DEWHURST & HINEMAN And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONSSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2010] AATA 512
•9 July 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 512
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2008/2086-87 & 2008/2135
GENERAL ADMINISTRATIVE DIVISION ) Re PAMELA DEWHURST & JOHN HINEMAN Applicants
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondents
DECISION
Tribunal Justice C Dawe (Presidential Member)
Senior Member K BeanDate9 July 2010
PlaceAdelaide
Decision The Tribunal affirms the decisions under review. ..............................................
Justice C Dawe
Presidential Member
CATCHWORDS
SOCIAL SECURITY - Disability Support Pension – Widow Allowance – Newstart Allowance - Marriage-like relationship – parties had moved interstate together and shared address for lengthy periods – evidence that they held themselves out to others as members of a couple – surveillance evidence inconsistent with their evidence – held that parties were in marriage-like relationship and debts arising should be recovered – decisions under review affirmed
Social Security Act 1991 ss 4(2), 4(3), 1236, 1236(1C), 1237AAD
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Groth v Secretary, Department of Social Security (1995) 40 ALD 541REASONS FOR DECISION
9 July 2010 Justice D Dawe (Presidential Member)
Senior Member K Bean1. Although they had first met many years beforehand, Mrs Dewhurst and Mr Hineman (the applicants) first began living together in 1997 in Tasmania. They moved to South Australia together in 1998 where they shared a house at Donovans. They then lived apart for a period of time, but in 2003 Mr Hineman moved to Mrs Dewhurst’s property at Blackfellows Caves where they both lived for some years.
2. On 1 August 2007, after an extensive investigation, a Centrelink officer decided that they were members of a couple for the purposes of the Social Security Act 1991 (the SS Act).
3. This had implications for both of them in terms of their social security entitlements. Mrs Dewhurst was in receipt of Widow Allowance during the period 7 December 1999 until 23 September 2003. She transferred to Disability Support Pension (DSP) from 24 September 2003 and was paid the single rate of DSP until Centrelink decided she was a member of a couple with Mr Hineman in August 2007. Mr Hineman also received the single rate of Newstart Allowance (NSA) during the period 22 December 1999 to 25 April 2000 and 18 April 2006 to 23 July 2007.
4. Following internal review of Centrelink’s decision that they were members of a couple, both Mrs Dewhurst and Mr Hineman sought further review by the Social Security Appeals Tribunal (the SSAT). On 14 April 2008 the SSAT also concluded that Mrs Dewhurst was a member of a couple with Mr Hineman from 7 December 1999 to 20 April 2001 and from 24 September 2003 until the date of their decision. On the same date the SSAT also reached the same conclusion in relation to Mr Hineman’s application and affirmed the decision to raise and recover debts from Mr Hineman of $2,888.18.
5. On 19 May and 14 May 2008 respectively, Mr Hineman and Mrs Dewhurst lodged applications with this Tribunal seeking review of the SSAT’s decisions and giving rise to these proceedings.
issues before the tribunal
6. The issues before the Tribunal are as follows:
(a) whether Mr Hineman and Mrs Dewhurst are or at any time have been members of a couple for the purposes of the SS Act;
(b)if so, the period or periods during which Mr Hineman and Mrs Dewhurst were members of a couple;
(c) if Mr Hineman and Mrs Dewhurst have been at any time in the relevant period members of a couple, whether any resulting overpayments of Widow Allowance and/or DSP to Mrs Dewhurst and NSA to Mr Hineman constitute debts due to the Commonwealth; and
(d) if there have been overpayments and there are debts due to the Commonwealth, whether all or part of any debts should be waived or written-off?
legislation
7. As alluded to above, the rate of payment of the benefits received by Mrs Dewhurst and Mr Hineman vary according to whether or not a person is a member of a couple and, in the case of Widow Allowance, a person is not entitled to that payment if they are a member of a couple. For most payments, if a person is a member of a couple, their rate of payment is reduced by the income of the person’s partner.
8. Section 4(2) of the SS Act provided at the relevant time[1] that a person was a member of a couple for the purposes of the SS Act if:
[1] This provision was subsequently amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008, which commenced on 1 July 2009
“4 Family relationships definitions—couples
(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.
Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:
· an ancestor of the person; or
· a descendant of the person; or
·a brother or sister of the person (whether of the whole blood or the part‑blood)”.
9. Under s 4(2) of the SS Act, the Secretary (and now this Tribunal standing in the shoes of the Secretary) is required to have regard to all the circumstances of the relationship between two people, including in particular certain enumerated matters. Section 4(3) provided at the relevant time as follows:
“4(3) Member of a couple – criteria for forming opinion about relationship.
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.”
evidence as to whether mrs dewhurst and mr hineman were members of a couple
10. We propose to discuss the evidence given at the hearing by Mr Hineman and Mrs Dewhurst respectively before proceeding to discuss other aspects of the evidence before us. We will then proceed to consider each of the relevant criteria outlined above in light of all of the evidence.
