Harris and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1749

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1749

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/1626

GENERAL ADMINISTRATIVE DIVISION		)
Re		LEIGH HARRIS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Dr KS Levy, RFD, Senior Member

Date10 September 2007  

Place Brisbane

Decision

 The Tribunal decides that:

1) The decision under review is set aside;

2) The applicant was not a member of a couple for the period in question, and was therefore entitled to the single rate of disability support pension.

………[Sgd]………………….
  SENIOR MEMBER  

CATCHWORDS

SOCIAL SECURITY – disability support pension – applicant was paid at single rate – applicant provided financial support for a woman and her children in Fiji – whether the applicant is a ‘member of a couple’ – decision under review set aside

Social Security Act 1991 (Cth) ss 4, 24

Administrative Appeals Tribunal Act 1975 (Cth) s 37

Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27
Holmes v Secretary, Department of Employment and Workplace Relations [2007] AATA 1502
SRH v Secretary, Department of Social Security (1996) 42 ALD 463
Ward and Secretary to the Department of Social Security (1985) 7 ALN N66
Erdmann and Secretary, Department of Social Security (AAT10939, 17 May 1996)
In the Marriage of Todd (No 2) (1976) 9 ALR 401
Shearing and Director-General of Social Security (1983) 6 ALN N12

REASONS FOR DECISION

10 September 2007	Dr KS Levy, RFD, Senior Member
Introduction

1.      Mr Harris has been in receipt of disability support pension for over a decade. That had been payable at the single rate.  He has of recent times visited Fiji and has claimed to have provided financial support for two children and their mother. It has been suggested that he is either married to or in a marriage-like relationship with the mother of these children, albeit that she lives in Fiji and he visits there on an irregular basis.

2.      In the course of his dealings with Centrelink, he provided certain information which was interpreted as being that Mr Harris was a “member of a couple”, at least during the periods that he visited the woman and her children in Fiji. The decision to accord that status to him resulted in his being entitled to disability support pension at a lower rate while he was classed as being a “member of a couple”. His financial support for these children has now ceased. However, Mr Harris contends that he is not in a marriage-like relationship and should be entitled to payment at the single rate (ie the higher rate) of pension whether he is in Australia or Fiji. Essentially, he maintains that he is not “a member of a couple”.

3.      This argument was reassessed by an authorised review officer (ARO) after the original decision maker made a determination. The original decision maker’s determination dated 20 November 2006 was affirmed by the ARO on 21 December 2006 in respect of the period the applicant resides overseas. He was successful in having the rate approved at the single rate while he was living in Australia. The Administrative Appeals Tribunal (the Tribunal) is now asked to review that determination.

Issues

4.      The Tribunal has to decide two issues:

1)        Whether the evidence shows that Mr Harris is “a member of a   couple”? and

2) if the answer to question 1 is “yes”, should a discretion be exercised under s 24 of the Social Security Act 1991 (the Act) so that Mr Harris                  may be treated as not being “a member of a couple”?

Evidence

5. The Tribunal had the benefit of documentary evidence, in particular the documents submitted under s 37 of the Administrative Appeals Tribunal Act 1975  (the T Documents); a statement by the applicant dated 25 May 2007; a letter from Legal Aid QLD dated 18 June 2007; a computer record dated 18 June 2007 of the applicant’s attendance at Centrelink’s Ipswich office; and a statement dated 18 June 2007 by the applicant certifying that the woman he had formerly seen in Fiji is now associating with a former childhood friend, and that he will not again visit this woman or her children when he visits Fiji in future.

6.      Oral evidence was also provided by Mr Harris who appeared on his own behalf. The respondent was represented by Mr Rick McQuinlan and he called one witness, Ms Pauline Horsnell.

MR HARRIS

7.      Mr Harris provided lengthy evidence about the background to the application. Indeed, he provided background evidence as to his serving in Cambodia and his experiences there as some form of soldier of fortune. He dispassionately described how he decapitated a man while serving there. His evidence indicated that he begrudged  the fact that he was not entitled to any recognition or compensation for the time he spent in Cambodia, as were the soldiers of the Australian Army who served in South Vietnam.

