Diamond and Secretary, Department of Education, Employment and Workplace Relations - [2011] AATA 805

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 805
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2676

GENERAL ADMINISTRATIVE DIVISION )

Re CATHERINE DIAMOND

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date15 November 2011
PlaceBrisbane

Decision The decision under review is set aside and the matter remitted to the respondent for reconsideration in accordance with the directions in paragraph [53] of the reasons for decision.
................[Sgd]...................
Deputy President

CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances - parenting payment – member of a couple – significant financial support – living separately and apart - decision under review set aside and remitted
Social Security Act 1991 (Cth) s 4
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546
In the Marriage of Todd (No 2) (1976) 25 FLR 260
Staunton-Smith v SDSS (1991) FCA 513; (1991) 32 FCR 164
Main v Main (1949) 78 CLR 636
REASONS FOR DECISION

15 November 2011 Deputy President P E Hack SC

Introduction

Ms Catherine Diamond and Mr Michael Diamond were married in October 2002. They remain married. But Ms Diamond says that she separated from Mr Diamond in April 2003 and that, since then, and despite the birth of a child to her and Mr Diamond in May 2006, she has lived separately and apart from him. Thus, she says, she was entitled, and remains entitled, to receive Parenting Payment at the single rate.
The respondent, the Secretary of the Department of Education, Employment and Workplace Relations, has a contrary view. On 3 September 2009 Centrelink, on behalf of the Secretary, determined that Ms Diamond had been a “member of a couple” with Mr Diamond since January 2004 and suspended payment of parenting payment to Ms Diamond. That decision was affirmed on internal review and by the Social Security Appeals Tribunal.
Ms Diamond seeks a review of that decision in these proceedings.
The Legislation
It will suffice for present purposes to note that the rate of parenting payment is dependent on whether the recipient is, or is not, a member of a couple. A person who is a member of a couple is paid at a lower rate that a person who is not a member of a couple and the earnings of the other member of the couple are taken into account in determining the rate of parenting payment.
Section 4(2) of the Social Security Act 1991 (Cth) (the Act) sets out the circumstances under which a person is a member of a couple. Materially for present purposes, a person is a member of a couple for the purposes of the 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”.
The manner in which the opinion is to be formed was[1] set out in s 4(3) of the Act. It required the Secretary (or the Tribunal),
[1]    It has since been amended in immaterial respects by the Same Sex Relationships (Equal Treatment in Commonwealth Laws – General Law reform) Act 2008, No. 144, 2008.
“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.”
Background
I will start by recording some factual background that is uncontroversial.
Ms Diamond and Mr Diamond commenced their relationship in 1995. They started living together in 1998. In June 2000 they acquired real property at Engadine, New South Wales as tenants in common in equal shares. That property became the matrimonial home[2]. It was sold in October 2007[3]. I deal with financial aspects of the Engadine property in more detail in paragraphs [13] to [15] below.
[2] Exhibit 1, page 2482 at [4].
[3] Exhibit 1, page 692.
Mr Diamond has achieved considerable success as a sportsman in the field of trap shooting. The company Bullet Proof (NSW) Pty Ltd (Bullet Proof) was incorporated in June 2002 to manage income earned by Mr Diamond in his capacity as a professional sportsman. Each of Mr Diamond and Ms Diamond became directors of Bullet Proof upon its incorporation and remain so as at 18 January 2010[4]. They each held, and continue to hold, one of two issued shares in the company. Ms Diamond was and is the company secretary. The registered office of the company has always been recorded as the Engadine property.
[4] The date of the most recent company search in the material: see exhibit 1, page 2474.