Evidence of Mr Hineman
11. Mr Hineman stated that he has never been a member of a couple with Mrs Dewhurst and said that he currently lives separately from Mrs Dewhurst, at Millicent. He said he had paid the debt raised against him by Centrelink, but only because otherwise his wages would be garnisheed and the matter would come to the attention of his employer. He pointed out that if Mrs Dewhurst was his spouse, he could have retired and claimed a tax rebate, which would have been financially advantageous for him. He said that he had been married for 30 years and in fact had been married up until only two years ago, although he had been separated for 10 years. He stated that at this stage of his life he valued his independence more than wanting to enter a relationship. He said that he and Mrs Dewhurst had always been open about the fact that they shared an address during periods when they did so, and had been of the impression that it would not cause them any difficulties with Centrelink.
12.
Under cross-examination, it was put to Mr Hineman that Australian Alliance Insurance had told Centrelink that he had been added to Mrs Dewhurst’s insurance policy on 31 January 2007[2]. A caravan had also been added to the policy on 29 September 2006, and it was put to him that this was his caravan. However, he disputed the accuracy of this information and stated that he still pays insurance through the same company for the caravan, i.e that he has a separate policy in his own name for the caravan. He was also asked about a credit application in the name of both he and Mrs Dewhurst to Ford Credit[3]. He acknowledged that in
relation to this application, he had lent Mrs Dewhurst $8,000 and also gone guarantor for her. As to the accuracy of the record made by Ford Credit that they were “de facto”[4], he stated that this was Ford Credit’s assumption and that he had never said to them that he was in a de facto relationship with Mrs Dewhurst. He said the agreement they had had was that he would lend her the money and she would pay him back and he understood the loan was not in her name, although the car was in her name and she made the repayments. He said that he simply went guarantor and there was nothing for him in the arrangement. He stated that her sons had “got her into debt” and he “gave her a hand rather than let the bank take everything from her”. When it was put to him that this was unusually generous behaviour, he agreed that he had been generous in this respect.
[2] Exhibit 3, T9/55
[3] Exhibit 5, T19
[4] Exhibit 5, T19/136
13. In relation to a loan in both of their names from the Commonwealth Bank[5], he stated that he saw himself as guarantor rather than a joint borrower, and Mrs Dewhurst made the repayments. He saw the arrangement as very much in the nature of “bridging finance”. He acknowledged that there were three loans in total in respect of this arrangement and that he was on one of the loans from May 2006 until July 2007 and would have gone bankrupt if the bank had foreclosed.
[5] Exhibit 3, T13/154-155
14. He also acknowledged that Mrs Dewhurst was the sole beneficiary of his superannuation, but he stated that this was because he did not want his ex-wife to get this and all of his children were well off and estranged from him. Asked about information supplied by MLC Masterkey Business Super indicating that Mrs Dewhurst was his beneficiary and partner[6], he stated that he had never told his employer at the time, Kraft, that she was his partner. Accordingly, the information supplied by them separately was also incorrect[7]. He was also asked about a different superannuation form completed in January 2000 in which he had indicated that Mrs Dewhurst was his “partner” and nominated her as his only beneficiary[8]. He acknowledged that he signed this document and that it was completed in his hand writing, however he claimed that when he described Mrs Dewhurst as his partner, he meant she was his business partner.
[6] Exhibit 5, T9/72
[7] Exhibit 5, T25/188
[8] Exhibit 5, T33/334-335
15. He also acknowledged that whilst they were living together he and Mrs Dewhurst would sometimes eat together and that to some extent there was a traditional split of chores between them. In relation to common hobbies and interests, he indicated that they raced greyhounds together and would occasionally have a drink together. He said they sometimes have Christmas together and are known to each other’s families. In relation to bills, he said that he would give Mrs Dewhurst some money towards power, but they had never had water on the properties they have lived on. He denied any sexual relationship, but acknowledged that there had been a degree of emotional support, in particular that he had supported her whilst she was being treated for breast cancer.
16. However, in relation to records of the Royal Adelaide Hospital listing him as the “spouse” of Mrs Dewhurst, he said this was simply what the hospital had recorded. He said he had taken her into the hospital, but had never said that he was her spouse. As to whether he visited her while she was in hospital, he said no he did not visit her during her treatment, but did take her and pick her up from the hospital.
17. In relation to some surveillance undertaken in May 2007 which recorded his utility and caravan as being on Mrs Dewhurst’s property at Blackfellows Caves, he agreed that his utility and caravan were probably there. In relation to a male person in her vehicle, he said this would not necessarily have been him and could have been one of her sons. He confirmed that his utility had a registration number WUW 858, corresponding with the utility which was observed parked in a car port in the front yard of Mrs Dewhurst’s property.
