Diener; Secretary, Department of Family and Community Services an D

[2003] AATA 810

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 810

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W2002/155

GENERAL ADMINISTRATIVE  DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Applicant

And SUSAN DIENER

Respondent

DECISION

Tribunal Mr M Allen, Member

Date18 August 2003

PlacePerth

Decision The decision of the Tribunal is that the decision of the Social Security Appeals Tribunal made on 22 March 2002 is affirmed.

..............(sgd M Allen).............................

Member

CATCHWORDS

SOCIAL SECURITY – benefits – whether respondent was a member of a couple – parties legally married – whether living separately and apart on a permanent or indefinite basis – circumstances of relationship between parties – decision of Social Security Appeals Tribunal affirmed

Administrative Appeals Tribunal Act 1975 s 37

Social Security Act 1991 ss 4(2), 4(3), 4(3A)

REASONS FOR DECISION

18 August 2003 Mr M Allen, Member

1.      This is an application by the Secretary for a review of the decision of the Social Security Appeals Tribunal (SSAT) made on 22 March 2002.  The decisions under review by the SSAT were decisions made by a delegate of the Secretary on 23 May 2001 and 1 June 2001 to :

(a)cancel parenting payment single (PPS) benefits that had been paid to Mrs Diener up to that time;

(b)raise and recover overpayments of sole parent pension, parenting payment single and family allowance payments totalling $14,198.80, $31,400.49 and $7,850.53 respectively; and

2.      The SSAT set aside those decisions and substituted a decision that Mrs Diener was not living in a marriage like relationship with Mr Hans Diener and had not incurred the above debts to Centrelink.

3. At the hearing of the application the Secretary was represented by Mr Ellis and Mrs Diener was represented by her solicitor, Mr Christie. The Tribunal received in evidence the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1 to T99) and two documents tendered by Mrs Diener (R1 and R2). Mrs Diener gave oral evidence.

Background 

4.       In January 2001 Centrelink began investigating whether Mrs Diener had been, and continued to be, living in a marriage-like relationship with her husband, Mr Hans Diener.  Those investigations led to a delegate of the Secretary concluding that Mrs Diener had been living in a marriage like relationship with Mr Diener in the period from 12 September 1996 to 22 May 2001 and the decisions set out in paragraph 1 above were made as a consequence, although there were a number of recalculations of the amounts alleged to have been overpaid to Mrs Diener. The SSAT concluded in a detailed and careful statement of reasons, that Mrs Diener had not been living in a marriage like relationship in that period and made the decisions referred to in para 2 above. The Secretary adduced no oral evidence in the proceedings, relying on the documentary evidence before the Tribunal.

Statutory Framework

5.       The amount of many Social Security benefits payable to a person will be affected by whether the person is a single person or a member of a couple for the purposes of the Social Security Act 1991 (the Act). Subsection 4(2) of the Act provides as follows:

“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)        ……..”

6.      Subsection 4(3) sets out criteria for forming an opinion about the relationship between two people.  The subsection provides 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)…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.”

7.      Subsection 4(3A) of the Act provides that

“ the Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”

8.      It is not in dispute that Mrs Diener and Mr Diener were legally married at all relevant times.  The issue to be determined in these proceedings is whether or not they were living separately and apart on a permanent or indefinite basis.

The Evidence

9.      Apart from the oral evidence given by Mrs Diener, the T documents contain a large number of documents created or obtained by Centrelink from 1991 through to the time of the decisions under review in 2001.  The SSAT heard oral evidence from Mrs Diener and from Mr Diener, all of which is set out in considerable detail in the SSAT’s decision (T2).

10.     Mrs Diener tendered a detailed statement of evidence (R1) which she elaborated on in oral evidence, including cross-examination by Mr Ellis.

11.     Mrs Diener is presently 50 years old and was married to Mr Diener in September 1985, although they had lived in a de facto relationship for some years prior to that.  The one child of the marriage, Hayley, was born in June 1990.  Mrs Diener described the first years of her marriage (ie. up to 1990) as a continuation of the “constant battle “ that had existed prior to their marriage.  She said her husband was an alcoholic, he never provided a proper supply of food or a proper house and there were always problems with payments of bills and other obligations.

12.      Matters came to a head in early 1990 when they bought a house in Yanchep.  She had not wanted to live so far out of the city (because she had no reliable vehicle) and she didn’t like the house that they bought.  Hayley had been born in June 1990 and in November 1990 she left her husband for about three weeks, living in a refuge in Marangaroo.  She returned to live at the Yanchep house after her husband promised to reform. 

