HAYDON and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2010] AATA 223

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 223

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4859

FAMILY ASSISTANCE AND SOCIAL SECURITY  DIVISION		)
Re		DANNIELLE HAYDON

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Senior Member Bernard J McCabe

Date 30 March 2010

PlaceCairns

Decision The Tribunal sets aside the decision under review. It decides in substitution that the applicant was not in a marriage-like relationship in the period under review.

.......................[Sgd].......................

Senior Member

CATCHWORDS

FAMILY ASSISTANCE AND SOCIAL SECURITY – overpayments and debt recovery – marriage-like relationship – parenting payment – payments made at single rate – opportunistic relationship – decision set aside

Social Security Act 1991 (Cth), s 4

REASONS FOR DECISION

30 March 2010 Senior Member Bernard J McCabe         

1.Dannielle Haydon, the applicant, has been involved in a long term relationship with Jonathon Bath. Ms Haydon has received Centrelink benefits during the course of the relationship. Those benefits were paid to her at the single rate. The Secretary to the Department of Education, Employment and Workplace Relations, the respondent, says the applicant’s relationship with Mr Bath was a “marriage-like relationship” within the meaning of s 4 of the Social Security Act 1991 (Cth) between 1 July 1999 and 4 March 2008. If that is right, the applicant should have been paid benefits at the lower, partnered rate during this period. The respondent says Ms Haydon has been overpaid $74,466.95. The Secretary wants the money back.

2.Ms Haydon said the relationship was not a marriage-like relationship during the period under review. After analysing the evidence, I am inclined to agree. I explain my reasons below.

The background facts

3.Ms Haydon met Mr Bath when she was 15 or 16 years of age. He lived nearby. They began a casual sexual relationship and she fell pregnant. Their first son was born in 1994. Mr Bath was present at the birth although Ms Haydon said they did not live together. She had been living with her brother in a caravan park but moved in with Mr Bath’s father shortly before the birth. She stayed with Mr Bath Snr for a short time before she moved into rented accommodation that she shared with another friend. In the meantime, she made a claim for parenting payment. That claim was successful and she began to receive payments at the single rate.

4.The applicant said in her oral evidence that she saw Mr Bath intermittently over the next few years, although she agrees that he fathered two more of their children (one was born in 1996 and the other in 2001). Mr Bath was present for the birth of one of these children but not the other. She insisted that their sexual contact ceased for a time after the birth of their third child, and only resumed on an irregular basis two or three years later. She says Mr Bath moved into her home in the middle of 2008 when they decided to commence what she acknowledges is now a de facto relationship.

5.Ms Haydon insisted in her oral evidence that she did not reside with Mr Bath at any point prior to March 2008. She insisted she was not his girlfriend or partner before that time. She volunteered that Mr Bath had suggested on a number of occasions during the period under review that they become a couple. She said she refused. She explained that she had always regarded Mr Bath as an inappropriate partner because of drug and alcohol use and other character flaws. She added that her family did not like or respect Mr Bath. Her friends did not respect him, although she denied that she and Mr Bath ever presented themselves to friends or family as a couple. She said she only relented in 2008 and agreed to commence a marriage-like relationship as she thought Mr Bath might have changed, and because she thought her sons might benefit from the presence of a male in the household.

6.The applicant did not call any witnesses at the hearing. That was surprising. I expected that Mr Bath, at least, would be available. I note he gave evidence to the Social Security Appeals Tribunal (the SSAT), although the SSAT ultimately concluded he was an unsatisfactory witness. Mr Hamilton, appearing for the respondent, said I should draw an adverse inference against Ms Haydon. He said Mr Bath’s evidence would have been useful and pointed out that many of the documents and records uncovered by the Secretary were generated by, or in relation to, Mr Bath. The failure to call him and seek explanations should count against Ms Haydon, I was told.  For her part, Ms Haydon explained that her partner was indifferent to the outcome of the case and was not prepared to trouble himself to give evidence on her behalf. She said that sort of “inconsistent” and “selfish” behaviour was typical, and one of the reasons why she never considered becoming involved with him more closely in the period under review.

7.I agree it would have been better if Mr Bath had been present, although I note the SSAT’s criticisms of his contribution. I suppose, at a minimum, I would have been able to observe for myself the character flaws Ms Haydon referred to if he had actually been present at the hearing. But he was not there, and I accept the applicant saw little point in attempting to convince him to attend given his attitude. I am not prepared to draw an adverse inference against the applicant in the circumstances given her evidence of his attitude towards the proceedings is consistent with the observations of the SSAT.