Evidence of Mrs Dewhurst
18. Under cross-examination, Mrs Dewhurst acknowledged that she had added Mr Hineman’s caravan to her household insurance policy in September 2006 and gave a somewhat confusing explanation to the effect that he was only on the policy because of the caravan and that he went on her policy so that he could get the pensioner’s rate for the insurance.
19. In relation to the application to Ford Credit, she confirmed that she bought the relevant car and made the repayments. She explained that, as far as she was concerned, Mr Hineman simply went guarantor for this loan and she made the repayments. She explained that ultimately she extended her mortgage and paid out this loan with Ford Credit.
20. In relation to the loan through the Commonwealth Bank[9], she stated that Mr Hineman went guarantor for her again and this was in the nature of a bridging loan. She acknowledged that she had taken out a series of loans in conjunction with Mr Hineman, but stated that he went guarantor and was not a true joint borrower. She said that he “didn’t want to see me lose my house”. She said that the car and properties were solely in her name and that she had made all the repayments. In relation to a loan of $87,000, she said this was paid out when she sold the property at Blackfellows Caves.
[9] Exhibit 3, T13/145
21. She acknowledged that during the periods when they had shared an address, Mr Hineman’s caravan had been on her land and that Mr Hineman had not paid rent. As to why her employer, the Mount Gambier Community RSL, had listed Mr Hineman as her “de facto”[10], she stated that she had not told them that he was her de facto and did not know why they had written this. She acknowledged that they had shared the same post office box.
[10] Exhibit 3, T24/342
22. In relation to the fact that she was his sole beneficiary for superannuation purposes, Mrs Dewhurst stated that she had not been aware of this until “this started” and as to why he had nominated her as his partner in a form he had completed, she stated that this was “just a word” and they were partners in the greyhounds they had raced. She said “it all depends on the way your look at it”. Asked as to why Mr Hineman would have nominated her as an emergency contact to his employer in September 2006[11], she said they had an agreement to use each other as emergency contacts. Asked as to whether they were in a relationship, she stated “not really” and that he had been helping her out as a friend.
[11] Exhibit 5, T25/188
23. In relation to their household arrangements, she said that he did not pay rent, but did jobs outside and that she never needed to use a tradesman. For example, he connected up her water tank and he brings her firewood. She stated that he “likes to be busy”. As to whether they ate together, she said they would have a barbecue occasionally while working, but she does not cook meals for him. However, if he came home with a takeaway while she was outside, she might have some. They also raced greyhounds together for four to five years.
24. As to bills, he would give her money occasionally for the power he used and they did not have mains water. As to whether they socialised together, she said they went to a “greyhound dinner” together in Melbourne and that they in past had played bowls socially together. Whilst they were in Tasmania, he would come along with her and her friend. She said she had been to his daughter’s place for Christmas once and he had been to her son’s once for Christmas. However, they did little else in the way of socialising together. She said there was no sexual relationship, but he had been very emotionally supportive when she had breast cancer. She said that Mr Hineman took her to Adelaide, stayed with her while she had the operation and visited her once in hospital. However, when she came home from hospital she needed assistance and as he was away working, she got a neighbour to help.
25. In relation to the Royal Adelaide Hospital records nominating him as her spouse, she said she had told them he was her contact person, but not her spouse. She pointed out that this form also indicated that she was divorced, whilst it should have said she was widowed.
26. In relation to the surveillance report contained in the T documents[12], she confirmed that Mr Hineman was living on her property in May 2007 and that the man depicted in the film would probably have been Mr Hineman. She said that although his caravan was under the car port and in the folded down position, this was where he slept whilst he was at her address. She said that generally, when he was staying on her property, he would sleep in his van set up on the property “around the back” unless he was about to go away. However, if he was about to go away or was only staying for a day or so, he would sleep in the caravan under the car port in the folded down position, rather than setting it up.
[12] Exhibit 3, T22/335
other evidence
27. In addition to the material alluded to above in the context of the oral evidence, there were a number of documents before us which are of particular relevance.
Bank records
28. As alluded to above, a number of the banking documents relating to the loans for which Mr Hineman says he went guarantor list Mrs Dewhurst and Mr Hineman as partners[13]. However, some of the applications which have been produced by the bank list each of them as being “single”[14].
