Du Pelle and Secretary, Department of Family and Community Services
[2002] AATA 186
•21 March 2002
DECISION AND REASONS FOR DECISION [2002] AATA 186
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2000/574
GENERAL ADMINISTRATIVE DIVISION )
Re LEONIE DU PELLE
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Dr E K Christie, Member
Date21 March 2002
PlaceBrisbane
Decision The Tribunal varies the decision under review and decides that Ms Du Pelle was in a marriage like relationship from 16 October 1999. This means that Ms Du Pelle's application for review is partly successful.
..................(Sgnd)..................
Dr E K Christie
Member
CATCHWORDS
SOCIAL SECURITY – whether in a marriage-like relationship – specified criteria for forming an opinion about relationship – Secretary to have regard to circumstances of the relationship – meaning of "to have regard to".
Social Security Act 1991 ss 4(2), 4
Department of Defence v Fox (1997) 24 AAR 171
Queensland Medical Laboratories & Ors v Blewett & Ors (1988) 84 ALR 615
R v Toohey & Anor Ex Parte Meneling Station & Ors (1982) 158 CLR 327
Secretary, Department of Family and Community Services and WAP (2000) AATA 7
REASONS FOR DECISION
21 March 2002 Dr E K Christie, Member
This is an application by Leonie Du Pelle for a review of a decision of the Social Security Appeals Tribunal ("the SSAT") made on 31 May 2000 that Ms Du Pelle was in a marriage like relationship from 13 July 1998. The SSAT decision varied a decision made by a Centrelink delegate on 20 August 1999 to raise and recover overpayments of:
(i)family allowance in the amount of $5,359.54 for the period 26 February 1998 to 28 January 1999
(ii)sole parent pension in the amount of $706.04 for the period 5 March 1998 to 19 March 1998
(iii)parenting payment single in the amount of $9095.20 for the period 2 April 1998 to 4 March 1999.
The SSAT further concluded that there were no grounds to waive whole or part of the debt under the "administrative error" or "special circumstances" provisions of the Social Security Act.
At the hearing the Applicant Ms Du Pelle represented herself. The Department of Family and Community Services ("the Department") was represented by Mr R McQuinlan, a Departmental Advocate.
At the hearing, the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the "T" documents (Exhibit 1) and the following exhibits:
· Exhibit 2 Attachment "A" Bundle of Centrelink documents
· Exhibit 3 Temporary Protection Order
· Exhibit 4 Statement of Tony Parker
Issues before the Tribunal
There were two issues for the Tribunal to decide. Firstly, whether Ms Du Pelle was in a marriage-like relationship at any time period and therefore a member of a couple for the purpose of the income test set out in section 1067 G-H of the Social Security Act 1991 ("the Act"). Secondly, should this be the case, whether there were any grounds for waiver of the debt under the "administrative error" or "special circumstances" provisions of the Social Security Act.
The LawA person is a member of a couple for the purposes of the Act, if that person meets the requirements of subsection 4(2) of the Act. In Ms Du Pelle's circumstances, subsection 4(2)(b) is relevant:
"4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) ….; or
(b) all of the following conditions are met:(i)if 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; [Tribunal emphasis]
(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."
It is not in dispute that Ms De Pelle meets the requirements of paragraphs (i), (ii) (iv) and (v). Only paragraph (iii) is in issue.
Sub-section 4(3) of the Act sets out the matters to be considered when forming an opinion as to whether a person is in a marriage-like relationship.
"4.(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make 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.
4.(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis."