The applicant’s argument

8.The respondent relies on a range of documents and other records which tend to suggest the applicant and Mr Bath were in a marriage-like relationship in the period under review. Ms Haydon says she has no explanation for some of the evidence, but adds that other evidence must be seen in context. In essence, she argues that the relationship fell short of a marriage-like relationship because it was essentially opportunistic in nature: the parties knew each other and interacted from time to time when it suited them to do so. The birth of children meant there were more occasions for interaction over the period, and probably explains the longevity of the relationship. But she expressly denies that she ever thought of Mr Bath as a partner or that they shared or exhibited any sense of commitment during the period under review. She says it was essentially a casual relationship.

The legislation

9.The definition of “marriage-like relationship” is set out in s 4(3) of the Act. The definition sets out a number of indicia that must be considered in the course of answering the ultimate question about the nature of the relationship. I propose examining each of the indicia in turn before discussing my view of the totality of the evidence.

The financial aspects of the relationship

10.The applicant says Mr Bath paid maintenance under the terms of an agreement but did not otherwise offer any financial or material support to the family in the period under review. The payment of maintenance under an arrangement tends to suggest the parties were living separately. At most, she said, Mr Bath may have purchased a pair of shoes for one of their sons while he was looking after the child, and he occasionally gave the boys pocket money. She said she paid the rent on her home and met the repayments on her car. She met all of her household expenses out of her own resources. She said she and Mr Bath did not have joint accounts or credit cards. They did not own assets jointly. There was evidence that Ms Haydon agreed to make a joint application for a personal loan, and I note she indicated in at least one tax return that she was a spouse of Mr Bath. (Mr Bath appears to have claimed that Ms Haydon was his spouse for tax purposes in a number of years of income.) Mr Bath also allowed his name to be put on the lease of Ms Haydon’s home in Roberts Rd, which she said was purely to improve the chances of securing the tenancy.

11.I note that one copy of the lease document appears to have been altered to delete any reference to Mr Bath. Ms Haydon said she did not change the document. I am troubled by the evidence of tampering, but I am ultimately unable to reach a firm conclusion about who did it or why.

12.Mr Bath nominated Ms Haydon as a contact on a number of financial documents (in relation to his superannuation, for example – although I also note the documentation identified the three sons as beneficiaries rather than Ms Haydon). His bank account and many other records chronicled Ms Haydon’s address as Mr Bath’s place of residence. Strangely, the applicant says she has no recollection of receiving mail addressed to Mr Bath at her residence although she says she was aware Mr Bath may have visited on occasions and taken mail out of the letterbox.

13.I was left with the impression of two individuals who agreed to involve each other in their individual financial affairs on a limited, ad hoc basis when they perceived it was necessary or advantageous to do so. Mr Bath appeared to use Ms Haydon’s name and address regularly, perhaps – according to Ms Haydon – because he had no permanent home of his own. I did not form the impression that the interaction between them was extensive, or that it suggested there was the sort of pooling of resources one might expect in a marriage-like relationship. It was, for the most part, opportunistic. I accept her evidence that Mr Bath did not actually reside with her during the period under review. I will say more of that later.

Nature of the household

14.It is clear Mr Bath played a role in relation to his children during the period under review. Ms Haydon says the boys get on with their father although she said he did not see them regularly throughout the period. She said she made all of the decisions with respect to schooling and other important matters. She said Mr Bath never attended parent-teacher nights although she agreed he did participate in the boys’ football club. (Ms Haydon agreed she was also involved in the club and did some volunteer work, although the evidence did not establish that they did so as a couple.) She referred to a few occasions in more recent years where she and Mr Bath and their sons have dined together in public, but she said that was rare. In the period under review, Ms Haydon said she typically saw Mr Bath on a few occasions each year as they made arrangements for the boys to visit him.

15.Ms Haydon insisted Mr Bath did not reside at her home during this period. On the occasions he did stay with her overnight, he left immediately the next morning. He did not have any personal effects at any of the homes she rented nor keys to the front door.  She says it was always her house in which she lived with the boys. He was at most an occasional visitor, even though he routinely used her various addresses as a post box – although Ms Haydon insisted she was not aware that Mr Bath was regularly doing so.