[13] For example, see Commonwealth Bank documents, Exhibit 3, T13/102-103
[14] Exhibit 3, T13/111 and T13/138
29. Some of the notes produced by the Commonwealth Bank record the loan purpose as being:
“Applicants looking at purchasing block of land to put shed on and use as base as m/a is employed with seasonal work which requires travelling.[15]
These notes also record:
“clients hold existing property which they will sell for $140k and looking to purchase block for $15k.”[16]
[15] Exhibit 3, T13/117
[16] Exhibit 3, T13/117
30. An email in relation to the approval dated 18 June 2007 also states:
“We have approved a loan ($87150) for the above clients. They are looking at purchasing a block of land and consolidating existing debt. Clients were shopping around and were offered nil est fee to secure deal.”[17]
[17] Exhibit 3, T13/119
31. The records produced by the Commonwealth Bank also revealed that Mr Hineman and Mrs Dewhurst had each signed an authority authorising either of them to operate the loan account[18] and both signed the consumer loan authority as joint borrowers[19]. However, in a draft memorandum of mortgage contained in the T documents, the Commonwealth Bank is listed as mortgagee with only Mrs Dewhurst listed as mortgagor, with Mr Hineman’s name having been crossed out[20]. Documents contained within the T documents also confirm that in June 2007, Mrs Dewhurst purchased a block of land at Nangwarry as the sole purchaser[21].
[18] Exhibit 3, T17/291
[19] Exhibit 3, T17/293
[20] Exhibit, 3 T17/296
[21] Exhibit 3, T18/304
Employment records
32. Also contained in the T documents is a response from Mr Hineman’s then employer, Automated Meter Reading Service, to a request from Centrelink. The reply is dated 25 July 2006 and includes the following statement:
“I have confirmed with John’s supervisor that he is married.”[22]
[22] Exhibit 5, T21/147
The same response also indicates that Mrs Dewhurst, being his partner, is given as his next-of-kin and that these details were given by him in August 2004.
Surveillance
33. The T documents also contain a record of surveillance carried out in May 2007[23]. This was accurately summarised by a Centrelink officer as follows:
“Surveillance was conducted at the customer’s address of 8 Hammer Parade, Blackfellows Caves on 7 separate days during the period 20 May 2007 to 26 May 2007.
On six of the seven occasions of surveillance, both his and her ute were sighted on the property along with his caravan. The operatives described the following … ‘a low carport attached to the house had a pop-top caravan in it. The caravan is the type where the top half lowers over the bottom half for travel and storage The top is lowered down and the car port is not high enough to raise the caravan into a usable position.’ This is the way the caravan stayed throughout the period of surveillance. At no time was the caravan sighted in a usable position.
A male, who appears to be Mr Hineman, was sighted on three occasions. He was sighted attending his ute on one occasion, attending a Weber on another occasion and sighted driving Ms Dewhurst’s vehicle on the last occasion.
Observations took place as early at 6.30am and as late in the evening as 8.48pm. On the three late checks the two utes were observed at the property, the caravan in the same unusable position and lights were noted on inside the home.”[24]
[23] Exhibit 3, T22/335-340
[24] Exhibit 3, T20/317, T22/335-339
34. Following the hearing, leave was granted for the respondents to tender the film referred to in the surveillance report and Mr Hineman and Mrs Dewhurst were both given an opportunity to view this film. At a further short hearing convened by telephone, they each acknowledged that the man depicted tending a barbecue at the Blackfellows Caves property was Mr Hineman. Further, they did not dispute that the caravan depicted in the carport was Mr Hineman’s caravan and the white utility depicted was Mr Hineman’s, whilst the grey utility belonged to Mrs Dewhurst.
Previous statements
35. Mr Hineman and Mrs Dewhurst both gave evidence to the SSAT and they have each also filed a written statement in these proceedings.
36. Mrs Dewhurst’s evidence to the SSAT was broadly consistent with her evidence before us, although more detailed. She told the SSAT that apart from when they lived together at Donovans from 1998 to 2001 and three months in Mount Gambier, she and Mr Hineman had not actually lived in the same dwelling[25].
[25] Exhibit 3, T2/8
37. Mrs Dewhurst also told the SSAT that Mr Hineman lived at the property at Donovans until it was sold and moved over to Blackfellows Caves permanently later in 2003 when she became sick. She also mentioned that she was diagnosed with breast cancer in November 2003[26].
[26] Exhibit 3, T2/8
38. Her statement dated 5 March 2009[27] is broadly consistent with her oral evidence before us and to the SSAT, although in relation to Mr Hineman’s move to Blackfellows Caves she said in her statement:
“I think in 2004 I found out that he was living in a caravan park. He had a camper trailer. I told him at this time that as I had plenty of room he could put his trailer on my block of land. He did this. Later on he bought himself a caravan. He put this on my property as well.”
[27] Exhibit 7
She also stated: “Occasionally, he used the bathroom”.
39. In relation to the surveillance report, she stated:
“In relation to the caravan being sighted at Blackfellows Caves through the Centrelink surveillance, this was at a time when Mr Hineman was not staying there and the caravan was in storage because he was away for work.”
40. Mr Hineman’s statement was also consistent with his oral evidence, although he elaborated as follows in relation to his use of the word “partner”:
“Their interpretation that because we race greyhounds in partnership it means a de facto relationship. (What a load of rubbish.) Centrelink therefore determine that any male or female in a partnership in a greyhound, trotter, thoroughbred are in a de facto case.”[28]
[28] Exhibit 6
Interestingly, in his evidence to the SSAT he also mentioned that before moving to South Australia the two of them had shared a two bedroom flat in Burnie for about a year.
