Hargraves and Secretary Department of Employment and Workplace Relations

[2007] AATA 1649

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1649

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No   A 2006/57

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		ELIZABETH HARGRAVES

Applicant

And SEC. DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal J.W. Constance, Senior Member

Date3 August 2007

PlaceCanberra

Decision1.    The reviewable decision made by the Social Security Appeals    Tribunal on 20 February 2006 is set aside.

2.    In substitution for the decision set aside, it is decided that;

(i) during the period 15 November 1995 to 2 December 2003 Ms Hargraves was not a member of a couple with Mr Lloyd for the purpose of the Social Security Act 1991; and

(ii) the decisions made by Centrelink on 9 December 2003 to raise and recover overpayments of sole parent pension amounting to $66,045.20 for the period 11 January 1991 to 19 March 1998 and a parenting payment amounting to $56,079.66 for the period 2 April 1998 to 2 December 2003 as varied by an authorised review officer on 13 December 2004 in respect of sole parent pension to $21,838.10 for the period 16 November 1995 to 19 March 1998 are set aside.

....................................................

J.W. Constance. Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL

MR J. CONSTANCE, Senior Member

No A2006/57

ELIZABETH ANN HARGRAVES

and

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

CANBERRA

FRIDAY, 3 AUGUST 2007

MR A. HERRING appears for the applicant
MR T. ETEAUTI appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS  [2.02 pm]

MR CONSTANCE:   In the matter of Hargraves v Secretary, Department of Employment and Workplace Relations, as I indicated on the previous occasion, I have decided it appropriate to give an oral decision in this matter, but I can indicate that we will provide a transcript of what I'm about to say to each of the parties and we will also of course issue a sealed formal decision as we normally do.

To start with that formal decision, it will be as follows.  That:

(1)  The reviewable decision made by the Social Security Appeals Tribunal on 20 February 2006 is set aside.

(2) In substitution for the decision set aside, it is decided that: (i) that during the period 15 November 1995 to 2 December 2003 Ms Hargraves was not a member of a couple with Mr Lloyd for the purpose of the Social Security Act 1991; and (ii) the decisions made by Centrelink on 9 December 2003 to raise and recover overpayments of sole parent pension amounting to $66,045.20 for the period 11 January 1991 to 19 March 1998 and a parenting payment amounting to $56,079.66 for the period 2 April 1998 to 2 December 2003 has varied by an authorised review officer on 13 December 2004 in respect of sole parent pension to $21,838.10 for the period 16 November 1995 to 19 March 1998 are set aside.

As to my reasons for this decision I say at the outset the Social Security Act 1991 provides for pension benefits at different rates and includes a higher rate if the recipient is not a member of a couple. During the period under consideration in this matter, namely 15 November 1995 to 2 December 2003, Ms Hargraves received benefits paid at a single rate, i.e., at a rate based on the assumption that she was not a member of a couple.

The secretary now alleges that during this period Ms Hargraves was a member of a couple with Mr Lloyd and has raised a debt against her for the difference in the pension payable at the single rate and the rate payable as a member of a couple.

The decision under review is that of the Social Security Appeals Tribunal of 20 February 2006 and that decision affirmed a decision made by Centrelink on 9 December 2003 in the terms which I have just dictated in relation to the formal decision.  And I won't repeat it.

To look at the statutory background in this matter it's necessary initially to go to section 42 of the Act which provides that subject to subsection (3), a person is a member of a couple for the purposes of this Act.  And relevantly in relation to this matter, subparagraph (b) provides that that is the case if all of the following conditions are met.  And a number of conditions are set out in the Act, and I'll come to those in detail.

Section 4(3) then provides that in forming an opinion about the relationship between two people for the purposes of the preceding subsection the secretary is to have regard to all of the circumstances of the relationship, including in particular a number of listed matters.  And I note that the requirement is that the secretary, and in this case the Tribunal, is to have regard to all of the circumstances of the relationship, and the list then sets out a number of matters.  But the overall requirement is that it will be a consideration of all of the circumstances.

Section 4(3A) then makes this provision, 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.

I've given consideration as to how I should actually approach these sections in making the decision, and it appears to me that section 4(3A) is in some ways a declaratory provision and really sets out a situation in which one is an overriding provision.  It was suggested to me and I think by both counsel that it was appropriate to look at that section first because only if it's decided that the parties are not living separately and apart, that you would then need to go to consider the provisions of whether or not they are in a marriage-like relationship.  But when you give further consideration to it, the expression of living separately and apart has been interpreted in a number of cases, usually in relation to the provisions of the family law legislation or the family legislation.  And it seems difficult to imagine that you could have parties who meet the requirement of living separately and apart and would still be in a marriage-like relationship.