13.     By July 1991 it was apparent that his behaviour had not changed.  At that stage he was working away from the metropolitan area, returning to the Yanchep house every second weekend.  He would always fritter away his wages and there was never sufficient food and mortgage payments were always late.  Finally, on 9 July 1991 Mrs Diener left the Yanchep home and lived temporarily with a girlfriend in Koondoola.  That was not a suitable arrangement but she could not afford her own place at that time.  Because her husband was working in the country it was agreed that she would move back into the Yanchep home.  At no time while she was back at Yanchep did she resume a marital relationship with her husband.  However, in about January 1992 her husband lost his job and moved back into the Yanchep home, but again there was no resumption of a marital relationship. Because he was a part owner of the house she felt she could not prevent him from living in the house.

14.     At one stage she had been interviewed by a Centrelink Officer whilst her husband was at the Yanchep house and her husband had continually interrupted.  The Centrelink officer told her that she would continue to have problems with Centrelink whilst she lived at the Yanchep house.  At that stage she had been unable to obtain a Homeswest house because of a debt that had been incurred previously by her husband.  It was only after she was able to pay off that debt (using money borrowed from her brother in England) that she was able to join the Homeswest waiting list.  However, in about March or April 1992 she had been able to obtain a private rental house in Koondoola and so she was able to leave the Yanchep house and make a complete break from her husband.  In about November 1992 she had obtained a Homeswest house in Koondoola – which was in terrible condition but in which she lived for about two years until she moved to her current Homeswest home in Ballajura, where she has lived ever since.

15.     The basis of the delegate’s decisions concerning Mrs Diener concern the nature of the relationship and the contact that occurred between Mrs Diener and her husband between about 1992 and 2001.  A number of specific aspects of the relationship and the contacts were identified (both before the SSAT and in the present proceedings) and it is convenient to set out Mrs Diener’s evidence using the criteria or factors set out in subsection 4(3) of the Act. 

a)        Financial aspects of the relationship

16.     Mrs Diener said that earlier in the separation she had sought the assistance of the Child Support Agency (CSA) in gaining maintenance for her daughter from her husband.  Her husband had made it absolutely clear to her that the only way he was prepared to pay maintenance was if it was by a private arrangement and that if she persisted in using the CSA then he would stop working and no maintenance payments would be made.  Accordingly, she had to agree to an arrangement that involved him making cash payments each fortnight when he called to collect Hayley for access.  He had paid about $100.00 a fortnight (which is about what the CSA had calculated he should pay) and he paid it more or less regularly except when he was not employed or had been on sickness benefits.  She informed Centrelink of this arrangement and they apparently were happy with it.

17.     In relation to a trip that she and Hayley had made to England for which her husband paid, Mrs Diener said that she had insisted on him paying because he “owed her” the cost of the trip relating back to 1988.  At that time her husband had gone to Germany and she had gone to England for holidays.  However, her husband had become ill in Germany and insisted on her accompanying him on a flight back to Australia.  She had only agreed to do this on the basis that he would at some future time pay for her to have another holiday in England.  It had taken her many years of nagging to eventually get him to pay for this trip. 

18.     Another issue was raised with Mrs Diener concerning the access that she had had in 1996-98 to her husband’s bank account via a card that allowed her to draw on the account.  Mrs Diener said that her husband had taken a job in Kalgoorlie and therefore was not able to make personal payments of maintenance. She had asked him to make arrangements for direct payments into her bank account, but her husband had told her that direct payments would involve considerable bank fees – so he offered to authorise her to operate his account and he had obtained a card for that purpose.  She had used that card to withdraw regular maintenance and, on occasions, to pay bills for him when he telephoned and asked her to do so. 

19.     In about December 1996, when her husband was in Perth, they had argued about money and she had cut up the card.  For the next couple of months she had not been able to obtain any maintenance payments and she sought (but was refused) an exemption from Centrelink from having to obtain maintenance from her husband.  Eventually she had entered into a similar arrangement with her husband connecting her credit card to his account and this operated for about six months. During this period she had taken from his account more than just maintenance money because she took the view that he owed her money.  Eventually, during 1998, her husband worked out an arrangement whereby he went to a bank in Kalgoorlie every two weeks and deposited money into her bank account.  This arrangement has continued ever since. 

20.     Another issue involving the financial arrangements between Mrs Diener and her husband concerned motor vehicles.  Mrs Diener said that she had owned a Celica motor vehicle from about 1993 until 2000.  It was not in good condition and her husband had always complained about it being a death trap and that he did not like Hayley riding in it.  Mrs Diener said that she had always told her husband that if he wanted his daughter to ride in a better car then he would have to buy it.  In about July 2000 he had telephoned from Kalgoorlie and told her to go to a Ford garage and look at a particular vehicle. She had told him she didn’t like that type of vehicle and had suggested an alternative. He told her to go to the motor vehicle company and try to arrange finance to buy the car.  Mrs Diener insisted on the car being in her name but it turned out that it had been registered in his name because the finance company had insisted on that.