Inconsistencies
While there were no significant internal inconsistencies in the evidence of Mrs Dewhurst, there were some significant internal inconsistencies in the evidence of Mr Hineman as well as some inconsistencies between the evidence of the two of them, and between their evidence and the other evidence before us.
41. Mr Hineman claimed that he had always had a separate insurance policy in relation to his caravan. However, Mrs Dewhurst stated that she had added the caravan to her household insurance policy in September 2006. Although Mr Hineman denied that he had at any time considered Mrs Dewhurst to be his “partner” in the sense of spouse, he acknowledged that in January 2000 he had not only nominated her as the beneficiary of his superannuation, but nominated her relationship to him as “partner”. When questioned about this, he claimed that he meant business partner, however we consider it unlikely that, if he had not regarded Mrs Dewhurst as his spouse at that time and/or not wanted to convey that impression to others, he would not have described her in this way in that context.
42. Mr Hineman and Mrs Dewhurst both claimed that whilst they were sharing an address at Blackfellows Caves, Mr Hineman lived in his caravan, although he did make use of bathroom facilities in the house. However, the surveillance undertaken on that address in the period 20 May 2007 to 26 May 2007 is starkly inconsistent with their evidence and suggests that, at least during that seven day period, Mr Hineman was living in the house rather than in his caravan.
43. In light of these inconsistencies we do not accept the evidence of Mr Hineman and Mrs Dewhurst on all issues without hesitation as we consider some aspects of the evidence of each of them to be unreliable. We therefore propose to treat the evidence of each of them with some caution.
consideration – were mr hineman and mrs dewhurst a couple?
44. The matters listed in s 4(3) of the SS Act are not exhaustive, since the decision-maker’s obligation under that section is “to have regard to all the circumstances of the relationship including, in particular, the (enumerated) matters.” We refer to the discussion at [6.56] to [6.60] in D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6th Edition, 2006) in relation to the meaning of the word “includes” in this context. It is clear that the decision-maker is required to assess the totality of the evidence and other available material in order to decide whether an applicant for a pension is a member of a couple, taking into account that the personal circumstances of people vary substantially: see Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
45. It is nevertheless necessary to “have regard to” the relevant matters. This expression has been interpreted to entail a requirement to take the relevant matters into account and give weight to them as a fundamental element in the decision-making process: R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333.
46. In Pelka (supra) French J (as he then was), after setting out the provisions of s 4(2) and (3) of the SS Act, reviewed a number of authorities where the courts have considered various analogous criteria or statutory formulae to determine whether a “marriage-like” relationship existed. His Honour provided at [46] what is, with respect, a most helpful summary of the effect of the authorities. He said:
“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.”
47. We propose to address each of the most relevant criteria below, in light of the evidence discussed above and by reference to the contentions of each of the parties.
Financial Aspects of the Relationship
Contentions
48. The respondents contended that, although the evidence did not establish any joint ownership of assets, it did show a degree of pooling of resources, particularly in relation to Mr Hineman’s provision of “bridging loans” to Mrs Dewhurst and the fact that on a number of occasions they had been joint borrowers in relation to loans from financial institutions. The respondents also submitted that in relation to these transactions, Mr Hineman and Mrs Dewhurst held themselves out as a couple and presented their financial information jointly. The respondents contended that there was also a degree of pooling of resources involved in Mr Hineman being able to leave his caravan on Mrs Dewhurst’s property rent free, albeit in exchange for performing tasks around the property.
49. The respondents also pointed out that Mr Hineman had named Mrs Dewhurst as his beneficiary of two of his superannuation policies and that the two shared expenses to some extent in that Mr Hineman had paid a portion of the power bills. The respondents also submitted that on the evidence there was some sharing of food between them.
50. Mrs Dewhurst submitted that they were simply using a “barter” system and that Mr Hineman lived rent free in exchange for carrying out tasks which were of value to her and for which she would otherwise have to pay. She said they were simply two friends helping each other. Mr Hineman also submitted that he had simply been trying to help Mrs Dewhurst and it was unfair for him to be penalised for this.
Our Conclusions
51. We note that some of the evidence directed to this criteria is more consistent with Mr Hineman and Mrs Dewhurst being a couple than otherwise. In particular, the fact that they entered into loan transactions as joint borrowers and the fact that Mr Hineman was prepared to be named as a joint borrower in relation to loan transactions from which he apparently derived no direct benefit, is more consistent with them being a couple than merely friends. The fact that Mrs Dewhurst is named as beneficiary of one of Mr Hineman’s superannuation policies is also very strongly suggestive of a marriage-like relationship, particularly in light of his description of Mrs Dewhurst as his “partner” on the relevant form.