So it seems to me that it is there as a declaratory provision and that many of the tests that you apply in deciding whether the parties are in a marriage-like relationship are very similar to those that the courts have looked at in deciding whether parties are living separately and apart, in particular that latter phrase has been interpreted as meaning there must be physical separation and a breakdown of the consortium vitae.  And it seems to me that when you have a breakdown of the consortium, it's very difficult to see how you could have a marriage-like relationship.

So, what I propose to do is to consider the provisions relating to a marriage-like relationship and it would only be in the situation that I was to decide that they were in a marriage-like relationship, they would then have to give consideration to section 4(3A).  And this appears to be the manner in which the Tribunal has approached these matters when I had a look at the various cases to which I'd been referred.  But, as I said, it does seem to me that it's similar tests applied, whichever provision you're looking at.  And in this case as I have decided that the parties are not in a marriage-like - sorry - that Ms Hargraves is not in a marriage-like relationship in the provisions of 4(3A) do not cause any difficulty.

The issue that I have to decide is whether Ms Hargraves, during the relevant time, was a person who was a member of a couple in accordance with section 4(2).  If one then goes to the provisions of that section, all of the following conditions are to be met, and the first of those conditions is that the person has a relationship with a person of the opposite sex in this paragraph called "The partner".  And it is necessary to look at that requirement, even though most of this case has been concerned with the later requirement relating to a marriage-like relationship.

So turning to the question of what that relationship is, it's quite clear on the evidence that there has been a relationship between Ms Hargraves and Mr Lloyd and that that relationship is ongoing and that is a relationship which commenced prior to the birth of their son.  I am satisfied on the facts and I can indicate that I am satisfied of all of the findings of fact on the balance of probabilities that a relationship commenced in about 1988 between Ms Hargraves and Mr Lloyd and that as a result of that relationship their son Daryl was born on 11 December 1990.

I'm also satisfied that Ms Hargraves and Mr Lloyd did not share accommodation on a permanent basis prior to the birth of their son.  Ms Hargraves described the relationship of that of boyfriend and girlfriend, which continued until a couple of months before Daryl was born, and that since that time they have continued the relationship of friends, but more importantly, they have a permanent relationship, being that of the parents of Daryl.

In deciding the nature of their relationship, it is clear that it's necessary to consider the voracity of Ms Hargraves as a witness before the Tribunal.  And quite properly counsel for the respondent raised as an issue the reliance that could be put on the evidence of Ms Hargraves and questioned her credit.  The basis of this questioning appeared to be three-fold:  (1) that Ms Hargraves had given false evidence and deliberately given false evidence to the Social Security Appeals Tribunal in relation to whether or not her sister had lived with her in a house, in fact the house in which she is now living, and that she had in fact given a false statement to the housing authorities when that house was obtained.  Ms Hargraves admitted that she had in fact given false evidence to the Tribunal in this regard, and that of course is a matter of real concern.  It was also raised that Ms Hargraves had incorrectly completed details in review forms issued by Centrelink from time to time.  And I'll come back to those.  And a third ground was that Ms Hargraves had, to put it in the vernacular, gone along with Mr Lloyd in filling out - in agreeing to his stating her address on credit applications to increase the likelihood that Mr Lloyd would in fact receive a benefit from credit providers.

As I said, it is of concern that Ms Hargraves was prepared to give false evidence to the Social Security Appeals Tribunal, and I certainly take that into account and it means that I have to look very carefully at her evidence.

In relation to the argument that she incorrectly provided information to the Department of Social Security in the sole parent’s review forms completed, that argument relies upon Ms Hargraves' answers to a question, and these answers were repeated from time to time, the same answer, and that is question 9, and this is in exhibit A9:

Do any other adults of the opposite sex live at your current address?

The answer to that question is marked:

No.

In brackets after that question are these words:

Include people who work away from home, e.g., truck drivers, miners, riggers, fishermen, members of the Armed Forces and people who live in the home regularly (say two or more nights a week).