8.      In addition to the documentary evidence (including the evidence provided by Mr Harris to the Social Security Appeals Tribunal), he submitted that the assessment made by Centrelink was incorrect by categorising him as living in a marriage-like relationship, and thereby paying him disability support pension at the married rate (ie a lower rate than the single rate), at least when he visited Fiji. He referred to the fortnightly rate (single) as being $512.10 per fortnight whereas the married rate was $ 427.70, a difference of $84.40 per fortnight for the periods he stayed in Fiji.

9.      The main fact in contention was whether or not he was in a marriage-like relationship with Esili Vukaro when he was in Fiji. While Mr Harris had been accepted and paid a disability support pension since 1996, he reported to Centrelink in 2006 that he had been to Fiji and had undertaken a “Kava” ceremony which he described as a customary ceremony and implied a celebration of giving thanks. He said this ceremony was associated with him accepting some responsibility as carer of the two children of Esili Vukaro. While Ms Vukaro was the legal guardian of the children, he was known as the father of the children. He described the Fijian culture as being one where if a woman lives with a man she is either a “house girl” (that is a prostitute) or a “wife”. He agreed that he had used the term wife in discussing his relationship with Ms Vukaro when reporting to Centrelink. He also described Ms Vukaro earning $20 per week in Fiji.

10.     Mr Harris maintained his main reason for going to Fiji was to tour the country by himself for health reasons. He referred to his various medical conditions and said that he had had a number of strokes including one the Friday before the hearing of this matter. But in the context of visiting Fiji, he states that he did not take Ms Vukaro or her children with him when he toured the country.

11.     He described the Kava ceremony and his association with Ms Vukaro as having the sole purpose of helping “two helpless children” and to give them a house and education. He stated that there was “nothing else in his motivation”. He referred to having had sex with Ms Vukaro but said that he never slept with her for more than two nights in a row. He emphasised that the only thing she had to share with him was sex; she had no money to share and no food. He then sent $150 per fortnight to her from his disability support pension. This was paid into a cheque account in his name which he said, Ms Vukaro had access to by way of a pin number.

12.     Mr Harris also made repeated claims that Centrelink regarded Ms Vukaro as a prostitute and that she was a woman getting money for sex. He said that Centrelink was only interested in how many times he had sex with Ms Vukaro and that was the theme of their questions to him.

MS PAULINE HORSNELL

13.     Ms Horsnell gave sworn evidence that she was an officer of Centrelink and had had dealings with Mr Harris in the course of his seeking review of the Centrelink decision to regard him as a member of a couple. She was the ARO.

14.     She provided evidence that the decision was that Mr Harris was entitled to the married rate of pension at any time when he was overseas, except if he went to a country other than Fiji and was not accompanied by Ms Vukaro. Ms Horsnell referred to a telephone conversation she had had when Mr Harris rang her from Fiji on one occasion and said the notes she made indicate, and she recalled, that he referred to Ms Esili Vukaro as his “wife”. She was also referred to a record of a voice mail message made on 30 January 2007. She told the Tribunal that her record of that voice mail message was made after listening to the voice mail two or three times before writing her note of the contents of that voice mail message. She said Mr Harris used the term “wife” in that voice mail and she stated that she wrote the written record within 10 minutes of listening to the voice mail message.

15.     She referred also to the tone of the conversations she had with Mr Harris and that they were limited to some degree, in part because Mr Harris was always very aggressive.

Consideration

16.     In arriving at a determination in this matter, I have taken account of all the documentary evidence available as well as the oral evidence presented by Mr Harris and Ms Horsnell.