52. Mr Hineman explained this by reference to the fact that he did not want his ex-wife to receive the money and that Mrs Dewhurst was more in need of the money than any of his children, from which he is in any event estranged. However, we find this explanation more difficult to accept in light of his use of the word “partner” to describe Mrs Dewhurst. We find this an odd description for him to use in describing Mrs Dewhurst if they were not in fact a couple. Although the relevant form required him to indicate the beneficiary’s relationship to him, it is difficult to understand why, if they were friends rather than a couple, he did not simply indicate “friend”.
53. As to the other financial arrangements between them, there is nothing before us which contradicts their evidence and we do not consider these to be especially supportive of a conclusion that the two were members of a couple. In relation to their day-to-day finances, it appears that during the relevant period these were kept relatively separate, with Mr Hineman contributing towards the electricity which he used, as a friend or tenant would be expected to do.
54. Looking purely at the financial arrangements between them, we consider that, on balance, these point away from a marriage-like relationship more than they do towards one. In particular, there is no evidence of pooling or sharing of financial resources on a day-to-day basis. However, we will return to Mr Hineman’s description of Mrs Dewhurst as his “partner” on his superannuation form in the context of discussing the social aspects of their relationship.
Nature of the Household
Contentions
55. The respondents submitted that Mr Hineman’s caravan stayed on Mrs Dewhurst’s property for lengthy periods. Further, they had also resided together exclusively for periods of time and had moved from state to state together, suggesting they had established a household together.
Our Conclusions
56. If we were to accept the evidence of Mr Hineman and Mrs Dewhurst, there would be little basis for a conclusion that the nature of their household pointed towards them being a couple. On their evidence, although they shared the same house for a relatively short period in Mount Gambier, at all other relevant times since they have been in South Australia they have lived in separate “dwellings” in so far as Mr Hineman has lived and slept in his caravan, although whilst they were both living at the Blackfellows Caves property, he made use of Mrs Dewhurst’s bathroom facilities. They both said that whilst they would occasionally share a meal together, this was very much the exception rather than the norm. Further, although they both indicated that Mr Hineman tended to undertake the heavier outside work required on the properties where they lived together, this reflected an understanding between them that he did these tasks in exchange for parking his caravan on Mrs Dewhurst’s property rent free.
57. As we have indicated above however, we do not accept all of the evidence given by Mr Hineman and Mrs Dewhurst in relation to these issues. Rather we consider that they both tended to “downplay” the amount of time they spent together, and the extent to which, during the relevant period, they had a shared domestic life. Nevertheless, on the evidence available to us and allowing for the fact that we consider Mr Hineman and Mrs Dewhurst spent more time together than they have admitted to in the relevant period, we consider that the evidence relating to this criteria does not establish a marriage-like relationship.
Social Aspects of the Relationship
Contentions
58. The respondents pointed out that Mr Hineman and Mrs Dewhurst had engaged in a number of joint social activities, for example bowling and greyhound racing.
Our Conclusions
59. In addition to the matters referred to by the respondents, it is significant in our view that Mr Hineman and Mrs Dewhurst are known to one another’s families and have at least on some occasions spent Christmas together. There is also a considerable body of evidence before us suggesting that they held themselves out as a couple in a range of formal settings, in particular by nominating each other as partner or spouse to various bodies, including employers and financial institutions. We accept that there is a possibility that at least on some occasions, the fact that they were recorded as partners or spouses may have reflected an assumption or misunderstanding on the part of the relevant institution. For example, in the case of the Commonwealth Bank, they were recorded as being spouses in some documents and single on others and it appears plausible that in some instances an assumption was made that they were a couple rather than Mr Hineman and Mrs Dewhurst having advised the bank that they were such. It is easy to see how such an assumption may have been made, particularly having regard to the nature of the financial transaction they were entering with the bank.
60. However, in the case of the evidence obtained from employers referred to above, it is less easy to understand how all of these employers could have reached the same erroneous conclusion as to the nature of the relationship between Mr Hineman and Mrs Dewhurst.
61. Even more difficult to explain in our view is the fact that Mr Hineman nominated Mrs Dewhurst not only as the sole beneficiary of his superannuation, but also as his “partner”. As we have observed above, we find it very difficult to accept that he would have done this unless he did in fact regard Mrs Dewhurst at least at that time as being his partner in the sense of spouse, or was intending to convey that impression. It strikes us as possible that Mr Hineman could have described her in that way, not because she was in fact his partner but by way of providing some form of explanation for his nomination of her as his beneficiary, which would not invite further inquiry. However, he did not explain his description of her in that way, rather suggesting that he intended by referring to Mrs Dewhurst in that way to refer to their partnership in racing greyhounds together. Although, on the evidence before us, at the time Mr Hineman completed that form the two were actively involved in racing greyhounds together, as we have observed above, we find it very difficult to accept that that was what he meant in describing Mrs Dewhurst as his “partner” in the context of nominating the beneficiary of his superannuation.
