Finn; Secretary, Department of Employment and Workplace Relations and Anor
[2006] AATA 827
•29 September 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 827
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2005/199
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS First Applicant
And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Second Applicant
And
KYLIE FINN
Respondent
DECISION
Tribunal Deputy President P E Hack SC Date 29 September 2006
PlaceBrisbane
Decision The Tribunal:
(a) varies the decision under review such that it is not to come into effect until 13 October 2006;
(b) otherwise affirms that decision................Signed..............
Deputy President
CATCHWORDS
SOCIAL SECURITY – parenting payment – family tax benefit - marriage-like relationship – factors relevant to assessment of marriage-like relationship – de facto relationship to obtain loan – no evidence of sharing a household – commitment to the upbringing of the child – consideration of the “total picture” – Tribunal affirms the decision under review
Social Security Act 1991 (Cth) ss 4(2)(3)
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
REASONS FOR DECISION
29 September 2006 Deputy President P E Hack SC Background
1.For some part, at least, of 2001 the respondent Ms Finn was in a relationship with Mr Brand. In August 2001 a child of Ms Finn and Mr Brand was born. Ms Finn applied for, and was paid, parenting payment and family tax benefit from August 2001. At that time Ms Finn and Mr Brand were residing at premises at 19 Jillian Street, Kallangur which is the address of Ms Finn’s parents.
2.Parenting payments and family tax benefits are paid at a lower rate for recipients who are a “member of a couple”. Initially Ms Finn received benefits at the married rate on the basis that she was considered to be a member of a couple as she was then still living under the same roof as Mr Brand.
3.In November 2001 Ms Finn informed Centrelink that she had “split up” with Mr Brand and that she was then residing at 52 Wyena Street, Kallangur. In consequence of that statement she was paid parenting payment at the single rate with effect from 25 October 2001. She continued to be paid at the single rate until 1 January 2003. Payments were then ceased after Mr Brand informed Centrelink that he had assumed responsibility for the care of the child, apparently at the request of Ms Finn who had travelled to Mackay.
4.In May 2003, following an investigation of Ms Finn’s circumstances, Centrelink determined that Ms Finn had been in a marriage-like relationship during the whole of the period between 25 October 2001 and 1 January 2003 and that, accordingly, she had been overpaid parenting payment in the amount of $12612.30 and family tax benefit of $1983.56. Thus, it was concluded that Ms Finn had debt to the Commonwealth in these amounts.
5.The decision to raise these debts was affirmed by the original decision maker, and again by an authorised review officer on 24 December 2004.
6.Ms Finn sought a review of these decisions in the Social Security Appeals Tribunal. That Tribunal, after a careful review and consideration of the evidence, determined that Ms Finn had not been a member of a couple with Mr Brand during the period and that there was no debt. The decision was set aside. The Tribunal further considered that, on the basis of Ms Finn’s evidence of having received wages during a period of employment which had not been disclosed to Centrelink, there was a recoverable debt. The Tribunal’s reasons for decision contemplate that the Secretary would calculate the amount of debt arising from the overpayment during this period of employment.
7.The Secretary of the Department of Family and Community Services and the Secretary of the Department of Employment and Workplace Relations were dissatisfied with the decision and sought a review in this Tribunal. The matter has had a chequered history – on five occasions hearing dates were vacated at the request or instigation of Ms Finn (on 21 October 2005, 20 December 2005, and 7 February 2006) or because she did not attend (8 May 2006, and 8 June 2006). A hearing set down for 23 May 2006 was also vacated but it is not clear to me who made that request.
8.An order staying the implementation of the decision of the Social Security Appeals Tribunal was made by this Tribunal on 15 April 2005 on the application of the Secretaries.
9.I should, for completeness, make reference to the course of the hearing before me. Ms Finn attended, as did Mr Brand. Both gave evidence, on which I shall comment below. Throughout the course of her evidence Ms Finn professed the need to attend a “job trial” which required her to leave by midday. Eventually, and after both her evidence and that of Mr Brand had been given, Ms Finn departed the hearing room. She made very brief submissions but did not wait to hear the submissions of Mr Rangiah, counsel for the Secretaries.