Under sub-section 4(3) of the Act, in forming an opinion about the relationship between two people for the purposes of sub-paragraph (2)(b)(iii) of the Act, the Secretary is required to "have regard to all of the circumstances of the relationship." The Act then particularises specific matters. The phrase "have regard to" has been considered judicially on many occasions:
It requires [the Commissioner] to take those matters into account and give weight to them as a fundamental element in making his recommendation: per Gibbs CJ in R v Toohey & Anor Ex Parte Meneling Station Pty Ltd & Ors (1982) 158 CLR 327 at 333;
The mere assertion that [the Committee] had acted would not be conclusive if it were demonstrated that regard had not been had to those matters in any real sense: per Gummow J in Qld Medical Laboratory & Ors v Blewett & Ors (1988) 84 ALR 615; and
There would be a failure [by the Authority] to have regard to matters nominated in the statute if the regard was not adequate or not sufficient; per O'Loughlin J in Department of Defence v Fox (1997) 24 AAR 171.
Facts
On the basis of the evidence before it, the SSAT made the following findings of facts:
(i)Leonie Du-Pelle met Mr Tony Parker on or about New Years Eve 1997/January 1998.
(ii)Ms Du-Pelle and Mr Parker signed a lease on a property at Eatonvale Road [Tinana] on 19 February 1998 and Ms Du-Pelle took up residence on 23 February 1998.
(iii)Ms Du-Pelle became pregnant in late March/early April 1998 as the baby was originally due on 3 January 1999 but was born by elective caesarean on 16 December 1998.
(iv)In early July 1998 Ms Du-Pelle and Mr Parker presented to Ms Du-Pelle's solicitor to fight a custody application by Ms Du-Pelle's ex partner [Clive Harrop] and made statements that they were in a stable relationship and were a family.
(v)Mr Parker stayed in the Eatonvale Rd. residence regularly on a Saturday evening.
(vi)Mr Parker arranged new accommodation [at Kalulah farm, Hervey Bay] and paid Ms Du-Pelle's rent from October 1998.
(vii)Mr Parker and Ms Du-Pelle are currently residing together in a property purchased under a contract of sale signed on 7 February 1999 and settled on 4 May 1999 (T2 Folio 9).
Ms Du Pelle acknowledged these findings of facts, but with the following qualifications:
(iv) Mr Parker did not attend the solicitor's office with her;
(v)Mr Parker did not stay at the Eatonvale Road property every Saturday; and
(vi)New accommodation was arranged at Kalulah farm, Hervey Bay.
Evidence of Leonie Du Pelle
Ms Du Pelle said that she had moved from Gayndah. She had great difficulty finding accommodation as she did not know anyone and she was a sole parent.
She said that her first partner [Clive Harrop] had been seeking custody of their daughter for five years but had been unsuccessful. Ms Du Pelle said that all her actions should be considered in the context of a mother whose paramount goal was to retain the custody of her daughter – a goal she would do everything possible to achieve. Her own past childhood was filled with enormous trauma arising from personal circumstances beyond her control – a situation which she did not wish her own daughter to experience. Ms Du Pelle said that a [domestic] apprehended violence order had been taken out against her first partner.
Ms Du Pelle stated that she agreed with the facts contained in the Statement of Facts and Contentions prepared by the Welfare Rights Centre as well as agreeing in general, with the SSAT description of her evidence.
Mr McQuinlan's cross-examination pursued a number of issues relating to the credibility of Ms Du Pelle as a witness.
Ms Du Pelle was referred to signatures on the Tenancy Agreement for the Eatonvale Road property (T15 folio 59) signed on 19 February 1998, which contained both her signature and that of Mr Parker; in addition, her subsequent response to Centrelink on this issue (T32 folio 105).
Ms Du Pelle said that she could not remember who signed the lease. However, she acknowledged that she had placed Tony Parker's name as a Tenant at Question D on the lease document.
Ms Du Pelle said that she stood by her evidence given at the SSAT on this issue:
"At the time she started seeing Tony [Parker] she was living in emergency accommodation with her daughter, which was simply awful. She was living at Granville outside Maryborough but coming across to Maryborough to work. She was desperate to get out of it, as it was unsuitable for her daughter as there were drug addicts living nearby. She had also been in a refuge. Tony offered to help her get accommodation in Bundaberg by putting his name on the lease because he was well known in the area. No matter what the real estate agents say about not renting to a single mother the reality is that it is extremely difficult to get accommodation. (T2 folio 4).