Mr and Ms Diamond have two children, one born in January 2003 and the other born in May 2006. They resided together in the Engadine property until March 2003 when Mr Diamond left the residence following the discovery by Ms Diamond of his infidelity with another woman. The relationship with the other woman commenced in September 2002, shortly prior to the marriage. Ms Diamond remained in the Engadine property until October 2006[5] when she moved to a rented property at Corlette (the first Corlette property). She moved to another rented property in Corlette (the second Corlette property) in June/July 2007[6]. It is material to note that both of the Corlette properties were a short distance from the Port Stephens Marina where Mr Diamond moored his power boat (on which he said that he resided) from September 2006[7].
[5]    Exhibit 1, pages 1973-4.
[6]    Exhibit 1, page 1778.
[7]    Exhibit 1, page 1797.
It appears not to be in issue that in about March or April 2003 Mr Diamond left the Engadine property and moved in with the woman with whom he had been having an affair, a Ms K., at Narellan Vale, New South Wales. There were soon difficulties with that relationship such that, in about October 2003, Ms K made a criminal complaint, alleging that Mr Diamond had assaulted her. She obtained an order which obliged him to stay away from the complainant’s residence at Narellan Vale. Thereafter Mr Diamond commenced living aboard his motor boat at the St George Motor Boat Club marina at San Souci. There is controversy, discussed below, about the extent to which Mr Diamond resided there exclusively.
Mr Diamond’s boat was moved to Nelson Bay Marina in about September 2006[8]. Then, in July 2009 he moved his boat to moorings on the Gold Coast. He continues to live aboard the boat. Ms Diamond moved to live at Lennox Head in September 2009 and then to the Gold Coast in December 2009.
[8] Mr Diamond said (exhibit 1, page 2492 at [14]) that that had occurred in June 2006; I prefer the date taken from the documents produced by the marina: see exhibit 1, page 1797.
Separately and apart?
The formation of the opinion about the relationship requires that regard be had to all the circumstances of the relationship, not merely those set out in paragraphs (a) to (e) of s 4(3) of the Act. Nonetheless those paragraphs provide a useful starting point for a consideration of all of the circumstances of the relationship.
Financial matters
There are very many financial transactions and the like that have an apparent relevance to the questions in issue. The joint acquisition of the Engadine property has already been noted. It was purchased in June 2000 for $338,000[9]. I infer from the mortgage document[10] that $288,000 was borrowed from the State Bank of New South Wales (or an associated entity) to finance the purchase. Mr Diamond said that that loan was paid out in full by him in 2002. The mortgage remained until it was discharged in March 2003 and replaced with a fresh mortgage to the Commonwealth Bank. That mortgage, registered on 25 March 2003, secured a loan of $225,000 made by a Commonwealth Bank subsidiary to Mr Diamond to purchase a boat[11].
[9] Exhibit 1, page 693.
[10] Exhibit 1, page 687.
[11] Exhibit 1, page 837.
That loan was paid out in July 2006 when loans totalling $315,000 were made by an emanation of the National Australia Bank in whose favour Mr and Ms Diamond executed a mortgage on 3 July 2006[12]. The loan application[13] and the bank statements[14] show Mr and Ms Diamond as joint borrowers although there is no suggestion that Ms Diamond received any of the proceeds of the loan, at least directly. Ms Diamond says, and there is no reason to doubt, that the purpose of the additional loan was to enable Mr Diamond to purchase a new car “for business purposes”[15]. Both signed as joint applicants because the house was still in joint names and because Ms Diamond “needed access to the funding as I was secretary to the company”[16]. Those loans were repaid and the mortgage discharged in October 2007 when the Engadine property was sold for $482,000[17].
[12] Exhibit 1, pages 689-90.
[13] Exhibit 1, pages 748-757.
[14] Exhibit 1, pages 738-743 & 744-747.
[15] Exhibit 1, page 2485 at [23].
[16] Exhibit 1, page 2485 at [23].
[17] Exhibit 1, page 692.
In the meantime Ms Diamond vacated the Engadine property in October 2006 and Mr Diamond arranged for the property to be rented out[18]. Rent was directed to be paid to a bank account in joint names. Ms Diamond says that she obtained no benefit from the ultimate sale of the house; the net proceeds she says were used by Mr Diamond to acquire a larger boat[19]. A large sum, which I infer was the net proceeds of the sale of the Engadine property, was deposited to an account in joint names on the same day as the National Bank loans were repaid[20]. Thereafter large amounts, in the order of $200,000 were paid to acquire a motor cruiser which was imported into Australia in January 2008.