Ms Hargraves told me that she regarded her answer as correct, and in my view I cannot draw any inference detrimental to Ms Hargraves' credit based on that answer.  The question was whether any adult of the opposite sex live at the current address.  On the evidence before me, Mr Lloyd was staying at Ms Hargraves' home, perhaps two, and then later up to three or four times per week, overnight.  But the way that question is posed when it asks whether people live at the address and refers to various people who work away from home, the question is very much based on the assumption that the address is the home of the people involved.  And of course Ms Hargraves' argument all along has been that it was never - that her premises were never Mr Lloyd's home.

Had the question been whether a person actually stayed overnight, it would have been different.  But the question relates to living and being at home.  And it seems to me the question is not sufficiently clear to warrant any adverse inference.

In relation to credit applications, it does appear, and it in fact appears from Ms Hargraves' own evidence, that she did go along with Mr Lloyd giving her address to boost his chances of obtaining credit.  And that is an issue that is properly taken into account.

When I look at the evidence in relation to the nature of the relationship, I have looked carefully at the evidence in relation to the various addresses given by Mr Lloyd over a period of about 13 years.  It's put by counsel for the respondent that these addresses were in fact fraudulent and that Mr Lloyd was during this time in fact living with Ms Hargraves, and it would follow, repeatedly providing a false address to a very considerable number of organisations.  Mr Lloyd's explanation, as was Ms Hargraves, is the Mr Lloyd moved around a lot and Mr Lloyd in particular said that he used Ms Hargraves' address as a convenient and I suppose a permanent address, despite his many moves.

Having looked at that evidence, I accept that in fact the explanation given that Mr Lloyd was in fact moving around and using Ms Hargraves' address as a matter of convenience, and bearing in mind that on the evidence he was quite regularly at her home, as an acceptable explanation.  To find otherwise would be to accept that there was a very long-standing and carefully thought out plan to defraud the department, and later Centrelink.  And it seems to me that that is unlikely.  I also note that Ms Hargraves, from shortly after her son's birth, also indicated that Mr Lloyd was not living with her.  So that again if these parties have been living together over an extensive period, it has been a long-term plan.

There is also evidence from Mr Lloyd's sister to indicate that Mr Lloyd was itinerant in his choice of accommodation, which also lends support to the argument put on behalf of Ms Hargraves.  In addition I note the evidence of Mrs Ulrick that Mr Lloyd - she would hear Mr Lloyd arriving at Ms Hargraves' flat later at night or in the early hours of the morning, and apparently he was inebriated and that she thought that happened three or four times a week.  So there is evidence to support the fact that for a long time, whilst Mr Lloyd was certainly spending one or more nights per week at Ms Hargraves' flat, he was not there full-time.

As I said, I'm satisfied that there is a relationship and has been since 1998 that comes within the requirement of section 4(2B)(i) and that is a relationship arising from the fact that Mr Lloyd and Ms Hargraves are the parents of Daryl and they have continued that relationship and that has brought them together to an extent.

Just to digress for a moment, the document I referred to is exhibit A2 in which Ms Hargraves made a claim for family payments on 15 September 1991, and as far back as at that time indicated that she did not have a partner.  I'm satisfied also that Mr Lloyd has paid maintenance to Ms Hargraves for Daryl from the time of his birth and that since his birth there have been irregular visits initially and that those visits increased from the early nineties of two to three times per week in which Mr Lloyd stayed overnight, until three to four times per week by 2003.

I also accept the evidence of Ms Hargraves, and I will come to this further later, that there has been no sexual relationship between her and Mr Lloyd since before Daryl's birth.  I'm also satisfied that the relationship between them was at times violent, at least in the verbal sense, and that during a considerable period of this relationship, if not all of it, that Mr Lloyd was consuming alcohol to excess and it got to the point, as Ms Hargraves described, that it was out of control.

Having been satisfied that there is and has been for the whole of the relevant period a relationship between Ms Hargraves and Mr Lloyd, it's then necessary to continue to look at the other conditions that are required to be met.  And I am satisfied on the evidence of Ms Hargraves that they were not legally married and that the other requirements in subparagraphs (4) and (5) are met and there's been no argument to suggest otherwise.

That leaves then the requirement set out in subparagraph (b)(iii) that the relationship between the person and the partner is, in the secretary's opinion, that is, and in this case in the Tribunal's opinion, a marriage-like relationship.  As I've already said, in deciding that issue, you then look to section 4(3) which sets out a number of matters to be considered when one has regard to all of the circumstances.  And I will now turn to those.  The first is the financial aspects of the relationship, and the first of those in subparagraph (i) is any joint ownership of real estate or other major assets and any joint liabilities.