Ms Du Pelle's response was that the actions taken by her were to ensure she could rent suitable accommodation for her daughter and herself in a locality where the reality was, that it was very difficult for single mothers, who were new to the area, to be successful.
Ms Du Pelle was referred to a statement by a property owner in the area who refuted her claims that "single parents were unwelcome tenants" (T18 Folio 62) for rental property. Ms Du Pelle rejected the statement outright as being untruthful.
Ms Du Pelle was cross-examined with respect to her failure to advise Centrelink of a change in address within the prescribed 14 day period (T9; T27). Ms Du Pelle said that she believed Centrelink would be advised of any change in circumstances at the time 3 monthly review forms were completed by her. In addition, Ms Du Pelle said that her practice was to redirect mail from her previous address rather than to notify Centrelink within 14 days.
Ms Du Pelle was referred to the following statement contained in a letter from her first partner's (Clive Harrop) solicitors to Tony Parker:
"One matter that has become obvious during the recent contact enjoyed by our client is that Courtney is confused as to who her real father is. Our instructions are that Courtney has told our client that she has been directed by you and your de facto spouse, Tony Parker, to refer to Mr Parker as 'Dad'. This is a situation that our client will not tolerate." (T40 folio 128)
Ms Du Pelle responded that this statement was a "load of rubbish" based on an innocent statement by a 4 year old pre-schooler.
Ms De Pelle was taken to her statement that Clive Harrop was the only person to whom she had told that she was in a relationship with Tony Parker (T32 folio 137). Ms Du Pelle said that the reason for this statement was because she was in a custody battle for their daughter with Clive Harrop and she wished to convey to Harrop that her life was stable.
Contentions and Submissions of the PartiesMr McQuinlan submitted that the debt period should commence from 26 February 1998. Ms Du Pelle and Mr Parker had been living in a marriage like relationship since that time and should therefore be regarded as members of a couple from that date.
Mr McQuinlan contended that the SSAT had indicated that they did not find Ms Du Pelle to be a credible witness as she was an inaccurate historian. For example, the SSAT was not prepared to accept her evidence that she did not have sex with Mr Parker throughout her pregnancy nor did they accept that Ms Du Pelle was able to accurately sign Mr Parker's signature on the lease given that she had only known him for a short time.
Mr McQuinlan submitted that Ms Du Pelle's credibility as a witness was crucial to the outcome of this application. He submitted that Ms Du Pelle's evidence that she only represented herself as being in a de facto relationship with Tony Parker as a means of preventing Clive Harrop from gaining custody of their daughter suggested that she was prepared to be untruthful to serve her purposes. Mr McQuinlan contended that Ms De Pelle, in effect, was misrepresenting her circumstances when legal proceedings were in progress. It was Mr McQuinlan's contention that such an action by Ms Du Pelle did little to inspire confidence in her credibility as a witness. Furthermore, Mr McQuinlan submitted that it was "false" for Ms Du Pelle to assert that she was living in a stable relationship in order to get custody of her daughter since the dispute with Clive Harrop was a dispute over access – not custody.
Mr McQuinlan made the following submission relative to the matters to be considered in forming an opinion whether a marriage-like relationship existed:
Financial Aspects of the Relationship
Ms Du Pelle received financial support from Tony Parker and a joint liability existed for the rental property at Tinana from February 1998 (T15 folio 59). With respect to the Kalulah farm property at Hervey Bay, the property owners advised Centrelink that "Tony Parker pays rent" from the time that they moved there in October 1998 (T27 folio 86).
Nature of the Household
Mr McQuinlan contended that there was little information on this matter as Ms Du Pelle's evidence was that Tony Parker was only there occasionally. However, he submitted it was relevant, in this regard, that Ms Du Pelle's daughter referred to Tony Parker as "Dad" (See para 22).