[18] Exhibit 1, pages 1864-8.
[19] Exhibit 1, page 2484 at [19].
[20] Exhibit 1, page 968.
The funds for the purchase of that motor cruiser came from an account in joint names with the Commonwealth Bank. That account was opened in February 2001[21] and remained open until September 2008[22]. The bank statements are shown as having been sent to Ms Diamond at her residential addresses – the Engadine property, the first Corlette property and then the second Corlette property. Ms Diamond said of this account that it had been opened when she and Mr Diamond had been together and that she had operated on this account and the Bullet Proof account “as a director of the company”[23].
[21] Exhibit 1, page 832.
[22] Exhibit 1, page 897-995.
[23] Exhibit 1, page 2485 at [32].
Bullet Proof opened accounts with the Commonwealth Bank in mid-2002. Ms Diamond was, and remained, authorised to operate on its accounts[24]. Additionally both Mr and Ms Diamond obtained a company credit card on the account of Bullet Proof. That credit card, Ms Diamond said, was “used entirely for business purposes not private purposes”[25]. Detailed statements on the credit card account are not available from November 2005 onwards. Those statements demonstrate[26] that in the 2004 year Ms Diamond charged, on average, in excess of $2000 per month to the Bullet Proof credit card[27]. A similar level of expenditure is demonstrated by the statements for the following year to October 2005[28].
[24] Exhibit 1, page 891.
[25] Exhibit 1, page 2485 at [32].
[26] Exhibit 1, pages 1386- 1430.
[27] Mr Diamond was charging similar or greater amounts to his card.
[28] Exhibit 1, pages 1342- 1382.
Details of the particular expenditure by Ms Diamond are available from December 2005 onwards[29]. Those statements do not demonstrate that the expenditure was for the purposes of the company; on the contrary, so far as can be discerned from the transaction details provided, they demonstrate that Ms Diamond used the card for personal use. By 2008 Ms Diamond’s expenditure on the Bullet Proof credit card was averaging in excess of $3000 per month. The use of the card tapered off in the middle of that year and it was not used significantly thereafter.
[29] Exhibit 1, pages 1260-1341.
Where detailed statements are available I find it impossible to identify any expenditure that might even arguably be regarded as “business” expenditure. The consistent pattern is that the card was used for self-evidently private purposes. I do not accept Ms Diamond’s evidence on this point.
Next, in January 2004 Mr and Ms Diamond were “co-borrowers” of a loan from a finance company[30] to enable Ms Diamond to purchase a motor car. Mr Diamond’s income tax return was relied on to support the application. Ms Diamond said of this transaction that Mr Diamond had agreed to be described on that application as “spouse” to enable her to get the loan for the benefit of her and the children[31]. Ms Diamond’s reference to children is obviously mistaken; there was only one child of the relationship in January 2004.
[30] Exhibit 1, page 725.
[31] Exhibit 1, page 2484 at [17].
Similarly, in May 2006 an application was made to the ANZ Bank by Mr and Ms Diamond. They were described as spouses in the application which was withdrawn[32]. This, says Ms Diamond, did not accurately reflect the state of the relationship[33].
[32] Exhibit 1, page 647.
[33] Exhibit 1, page 2483 at [20].
Then, in November 2006, Mr and Ms Diamond made a joint application to the Newcastle Permanent Building Society for a loan[34]. The application, signed by both of them, notes that they had been living at the first Corlette address for one month. The loan was for the purpose of Ms Diamond acquiring a new motor car and some furniture. Ms Diamond says of this loan that without Mr Diamond’s assistance “on the documentation I would not have been able to secure the loan”[35].
[34] Exhibit 1, page 504-5.
[35] Exhibit 1, page 2485 at [25].
For much of the period in issue Mr Diamond has been covered by the same health insurance arrangements as Ms Diamond and the children. He was not a beneficiary of the policy between June 2003 and June 2004 when Ms Diamond had a “sole parent” policy but the policy was then changed to a “families” policy with him as a beneficiary[36]. This arrangement, Ms Diamond said, was cheaper because premiums for families were less than for sole parents. In October 2007 health insurance was arranged with a different insurer. Ms Diamond was described in the policy as married and Mr Diamond, as spouse, was covered by the policy. Premiums were paid by direct debit from a joint bank account.
