide any proof of identification. She was referred to a credit report of Baycorp Advantage Business Information Services Ltd regarding Mr B, dated 5 January 2007 (T23), which listed various credit card applications in the period from October 2002 to August 2006 but contained no reference to a Virgin credit card application. The applicant said that she used that credit card to buy a motocross bike for child No 1 for $6,500 in 2003, but that she did not have any documentation to substantiate her use of that credit card.
22. The applicant was referred to her claim for carer allowance, dated 21 July 2000, in which she advised Centrelink that her home address was in Tomlin Street, West Swan and that Mr B’s home address was “Jaydee (sic) T/sport, Rouse Head, North Fremantle”. She acknowledged that the latter address was incorrect and that Mr B was in fact also living in Tomlin Street, West Swan.
23. The applicant confirmed that she and Mr B had a joint bank account in 1998 when they were living in Coral Street, Craigie but that that account was closed when she moved back to her mother’s house in 1999. She acknowledged that she had never told Centrelink about that joint account.
24. The applicant was referred to a handwritten letter, dated 29 February 2000 ( a copy of which had been provided by the ANZ Bank to Centrelink), purportedly signed by herself and Mr B, whereby Mr B had purportedly authorised his “partner Tracey Jane Day … to make any decisions/arrangements on [his] behalf related to” a specified ANZ Home Loan Account (T32, p 391). The applicant acknowledged that she had written that letter without Mr B’s knowledge and had signed both her name and Mr B’s name. She said that she had made up that letter of authority in order to obtain information about the house in Tomlin Street, West Swan. She described herself as “nosey” and added that she cannot get her own credit rating. She further added that she is “well-practised” at signing Mr B’s signature.
25. The applicant was referred to a handwritten letter (undated) purportedly written and signed by Mr B, addressed to a Centrelink officer “in strict confidence”, in which it is stated that:
· the applicant and he are not in a de facto relationship;
· the applicant, he and “the boys do share a roof with the best interest of [their] boys in mind”;
· they “do not share a bedroom or any form of sexual relationship”;
· “in lieu of maintenance”, he “do[es] not charge [the applicant] for rent, power or house phone”;
· the applicant “does pay for gas, her mobile phone and most food requirements”;
· he had done his “utmost to be discrete (sic) and keep secret the fact” he is “not hetrosexual (sic)”. (T47)
The applicant said that she did not write or sign that letter and that she presumed that it was Mr B’s handwriting and signature. She added that Mr B was not giving evidence in this matter because “he doesn’t care” and because he regards it as her “problem”.
26. The applicant was referred to a letter dated 7 June 2007, purportedly signed by Mr M, which states:
“ To Whom It May Concern:
I have known Tracy Day for approximately thirteen years and have been in a relationship with her for the past six years.
I spend most weekends with Tracy at her place and also attend Motocross to watch the boys and help out when it is held at Wanneroo.
Tracy’s ex partner [Mr B], who shares his house with Tracy, is amicable with our relationship.
I would prefer Tracy to live with me in my home but couldn’t handle having her boys living with me too as they are pretty full on.” (T38, p 522)
The applicant said that the signature in that letter was Mr M’s signature, and that she did not write it. She added that she had never practised writing Mr M’s signature.
The Evidence of Margaret Joan Day
27. Margaret Joan Day (“Mrs Day”), the applicant’s mother, said that she first met Mr B when she accompanied the applicant to her first meeting with Mr B. She said that the applicant stayed in Osborne Park for a while and that she and Mr B commenced living together, although early in the relationship she “went backwards and forwards” regarding her accommodation.
28. Mrs Day said that the applicant and Mr B “did alright for a while” and they had their first child in 1995 but they had “major problems” after their second child was born in 1998 and when he was very young. She said that from 1999 the applicant and Mr B argued a lot, were not affectionate towards each other and began sleeping in different rooms. She added that she did not then regard them as a couple because they were sleeping in different beds. She said that they only talked to each other about the children and they only “did things together” at motocross, and just had “normal old arguments”. She said, however, that she still regards Mr B as a “good man”.
29. Mrs Day said that she does not like Mr M and that he was always “hanging around like a bad smell”. She said that Mr M saw the fact that the applicant and Mr B were “not getting on” as a “little open door”. She said that she suspected that there was a relationship between the applicant and Mr M and that she did not approve and that she wanted the applicant and Mr B to be together. She said that she knew that the applicant had had an abortion earlier this year and that it was Mr M’s baby. She added that she would have liked the applicant to keep the baby.
30. Mrs Day said that in 1999 she, the applicant, Mr B and others (not including the 2 children) went to Bali, and that the applicant and Mr B went on that trip to “make a go” of their relationship. She said that in February/March 2007 she and the applicant went to Bali with a few female friends, and that she paid for the applicant and herself to go on that trip, having borrowed money from her brother.
31. In cross-examination Mrs Day was referred to a statutory declaration made by her on 14 June 2008 as follows:
“ …
·Holidays to Bali with Tracy (sic) Day:
I, my daughter Tracy (sic) Day and two other ladies holidayed in Bali from 11th to 19th February, 2007.