Sexual Relationship
Mr McQuinlan submitted that Ms Du Pelle's and Tony Parker's son, Jacob, was born on 16 December 1998 and so it could be inferred that a sexual relationship had existed since February 1998.
Social Aspects of the Relationship
It was Mr McQuinlan's contention that evidence before the Tribunal [Solicitors' correspondence to Tony Parker (T40); the Tenancy Agreement (T15); and Ms Du Pelle's correspondence to Centrelink (T32) established an inference that Ms Du Pelle and Tony Parker were living in a stable relationship.
Nature of the Relationship
Mr McQuinlan submitted that it was relevant that Ms Du Pelle's response to the "Parenting Payment – Change of Marital Status" form (T24 folio 80) that she had commenced a de facto relationship in 28 February 1999 was "evidence of a continuation of an ongoing relationship".
Mr McQuinlan concluded that, based on all the evidence before the Tribunal, Ms Du Pelle and Mr Parker had cohabited together since early 1998; Mr Parker had assisted Ms Du Pelle secure accommodation on two occasions prior to his purchase of a new home in February 1999 and was prepared to have his name on leases for the purpose of securing accommodation; they had represented themselves as a couple to their solicitors and to the father of Ms Du Pelle's daughter Courtney; they had an ongoing sexual relationship during most of 1998; and their child Jacob was conceived during the early part of 1998 and was born on 16 December 1998. Accordingly all of these factors suggest the relationship was marriage-like within the meaning of subsection 4(3) of the Social Security Act 1991.
With respect to waiver of the debt, Mr McQuinlan submitted that there were no grounds for waiver for "administrative error" or "special circumstances" because the debt arose from misrepresentation on Ms Du Pelle's part - as well as her failure to comply with a statutory obligation as a Social Security recipient.
Ms Du Pelle made the following submissions:
· that a custody application for their daughter had been filed in which she and Mr Clive Harrop were the parties;
· that the existence of a past history of violence in her relationship with Clive Harrop could be evidenced by the issue of an AVO; also she had been bashed prior to the hearing;
· that she had never set out to defraud the Government but her focus was to care for her children;
· that Tony Parker had never mowed the lawn at the rental property or assisted her around the house. Nor had they ever gone out socially together;
The following submissions in relation to a marriage like relationship were acknowledged by Ms Du Pelle (see para 14);
Financial Aspects of the Relationship
There was no evidence of pooling of financial resources or sharing of day to day household expenses until October 1999 when Tony Parker paid Ms Du Pelle's rent at Kalulah Farm.
Nature of the Household
Mr Parker bore no responsibility for providing care and support for Ms Du Pelle's daughter and, moreover, spent less than one night per week at the Eatonvale Road property.
Sexual Relationship
It was not in dispute that Ms Du Pelle and Mr Parker had a sexual relationship on an infrequent basis. However, this relationship could not be construed as being symbolic of any commitment they had to one another.
Social Relationship of the Relationship
There was no evidence that Ms De Pelle and Mr Parker engaged in any social activities together.
Nature of the Relationship
The fact that Ms Du Pelle's daughter called Tony Parker "Dad" was in no way conclusive as to the existence of a marriage-like relationship without looking at the whole relationship. In terms of Ms Du Pelle's statement referring to a "stable relationship" with Tony Parker, the explanation Ms Du Pelle provided for this was quite clear: she had lied in the statement so as to prevent her ex-partner [Clive Harrop] getting custody of their daughter. Moreover, Clive Harrop had made threats to her in previous conversations about custody.