[36] Exhibit 1, page 771.
In June 2007 each of Mr Diamond and Ms Diamond signed a tenancy application in respect of the second Corlette property. Mr Diamond’s passport and driver’s licence were produced in order to confirm his identity[37]. He was shown (along with the children) as a person who would reside at the property[38]. I note that the tenancy agreement for the first Corlette property was in the name of Ms Diamond solely.
[37] Exhibit 1, page 1789.
[38] Exhibit 1, page 1780.
There are further joint bank accounts that appear to be relevant. In October 2007 Ms Diamond opened an account with the Greater Building Society in her name solely[39] (the 544 account[40]). Then in March 2008 two accounts were opened in the name of Mr and Ms Diamond (the 696 account and the 734 account). Statements for all three accounts for the period October 2008 to May 2009 are available. They demonstrate that regular deposits, totalling in excess of $100,000, were made to the 734 account[41], many by a named third party, that in the same period amounts in the order of $110,000 were transferred from the 734 account to the 696 account[42] and that, again in the same period, considerable sums, in excess of $21,000, were transferred from the 696 account into the 544 account[43] i.e. the account in Ms Diamond’s name solely.
[39] Exhibit 1, page 657.
[40] Part only of the account number has been reproduced.
[41] Exhibit 1, pages 1925-1929.
[42] Exhibit 1, pages 1930-1948.
[43] Exhibit 1, pages 1890-1924.
These matters were not raised with Ms Diamond in the course of the hearing so an opportunity was provided to Ms Diamond to make submissions, and provide further evidence if required, about these matters. Further evidence has now been provided by Ms Diamond and Mr Diamond about these accounts. The third party deposits represented payment by that third party of the purchase price of a boat sold by Mr Diamond. The payments to Ms Diamond were, she said, “to compensate [her] for child care and health fund contributions for the children”[44]. According to Mr Diamond the payments were “to catch up on child care and health fund contributions…”[45].
[44] Exhibit 8, [5].
[45] Exhibit 7, [3].
I do not accept the evidence that the payments had the character ascribed to them by Mr Diamond and Ms Diamond. The manner and amount of the payments leads to the inference, which I draw, that the payments were simply payments which Ms Diamond drew for her general living expenses.
Then in June 2008 an application was made to Radio Rentals to rent some unspecified chattels. The application was apparently not accepted however the application recorded Ms Diamond’s marital status as “married” and Mr Diamond as her spouse. Ms Diamond said of this application that “a friend”, unaware of the true situation between her and Mr Diamond filled in the application.
There is then quite considerable evidence of joint ownership of assets and joint liabilities, significant pooling of financial resources and sharing of household expenses by the acceptance by Bullet Proof of liability to pay day to day personal expenses incurred by Ms Diamond and Ms Diamond’s receipt of considerable payments from Mr Diamond.
The nature of the household
There is no evidence that Mr Diamond made any contribution to the performance of housework and it seems fair to conclude that, from about March/April 2003, Mr Diamond was not ordinarily a resident of the premises where Ms Diamond was residing. That is not to say that that was invariably the case.
Once Mr Diamond’s difficulties with Ms K arose, and in the period of about six months thereafter, there were several occasions when Mr Diamond stayed at least overnight with Ms Diamond at the Engadine property when it was convenient to do so for the purposes of consulting with his solicitor, Ms Gabi Piscioneri.
Moreover, according to Mr Diamond, from at least 2004 he stayed overnight at the Engadine property on a regular basis, at least once per fortnight when he was in Australia. Mr Diamond accepted that in 2008 there was a period of 6-8 months when he resided at the second Corlette property whilst work was being undertaken on his boat. During that time, he said, he performed no housework and no family activities.