10.In these circumstances, and with the proceedings being recorded, I determined that I would continue the hearing in the absence of Ms Finn.
11.In the course of the Secretaries’ submissions there was produced a copy of the document at page 71 of the s 37 documents. This was produced at my request because it is a reproduction of Mr Brand’s drivers licence as produced in November 2002 for the purposes of obtaining a loan. The address on the copy in the s 37 documents had been obliterated but the copy produced subsequently showed the address. That document was admitted and marked Exhibit 3.
Statutory Setting
12.The rate of parenting payment depends upon whether the recipient is single or a member of a couple. Both parenting payments and family tax benefits are calculated by reference to the combined income and assets of the members of a couple.
13.The term “member of a couple” is defined in s 4(2) of the Social Security Act 1991 (Cth). So far as it is presently relevant, it is in these terms:
4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in this paragraph called the “partner”);
(ii) the person is not legally married to the partner;
(iii)the relationship between the person and the partner is in the Secretary’s opinion (formed as mentioned in subsection (3) and (3A)), a marriage-like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
The expression marriage-like relationship referred to in s 4(2)(b)(iii) is expanded upon by s 4(3) which is in these terms:
In forming the opinion about the relationship between two people for the purpose of s 4(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.
14.In considering the issues raised in this case I have the great benefit of the recent analysis of the concept of marriage-like relationship undertaken by French J in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735. In that case his Honour reviewed the legislation and case history and concluded, at [46]:
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1.Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2.Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(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 that 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;
(e) mutual commitment.
The Evidence
15.I start by observing that neither Ms Finn nor Mr Brand impressed me as being reliable witnesses. Ms Finn freely confessed that she lied when it was to her advantage. In the course of cross-examination her evidence changed when it was convenient for her to do so. She resorted to dramatics when pressed for details of her denials. I was left with the impression that Ms Finn was prepared to say whatever she thought was in her interest. And, as I discuss below, that attitude was not confined to giving evidence before the Tribunal. Mr Brand was, I thought, somewhat different. He was, if I may say so, one of the more obtuse witnesses that I have come across. I should say that I do not consider that his demeanour in that regard was feigned or that he was being deliberately obstructionist. I note that he only completed Grade 10. My impression was that his evidence was generally honest although I do not exclude the possibility of his having persuaded himself of the correctness of something that was not true.
16.But I approach the evidence of both Ms Finn and Mr Brand with a good deal of caution, conscious however, that disbelief of a denial of being in a marriage- like relationship does not constitute proof of the existence of such a relationship. Rather, as Mr Rangiah accepted, it tended to cast doubt on any explanation given by them for conduct that was consistent with the existence of a marriage-like relationship.
17.I am conscious, as well, of the need to look at the relationship between Ms Finn and Mr Brand as a “total picture” but it will assist consideration in that manner if I first examine the individual pieces of evidence that the Secretary relies upon and do so by reference to the matters listed in paragraphs (a) to (e) of s 4(3).
Financial aspects of the relationship
18.The first matter concerns what the Secretaries describe as joint loan applications with Mr Brand on 2 November 2001, 7 June 2002, 7 November 2002 and 24 December 2002. The evidence that is before me comprises a single sheet produced by the financier in relation to each of the four transactions described as declined application. True it is, as the Secretaries submit, that Ms Finn’s marital status is described in each of them as “de facto” but there is nothing about them to suggest that they were joint loan applications with Mr Brand. What is remarkable about them is the monthly income attributed to Ms Finn on some of them and her employment as described in them. It seems clear from the evidence that the monthly income on some of them at least was overstated as was the occupation and employer details. In my view this overstatement suggests deliberate falsity on the part of Ms Finn towards the financier and, oddly enough, lends support to her evidence that she misdescribed herself as being in a de facto relationship to better her prospects of obtaining a loan.