We were both part of a large group on a previous trip to Bali in 1999. [Mr B] was part of the group. Tracy (sic) and [Mr B] had been having problems with their relationship and tried, unsuccessfully, to resolve their problems.
·Next of Kin for [Mr B]:
I have a good relationship with [Mr B] and he is the father of my grandchildren. I also have no problems with his family who all live overseas and would contact them immediately. It made sense that I would be named as next of kin in the event of something unforeseen happening to him. I am also available for the children and capable of dealing with a traumatic situation should it occur.
…” (T46)
She confirmed that she had prepared that statutory declaration. She said that she had spelt the applicant’s first name as “Tracy” – instead of the correct spelling, “Tracey” – because the applicant had told her to do so as it was a “legal document”. She had earlier explained that the applicant’s first name was incorrectly spelt as “Tracy” on her birth certificate.
32. Mrs Day said that when she has visited the applicant at Tomlin Street, West Swan the applicant and Mr B have slept in separate bedrooms, and when she stayed there overnight she would sleep on the couch.
33. Mrs Day said that Mr M would visit the Tomlin Street property practically every weekend and when Mr B was also there he and Mr M would engage in “small talk” with each other.
34. When asked why the applicant continued to live at the Tomlin Street property, Mrs Day asked rhetorically: why should she move when a man who respects her allows her to stay in his house?
35. In response to questions from the Tribunal Mrs Day confirmed that she had written a letter, dated 21 May 2007, as follows:
“ To whom it may concern
I am writing to advise you that my daughter, Tracy (sic) Day, is to my knowledge not involved in a sexual relationship with [Mr B].
They did have a relationship which deteriorated after the birth of their second son in 1998. Tracy (sic) and the two boys eventually moved in with me in late 1999 for approximately 4 or 5 weeks. After this they appeared to resolve their differences and began speaking civilly to each other. However I did notice that they ceased to display any physical affection toward each other. They do appear to respect each other and both work hard to give the kids a stable upbringing.
Through being a constant visitor I am also aware that they have their own bedrooms.
I would also like to add that, having been a single parent myself, I am very proud that both Tracy (sic) and [Mr B] have been able to put their own differences aside for the sake of the kids. …” (T37, p 494)
She said that she agreed with the contents of that letter and explained that she had spelt the applicant’s first name as “Tracy” because it was “a legal thing”.
36. Mrs Day said that Mr B respects the applicant as the mother of his children and that he loves his children. She added that, although she was unaware of their financial details, Mr B would not see his children go without.
Additional Material
37.The applicant tendered in evidence the following additional material:
· bundle of departmental documents regarding traffic speeding infringements by the applicant in the period from July 2006 to May 2008, and the subsequent suspension of her driver’s licence due to unpaid fines (Exhibit A2);
· bundle of documents regarding motocross (Exhibit A3);
· bundle of Medicare documents relating to termination of the applicant’s pregnancy on 12 January 2009 (Exhibit A4);
· Marie Stopes International admission notes regarding applicant’s admission for termination of pregnancy, dated 12 January 2009 (Exhibit A5).
38. The respondent tendered in evidence various additional documents (Exhibits R1–R13) including the following:
· documents recording dates of overseas travel by the applicant, Mr B, Mrs Day and Mr M (Exhibit R2);
· document containing information provided by the Department of Housing and Works (WA) regarding the applicant’s application(s) for housing (Exhibit R11).
Analysis
Did the applicant have a “marriage-like relationship” with Mr B in the relevant period?
Approach to the question
39. In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 (which also concerned the question whether a person was in a “marriage-like relationship” within the meaning of s 4(2)(b)(iii) and s 4(3) of the Act) French J said (at 553–556):
“ …
Marriage-like relationships
Social security legislation has long been concerned to differentiate the rate of benefits payable between those who are single and those who enjoy the benefits of marriage or like relationships. Such distinctions were made in the Social Services Act 1947(Cth) which preceded the Act.
An example of an earlier statutory formula giving effect to such a distinction was considered by the Full Federal Court in Lambe v Director-General of Social Services (1981) 57 FLR 262. The question was whether a single mother in receipt of a support parent benefit was ‘living with … a man as his wife on a bona fide domestic basis although not legally married to him’. In deciding whether such a relationship existed the Court held that it was necessary to take into account a variety of factors, albeit no factors were spelt out in the statute. The Court held that all facets of the interpersonal relationship of the two persons had to be taken into account. Importantly (at 271):
… the question of the financial support which [the man] provides is an important although not necessarily crucial consideration, but is only one of a number of relevant matters which the Tribunal should take into account in characterizing, as required by the definition, the nature of the relationship …
The same statutory formula was considered by Fitzgerald J in Lynam v Director-General of Social Security (1983) 1 AAR 197. He applied Lambe and said, inter alia (at 200):
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
The criterion of marital relationship was considered O’Loughlin J (sic) in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164. The question in that case was whether a woman claiming a sole parent’s pension was ‘a married person … living separately and apart from her spouse’. Having separated from her husband she had returned home as a matter of convenience and because of his assistance in caring for their disabled child. O’Loughlin J referred to Lambe and Lynam. He endorsed the observations of Fitzgerald J quoted earlier. He said (at 173):
… it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.