I'm satisfied on the evidence that there is no jointly owned real estate.  I'm satisfied that the lease of the accommodation in which Ms Hargraves has resided during the whole of the subject period has been in her name alone.  I'm satisfied also that during the same period Mr Lloyd's motor vehicle was in his own name, and that any items that the parties have in any way shared are a very limited nature and amount to some very limited items of household appliances and furniture, and that over the lengthy period of the relationship I do not regard these of any significance.

Those items include a lounge, for which for some reason they paid jointly but has been I think used by Ms Hargraves.  There was also evidence of a vacuum cleaner for which Mr Lloyd paid and Ms Hargraves used;  a refrigerator;  and also a microwave, which was a replacement for one that Mr Lloyd had damaged and therefore he paid for the replacement.  In my view these items of property, as I said, are minor and certainly don't amount to anything of any major assets such as referred to in the section.

The subsection also refers to any joint liabilities.  There is on the evidence, and again not in dispute, there is one joint liability, and that is for a card at Lowes store.  And the evidence is, and I accept the evidence, that that card is limited to meeting expenses for the son Daryl, particularly clothing.

The next provision to look at under financial aspects of the relationship is any significant pooling of financial resources, especially in relation to major financial commitments.  Counsel for the respondent conceded, and again quite properly on the evidence, that there was really very little evidence to suggest that there was any pooling of financial resources.  In fact the only evidence suggested was the evidence of Mr Meyer, that he had seen Mr Lloyd hand over money to Ms Hargraves from time to time.  But I'm not satisfied that that in any way amounts to significant pooling of financial resources, and it is open to the interpretation in any event that that may have been handing over of child support, Mr Meyer not being in a position to know what the nature of that payment was.

The third provision to consider is were there any legal obligation by one person in respect of the other person.  I have taken into account under this consideration that Mr Lloyd has made Ms Hargraves a partial beneficiary of his superannuation policy.  His explanation for that is that he was concerned to provide for his son Daryl in the event of his death, and I accept that explanation.  Daryl is still a minor, he's still under the age of 18 years, and I accept that that was a proper and I find it an acceptable explanation.  Whatever criticism may be offered of Mr Lloyd's activities, he has kept, it appears, quite a close relationship with his son during the whole of his son's lifetime, and on that basis I accept his evidence that making a provision in that way was designed to benefit Daryl.  But nevertheless it is a factor to be taken into account.

But having said that, that does appear to be the only legal obligation that's owed between the parties, other than of course the obligation to pay child support.  And again that clearly relates to Daryl and is a legal obligation that one would expect to exist and to be met.

The final consideration under the financial aspect is the basis of sharing of day-to-day household expenses.  And on the evidence I am satisfied that the parties do not share household expenses, that Mr Lloyd pays child support but that household accounts, such as telephone and the lease, are in Ms Hargraves' name.  They are not shared.  The evidence suggests that they provide their own food, apart from occasional cooking of a meal, which Ms Hargraves says she does for Mr Lloyd when he's there.  On the evidence, Ms Hargraves always does the shopping, and even to the point of never having received a lift down to the shops by Mr Lloyd, all suggest to me that the household expenses are not shared.

I also note that in his tax returns for a number of years that are in evidence as A29, Mr Lloyd has not claimed to have a spouse and certainly has not claimed Ms Hargraves as his spouse.  So even though there may have been a tax benefit available, that has not been claimed, and is consistent with the evidence which Ms Hargraves and Mr Lloyd gave.

Subparagraph (b) of section 4(3) requires consideration be given to the nature of the household.  And again that has a number of subparagraphs for consideration, the first of which is any joint responsibility providing care and support of the children.  Clearly in this case there has been such joint responsibility, and as I said earlier, to his credit, Mr Lloyd it appears has always kept a relationship with his son Daryl and has played a role in providing for his care in both financial support and in other means, such as taking the boy on outings and the like, of which he gave evidence.

The subparagraph (ii) refers to the living arrangements of the people involved.  As I've said, I'm satisfied that towards the end of the period under consideration, Mr Lloyd may have spent three or four nights per week at the home of Ms Hargraves, but on the evidence I am satisfied that this arrangement is, on the face of it, somewhat unusual, was no more than Mr Lloyd actually spending the night at the home;  that I'm not satisfied that there was any sharing of a bedroom.  As I said, I'm not satisfied that there was a sexual - I am satisfied that there was not a sexual relationship between them.