16.I was left with the impression that Ms Haydon, Mr Bath and their sons did not operate as a family or household unit in the period under review. Ms Haydon and Mr Bath had an amicable relationship that was sustained by their mutual (but by no means equal) interest in their children, and by even less frequent intimacy.

Sexual relationship

17.Ms Haydon agreed she and Mr Bath had sex occasionally in the period under review. She said that aspect of the relationship ceased for several years after their third child was born, but they resumed a casual relationship thereafter. Ms Haydon noted Mr Bath was seeing other women throughout much of that period. Interestingly, she said she was irritated by that – a reaction one would normally associate with a co-dependent relationship. Ms Haydon said Mr Bath’s other relationships were one of the barriers to forming a marriage-like relationship with him.

18.I was left with the impression of an irregular, essentially opportunistic sexual relationship that persisted because of its convenience, rather than any sense of conjugal bliss or passion.

The nature of the commitment

19.However it might be characterised, the relationship has lasted for a long time, and there is no doubt it can now be regarded as a marriage-like relationship. I have already observed that the relationship has been sustained by the shared interest in the children, although I have also noted that I do not accept that Mr Bath contributed significantly in the period under review to the upkeep of the children or the household, other than through making more or less regular maintenance payments. Ms Haydon’s evidence suggests – and I accept – that each parent tended to maintain a separate relationship with the boys rather than acting collectively as parents.

20.The respondent referred me to a good deal of evidence gleaned from various sources suggesting Mr Bath in particular often described Ms Haydon as his de facto wife or fiancé. He also routinely provided Ms Haydon’s address and phone number when asked for his contact details. There is some evidence that Ms Haydon may also have identified Mr Bath as her partner on occasion: the admission records at Cairns Base Hospital, for example. Ms Haydon was unable to explain how those records came to be filled out. She insisted she never referred to Mr Bath as her husband or partner. She said she would correct anyone who suggested that was the case. Her evidence certainly did not suggest that she regarded a relationship with Mr Bath as something to boast about. There was also a statement provided by a former supervisor who offered a surprisingly detailed recollection of Ms Haydon attending a work function with Mr Bath, whom she identified as her partner, and showing off a diamond ring that Mr Bath had bought her with a diamond for each year they had been together. Ms Haydon dismissed the suggestion that she had made such a claim or that Mr Bath had ever given her a diamond ring. She said there was some sort of personal conflict with the supervisor that might explain the statement. The woman was not called to give evidence so it is difficult to know what to make of her statement. I do not think I can give it much weight.

21.Mr Bath’s motivation for making these records is unclear. He was not called, so I cannot form a clear understanding of what was going through his mind when he identified Ms Haydon as his partner or nominated his address as his own. Ms Haydon’s evidence is of limited assistance as she claims she did not know of Mr Bath’s liberal use of her name and address details. But it seems to me that the same sort of opportunism that I have referred to elsewhere might also explain what has occurred. The parties, especially Mr Bath, may have referred to each other as partners because it was convenient to do so in some circumstances. 

22.I note Mr Bath’s mother also provided a brief written statement to the effect that her son had only recently moved in with Ms Haydon. Mrs Bath was not called to give evidence, so I think her statement must be treated with caution in the circumstances.

23.I accept that the evidence offered by the respondent under this heading is stronger but not unequivocal evidence of a marriage-like relationship.

Having regard to all the circumstances, how should the relationship be characterised?

24.I am not satisfied from the evidence that these two individuals exhibited the sort of commitment to each other that one would expect of a couple involved in a marriage-like relationship. While some of the indicia of a marriage-like relationship are present, I think those indicia must be seen in the context of the evidence given by Ms Haydon – which I accept – that she did not think of Mr Bath as her partner or boyfriend during the period under review. Indeed, she gave evidence of expressly rejecting his invitation to move in with her and become a family before 2008.  They had a relationship, to be sure, but I am satisfied it fell short of anything that could be characterised as a de facto marriage. It was mostly amicable and occasionally convenient in many ways, but I accept these individuals were not members of a couple during the period under review.

Conclusion

25.The decision under review is set aside. I find in substitution that the applicant was not engaged in a marriage-like relationship.

I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

Signed: ....................[Sgd].......................................................
  Patrick MacDonald

Date of Hearing  25 March 2010 
Date of Decision  30 March 2010
Applicant  Self-represented

Advocate for the Respondent   Mr B Hamilton