There was considerable evidence from persons – Mr Nelson, Mr Kaleda, Mr Pateman, Ms Van Doren, Mr Motum, Mr Marland and Mr Siede - who spoke of Mr Diamond living aboard his boat. That evidence satisfies me that, by and large, Mr Diamond resided on his boat despite recording Ms Diamond’s address as his in countless documents.
In March 2007 Ms Diamond went to the Gold Coast with the two children at a time that Mr Diamond was taking part in a competition in Brisbane. This visit was also the subject of further evidence from, and on behalf of, Ms Diamond. The purpose, according to Ms Diamond, was to permit the children to watch their father competing. Ms Diamond stayed in a two bedroom unit at Beaches on Wave Street at Mermaid Beach and paid for accommodation between 12 and 18 March 2007. The joint bank account at the Commonwealth Bank shows EFTPOS transactions on the Gold Coast on 14 and 15 March 2007[46] and the Bullet Proof credit card statements for both Mr Diamond[47] and Ms Diamond[48] show transactions on the Gold Coast at the same time. Mr Diamond and Ms Diamond did socialize together; he can recall two occasions when they, and the children, went to restaurants, Ms Diamond could recall only one occasion. But the material does not enable me to conclude that Mr Diamond stayed in the Mermaid Beach unit during this period. It is odd that the records of the proprietor of the units show the guests as two adults and two children but, in the absence of evidence from the author of that document, I do not consider that that entry should be preferred to Mr and Ms Diamond’s evidence.
[46] Exhibit 1, page 954.
[47] Exhibit 1, page 1176.
[48] Exhibit 1, page 1292.
Social aspects
There are many instances where Mr and Ms Diamond have held themselves out as being married to one another; they have been set out above. In addition, it seems to have been the invariable practice of Mr Diamond to give Ms Diamond’s address as his address on any occasion that he was required to provide an address. That, undoubtedly, was a matter of considerable convenience given that he was primarily residing aboard his boat.
Moreover, it would seem that for most of the period in issue Mr Diamond keep his guns at Ms Diamond’s premises rather than aboard the boat again, no doubt, as a matter of convenience.
There are seemingly some occasions when Ms Diamond and Mr Diamond socialize together with the children. And at least in January 2011 Ms Diamond and Mr Diamond went out together socially with Mr Diamond’s brother and sister-in-law (Ms Andrea Diamond).
Whilst Mr Diamond conducts his business through the company Bullet Proof Ms Diamond has considerable input into his business affairs. It must be said that her involvement with the financial and business affairs of that company is unusual given that the matrimonial relationship is said to have failed.
There is though little evidence of joint social activities; on the contrary I have the distinct impression that Mr Diamond leads a quite separate life.
Sexual relations
Given that the second child was conceived considerably after Mr Diamond left the Engadine property there is no doubt that there has been at least one sexual encounter. Both Mr and Ms Diamond deny that there have been others. I am unable to accept that denial because I have a poor view of their reliability however disbelief of a denial does not amount to proof of an affirmative. Thus I am left not knowing whether there have been other sexual encounters.
In this context it is also relevant to note that during the period Mr Diamond has had other partners and has fathered a child to another woman.
The nature of the commitment
The relationship between Ms Diamond and Mr Diamond is most unusual. In its present form (however that be described) it has lasted as long as it lasted as a conventional relationship. My impression is that Ms Diamond may harbour some degree of commitment to Mr Diamond but that he has none towards her. Ms Diamond has continued to provide emotional support, for example during the aftermath of the relationship with Ms K, and has a significant role in the operation of Mr Diamond’s “business”. She supports Mr Diamond by providing him with the convenience of a mailing address and an address to store his shotguns. I cannot discern any commitment on Mr Diamond’s part beyond the financial support to which reference has already been made.
In July 2008, and in answer to reporters’ questions, Mr Diamond publicly stated that he and Ms Diamond had reconciled and that they had a “good solid family life”. But those statements, he says, were untrue; they were made only to avoid giving the reporters “newsworthy material”. Mr Diamond saw nothing wrong in telling lies to the media because he considered that the media “always tend to stretch the truth”.
Equally I can discern no companionship or emotional support in the relationship. It is, so far as the material demonstrates, a relationship of manifest convenience rather than of commitment.
Separately and apart - conclusions
Both parties made reference to the decision of the High Court in Main v Main[49]. The Secretary submits, in reliance on that case, that,
“The real test is whether the mutual recognition of the relationship by [Ms Diamond] and Mr Diamond continues to subsist and there is a define intention to resume the closer association of a common life as soon as the interruption has passed.”
[49] (1949) 78 CLR 636.