21.     Her husband had taken the Celica to Kalgoorlie, saying that he would wreck it and sell the parts and give her money.  He was to take the registration plates to the police so that Mrs Diener could get the refund on the registration. However, a few months later she had received registration renewal papers and she eventually established from her husband that the Celica had been stolen and that he had not reported it to the police because it had not been his car.  She had subsequently gone to her local police station and established that there were two other cars (that she had not had owned for many years) still registered in her name.  The Celica was still registered in her name and had not been reported as stolen. 

22.     Her husband had on three occasions taken the new car that he had bought and used it himself for extended periods.

b) The nature of the household

23.     Mrs Diener said that she wanted her husband to have an ongoing relationship with Hayley, even though he took no responsibility for her in the way of discipline etc.  He had always talked of his “rights” in relation to Hayley and she had insisted that he see her every two weeks when he was in Perth.  This was partly to assist him maintain a relationship with Hayley but it also served a benefit to Mrs Diener in that it provided some baby sitting that she did not have to pay for. 

24.     From an early stage Mrs Diener had allowed her husband to store some of his personal belongings at her house.  This had started when the Yanchep house had been sold by the bank and her husband had to remove some of his personal property at short notice.  She had agreed to let him keep some of this at her then home and she has continued to do that.  She has asked him to remove the property and at one stage she put it all out on the front lawn, but it is now in a shed at her place. 

25.     Mrs Diener said that for a period for some weeks in 1995 she had agreed that her husband could stay at her house.  He had undergone major surgery and needed to recuperate somewhere.  He had nowhere else to go and he had applied for a Homeswest flat – which he eventually got, but in the meantime she allowed him to stay at her house.  This was the only time that they had lived under the same roof for any extended period since early 1992.  During that time she of course cooked his meals but he had his own bedroom and there was no sexual relationship.

26.     On many other occasions Mr Diener has visited Mrs Diener’s house, almost always to collect Hayley for access and on some of those occasions, particularly if it is late and he had been drinking, she would allow him to spend the night in a spare bedroom.  On most occasions when he baby sits Hayley he takes her to the home of his friends who live in Joondalup – where he usually stays when he is in Perth.  Hayley has stayed overnight at that house.  It would be no more than a couple of times a year that her husband would stay at her house on these baby-sitting occasions.

27.     On many occasions when her husband is at her house they end up having violent arguments.  Mrs Diener described two incidents, one at Christmas 2000 and one shortly thereafter, in which she and her husband had argued violently.  On the latter occasion they had physically struck each other.  The police were called and her husband, who was drunk at the time, had been taken away by them.  He had not been staying overnight at the house at that time.

28.     Mrs Diener said that, generally speaking, she tries to keep the peace between herself and her husband because she wants him to continue to see Hayley. She believes that some kind of connection will have to exist between her and her husband so that he can maintain the relationship with Hayley.

The social aspects of the relationship

29.     Mrs Diener said that there is no social aspect to the relationship between she and her husband.  One issue that was raised concerned a Christmas party at her husband’s work place in Kalgoorlie.  Her husband had asked her to take Hayley to Kalgoorlie for the Christmas function because there would be a Father Christmas in attendance and the children would all receive presents.  Mrs Diener said that she had driven Hayley to Kalgoorlie and she had stayed in a motel with Hayley where the Christmas function was to be held.  Hayley had attended the function but she had remained in her motel room throughout the period of the function.  As far as she is concerned she never socialised with her husband after their separation in 1991.

30.     On this issue the T documents contain statements from two friends of Mrs Diener who provided Centrelink with statements in early 2001.  The first is from a Mrs Riseley (T42), who said that she had contact with Mrs Diener three or four times a week, that she had been to Mrs Diener’s house  “a lot of times” and she had only ever seen Mrs Diener and Hayley at that house.  She had never seen or met Mr Diener and so far as she could see there was no relationship of any kind between Mrs Diener and her husband.  To her knowledge Mrs Diener had been separated for a long time.  Other people that she knows who also know Mrs Diener are under the same impression that Mrs Diener has been separated for a long time.  Finally, Mrs Riseley said in her statement that Mrs Diener had never spoken well of her ex-husband to her.  The second statement (T43) was from a Mrs Wheeler, who said that she saw Mrs Diener twice a week but never actually visited her house.  She also knew Mr Diener as Mrs Diener’s ex-husband and as far as she was concerned they did not socialise nor do Mrs Diener’s friends see them as a couple.