In determining whether a marriage-like relationship exists under the present Act, the nature of the exercise is much the same as that required under the statutory formulas in use in the cases cited above.
…
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
(1)Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
(2) Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people; and
(e) the nature of the people’s commitment to each other.
(3)In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
(4)Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
(5)Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a)financial cooperation;
(b)cohabitation;
(c)a sexual relationship;
(d)cooperative household arrangements; or
(e)mutual commitment.
The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
…”
40. For the purpose of forming an opinion about the nature of the relationship between the applicant and Mr B – in particular, whether they had a “marriage-like relationship”, for the purposes of s 4(2)(b)(iii) of the Act, in the relevant period – the Tribunal will, in considering the whole of the evidence before it, have regard to the matters and associated factors specified in s 4(3) of the Act and to any other relevant circumstances.
The credibility of the applicant
41. The respondent put in issue the credibility of the applicant and submitted generally that her evidence should be closely scrutinised and should not be accepted by the Tribunal unless it is “substantiated by independent and verifiable evidence”.
42. Having regard to the whole of the documentary evidence in this matter and to the applicant’s oral evidence, the Tribunal regards the respondent’s submission as well-founded. Various instances of dishonest behaviour on the part of the applicant appear from that evidence, including the following:
· her informing Centrelink, in her claim for family allowance dated 29 May 1998 and in her claim for family payment dated 16 June 1998, that she had commenced living in a de facto relationship with Mr B on 28 May 1998, when she had in fact commenced living in a de facto relationship with Mr B in 1995;
· her writing a letter of authority, purportedly from Mr B, to the ANZ Bank, dated 29 February 2000, and forging his signature thereon without his knowledge or permission;
· her informing Centrelink, in her claim for carer allowance dated 21 July 2000, that Mr B’s home address was “Jaydee (sic) T/port, Rouse Head, North Fremantle”, when Mr B’s home address was in fact Tomlin Street, West Swan (which was also her home address);
· (according to her own evidence) her fraudulently obtaining a credit card in Mr B’s name without his knowledge and subsequently accumulating a debt of $16,000 by use of that credit card (but see paragraph 46 below).
These apparent instances of dishonest behaviour on the part of the applicant cause the Tribunal to have grave reservations about the reliability of her evidence in general and, in particular, the reliability of her self-serving evidence in respect of matters which relate to the central issue in this case, namely, the nature and character of her relationship with Mr B in the relevant period.
43. In these circumstances the Tribunal regards it as appropriate, in analysing the evidence before it for the purpose of forming an opinion about the nature and character of the relationship between the applicant and Mr B – in particular, whether or not they had a “marriage-like relationship” within the meaning of s 4(2)(b)(iii) of the Act – in the relevant period, generally to place greater reliance on the relevant objective or independent evidence when the applicant’s evidence is inconsistent with that evidence, and to accept the applicant’s evidence regarding material matters only where it is corroborated or supported by objective or independent evidence.
The financial aspects of the relationship
44. There is no evidence before the Tribunal that, in the relevant period, the applicant and Mr B jointly owned any real estate or other substantial assets, held any joint accounts at banks or other financial institutions, or had any joint liabilities; nor is there clear evidence that, in the relevant period, there was any significant pooling of financial resources between them or that either of them owed any legal obligation in respect of the other.
45. The Tribunal notes the applicant’s evidence regarding her arranging for a “Child Support Notice” to be given to Mr B in 1999 and Mr B’s then deducting an amount for rent, and subsequently also an amount for electricity and telephone usage, from his child support payment amount, and paying her only the balance ranging from $23 pr week to $280 per month (see paras 19–24 of the applicant’s statement of evidence set out in paragraph 15 above). The only objective material relating to child support, which is before the Tribunal, is the DSS “Maintenance/Child Support” form completed by the applicant on 25 August 1995, shortly after the birth of her first child (see paragraph 9 above). The Tribunal notes that in that form (which was part of the applicant’s claim for family payment and was for the purpose of calculating the amount of that payment) the applicant informed the DSS that she was “trying to get” maintenance or child support and the action she was currently taking for that purpose was “trying to find the father” – information which, in the Tribunal’s opinion, was knowingly false or misleading. There is no objective material relating to the applicant’s claiming child support from Mr B in 1999 or thereafter before the Tribunal, and the Tribunal does not accept that the applicant made such a claim. Nor does the Tribunal accept the applicant’s evidence regarding Mr B’s deducting various amounts for rent, electricity and telephone usage from his alleged child support payment amount.