17.     I make the following findings of fact in relation to the evidence:

1)  Mr Harris visited Fiji on three occasions-

a) December 2005 – 22 February 2006 (first visit)

b) 17 May 2006 – 10 August 2006 (second visit)

c) 29 November 2006 – 27 February 2007 (third visit)

2) Mr Harris rented a house in August 2006 for his own use when he visited              Fiji and which Ms Esili Vukaro and her children moved into on 10 August           2006;

3) Mr Harris informed Centrelink that he married Ms Vukaro on 1 July 2006 (T           Documents folio 28);

4)  Mr Harris referred to Ms Vukaro in language implying that she was his wife           on numerous occasions ( T Documents folios 28, 31, 32, 33, 35 and 37);

5) Mr Harris provided $150 per fortnight to Ms Vukaro into an account in his              name from which she was permitted to withdraw money;

6)  Mr Harris has made a number of emotive calls to Centrelink in relation to               the decision to pay him at the married rate while not living in Australia. In               particular, he called Centrelink on 24 November 2006 in an agitated  manner. On 30 January 2007 he called at 10.52am and said it was difficult          for the two children and turned a beautiful wife into a prostitute by  demanding particulars about his living in Fiji. At 11.45am also on the same                 day, he called Centrelink, a call which was described as “offensive”. He               referred to imposing a tax on him sleeping with his wife and that this  reduced her to a prostitute (folio 83);

7)  Mr Harris ceased renting the house in Fiji in March 2007 and has provided           a statement that he will not visit Ms Vukaro again in Fiji and will not be  visiting her village. His signed statement dated 18 June 2007 indicates that                         Ms Vukaro and her children have returned to their family village “… and        are responsible for their own accommodation”. He also stated “I believe                        Esili is keeping company with a male who is a childhood friend”.           Also, he  stated “I do not intend visiting Esili or her village in the future”.

18.     I have accepted the veracity of the evidence provided by Centrelink in preference to that provided by Mr Harris. I found Ms Horsnell to be a witness of truth and I find it unlikely that so many records would have misstated the language used by Mr Harris or the intended communications. I am satisfied that, despite his protestations about his motives for providing support for Ms Vukaro and her children, I am satisfied that evidence showed an apparent intention of being associated with Ms Vukaro in more than a philanthropic way.

19.     The findings of fact also take account of the apparent inconsistencies in the evidence presented by Mr Harris at the hearing that he was not to be regarded as being in a marriage-like relationship with Ms Vukaro compared with the numerous references in that regard that he made to Centrelink. It is just not credible for Mr Harris to present evidence that he spoke to Centrelink in Australia, where he spends (and has spent) the majority of his life and suggest that the references in the use of his language should be interpreted according to the Fijian culture rather than in the context that terms such as “wife” and “partner” would be interpreted in the ordinary course of Australian dialogue.

20.     The findings of fact also are affected by intention expressed by Mr Harris that he wished to bring Ms Vukaro and her children to Australia, but there were certain immigration impediments to achieving that aim.

21. It is noted that Ms Vukaro now is associated with a childhood friend in Fiji and that the association with Mr Harris is no longer extant. However the fundamental question for the Tribunal to decide is whether from 29 November 2006 until 27 February 2007 Mr Harris should be regarded as being “ a member of a couple” for the purposes of s 4 of the Social Security Act 1991.

22. The relevant legislation is contained in s 4 and 24 of the Social Security Act 1991. These are:

Member of a couple--general

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)  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;

(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 .

Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

         an ancestor of the person; or

         a descendant of the person; or

         a brother or sister of the person (whether of the whole blood or the part‑blood).

Member of a couple--criteria for forming opinion about 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…;

(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…

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.

24 Person may be treated as not being a member of a couple (subsection 4(2))

24(1)  ….;
         24(2)  Where:
   (a)  a person has a relationship with a person of the opposite sex (the partner );                   and
   (b)  the person is not legally married to the partner; and
   (c)  the relationship between the person and the partner is a marriage‑like  relationship; and
   (d)  the Secretary is satisfied that the person should, for a special reason in the                    particular case, not be treated as a member of a couple;
          the Secretary may determine, in writing, that the person is not to be treated as a   member of a couple for the purposes of this Act.

23. It is apparent that s 4(2)(b) has application in the present circumstances, subject to Mr Harris satisfying the statutory requirements to be regarded as being in “a marriage-like relationship” as referred to in s 4(2)(b)(iii). That term is assessed by considering the criteria under s 4(3). In making that assessment, I must take account the evidence and the credibility of the witnesses as a whole in forming a conclusion about whether there is “a marriage-like relationship” (Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27). The context of a marriage-like relationship must demonstrate some shared and reciprocal feelings of closeness or intimacy, although the degree of reciprocation may be variable. An emphasis on regular sexual interaction is not necessary, but there must be evidence of commitment to the other party and/or children which would engender some attachment or trust in some respect between the parties to the relationship, including children (Holmes v Secretary, Department of Employment and Workplace Relations [2007] AATA 1502).