Looking at the whole of the relationship in terms of the periods spent at the Eatonvale Road and Kalulah farms properties, the following contentions emerged:
(a)There was nothing to suggest in the period February and October 1998 (when she moved to Kalulah farms), that the financial aspects of the relationship including joint liabilities, pooling of financial resources, legal obligations owed to each other and the sharing of day to day household expenses, had changed in any way. Regarding the domestic arrangements, Mr Parker did not live with Ms Du Pelle. Moreover, Mr Parker would visit Ms Du Pelle when it suited him. There was no commitment or set routine as to when he would drop in to see Ms Du Pelle. The frequency of Mr Parker's visits did not change during this period. There remained a complete absence of joint social activities and there was nothing to suggest there was any change in the casual like nature of the relationship (except for the fact that the parties had now known each other for several months).
(b)Although from October 1998 onwards, Mr Parker began to provide financial support to Ms Du Pelle by paying her rent at Kalulah Farms and purchasing a few items for the coming baby, their income and expenses were otherwise kept entirely separate. There was no lease arrangement for the accommodation at Kalulah Farms. Up until February 1999, the living arrangements between Ms Du Pelle and Mr Parker remained unchanged. It was only after Mr Parker lost his job in mid February that the parties made arrangements to cohabit. Prior to this, the parties were living separately and independently from each other.
Consideration of the Issues
The objective of the Tribunal is to review administrative decisions not only on their merits, but in accordance with the law at all times.
The first issue for the Tribunal is the weight to be given to Ms Du Pelle's evidence. Unlike the SSAT, the Tribunal has been able to observe Ms Du Pelle's evidence made under oath and in the context of her past and present personal life. The Tribunal found Ms Du Pelle to be a forthright witness who answered questions openly, including personal questions relating to the nature of her relationship with Clive Harrop and Tony Parker.
In terms of the credibility of her evidence relating to the Tenancy Agreement (para 16) and the related issue of difficulties in finding rental accommodation (para 19) the Tribunal accepts the reasons (paras 17, 18) given by Ms Du Pelle as plausible. Given that Ms Du Pelle acknowledges that she inserted Tony Parker's name on the lease documents as a tenant (para 16) the Tribunal accepts her evidence that she does not recall who signed the lease. In terms of Ms Du Pelle's evidence in the difficulty of finding rental accommodation, the Tribunal prefers her sworn evidence over the statement of Grant Barsby (T8, Folio 62). Furthermore, any challenges as to the credibility of Ms Du Pelle's statement that a custody application for her daughter existed is supported by the statement to Dr Sarah Basham, Fraser Coast Health Service District (T51, folio 159).
Next, the Tribunal considers the question of a marriage like relationship in relation to the period of time spend at the two rental properties:
· Eatonvale Road, Tinana - 23 February 1998 – 15 October 1998 (see T15 folio 58)
· Kalulah farms, Hervey Bay October 1998 – 10 March 19991
It is not in dispute that Centrelink were advised by Ms Du Pelle that she was in a de facto relationship with Mr Parker on 28 February 1999 (T24, folio 80).
In applying the common law interpretation of the phrase "to have regard to" (see paragraph 9), the tribunal has used the following approach in its consideration of the criteria specified in subsection 4(3) of the Act in order to form an opinion whether a marriage-like relationship existed:
To give regard to the specified criteria in a real sense, ie to ensure sufficient and adequate regard is given to all the specified criteria; and
To take the criteria specified by the statute into account and to give weight to them as a fundamental element in the decision-making process.
Accordingly, in forming its opinion about the nature of Ms Du Pelle's relationship – in the context of her particular fact situation, the Tribunal has given weight to the specified criteria that follow in these reasons for decision.
With regard to the Eatonvale Road Property
Financial Aspects of the Relationship
The Tribunal accepts the SSAT finding and finds it supports the submissions on Ms Du Pelle's behalf (para 30):
"38. At the beginning of the relationship there is no intermingling of financial matters nor is there any indication of any financial support from Mr Parker to Ms Du Pelle. Mr Parker's statement that the only thing he contributed to the household was a takeaway on Saturday nights is probably accurate. Ms Du Pelle is adamant that she supported herself throughout her pregnancy and Mr Parker only assisted towards the end and the Tribunal accepts her evidence on this point. Mr Parker said Ms Du Pelle seemed to be managing all right and there was food in the fridge so he did not think he needed to contribute. The Tribunal accepts that this is probably an accurate version of events (T2, folio 8)."