19.There is, as well, one application for finance that was approved. That was a joint application, executed by both Ms Finn and Mr Brand, and accepted by the financier on 12 November 2002. It appears to be for a line of credit, used to acquire, according to Ms Finn, a computer for about $1500. Ms Finn and Mr Brand are shown as living at the same address, 52 Wyena Street, Kallangur. The material produced by the financier in response to a request by Centrelink shows that they produced driver’s licences for the purpose of identifying themselves to the financier. That of Ms Finn, issued in April 2002, shows her address as being 52 Wyena Street; Kallangur, that for Mr Brand, issued in July 2002, shows Mr Brand’s address as being 19 Jillian Street, Kallangur. The marital status of each of them is recorded on the application as “de facto”. It is also material to note that Ms Finn provided to the financier (which provided it to Centrelink) a trust account receipt for rent paid at 52 Wyena Street, Kallangur. The receipt is made out solely in Ms Finn’s name.
20.Despite each of Ms Finn and Mr Brand declaring that the particulars provided in the application for finance were “true and complete” that declaration is plainly false in many respects, especially in relation to issues of employment. For example, Mr Brand is said to have been employed with a nominated employer for 4 years 6 months. On the evidence before me he had been employed by that employer since July 2001, a period of 1 year 4 months at most. Similarly with Ms Finn. She was described as having been employed by a nominated employer for a period of 4 years 6 months. On her evidence to me she undertook a limited period of work experience with that employer.
21.As it seems to me the conclusion to be drawn from this document is that Ms Finn and Mr Brand provided untruthful answers, likely because it improved the prospects of success in obtaining the loan. It is unnecessary for me to determine whether this was done by Ms Finn of her own volition or, as Ms Finn claimed, at the suggestion of the merchant who acted as the agent for the financier.
22.The next matter relied upon by the Secretary is the acquisition in joint names of a Holden Commodore motor vehicle in December 2002. Associated with that was an application for finance in joint names that described the marital status of Ms Finn and Mr Brand as “de facto” and gave an address of 52 Wyena Street, Kallangur[1] for both of them. But again they appear to have produced their driver’s licences that show the different addresses. And on this occasion another trust account receipt and an electricity account, both for 52 Wyena Street, Kallangur and both in the name of Ms Finn solely were produced and ultimately provided to Centrelink.
[1]The typescript entries on the document show 54. In the case of Ms Finn, but not Mr Brand, this has been corrected in handwriting to 52. I infer that the failure to correct what is evidently a mistake occurred through oversight.
23.What is more significant in my view is that a motor vehicle owned by Ms Finn, and given a trade-in value of $2,000.00, was used as a trade in on the purchase of the Holden Commodore. Ms Finn said of that that she had no use for this vehicle as her father had only recently given her a different vehicle. There is a further curiosity about this transaction which is that, on the Centrelink questionnaire sent to the motor dealer, completed by it and returned to Centrelink on 5 March 2003 ( a little over two months after the original purchase) appears the notation:
Note: We have been advised that these two are no longer together, and that he has the car.
This appears to be consistent with the evidence of both Ms Finn and Mr Brand that the purchased car was Mr Brand’s and that he made all the repayments.
24.But this transaction is, I think, properly to be regarded as an example of pooling of financial resources in relation to a major financial commitment.
25.Next the Secretaries rely upon the fact that in July 2001, when Mr Brand started work at Mrs Crocket’s Kitchen, he described himself as being in a de facto relationship with Ms Finn, nominated her as the person to contact in case of emergency and made her his superannuation beneficiary. None of this seems to me to add anything to the matter as there is no issue that in July 2001 Ms Finn and Mr Brand were in a de facto relationship. That relationship continued at least to 17 August 2001 when Ms Finn made a claim for parenting payment as a member of a couple. At the commencement of this employment, and seemingly until it ceased in November 2002, Mr Brand gave his address as 19 Jillian Street, Kallangur.