24. In relation to the facts applied to s 4(3) of the Act, this assessment also takes account of the fact that Mr Harris had a short term relationship with Ms Vukaro, although it seems that that was not intended at the commencement of the relationship. The fact that he was not physically present for significant periods of time is also noted.

Financial Arrangements

25.     Both Mr Harris and Ms Vukaro do not appear to have any joint assets and there is no real estate or significant financial assets shared by them. This is not inconsistent with Mr Harris having been on a disability support pension for over a decade. His living arrangements in Australia are extremely modest. So are those of Ms Vukaro in Fiji. However, Mr Harris has made an account available in his name for Ms Vukaro to access money he has made available to her. On his evidence, this is $150 per fortnight from his disability support pension of $512.10 per fortnight. This is quite significant in terms of quantum and is an indication of the commitment and support he was prepared to provide to Ms Vukaro and her children.

26.     While these facts are consistent indicia of Mr Harris being in a marriage-like relationship with Ms Vukaro for the period in question, the fact that one party is financially dependant on the other is not itself an adequate test (Staunton-Smith v Secretary, Department of Social Security (supra)). Apart from some inconsistent indications at the hearing by Mr Harris, the evidence available over the whole of the period from August 2006 until April 2007 shows that Mr Harris was intending to accept responsibility for Ms Vukaro’s children and for her also, at least to the extent that her own income was not adequate. The fact that he provided quite generous support even when he was not living in Fiji, is a strong indicator of providing financial support.

Nature of the household

27.     There was little evidence about this aspect of the relationship. The ordinary incidence of living together with other members of a household such as cooking meals and sharing of various responsibilities is almost absent from the evidence in this case. This may be partly due to the fact that Mr Harris was not there for the whole of the period and even when he was in Fiji, he apparently toured other parts of Fiji alone. There may be other cultural issues involved but there is no evidence upon which the Tribunal can make any detailed assessment of this aspect. They obviously shared some facilities in the house and shared a bed on some occasions.

28.     I note however the period of time the parties spent together should be taken into account in determining whether there is a marriage-like relationship (SRH v Secretary, Department of Social Security (1996) 42 ALD 463). In that regard, it is apparent that Ms Vukaro had little control over how often she could be with Mr Harris, however the same restriction was not necessarily imposed on Mr Harris.

Social aspects

29.     Mr Harris has held himself out, at least in Fijian culture, as being “a husband”. There was evidence of a Kava ceremony and one must accept that there was some degree of social contact at least prior to this ceremony and arrangement. It is apparent that this was an important celebration in Fijian culture. But there is no additional evidence of social events enjoyed by Mr Harris and Ms Vukaro and her children. The fact that he travelled alone for substantial periods of time while he was in Fiji is a counterbalancing consideration.

Sexual relationship

30.     There was evidence of a sexual relationship between Mr Harris and Ms Vukaro at least on some occasions while he was in Fiji and living with her after the Kava ceremony.  How regular this occurred is not well established although Mr Harris merely indicated that they did not sleep together for more than two nights in a row. That was not conclusive of the frequency and duration in total of their cohabitation. I note that the letter from Legal Aid Queensland that “Mr Harris appears to appreciate that independent evidence perhaps, from Esili, will be required if the appeal were to proceed.” No evidence was provided independently, either by Ms Vukaro or on her behalf, nor was any reason given why she may not have been able to provide some corroborating evidence. I can only conclude that Mr Harris and Ms Vukaro had a sexual relationship, albeit intermittently, and only during the period of time that he was actually in Fiji between 10 August 2006 and April 2007. However it is noted that even when it can not be ascertained whether the persons concerned have a sexual relationship or share the same bedroom, a marriage-like relationship may still exist from a legal point of view, where there are other factors available to establish a relationship (Ward and Secretary to the Department of Social Security (1985) 7 ALN N66).