Ms Hargraves has said that Mr Lloyd at times would either sleep on a couch or, when she moved into the home, in a spare room.  This is consistent with the other evidence that was given in that Ms Hargraves said that very often the reason that Mr Lloyd would stay overnight was that he had been drinking to the extent that he would fall asleep.  This is borne out by the evidence of Mrs Ulrick, who indicated that he would regularly arrive at the flat, for the period of which she was a neighbour of Ms Hargraves, in the early hours of the morning at times or late at night under the influence of alcohol.  And also the evidence of Mr Meyer of the extensive drinking habits of Mr Lloyd.  So I'm prepared to accept that Mr Hargraves often did - sorry - Mr Lloyd often did spend nights at the home but did either fall asleep on the lounge or perhaps in the spare room.

I'm also satisfied from time to time that Ms Hargraves did cook a meal for Mr Lloyd and that from time to time, although it seems fairly rarely, that she would do some washing for him.  But other than that, it appears that there was very little relationship with them.  And I accept the evidence from neighbours and in fact from Mr Meyer that the usual arrangement was that Ms Hargraves would do her own thing and very often that entailed being in her own room watching television or attending to housework.

The final consideration under subparagraph (b) is in fact the basis on which responsibility for housework is distributed.  Again I am satisfied that whilst Ms Hargraves occasionally did some domestic chores for the benefit of Mr Lloyd, that by way of cooking and some washing, that that was certainly not something that was reciprocated by Mr Lloyd.  And on the evidence I am satisfied that he took no part in the responsibility for housework.

Subparagraph (c) refers to the social aspects of the relationship, and (i) of this subparagraph is whether the people hold themselves out as married to each other.  And I am satisfied that neither Mr Lloyd nor Ms Hargraves have in fact held themselves out as married to each other.  Certainly in all the documentation it's time and time again stated by Ms Hargraves that she is not married.  And the only evidence to the contrary appears to be the evidence of Ms Ulrick that she recalls Ms Hargraves introducing Mr Lloyd as her de facto.  And it could be argued that that was holding out as a de facto marriage.  And Mr Lloyd referring to Ms Hargraves when speaking to Mr Meyer, as his missus.

But, as I said, when one looks at the whole of the evidence, it seems to me that these parties did not hold themselves out as married in either a legal sense or a common law sense.  Then required to look at the assessment of friends and regular associates of the people about the nature of their relationship.  The evidence in this regard appears o be that the neighbours and friends and family regarded this relationship as a fairly difficult one.  Ms Ulrick, who was a neighbour for a period of time, refers to the frequent inebriation of Mr Lloyd, and in my view, quite importantly, said that Ms Hargraves was always trying to get rid of Mr Lloyd.

The evidence of the neighbours too confirmed that this was a strained relationship and I take into account the evidence of Ms Brown that very often when Mr Lloyd would arrive at the home, Ms Hargraves would go in next door to spend time away from him.  Also Mr Atkinson, who was a neighbour for a time and visited the house from time to time, indicated that it was a strained relationship and that when he visited and Mr Lloyd was in the lounge room watching television with Daryl, that he usually observed that Ms Hargraves would be in her own room.

The contrary evidence comes from Mr Meyer, who regarded Ms Hargraves and Mr Lloyd as living together.  And having heard Mr Meyer in the witness box and having looked at the statement which he gave, it appears to me that very often he was making assumptions rather than basing his views on what he actually observed.  And to deal with his evidence, on his evidence, he and Mr Lloyd spent a very large part of their non-working time drinking in one another's company.  And I note that on the evidence Ms Hargraves did not join in that activity.  And whilst there may have been discussions which Mr Meyer refers to about the sexual relationship between Mr Lloyd and Ms Hargraves, according to Mr Lloyd, I am certainly not prepared to base findings on discussions between two men in a drinking sessions about the sexual relationship of either of them.

The final provision in social aspects is the basis for which people make plans for and engage in joint social activities.  I regard the evidence in this regard as important in that it seems that apart from birthday parties and Christmas functions where one would expect the parents of Daryl would be together, there is in fact no evidence to suggest that Ms Hargraves and Mr Lloyd did engage or ever plan for any joint social activities.  In fact the evidence is quite to the contrary.  As I've mentioned one of Mr Lloyd's social activities appeared to be drinking with his friends, and even though that, on the evidence, took place at Ms Hargraves' home, she did not join in.  And there is no evidence to suggest that they went out socially.