62. As indicated above, we have some reservations in relation to some aspects of the evidence of Mr Hineman and Mrs Dewhurst. In particular, we do not accept that on all occasions where they have been recorded as being partners or spouses, this is attributable to an incorrect assumption unrelated to information provided by them. In relation to Mr Hineman’s superannuation, on balance we consider that he used the description of Mrs Dewhurst as his “partner” either because he wished to convey the impression that they were a couple or because he did in fact regard her as his partner, at least at that time. On balance, we consider it more likely that he used that description because he did in fact regard Mrs Dewhurst as his partner, in the sense of spouse, at that time. We also have reservations as to the extent to which they socialised together in the relevant period, and consider they are likely to have socialised together more than was reflected in the evidence of either of them.
63. On balance therefore, we have concluded that the evidence directed toward this criteria points toward Mr Hineman and Mrs Dewhurst being members of a couple in the relevant periods.
Sexual Relationship
Contentions
64. Mr Hineman and Mrs Dewhurst both denied that they had a sexual relationship and the respondents acknowledged that there was no evidence before the Tribunal either confirming or refuting a sexual relationship.
Our Conclusions
65. On the evidence, and in light of our reservations as to the reliability of their evidence, we are unable to determine whether there is or has been any sexual relationship between Mr Hineman and Mrs Dewhurst.
Nature of the Commitment
Contentions
66. The respondents submitted that Mr Hineman and Mrs Dewhurst had had a relationship over a lengthy period and although they no longer resided together, it appeared that this was due to the difficulties they had encountered in being treated as a couple by Centrelink. In relation to emotional support, the respondents submitted that Mr Hineman had supported Mrs Dewhurst during her treatment for breast cancer and they had also agreed to be emergency contacts for one another.
67. The respondents also submitted that the test under the legislation was an objective rather than a subjective one and it appeared that Mr Hineman and Mrs Dewhurst may have a different understanding of what a “marriage-like” relationship is, than the test prescribed by the legislation.
Our Conclusions
68. On the evidence before us, we agree with the respondents that Mr Hineman and Mrs Dewhurst have demonstrated significant commitment to one another. They moved together from Tasmania to South Australia in 1998 and have maintained a close relationship since then, both in emotional and practical terms. We accept that to some extent the arrangements between them could be attributed simply to the fact that each of them has limited resources and there are benefits in sharing and “trading” what they have with each other. It is clear on the evidence before us however that their relationship goes beyond anything which can be attributed solely to practical considerations. For example, Mr Hineman offered significant emotional support to Mrs Dewhurst when she was undergoing treatment for breast cancer, including bringing her to Adelaide and on her evidence, visiting her at least once in hospital and waiting to take her home afterwards. Mr Hineman has also agreed to be a joint borrower with Mrs Dewhurst on a number of occasions in order to facilitate her ability to access funds, apparently at some risk but no tangible benefit to himself. It was our impression that he sees himself as being in somewhat of a protective position as regards Mrs Dewhurst.
69. The real question on the evidence is whether the behaviour demonstrated by the evidence is attributable to a “marriage-like” relationship, or a strong and enduring friendship with practical and emotional benefits to each of them. We have found this aspect of our assessment of the relationship between Mrs Dewhurst and Mr Hineman particularly difficult as we consider many of the arrangements between them could be equally compatible with and potentially attributable to a strong friendship rather than a “marriage-like” relationship. The picture is further complicated by the fact that it is clear on the evidence that each of them have limited financial resources and some of the choices they have made in relation to the arrangements between them are potentially attributable to that cause rather than purely to the nature of their relationship.
70. If it had not been for our doubts about the accuracy of their evidence, we would probably have concluded that the evidence directed toward this criteria pointed slightly away from the two being members of a couple rather than towards it. For the reasons set out above however we have concluded that each of them gave evidence which was at least to some extent misleading in relation to this issue. In light of that conclusion we find that, on balance, the evidence directed to this criteria also points towards the two being members of a couple.
Overall Assessment
71. We have found this matter difficult to decide and we consider the evidence directed to a number of the relevant criteria to be relatively finely balanced. As mentioned above, much of the objective evidence could have been accounted for by a strong friendship between Mr Hineman and Mrs Dewhurst rather than their necessarily being a couple. Ultimately, however, an assessment of this kind must depend heavily on an assessment of the credibility of the two people involved. This is particularly the case when there is a significant body of objective evidence pointing towards them being a couple. In this case, the information obtained from their employers and from financial institutions points toward them being a couple, as does the information provided by Mr Hineman in the context of nominating Mrs Dewhurst as his superannuation beneficiary. Further, the surveillance evidence is extremely difficult to reconcile with their evidence and suggests quite strongly that each of them has given misleading evidence in relation to the extent to which they were both living in Mrs Dewhurst’s house at Blackfellows Caves.