31.     Mrs Riseley provided a subsequent statement in December 2001 (T97 folio 437).  In that statement Mrs Riseley said that she had known Mrs Diener and Hayley for almost 8 years and in the past few years she had spent many hours at Mrs Diener’s home, during the day and also the evenings.  She had never met Mr Diener and had never seen a photograph or any other belongings of his (or anybody else) in the house.  From her knowledge and her observations she had always understood Mrs Diener to be a single parent.

32.     Mrs Wheeler provided a subsequent statement (T97 folio 438) to the effect that over the past few months she has been to Mrs Diener’s house on a number of occasions and at no time had she seen Mr Diener at the house.  As far as she was aware the marriage was over and had been for some time.

33.     A further statement was provided by Ms Gail Charuga in December 2001 (T97 folio 436).  In that statement Ms Charuga said that she had known Mrs Diener for more than 25 years and had known her and Mr Diener prior to their marriage.  She was well aware of the reasons why the marriage had failed (which was due to Mr Diener’s inability to manage money and meet their financial obligations).  Mr Diener did not like Mrs Diener being friends with Ms Charuga and seemed to go out of his way to alienate the friendship.  Ms Charuga said that Mrs Diener had been separated from her husband for 10 years and to her knowledge Mrs Diener had always stayed at home to look after Hayley.  On occasions Ms Charuga had helped Mrs Diener by giving her money for food and bills on occasions and to help her maintain her car.  She knew that Mrs Diener was frequently short of money due to maintenance from her husband being late or insufficient.  Mrs Diener had always allowed her husband access to Hayley but Mrs Diener had always been the sole carer for Hayley in matters of schooling, holiday activities and day to day care.

34.     A further statement (made in June 2002) (R2) was tendered to the Tribunal, being from Mr Diener’s sister, Mrs Elvira Dorr, and her husband Mr John Dorr.  This statement is to the effect that Mr Diener lodged with Mr and Mrs Dorr for about 18 months from the beginning of 1997 to June 1998 in Kalgoorlie.  The statement says that “as far as we know [Mr and Mrs Diener] have been separated for a very long time, for approximately at least 10 years, due to dysfunction, …..  we know that [Mr Diener] would only return to Perth to see his daughter Hayley, he is at this very time still separated from [Mrs Diener].  There were many other times [Mr Diener] came to us for lodgings, we just cannot remember some of the exact dates and years, but he and [Mrs Diener] have had a broken marriage for a very long time, trying several times to work things out, but to no avail.”

Any sexual relationship

35.     Mrs Diener was emphatic that there had never been any sexual relationship between she and her husband since their separation 1991. 

The nature of the Commitment

36.     Mrs Diener said that so far as she was concerned there was absolutely no commitment between she and her husband, the only relationship being the need to ensure that her husband continued to have a relationship with Hayley.  So far as she is concerned their relationship is nothing like a marriage-like one.  Mrs Diener was asked why she and her husband had not divorced.  She said that she had never been able to afford the legal costs involved and, in any event, she considered that he has the money and he could organise a divorce.  So far as she is concerned there is no love and no attachment between she and her husband.  She believes that the marriage should never have happened. 

37.     Mrs Diener said that she believed that her husband owed her money and that she would continue to nag him “until the day he or I die” to get what she believes he owes her – which she believes includes the value of three houses of furniture and two vehicles that she had lost because of his inability to manage money. She said it had taken her 11 years to nag him to pay for the holiday in England and that was an example of her doggedness in getting what she wanted.

38.     The SSAT took evidence from Mr Diener by videoconference in March 2002.  That evidence is set out in paragraphs 35 to 51 of T2 and is to the effect that Mr Diener did not see himself as being in a marriage like relationship and he did not know where people had got the idea from.  He and Mrs Diener had been separated for over 10 years..  Mr Diener referred to the surgery he had undergone in 1996. He had stayed with his wife for about a month because he needed looking after but he had also stayed with a friend for about a month before taking a Homeswest flat for 3 or 4 months.  While he had lived in Kalgoorlie after his illness he had tried to see his daughter in Perth at least once a month and would spend the weekend in Perth staying with his friend.  He would take his daughter out for the day on Saturday, have a “bit of a chat” with his wife and perhaps stay in the house if he was baby sitting while his wife went out.  Mr Diener said that he had taken Hayley with him to Germany twice.