46. The Tribunal notes the applicant’s evidence regarding her obtaining a credit card in 2003 in Mr B’s name without his knowledge, and using this card and accumulating a debt of about $16,000 over the next 3 years, and Mr B’s paying off this debt at the rate of about $350 per month which is deducted from his child support payments (see para 25 of the applicant’s statement of evidence, and her oral evidence in cross-examination referred to in paragraph 21 above). The Tribunal notes, however, that there is no objective material before it which corroborates the applicant’s evidence regarding this credit card debt. There is, furthermore, no reference to it in the Baycorp credit report referred to in paragraph 25 above. In the Tribunal’s opinion that evidence is a fabrication on the part of the applicant and the Tribunal does not accept it.
47. The Tribunal notes the applicant’s evidence regarding Mr B’s purchasing a 4-wheel drive vehicle in 2006 and registering it in her name so that any speeding fines resulting from the use of that vehicle would be imposed on her and not on him, and his subsequently selling that vehicle and purchasing a “much cheaper second hand Ford Falcon ute” (see para 22 of the applicant’s statement of evidence). The Tribunal notes, however, that information provided to Centrelink by the Department for Planning and Infrastructure (WA) in January 2007 indicates that no vehicles had been registered in the applicant’s name (T25) and that a 1991 model “Ford ute” was registered in Mr B’s name on 28 February 2005 (T28). The Tribunal is again disinclined to accept the applicant’s evidence in relation to this matter.
48.Objective material which is in evidence before the Tribunal indicates that:
· Mr B has been the registered proprietor of the Tomlin Street, West Swan property since June 1999 (T48);
· the Tomlin Street property is mortgaged to the ANZ Bank and the amount of Mr B’s mortgage repayments was $320.68 per week as at 18 March 2005 and, after re-financing, $402.39 per week as at 31 January 2006 (T32, pp 426, 406);
· on 30 January 2006 the price of the Tomlin Street property was estimated by a licensed valuer to be $390,000 and the rental was estimated by that valuer to be $200 per week (T32, p 404);
· the applicant has held an account with the Commonwealth Bank since July 1987 and an associated Master Card account since December 2002 (T31).
49. There is little objective evidence before the Tribunal regarding the basis of any sharing of day-to-day household expenses as between the applicant and Mr B in the relevant period. The objective evidence does, however, indicate that Mr B has been solely responsible for making the mortgage repayments on the Tomlin Street property where they reside (see paragraph 48 above), and for the electricity supply to that property (T24). There is also objective evidence which indicates that the applicant was responsible for the payment for the delivery of a 45kg gas bottle in January 2006 ($75) and for the rent of 2 gas cylinders from October 2006 to September 2007 ($48) (T37, pp 492–493). The Tribunal infers that Mr B has been solely responsible for municipal and water rates in respect of the Tomlin Street property, and for the landline telephone connected to that property, in the relevant period. The Tribunal also infers that the applicant shops and pays for food and grocery items for the household.
50. Although certain aspects of the financial circumstances of the relationship between the applicant and Mr B in the relevant period are not indicative of the existence of a marriage-like relationship – in particular, the apparent absence of any joint ownership of real estate or other significant assets and the apparent absence of any pooling of financial resources and of any joint undertaking of major financial commitments – the Tribunal is satisfied that Mr B has provided accommodation and financial support to the applicant and their 2 children, and that there has been ongoing financial co-operation between the applicant and Mr B, throughout the relevant period. In the Tribunal’s opinion, the financial aspects of the relationship between the applicant and Mr B in the relevant period, when considered as a whole, are not necessarily inconsistent with the existence of a marriage-like relationship between them in that period.
The nature of the household
51. There is no evidence before the Tribunal to suggest that either the applicant or Mr B did not accept responsibility for providing care and support to their 2 children in the relevant period. The Tribunal is satisfied that the applicant and Mr B have at all material times jointly assumed and discharged that responsibility both on a general domestic basis and in respect of particular activities undertaken for the enjoyment and development of the children, most notably motocross in the period 2000-2007.
52. There is no objective or independent evidence before the Tribunal regarding the living arrangements of the applicant and Mr B at the Tomlin Street property, or the basis on which responsibility for housework is distributed at that property, in the relevant period. In the absence of such evidence the Tribunal is inclined to infer that the applicant and Mr B shared all living areas of the property and that the applicant, who was not then otherwise employed, did most, if not all, of the housework. The Tribunal notes that the applicant’s evidence that she and Mr B have slept in separate bedrooms since the commencement of the relevant period was corroborated by Mrs Day, but the Tribunal does not regard Mrs Day’s evidence as objective or independent and it attaches little weight to it. In any event, even if it be the case that the applicant and Mr B have slept in separate bedrooms since the commencement of the relevant period, that circumstance would not necessarily indicate that their relationship in that period was not marriage-like.
53. In the Tribunal’s opinion, the nature of the household at the Tomlin Street property for the whole of the relevant period – involving the applicant and Mr B cohabiting with their 2 children, sharing responsibility for providing care and support to their children, sharing the living areas of the property, and co-operating in the running of the household with the applicant undertaking the domestic duties and Mr B working full-time – is consistent with the existence of a marriage-like relationship between the applicant and Mr B in that period.