Nature of the people’s commitment to each other

31.     There was little money or assets available to either of the parties. Despite that Mr Harris had clearly made a significant contribution out of his fortnightly earnings to Ms Vukaro for the short period in question. On the face of it, there would appear to have been emotional support for each other, although the strength of that support on either party’s side is not entirely clear from the evidence. This is an important factor and I must take account of the veracity of the evidence presented by the applicant and therefore, the degree to which it can be relied upon (Erdmann and Secretary, Department of Social Security (AAT10939, 17 May 1996)).

32.     In considering the legal requirements of this aspect, the length of the relationship is relevant but so also is whether the parties considered that the relationship was likely to continue indefinitely. Separation can imply physical separation but it is also important in the context of whether the relationship, if it existed at all in the sense of being a member of a couple, has been destroyed (In the Marriage of Todd (No 2) (1976) 9 ALR 401 at 403 per Watson J). I note there was an apparent strong commitment by Mr Harris to Ms Vukaro during the period under review, and his sense of attachment was shown in some statements he made during the hearing despite the relationship having since been terminated. I have some doubt about the genuine nature of that sense of attachment and there is no evidence about whether that sense of attachment was reciprocated by Ms Vukaro. That detracts from otherwise strong evidence which might suggest a conclusion is justified that Mr Harris was in a marriage-like relationship.

Is Mr Harris a member of a couple?

33. I have assessed each of the components of s 4(3) of the Act and on the balance of probabilities, although it is not an easy assessment to be made in the absence of more complete evidence, I find that Mr Harris was not a member of a couple for the period in question. He is clearly antagonistic towards Centrelink as indicated by his feelings of unfairness in the decision that he could not get compensation for the work he did in Cambodia and in his biased assessments about Centrelink and his references to their decision being a tax on sex. I have also taken account of the suggestions by Mr Harris that the decision by Centrelink was motivated by a preoccupation with the sexual relationship he may have had with Ms Vukaro. It is apparent from all of the documentary evidence and by my acceptance of Ms Horsnell as a witness of truth that this is an allegation unsupported by any evidence, and I reject it unreservedly.

34.     There is some uncertainty as to the status of the relationship of Mr Harris with Ms Vukaro for the period under review. In the end, no better evidence is available. To get better evidence, the Respondent would have had to bear considerable extra cost, given Ms Vukaro and perhaps her relatives, friends and other relevant persons live in Fiji. The reluctance to spend public money on that additional evidence is understandable.

35.       I formed the view however that Mr Harris was quite disingenuous in the presentation of some of his evidence. His discussion of his acceptance into the village and the role he played, and given some credence by the Kava ceremony, is consistent with his references to his willingness to provide for the housing and education of the children. But there appears to be some inconsistency in what he held out as being the Fijian culture, the religious context of the village in which Ms Vukaro lived and the fact that she was a Seventh Day Adventist, measured against some of the evidence he presented.

36. Due to the paucity of corroborating evidence and the doubts as to the credibility of some of Mr Harris’s evidence, I am not satisfied on the balance of probabilities, that there was not some other motivation for his declarations in referring to Ms Vukaro as his wife. It may be that Mr Harris did not anticipate a reduction in his disability support pension and that there were psychological reasons not dealt with at the hearing. But in any event, I think the lack of time he actually spent with Ms Vukaro, even when he was visiting Fiji, together with a lack of sufficient relevant evidence as to his genuine satisfaction of the factors contained in s 4(3), that the matter cannot be determined without a considerable degree of uncertainty. Uncertainty is not a basis for finding against the applicant (Shearing and Director-General of Social Security (1983) 6 ALN N12). Consequently, I find that Issue 1 is not satisfied. In light of that determination, it is unnecessary to determine Issue 2.

37.     In the circumstances therefore, the decision under review is set aside. I find that Mr Harris was not a member of a couple, and therefore he was entitled to be paid at the rate of a single person for the periods in question.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD, Senior Member

Signed:         .....................................................................................
  Legal Research Officer

Date/s of Hearing  16 July 2007
Date of Decision  10 September 2007
For the Applicant  Mr Harris, himself

For the Respondent                 Mr R McQuinlan, departmental advocate