26.On 28 June 2002, at a time when on their evidence they were not in a marriage-like relationship, Ms Finn and Mr Brand opened a joint bank account at the National Australia Bank. It is not possible to tell from the material provided what address or addresses was or were provided but copy
statements, addressed to Ms Finn at 52 Wyena Street, Kallangur, for the period 28 June 2002 to 28 February 2003 have been provided.
27.Ms Finn said of this account that it had been opened by the two of them as a means of savings for their child. It was opened at a time when Mr Brand was not employed. Between 23 July 2002 and 19 November 2002 regular weekly deposits were made to the account from a source described as “Mrs Crockets”. I infer that these were wages paid to Mr Brand and deposited directly into the account. Within a few days of each deposit most of the credit balance was drawn by EFTPOS or ATM transactions. Ms Finn said of these withdrawals that they were not made by her, they had been made by Mr Brand because these funds were “his money”. Mr Brand’s employment ceased on 17 November 2002 and the last deposit from Mrs Crocket was made on 19 November 2002.
28.On 27 November 2002 the first of a number of regular deposits by J.D. Smith & Associates was made to the joint account. That entity employed Ms Finn between 18 November 2002 and 1 January 2003. But again the amounts deposited were withdrawn by EFTPOS and ATM withdrawals.
29.What appears from this, and is consistent with the evidence of Ms Finn, is that Mr Brand and Ms Finn did not use the bank account for deposits at the same time. It is not possible to determine who, of Ms Finn or Mr Brand, made the EFPTOS and ATM withdrawals but it is broadly consistent with the evidence of them that Mr Brand withdrew when deposits were made in his name and that Ms Finn withdrew when deposits were made in her name. It is a matter where the picture is not entirely clear.
The nature of the household
30.The Secretaries did not suggest that there was any evidence that directly pointed to Ms Finn and Mr Brand sharing a household. Rather the case put seemed to be on the basis that the evidence ought lead to the inference that there was a common household. I do not consider that that inference is open on the evidence before me. Subject to the issues discussed in paragraph below, I am not aware of any evidence that suggests that Ms Finn and Mr Brand shared a household. Certainly many of the contemporaneous documents suggested that they maintained separate addresses. I have in mind the driver’s licences, the rent receipts and the electricity bill. The documents that put them at the one address are documents where they had a reason to be untruthful to the recipient of the document.
31.There is material from Australia Post that suggests that in April 2003 the persons receiving mail at the 52 Wyena Street address were Ms Finn and Mr Kevin Brand, (the brother of Mr Mark Brand), with whom Ms Finn took up with in early 2003. It is of very limited utility given the date of the information.
32.I do accept that both Ms Finn and Mr Brand had a genuine concern for the upbringing of their child but there is no direct evidence that suggests that that was undertaken within the confines of a marriage-like relationship.
Social aspects of the relationship
33.There are some self-serving (and highly dubious) statements attributed to friends of Ms Finn and Mr Brand that assert that they are not in a relationship at relevant times. I place no weight on them. But, on the other hand, there is no direct evidence that they were in a marriage-like relationship. I take it that it was within the power of the Secretaries to investigate the matter and call evidence from “friends and regular associates” were it to be the case that they were in such a relationship.
34.The evidence of Ms Finn was that she saw Mr Brand from time to time in connection with their shared responsibilities for their child. So much may be expected and is explicable on that basis. But again there was no evidence pointed to that suggested that their social contact went beyond that.
Sexual relationship between the people
35.Ms Finn and Mr Brand both denied that there was any sexual relationship during the period in issue. I would not, without more, have been minded to believe Ms Finn’s denial however I do believe that by Mr Brand. I do not consider that Mr Brand had the wit to lie about such a matter. My impression of him was that, for reasons that have more to do with vanity than a desire to tell the truth, he was being truthful when he denied any sexual involvement with Ms Finn after October 2001.
36.There is, in any event, no direct evidence.
The nature of the commitment to each other
37.The Secretaries placed great reliance upon statements made by Mr Brand after Ms Finn went to Mackay leaving him to care for their child. Three statements are relied upon. In the first, dated 3 February 2003, Mr Brand gave his address as being that of his mother. The statement said:
I have given my job up in regards to my ex-partner taking off to Mackay leaving myself and our daughter in the house. I had no other way to take care of her. I last worked in October as a casual in Mrs Crocket’s Kitchen as an order picker. I was not paid out any leave.