72. Having regard to this evidence, as indicated above, we have concluded that Mr Hineman and Mrs Dewhurst have each given evidence intended to minimise the extent of their relationship and disguise its nature. We have therefore also concluded that during the relevant periods they were in fact in a “marriage-like” relationship.
73. We note that Mr Hineman and Mrs Dewhurst no longer reside at the same address and the Secretary did not contend that the period during which they were considered to be in a “marriage-like” relationship should be extended beyond that determined by the SSAT. Consistently with the conclusions of the SSAT, we have therefore concluded that Mr Hineman and Mrs Dewhurst were in a “marriage-like” relationship between 7 December 1999 to 20 April 2001 and 24 September 2003 to 14 April 2008.
Have there been overpayments?
74. It follows from our findings above that Mrs Dewhurst has been overpaid Widow Allowance and DSP and Mr Hineman has been overpaid NSA in the relevant periods.
Should the debts be waived?
75. In light of our finding that an overpayment does exist, the issue arises of whether the Tribunal should waive recovery of the debts due to the existence of special circumstances, pursuant to s 1237AAD of the SS Act, which provides as follows:
“1237AAD Waiver in special circumstances
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)
(c)it is more appropriate to waive than to write off the debt or part of the debt.
Note 1:Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2:This section has effect subject to section 1237AAE in relation to an assurance of support debt.”
Mrs Dewhurst
76. The respondents submitted that there were no special circumstances which would warrant the exercise of this discretion in Mrs Dewhurst’s favour. Mrs Dewhurst submitted that during the period when Centrelink had been withholding an amount from her pension in satisfaction of the debt, she had not had enough left to be able to buy medication.
77. In applying this provision, before the question of “special circumstances” arises, we must consider whether the debt arose partly or wholly from Mrs Dewhurst making a false statement or representation or failing or omitting to comply with any provision of a relevant Act. In light of our conclusions above, we consider that Mrs Dewhurst has failed to comply with relevant statutory provisions as she failed to advise Centrelink that she was a member of a couple with Mr Hineman[29]. We should add that even if we had concluded that Mrs Dewhurst did not knowingly misrepresent her position or knowingly fail to advise Centrelink of this change in her circumstances, we would not have been satisfied on the evidence before us that there were any “special circumstances”[30] within the meaning of this provision such as would justify waiver of the debt owed by Mrs Dewhurst.
Mr Hineman
[29] See Subdivision B of Division 6 of Part 3 of the Social Security (Administration) Act 1999 and Social Security Guide, 3.1.3 and 3.10.4.10.
[30] See Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545
78. In our view the same considerations apply to Mr Hineman, who we consider has also provided misleading information to Centrelink and failed to advise Centrelink of his change in status. In addition however, we note that he has repaid his debt and in those circumstances we are unable to identify on the evidence before us any “special circumstances” which would justify waiver of that debt.
Should the debt be written-off?
79. Under s 1236 of the SS Act, write-off is available only if one or more of the four conditions in the provision is met. Those four conditions are:
(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.
Mrs Dewhurst
80. Whilst we note Mrs Dewhurst’s assertion that when deductions were being made from her pension, she was not able to afford medication, we are not satisfied that she has no capacity to repay the debt. We also note that, under s 1236(1C) of the SS Act, if recovery can be effected by deductions from the debt or a social security payment, “the debtor is taken to have a capacity to repay the debt unless recovery by these means would result in the debtor being in severe hardship”. We note that it is open to Mrs Dewhurst to negotiate an appropriate level of deduction with Centrelink and the evidence before us does not establish that recovery of the debt by means of a modest deduction would result in Mrs Dewhurst being in severe financial hardship.
81. As this condition is not fulfilled, and we do not consider any of the other conditions to be fulfilled, we are not satisfied that the pre-conditions which would enable write-off of the debt are established. We have therefore decided not to write-off the debt and it follows that the debt owed by Mrs Dewhurst must be recovered.
Mr Hineman
82. Given that Mr Hineman has in fact repaid his debt, we are also not satisfied that his circumstances satisfy any of the conditions set out in s 1236. We have therefore also concluded that the debt raised against Mr Hineman was properly raised and recovered.
conclusion
83. We have concluded that Mrs Dewhurst and Mr Hineman were in a “marriage-like” relationship and therefore members of a couple between 7 December 1999 to 20 April 2001 and 24 September 2003 to 14 April 2008. We have also concluded that the resulting overpayments are debts due to the Commonwealth which should be recovered.
decision
84. The Tribunal affirms the decisions under review.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Justice C Dawe (Presidential Member) and Senior Member K Bean
Signed: .....................................................................................
AssociateDate of Hearing 29 March 2010
Date of Decision 9 July 2010
Advocate for the Applicants Self representedAdvocate for the Respondent Ms M Welfare
Centrelink Advocacy Branch
4
3
0