The social aspects of the relationship
54. Although there is no evidence before the Tribunal indicating that the applicant and Mr B have ever held themselves out as married to each other, there is objective evidence which indicates that Mr B has held himself out as being the partner or spouse of the applicant in the relevant period, namely:
· information provided to Jayde Transport, Mr B’s employer since 1991, to Centrelink on 4 April 2007 that Mr B’s “partner” is the applicant whose address is Tomlin Street, West Swan (T33, p 433);
· reference in the decision of the SSAT to Mr B’s taxation returns for the years 2003/2004, 2004/2005 and 2005/2006 recording the applicant as Mr B’s “spouse” (T2, p17), and a letter dated 11 June 2008 from Mr B’s tax accountants confirming that they had been preparing Mr B’s tax returns for the last 8 years and during that time they had included a reference in his tax returns to the applicant as his “spouse” (T44).
55. The Tribunal also notes the applicant’s evidence to the SSAT that she and Mr B represented themselves as a couple to officers of the Department for Community Development (WA) in 2004-2005 for the purpose of obtaining that Department’s approval for her 2 nieces to enter her care (T2, pp 16–17). That evidence, the Tribunal notes, is not entirely consistent with the evidence which the applicant gave to this Tribunal in respect of that matter (see para 54 of the applicant’s statement of evidence set out in paragraph 15 above). The Tribunal notes, furthermore, that the applicant claimed family tax benefit in respect of her 2 nieces on 29 December 2004 (T20) and she also received payments from the Department for Community Development from April 2005 to October 2005 (T31, pp 345–354).
56.On the other hand the material before the Tribunal includes:
· a letter dated 14 August 2007 from Dr Richard Christie, Paediatrician, which states:
“Tracy (sic) Day has been coming to my clinic with both [child No 1] and [child No 2] since March 2000 and in all this time I have known her to be a single mother.
I understand the father of [child No 2] and [child No 1] also resides at this address as a single parent. I feel it would be detrimental to both boys for them not to have this continued support from their father.” (T38, p 513);
· a letter dated 29 August 2007 from Dr N Stanley-Cary of Swan Medical Group stating that they have known the applicant as a “single mother to her two children …” (T38, p 512);
· a letter (undated) from John Sullivan of All Autos Mechanical Repairs stating that he has been the applicant’s auto mechanic for the past 7–8 years and that he has given her a discounted rate due to his “knowledge of her single parent status” (T38, p 511);
· a letter dated 13 August 2007 from Jenny Jacques which states:
“I have known Tracy Day since she was a child. She is a caring, loving mother to her two boys. To my knowledge Tracy has had no intimate relationship with the boys’ father [Mr B] since the youngest son was born. They are still living under the same roof to keep the boys in a safe environment to grow up in and their life is focused on the boys. Tracy came to Bali with me and her mother in February this year.” (T38, p 514)
57. The Tribunal notes the applicant’s evidence regarding overseas trips she took with Mr B and their 2 children in the relevant period (see paras 40–44 of the applicant’s statement of evidence set out in paragraph 15 above). There is objective evidence before the Tribunal which confirms that the applicant, Mr B and their 2 children travelled on the same flights to and from the following destinations on the following dates:
· to New Zealand on 20 January 2003, returning to Australia on 7 February 2003;
· to Bali on 1 November 2005, returning to Australia on 11 November 2005;
· to Bali on 19 September 2006, returning to Australia on 1 October 2006;
· to New Zealand on 12 December 2006, returning to Australia on 30 December 2006 (T29).
There is also objective evidence that Mr M departed Australia on 1 November 2005 and returned to Australia on 11 November 2005 (Exhibit R1, p 597).
58. The Tribunal notes the following extract from the applicant’s evidence to the SSAT, as recorded in the SSAT’s Reasons for Decision:
“57. Ms Day told the Tribunal that the only reason she travels with [Mr B] overseas is because of her concern that [Mr B] will take the boys away to New Zealand and not return them to her care. Ms Day said that she bases this concern on conversations she said that she overheard in 1999 in which she says that [Mr B’s] mother tried to encourage [Mr B] to leave Ms Day and return to live in New Zealand with the boys.
58.The Tribunal asked Ms Day whether in the nine years since overhearing that conversation had [Mr B] ever (sic) done anything that would indicate his intention to take the boys and return to New Zealand. Ms Day said that he had not but that she did not trust his family and that she would only allow [Mr B] to travel overseas with the boys provided he paid for her to accompany them.” (T2, p19).
In her oral evidence to this Tribunal the applicant said that she went on the abovementioned overseas trips because she “won’t let [Mr B] take the kids out of the country without [her] because he won’t bring them back”.
59. The Tribunal regards the applicant’s abovementioned explanation for her accompanying Mr B and their 2 children on trips to New Zealand and Bali in the relevant period as irrational and implausible and it does not accept that evidence. In the Tribunal’s opinion a more objectively plausible explanation is that she, Mr B and their 2 children went on those trips as a family unit for recreational purposes and, in the case of the trips to New Zealand, for the additional purpose of visiting Mr B’s mother.