Reference was made in the Secretary’s submissions to Staunton-Smith v SDSS[50], where O’Loughlin J was concerned with the notion of a “single person” which, under the Social Security Act 1947 (Cth), was defined as including “a legally married person…who is living separately and apart from the spouse” [emphasis added]. His Honour noted the observations about “separation” made by Watson J in In the Marriage of Todd (No 2)[51] where the following appears:
“In my view, ‘separation’ means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in private and public relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.”
[50] (1991) FCA 513; (1991) 32 FCR 164.
[51] (1976) 25 FLR 260, 262-3.
Reference may usefully be made to the remarks of French J (as his Honour then was) in Pelka v Secretary, Department of Family and Community Services[52] where his Honour was concerned with the question of a “marriage-like relationship”, a relationship to be determined by reference to the same factors in s 4(3) of the Act. His Honour said:
[52] [2006] FCA 735; (2006) 151 FCR 546.
“46Having 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.
47The 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.”
Given that the formation of the two opinions – whether two persons are in a marriage-like relationship or whether married persons are living separately and apart – is to be informed by reference to the same statutory criteria I consider that the approach of French J can be applied mutatis mutandis.
Having regard to the totality of the material I am of the view that Ms Diamond must be regarded as living separately and apart from Mr Diamond. If it were permissible to have regard only to financial matters I would come to the opposite conclusion however beyond financial matters the evidence, by and large, points to a severance of the marital relationship, certainly on the part of Mr Diamond. Perhaps Ms Diamond, despite her denial, harbours a belief that the relationship may eventually be resumed. But I consider that Mr Diamond certainly does not view the relationship similarly. With the present arrangements he has the convenience of matrimony but none of the commitment. And, to the extent that I can discern a commitment on the part of Ms Diamond it appears to be the type of commitment that might be expected to exist between business partners, it does not appear to be the commitment of matrimony.
What I find most striking is Mr Diamond’s apparent disinterest in the continuance of a “normal” relationship. The relationship that presently exists is a relationship entirely of convenience. It was convenient for Mr Diamond to have someone that he was able to trust managing his business affairs; it was convenient for him to use his wife’s address as a mailing address, all the more so when she undertook many of the business dealings required; it was convenient for Mr Diamond to have a place to stay when he had had a falling out with his (other) partner of the time or when his boat was being repaired; and it was convenient for Mr Diamond to be able to see his children frequently. It was convenient for Ms Diamond to have the considerable financial support available from Mr Diamond.
As I have said, I consider that the material points to the conclusion that during the period in question Ms Diamond was living separately and apart from Mr Diamond. That conclusion requires that the decision be set aside however I am concerned that the evidence that has emerged has demonstrated that Ms Diamond has enjoyed a considerable degree of financial support from Mr Diamond. Thus the credit card expenditure demonstrates financial support in excess of $2,000 per month in 2004 and 2005. There is evidence in the Greater Building Society accounts of receipts of $21,000 between October 2008 and May 2009. What is not presently known is whether Mr Diamond has provided similar support at other times in the period in issue.
My concern is whether financial support of this extent might affect Ms Diamond’s entitlement to receive Parenting Payment or the extent of that entitlement. I have the distinct impression that the complete picture of the extent of Mr Diamond’s financial support to Ms Diamond has not emerged. Accordingly I propose to permit the Secretary to determine whether payments by Mr Diamond affect Ms Diamond’s entitlement to Parenting Payment and, if they do, to undertake such further investigation as may be necessary to ascertain the extent of that support.
I will then set aside the decision under review and remit the matter to the Secretary for reconsideration in accordance with the following directions:
(a)Ms Diamond was living separately and apart from Mr Diamond at all material times from April 2003 onwards;
(b)the Secretary should consider the nature of financial support provided by Mr Diamond to Ms Diamond during the period from April 2003 onwards;
(c)if the nature of that financial support affects the entitlement of Ms Diamond to receive Parenting Payment, the Secretary should conduct such further investigations as might be necessary to ascertain Ms Diamond’s correct entitlement to Parenting Payment in that period.
I certify that the preceding 53 paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ............[Sgd].......................................................
  Associate
Dates of Hearing  16, 17 May 2011; 3 November 2011.
Date of Decision  15 November 2011
Solicitor for the Applicant          Robert Stephen Lawyers
Solicitor for the Respondent     Australian Government Solicitor

GENERAL ADMINISTRATIVE DIVISION		)
Re		CATHERINE DIAMOND