Accordingly, the Tribunal concludes that the Financial Aspects are not an element contributing to a marriage like relationship.
Nature of the Household
The Tribunal concludes that in Ms Du Pelle's fact situation, that the "nature of the household" is not an element contributing to a marriage like relationship (paras 30, 31).
Nature of the Relationship: Social Relationship
On the facts before the Tribunal neither the "Nature of the Relationship" nor "Social Relationships" were elements contributing to a marriage like relationship (see paras 30, 31: T33,34 folio 109, 110; T15, folio 58 Questions 4,6 Centrelink Document)
Sexual Relationship
This issue was not in dispute and the Tribunal concludes that it represents an element contributing to forming an opinion about a marriage-like relationship.
In forming its opinion whether a marriage-like relationship existed in the context of Ms Du Pelle's fact situation whilst living at the Eatonvale Road property from 23 February 1998 to 15 October 1998, the Tribunal attaches weight to its conclusions in paragraph 40. The Tribunal finds that Ms Du Pelle was not in a marriage-like relationship during this tenancy period.
However, the Tribunal concludes that from the time Ms Du Pelle moved to the Kalulah farms property until 10 March 1999, there were sufficient elements of the matters contributing to a marriage-like relationship to justify a finding, on the balance of probabilities, that a marriage-like relationship. There was a material change in the nature of their relationship. Specifically:
(a)Mr Parker taking a much larger role in financial contributions made to the household, including some sharing of expenses for the new baby (see para 32(b)). Although the rental property was not subject to a lease, Tony Parker paid the rent (T27, folio 87).
(b)Mr Parker's evidence in the SSAT was also relevant:
"29. He organised for her to move around October 1998 as she was having trouble managing the stairs at Eatonvale Rd. He got her the place at Kalulah Farms through a friend of his and started to help her by paying the rent. He also bought a few things for the baby. He really did not get involved until the baby was born.
30. When asked by the Tribunal whether they had sex together at Eatonvale Rd. he indicated that they did but not during the last month of the pregnancy. He lost his job in February 1999 and it was convenient to move in with Leonie then. They told Centrelink when he moved in (T2, folio 7): and
(c)Assistance and emotional support for Ms Du Pelle with impending family law matters as relevant matters with respect to their nature of commitment to each other.
The Tribunal concludes that this increased involvement by Mr Parker indicates a change in the nature of their relationship as, on the balance of probabilities, the elements of "Financial Aspects", "Nature of the Household", "Sexual Relationship" (for at least part of this period) (para 40, 42(b)) and "Nature of the Commitment" are all satisfied.
In forming its opinion whether a mariage like relationship existed, Ms Du Pelle's fact situation whilst leaving the Eatonvale Road property on 15 October 1998 and moving to the Kalulah Farms property, the Tribunal attaches weight to its findings in paragraphs 42 & 43. The Tribunal finds that Ms Du Pelle was in a marriage-like relationship from the time she left the Eatonvale Road property and moved to the Kalulah Farms property. The Tribunal sets the applicable date at 16 October 1998, the day after she left the Eatonvale Road property.
The Tribunal agrees with the SSAT finding that there are no grounds to waive the debt accrued from 16 October 1998 under the "administrative error" and "special circumstances" provisions of the Social Security Act.
For all of the above reasons, the Tribunal varies the decision under review and decides that Ms Du Pelle was in a marriage-like relationship from 16 October 1998.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 22 January 2002 at Hervey Bay
Date of Decision 21 March 2002
Applicant Ms L Du Pelle (in person)
For the Respondent Mr R McQuinlan
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