The reference to “leaving myself and our daughter in the house” is certainly consistent with the notion that Mr Brand and Ms Finn and the daughter were all residing in the house. But the address given is not the address where it seems Ms Finn was living prior to her departure to Mackay. The next document is a questionnaire sent by Centrelink to Mr Brand and completed by him on 17 February 2003. He said that he was not reconciling with Ms Finn and that there was no possibility of that happening. In response to the question “Is there any reason why someone would have the impression that you have reconciled?” Mr Brand wrote “Because I am always over there caring for my daughter because Kylie won’t.” He gave 52 Wyena Street as Ms Finn’s address.
38.The third document was another questionnaire sent by Centrelink, this one completed by Mr Brand around 17 March 2003. He was asked “On what date did you and Miss Kylie Finn separate?” and responded “Early January 2003.” In response to the question “Where were you and Miss Kylie Finn living when you separated?” he answered “52 Wyena St Kallangur.” Mr Brand, when asked about this document was unable to explain how early January 2003 came to be written on it although he did say that the writing “looked like” that of his mother.
The total picture
39.As it seems to me the most apt way of describing many of the attitudes of Ms Finn is as casual. She appears to have entered, and ended, the relationship with Mr Brand in a rather casual way. She certainly displayed a casual attitude in completing loan applications. She was casual, even cavalier, when providing information to Centrelink. She was casual in her approach to the joint bank account. But her attitudes to social and financial relationships cannot determine whether she and Mr Brand were to be regarded as being in a marriage-like relationship.
40.In my view the evidence falls well short of demonstrating the existence of such a relationship. It demonstrates that Ms Finn and Mr Brand had a continuing relationship concerned with the raising of their daughter and, perhaps, a relationship of co-operation for the purposes of obtaining loans for individual purposes. But there is absent from the evidence of the relationship those elements of financial co-operation, joint responsibility, social interaction, sexual relationships and commitment that characterises a marriage-like relationship. The most appropriate label for the relationship is friendship with the common element of the shared responsibility for the child.
41.In reaching this conclusion I do not overlook the significance of the statements made by Mr Brand in March 2003 but my impression of Mr Brand does not permit me to place any great weight on these statements. Even if I were satisfied that Mr Brand had read and understood the statements I would not have regarded them as an acceptance of a marriage-like relationship. Mr Brand could well have regarded Ms Finn’s departure to Mackay as a separation, albeit in a different sense that was used in the question.
42.But, having regard to what French J described as “the total picture” I am of the view that the relationship was not a marriage-like relationship. Accordingly I would ordinarily affirm the decision.
43.The consequence of that would be that the stay granted on 15 April 2005 would be at an end and, without more, Ms Finn would be entitled to receive amounts deducted from her continuing payments between the date of the original decision and the decision of the Social Security Appeals Tribunal. But, as a result of Ms Finn’s failure to declare the income received by her in the period from November 2002 to January 2003, I assume that she will have been paid amounts at that time to which she was not entitled. It would not be right to permit Ms Finn to receive the amounts deducted without giving Centrelink the opportunity to determine the amount of any overpayment and resultant debt in the November 2002 to January 2003 period.
44.It would achieve practical justice between the parties if I varied the decision under review such that it not come into effect for a period of 14 days after the publication of these reasons. That should provide sufficient time for the Secretaries to calculate the amount of any debt owed by Ms Finn to the Commonwealth and take such steps as they may be advised to protect the public purse in relation to any such debt before it becomes necessary to repay any arrears to Ms Finn.
I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed: ...................Signed.................................................
Leisa Pendle, AssociateDate of Hearing 31 August 2006
Date of Decision 29 September 2006
Counsel for the Applicants Mr D Rangiah
Solicitor for the Applicants Australian Government Solicitor
Respondent appeared in person
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