39.     In relation to him giving Mrs Diener access to his bank accounts on two occasions, Mr Diener said that he had done this in order to make the regular maintenance payments but the arrangement did not really work because Mrs Diener had sometimes taken more than she should have and did not keep to the arrangement.  Nevertheless he felt that he owed her from things that had happened before they had separated so he had turned a blind eye to these excess drawings initially.  Mr Diener said that over the years he had used Mrs Diener’s address as a matter of convenience because he could not get mail in the bush.  He had been “slack” and had not bothered to change the address.  Likewise Mrs Diener’s storage of some of his gear had also been for his convenience.

Secretary’s contentions

40.     Mr Ellis contended that the marriage between Mr and Mrs Diener had always been one involving considerable physical separation because Mr Diener had always worked outside the metropolitan area.  Likewise the relationship had always been an antagonistic one involving arguments about money and responsibilities.  However, when regard was had to factors such as Mrs Diener's access to Mr Diener’s bank accounts, their shared commitment to Hayley, the fact that Mr Diener provided a motor vehicle and paid for a holiday, plus the occasional visits to Mrs Diener’s house indicates that in recent years very little has changed in the relationship compared to how it was when the couple actually lived together.  In addition, the fact that the parties had not sought a divorce after so many years indicated that there was no direct intention to sever the marriage relationship.  Although there had been an obvious break down in the marriage in 1990 or 1991 the relationship had resumed and from about 1996 there were indications of a marriage-like relationship. 

41.     Mr Christie contended that it was abundantly clear that there was a major difference between the relationship that existed prior to 1991 or 1992 and what existed in subsequent years.  Apart from the period when Mr Diener was recuperating from his operation the parties had never actually lived in the same house. Mrs Diener had several good reasons for wanting to maintain some degree of relationship with her husband, particularly the fact that she wanted him to have a relationship with Hayley (which carried some additional benefits such as baby sitting) but also because of his insistence on maintenance being paid voluntarily rather than through the CSA.  The evidence of the friends clearly indicated that so far as the rest of the world was concerned there was no marriage relationship. 

Consideration

42.     In my opinion, all the evidence outlined above and all the material before me, notwithstanding Mr Ellis’ contentions concerning it, paints a picture of a relationship between two people that has clearly broken down and a state of affairs that has existed over a long period of time.  Mrs Diener presented as a witness who is extremely forthright in her views and preparedness to express them and I accept her evidence that, so far as she is concerned, there is no relationship with her husband.  I accept that she wants Mr Diener to continue to have a relationship with Hayley, but that is entirely a different thing from a relationship that bears any of the indicia of a marriage-like relationship.  Having regard to the factors set out in subsection 4(3) of the Act I am satisfied that there is no joint ownership of real estate or any other major assets, there is no pooling of financial resources and there is no sharing of day to day household expenses.  Mr Diener obviously has a legal obligation in relation to the maintenance of Hayley and he appears to be meeting that obligation to a greater or lesser extent, but there is no obligation accepted by Mr Diener, or sought by Mrs Diener, for maintenance for Mrs Diener.

43.     I find that there is in fact no household involving Mr and Mrs Diener.  Mrs Diener takes full responsibility for the care and support of Hayley although, as noted above, she supports the idea that Hayley should have a good relationship with her father.  Equally, I am satisfied that there is no distribution of housework and there are no living arrangements that suggest a continuing marriage relationship.

44.     I find that Mr and Mrs Diener do not hold themselves out as married to each other. The assessment of relatives, friends and regular associates is that they are not a couple.  Those who know both of them give evidence that they have been separated for many years and the evidence of current friends is that they do not see Mr Diener at the house.  Mr and Mrs Diener do not make plans for or engage in joint social activities.

45.     I find that there has been no sexual relationship between Mr and Mrs Diener since well before 1996. 

46.     I am satisfied that neither Mr nor Mrs Diener consider that they have a marriage relationship, nor do they feel any particular commitment to each other.  They do not provide companionship or emotional support to each other and I am satisfied that they both consider their marriage relationship as having ended many years ago.

47.     In all the circumstances I am satisfied that the marital relationship between Mr and Mrs Diener came to an end, at the latest, in March or April 1992 and certainly many years before 1996. I find that they have lived separately and apart from each other on a permanent basis for all of that time.

48.     It follows that Mrs Diener was not a member of a couple in the period from 12 September 1996 until 22 May 2001.  The decision of the SSAT is therefore affirmed.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M Allen, Member

Signed:         .........(sgd V Wong)..................................
  Associate

Date/s of Hearing  5 May 2003
Date of Decision  18 August 2003
Counsel for the Applicant         Mr S Ellis
Solicitor for the Applicant          Service Recovery Team Centrelink
Counsel for the Respondent     Mr H Christie