60. In the Tribunal’s opinion the objective evidence regarding the social aspects of the relationship between the applicant and Mr B in the relevant period, considered as a whole, is on balance consistent with the existence of a marriage-like relationship between them in that period
The presence or absence of a sexual relationship
61. The evidence before the Tribunal which relates to the question whether there was a sexual relationship between the applicant and Mr B during the relevant period includes the following:
· the applicant’s evidence that she and Mr B had sexual intercourse on 3 occasions in the relevant period – the first 2 occasions in the period late 1999–2000, the third occasion in 2003 (see para 50 of the applicant’s statement of evidence set out in paragraph 15 above);
· a letter (undated) purportedly written by Mr B to a Centrelink officer in which it is stated (inter alia) that he and the applicant “do not share a bedroom or any form of sexual relationship” and that he is “not hetrosexual (sic)” (T47);
· the evidence of Mrs Day that the applicant and Mr B have been sleeping in separate bedrooms since 1999;
· a typed letter, dated 7 June 2007, purportedly signed by Mr M and addressed “To Whom It May Concern”, in which it is stated (inter alia) that he and the applicant “have been in a relationship … for the past six years” and that Mr B “is amicable with [their] relationship” (T38, p 522).
62. As regards the abovementioned letter purportedly written by Mr B, the Tribunal did not have the benefit of hearing evidence from Mr B and it notes the SSAT’s reference to the evidence which Mr B gave to that Tribunal to the effect that he wrote and posted that letter about 6 months previously (that is, in or about January 2008) but that “he could not really remember what was in the letter” (T2, p 23). Given Mr B’s failure to give evidence in this matter, the Tribunal places no weight on that letter. The Tribunal would add that it seriously doubts that Mr B did in fact write or sign that letter.
63. As regards Mrs Day’s evidence, the Tribunal derives little, if any, assistance from it because Mrs Day was, presumably, in no position to have first-hand knowledge of whether or not the applicant and Mr B had an ongoing sexual relationship in the relevant period, and, furthermore, the Tribunal does not regard her evidence as objective.
64. As regards the abovementioned letter purportedly signed by Mr M, the Tribunal places no weight on it having regard to Mr M’s failure to give evidence in this matter. The Tribunal notes, furthermore, that even if it were true that Mr M and the applicant had been “in a relationship” since 2001 (as stated in that letter), the existence of that “relationship” (whose nature, the Tribunal notes, is not clear from the terms of that letter) would not necessarily be inconsistent with the applicant having a sexual relationship with Mr B in that period. Indeed the applicant, in her own evidence, acknowledged that she had sexual intercourse with Mr B in 2003 after the commencement of her relationship with Mr M.
65. There is, on the other hand, objective evidence before the Tribunal indicating that the applicant underwent an abortion in January 2009 and that she, therefore, had had sexual intercourse in 2008 (Exhibits A4 and A5 referred to in paragraph 37 above). There is, however, no objective evidence before the Tribunal regarding the paternity of the unborn foetus. The Tribunal notes, furthermore, that the relevant act of sexual intercourse must have occurred in late 2008 – that is, approximately 18 months after the end of the relevant period.
66. There is, of course, no objective evidence on the basis of which the Tribunal could be satisfied that the applicant and Mr B had an ongoing sexual relationship in the relevant period. The only direct evidence before the Tribunal regarding the existence of a sexual relationship between the applicant and Mr B in the relevant period is the applicant’s abovementioned evidence that she and Mr B had sexual intercourse on 3 occasions in that period, the last of which was in 2003.
67. The Tribunal regards the evidence before it in respect of the presence or absence of a sexual relationship between the applicant and Mr B during the relevant period as unsatisfactory and it derives no assistance from that evidence in forming an opinion as to whether or not there was a marriage-like relationship between them in that period. The Tribunal notes, however, that the absence of a sexual relationship between the applicant and Mr B, for even the whole of the relevant period, would not necessarily demonstrate that they did not have a marriage-like relationship in that period.
The nature of the mutual commitment
68. It is common ground that the applicant and Mr B first met in 1994 and that they commenced a relationship in that year and have resided together with their children for most of the time from 2005 and for the whole of the relevant period.
69. According to the applicant’s evidence the nature of her relationship with Mr B from the commencement of the relevant period has been akin to that of estranged parents co-operating with each other to the extent necessary for the upbringing of their 2 children, with neither of them otherwise providing any companionship or emotional support to the other. The applicant’s evidence was that she:
· “feel(s) no commitment” towards Mr B;
· “grew to hate” Mr B during the relevant period and that her “intense dislike” of him has since “subsided to a chronic dislike and irritation”;
· would not “go out of [her] way to help him except to the extent necessary in recognising that he is the father of [her] children …”.
The Tribunal infers that it is the applicant’s evidence that, from the commencement of the relevant period, she has not regarded her relationship with Mr B as a marriage-like relationship, and that she considers that her relationship with Mr B, in the form in which it has existed from the commencement of the relevant period, is likely to continue at least until the children attain adulthood. The Tribunal, however, does not accept the applicant’s (obviously self-serving) evidence. As previously noted, the Tribunal did not have the benefit of receiving any evidence directly from Mr B.