Subparagraph (d) is whether there was any sexual relationship between the people.  I've already dealt with that and I accept the evidence of Ms Hargraves that in fact there was no sexual relationship from prior to Daryl's birth.

Subparagraph (e) is the nature of the people's commitment to each other.  It follows from what I have already said that there is in my view very little or no commitment between these parties other than anything that arises from the fact that they have a son, and that there is no personal commitment between them.  The evidence is that, from the witnesses that were in a position to see, that there was no display of any emotional commitment between them, and in fact the evidence suggests to the contrary.  In fact Mr Meyer indicated that he thought that there was some sort of relationship because they did so much arguing.  I don't accept that as evidence of commitment.

The particular factors in relation to - to be considered under the heading of "The nature of commitment" is the length of the relationship, which is certainly lengthy, but explicable by their joint parenting of Daryl.  The nature of any companionship and emotional support provided to each other, as I've indicated, the evidence indicates that there was none.  Whether the people consider the relationship is likely to continue indefinitely, again the evidence so far as that's concerned relates to their joint parenting of Daryl and to nothing else, and whether the people see their relationship as a marriage-like relationship.  And again on the basis of the evidence I've already referred to, I'm satisfied that neither Mr Lloyd, but more importantly, Ms Hargraves, see the relationship in that light.

So, taking into account all of that evidence and in particular the various requirements that are to be considered under subparagraph 4(3) I am satisfied that in fact the relationship is not a marriage-like relationship in the terms of the Act.  In fact this goes further than is required because I only have to be satisfied - I only have to from the opinion that it was a marriage-like relationship.  Well, on the evidence, I cannot form that opinion.  But, as I've said, I am satisfied that in fact it was not such a relationship.  On that basis I am satisfied that Ms Hargraves was not a member of a couple with Mr Lloyd at any time during the relevant period.

Having reached that conclusion, it follows, although it makes no difference in this case, that I am satisfied that Ms Hargraves and Mr Lloyd are in fact living - sorry, I withdraw that.  On that basis it's not necessary that section 4(3A) be further considered and it is not required for consideration in view of what I have found.

As I have indicated, the decision of the Tribunal will be issued - a formal decision will be issued in writing and we will make available a copy of the transcript for these reasons.

I should also add at the conclusion my reasons.  I have considered the various cases to which both counsel have referred me.  They have been very helpful in the sense that it is important that the Tribunal's decision are consistent.  And certainly having looked at those cases, then it seems to me that there is nothing in the decision I have given which is inconsistent with the approach that's been adopted by the Tribunal.  But as has been observed on many occasions, these particular cases depend on their individual facts, and it's really only a guidance of approach.

I also should mention that in relation to the question of credit, counsel for the respondent did refer me to the decision of re Petty and Davis v the Director-General of Social Security (1982) 4 ALN 120 and to the particular reference in that case to the following - and I quote - that:

Where applicants make an untruthful or misleading statement concerning their relationship, they must realise that the inference is likely to be drawn against them that they are endeavouring to conceal the true nature of their relationship.

I certainly accept that proposition and the argument that's put by counsel for the respondent.  But in this case I have taken into account just what can be inferred from the admitted untruthful or misleading statements.  And whilst, as I said, it is most unfortunate that Ms Hargraves gave the evidence that she did to the Social Security Appeals Tribunal which was not accurate, there is no suggestion that in this case Ms Hargraves has been shown to be an habitual liar, so that I have to look at the situation before me, and I am satisfied that despite the evidence that she gave to the Tribunal on a previous occasion, to the Social Security Appeals Tribunal, that is, I am satisfied that the findings that I have made based on her evidence, that in those regards she was being honest.  Whilst her explanation for giving the untruthful evidence, I understand that explanation, of course, it is not to suggest that it's in any way excusable.

Is there anything further, Mr Eteauti, that you wish to raise?

MR ETEAUTI:   No, thank you very much, Senior Member.

MR CONSTANCE:   All right.  We will issue those documents I've indicated as soon as we can.  We'll get the transcript and we should be able to issue - certainly we'll issue the written formal decision probably Monday.

All right, thank you for attendance.  I adjourn the Tribunal.

END OF EXTRACT  [2.56 pm]

MATTER ADJOURNED at 2.56 PM INDEFINITELY