70. According to the evidence before the Tribunal, Mr B has provided substantial support to the applicant in the rearing of their 2 children as well as having provided stable, secure, and apparently comfortable, accommodation for her and their children for the whole of the relevant period. The applicant has, furthermore, continued to reside with Mr B at the Tomlin Street property, to care for their children on a daily basis, and (the Tribunal infers) to perform the bulk of the housework at that property, throughout the relevant period, and has, in that respect at least, provided companionship and support to Mr B. The Tribunal notes the applicant’s evidence to the effect that she would prefer to live in separate rented accommodation if she could afford to do so. The Tribunal also notes, on the other hand, the information recently provided to Centrelink by the Department of Housing and Works (WA) to the effect that the only housing application which the applicant had made to it was an application for rental accommodation in March 1989 (Exhibit R11). The Tribunal is not satisfied that the applicant, at any time during the relevant period or thereafter, has made any attempt to move out of the Tomlin Street property or that she has had any genuine desire to do so.
71. The Tribunal notes, furthermore, the applicant’s evidence regarding her and Mr B’s collaborating in the period 2004–2005 for the purpose of obtaining the approval of the Department for Community Development for the applicant’s 2 nieces to reside with them (and their 2 children) at the Tomlin Street property and be cared for by the applicant (see paragraph 55 above). That, in the Tribunal’s opinion, constituted a very significant gesture of support for the applicant on the part of Mr B.
72. The Tribunal is not satisfied that there was a lack of companionship and emotional support between the applicant and Mr B in the relevant period. It may be that the degree of companionship and emotional support between them in the relevant period was less than might be desired in a marriage-like relationship, but the Tribunal is nevertheless satisfied that the objective circumstances indicate that there was a significant degree of companionship and emotional support between them consistent with the existence of a marriage-like relationship between them in the relevant period.
Conclusion regarding the nature of the relationship between the applicant and Mr B in the relevant period
73. Having regard to the whole of the evidence before it regarding the circumstances of the relationship between the applicant and Mr B – including, in particular, the matters and factors referred to in s 4(3) of the Act – in the relevant period, it seems to the Tribunal that those circumstances, on balance, weigh in favour of there having been a marriage-like relationship between them for the whole of that period. In the Tribunal’s opinion the circumstances which weigh most heavily in favour of the existence of a marriage-like relationship in the relevant period include:
· the applicant and Mr B cohabiting with their 2 children in the Tomlin Street property and co-operating in the rearing of those children whereby Mr B was the breadwinner and provided accommodation and financial support to the applicant and the children and the applicant provided daily care to the children and performed the bulk of the domestic duties in relation to the household;
· the applicant, Mr B and their children travelling to New Zealand on two occasions for family and recreational purposes, and to Bali on two occasions for recreational purposes;
· the applicant and Mr B presenting as a couple to officers of the Department for Community Development (WA) in the period 2004–2005 for the purpose of obtaining that Department’s approval for the applicant’s 2 nieces to reside with them (and their 2 children) at the Tomlin Street property and be cared for by the applicant;
· the applicant and Mr B providing companionship and support to each other at least to the extent that Mr B has provided stable, secure and comfortable accommodation for the applicant and their children, and the applicant has cared for their children and attended to the running of the household on a daily basis, and thereby demonstrating a commitment to each other in those respects.
Although certain aspects of the relationship between the applicant and Mr B in the relevant period – including some aspects of the financial circumstances such as the absence of any joint ownership of real estate or other significant assets and the absence of any pooling of financial resources and of any joint undertaking of major financial commitments, and (if the applicant’s evidence is true) the absence of any sexual relationship between her and Mr B since 2003 – may not be indicative of the existence of a marriage-like relationship between them in that period, in the Tribunal’s opinion no aspect or circumstance of their relationship necessarily militates conclusively against the existence of a marriage-like relationship between them in that period.
74. Having considered all the circumstances of the relationship between the applicant and Mr B – including, in particular, the matters and factors referred to in s 4(3) of the Act – in the relevant period, as reflected in the whole of the evidence before it, the Tribunal is of the opinion that that relationship was a marriage-like relationship for the whole of the relevant period.
The applicant was a “member of a couple”, for the purposes of the Act, for the whole of the relevant period
75. It is common ground that, in respect of the relevant period, the conditions specified in subparas (i), (ii), (iv) and (v) of s 4(2)(b) of the Act were met in the applicant’s case. As stated in the preceding paragraph, the Tribunal is of the opinion that the relationship between the applicant and Mr B was a marriage-like relationship for the whole of the relevant period. The condition specified in subpara (iii) of s 4(2)(b) of the Act was, therefore, also met, in respect of the relevant period, in the applicant’s case. Accordingly, the Tribunal concludes that the applicant was a “member of a couple”, for the purposes of the Act, for the whole of the relevant period.
The applicant owes a debt to the Commonwealth
76. The Tribunal understands it to be common ground that, in the event of a finding by it that the applicant was a “member of a couple”, for the purposes of the Act, in the relevant period, it would follow that she had received an overpayment of parenting payment under the Act during that period and that, pursuant to s 1223 of the Act, a debt, in the total amount of that overpayment, would be due by her to the Commonwealth. The Tribunal so finds.
Should the debt due by the applicant to the Commonwealth be recovered from her?
77. Part 5.4 of the Act contains provisions dealing with the non-recovery of debts which are recoverable by the Commonwealth under that Act. Part 5.4 of the Act contains the following relevant provisions:
“1236(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1236(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a)the debt is irrecoverable at law; or
(b)the debtor has no capacity to repay the debt; or
(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d)it is not cost effective for the Commonwealth to take action to recover the debt.
1236(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a)the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or
(aa)the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
1236(1C)For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor’s social security payment; or
(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c)setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
…”
“1237A(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
…”
“1237AAD The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.”
Waiver
78. As regards waiver of the applicant’s debt pursuant to s 1237A(1) of the Act, the Tribunal is not satisfied that any part of that debt is attributable to an administrative error made by the Commonwealth. Rather, the Tribunal is satisfied that no relevant administrative error was made by the Commonwealth – in particular, Centrelink – and that the whole of that debt is attributable to the applicant’s:
· falsely notifying Centrelink on 9 September 1999 that she had separated from Mr B (T50, p 613);
· failing to notify Centrelink that she and Mr B were living at the Tomlin Street property on and from 9 September 1999;
· falsely notifying Centrelink, in her claim for carer allowance on 21 July 2000, that she had separated from Mr B in August 1999 and that Mr B’s home address was “Jaydee (sic) T/sport, Rouse Head, North Fremantle”, when Mr B’s home address was in fact the same as the applicant’s home address, namely, Tomlin Street, West Swan (T15, p 190).
Accordingly, the Commonwealth’s right to recover the whole of the debt due by the applicant to it cannot be waived pursuant to s 1237A(1) of the Act.
79. As regards waiver of the applicant’s debt pursuant to s 1237AAD of the Act, the exercise of the discretionary power conferred by that section is conditional on the Tribunal’s being satisfied that paras (a), (b) and (c) of that section are fulfilled. The Tribunal is not satisfied that para (a) of s 1237 AAD is fulfilled in the applicant’s case. On the contrary, the Tribunal is satisfied that the applicant’s debt resulted wholly from her knowingly:
· making a false statement or a false representation, namely, her falsely notifying Centrelink on 9 September 1999 that she had separated from Mr B, and her subsequently falsely notifying Centrelink on 21 July 2000 that she had separated from Mr B in August 1999 and that Mr B’s home address was a different address from her home address when in fact it was the same address (see paragraph 78 above); and
· failing to comply with a provision of, initially, the Act and, subsequently (from 20 March 2000), the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) by failing to inform Centrelink, pursuant to numerous notices given to her by Centrelink under those Acts from 10 September 1999 (see T51, pp 929–1167), that she was living with Mr B as if married.
The Tribunal, furthermore, is not satisfied that there are any special circumstances in the applicant’s case that would make it desirable to waive the Commonwealth’s right to recover the relevant debt from her. Paragraph (b) of s 1237AAD of the Act is, therefore, also not fulfilled in the applicant’s case. Accordingly, the Commonwealth’s right to recover the whole of the debt due by the applicant to it cannot be waived pursuant to s 1237AAD of the Act.
Write off
80. The discretionary power to write off a debt under s 1236(1) of the Act is expressly conditioned on the existence of any one of the alternative circumstances specified in paras (a) – (d) of s 1236(1A) of the Act. There is no suggestion that either the condition specified in para (c) or the condition specified in para (d) of s 1236(1A) of the Act is satisfied in the applicant’s case. As regards the conditions specified in paras (a) and (b), the Tribunal is not satisfied that the debt due by the applicant to the Commonwealth is “irrecoverable at law” (within the meaning of s 1236(1B)) or that the applicant has no “capacity to repay” (within the meaning of s 1236(1C)) that debt. Accordingly, neither the condition specified in para (a) nor the condition specified in para (b) of s 1236(1A) is satisfied in the applicant’s case. It follows that the debt due by the applicant to the Commonwealth cannot be written off pursuant to s 1236(1) of the Act.
Conclusion
81. The Tribunal notes that it is common ground that none of the other non-recovery provisions in Pt 5.4 of the Act is applicable in this case. The Tribunal concludes, therefore, that the relevant debt due by the applicant to the Commonwealth is recoverable in full from her by the Commonwealth in accordance with Pt 5.3 of the Act.
Decision
82.For the above reasons the Tribunal affirms the decision under review.
I certify that the 82 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
Signed: E Jordan .....................................................................................
Associate
Dates of Hearing 28–29 April 2009
Date of Decision 5 June 2009
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant Henry ChristieRepresentative of the Respondent Mr P Maishman
Legal Services Branch, Centrelink
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