Herring and Secretary, Department of Education, Employment and Workplace Relations

[2010] AATA 1064

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1064

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/4789

GENERAL ADMINISTRATIVE  DIVISION		)
Re		KELLIE HERRING

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms A F Cunningham (Senior Member)

Date24 December 2010  

PlaceHobart

Decision The Tribunal sets aside the decision under review and remits the matter to the Secretary for reassessment in accordance with the Tribunal's finding.

[Sgd Ms A F Cunningham]

Senior Member

CATCHWORDS

SOCIAL SECURITY - parenting payment - member of a couple - decision under review set aside

Social Security Act 1991 ss 4(2), (3)

Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27

Cassaroto and Australian Postal Commission (1988) 17 ALD 321  

Peck and SDSS (1992) 76 SSR 1107

Roberts and SDSS (1987) 12 ALD 723)

REASONS FOR DECISION

24 December 2010   Ms A F Cunningham (Senior Member)   

1.      Following Mrs Herring's separation from her husband in October 2003 she was paid parenting payment as a single person.  As a result of a decision of a Centrelink officer on 7 May 2009 that Mr and Mrs Herring were living as a member of a couple for the period 17 May 2004 to 6 May 2009 (the relevant period), her parenting payment was cancelled and a debt of $41,602.38 was raised against her. 

2.      The Centrelink officer's decision was affirmed on review and subsequently by the Social Security Appeals Tribunal.  Mrs Herring seeks the review of the decision by the Administrative Appeals Tribunal (AAT). 

issues

3.      The issues for the Tribunal to determine are:

1)Was Mrs Herring a "member of a couple" for the relevant period within the meaning of the Social Security Act 1991 (The SS Act)?

2)If so, was Mrs Herring overpaid parenting payment and what was the amount of the overpayment for the relevant period?

3)Should the overpayment be recovered?

4)Was Mrs Herring's parenting payment correctly cancelled with effect from 7 May 2009?

evidence

4. The witnesses who gave evidence were the applicant, Kellie Herring and her husband, Dean Herring. The T Documents were tendered pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

legislation

5.      The applicable provisions under the SS Act relating to the issues to be decided are contained in sections 4(2) and (3) relating to "member of a couple".

6.      As Mrs Herring was legally married to Mr Herring during the relevant period, section 4(2)(a) applies and provides:

"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"

7.      The criteria to which regard is to be had in forming an opinion about the nature of the parties relationship are set out in subsection 4(3) as follows:

"4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a)       the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets and   any joint liabilities; and

(ii) any significant pooling of financial resources especially in relation                   to major financial commitments; and

(iii) any legal obligations owed by one person in respect of the other                   person; and

(iv) the basis of any sharing of day‑to‑day household expenses;

(b)       the nature of the household, including:

(i) any joint responsibility for providing care or support of children; and

(ii) the living arrangements of the people; and

(iii) the basis on which responsibility for housework is distributed;

(c)       the social aspects of the relationship, including:

(i) whether the people hold themselves out as married to, or in a   de facto relationship with, 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 or a de facto relationship".

8.      The above criteria are expressed in terms of circumstances which suggest a marriage-like relationship.  Regard should be had to all of the circumstances.    The Federal Court in its decision Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27 found that the Tribunal had erred by only making findings with respect to those circumstances which suggested a marital relationship and not those suggesting separateness such as the absence of a sexual and social relationship.

9.      The legislation does not make provision for an onus of proof.  The Tribunal is required to make its decision on the balance of probabilities based on the evidence before it.  As noted by the Federal Court in Cassaroto and Australian Postal Commission (1988) 17 ALD 321 at 344, in a practical sense it is the applicant's responsibility "to ensure that there is laid before the Tribunal all material which it will be necessary for the Tribunal to have before it to come to a decision".

member of a couple

10.     Mrs Herring claimed that during the relevant period she was living separately from her husband, Mr Herring and was subsequently paid parenting payment as a single person. 

11.     If a person is assessed as being a member of a couple, they are treated under the social security law as pooling their income and assets with their partner which is shared on a 50/50 basis and assessed accordingly under the income and assets test. 

12.     It is the respondent's contention that the evidence supports a finding that during the relevant period Mrs Herring was a member of a couple as defined by the SS Act and that having being paid as a single person, was paid more than she was entitled to receive which has resulted in overpayments which are debts due to the Commonwealth and are recoverable. 

13.     It was submitted that although Mr Herring appeared to largely live an itinerate life style, he continued to nominate Allunga Road as his address and spent a considerable amount of time there. 

14.     It is the applicant's contention that she was not living as a member of a couple and that the time Mr Herring spent at her residence was solely for the purpose of caring for the parties' children.

15.     In order to determine the issue subsection 4(3) of the SS Act requires regard to be had to the following matters:

§financial aspects of the relationship

§the nature of the household

§the social aspects of the relationship

§any sexual relationship between the couple

§the nature of the peoples commitment to each other

16.     The criteria are not exclusive and nor is equal weight to be given to each of the criteria in every case.   (Staunton-Smith v SDSS supra).

financial aspects of the relationship

17.     Both Mr and Mrs Herring gave oral evidence at the appeal hearing.  They each stated that they held no jointly owned assets or liabilities and had never jointly applied for credit.  This was also the situation during their marriage prior to separation in October 2003.  Upon separation Mr Herring took his clothes, television, tools, motor vehicle and a pet bird to his brother Andrew Herring's place at Bagdad, where he said he lived for approximately the next eight months. 

18.     It was Mr Herring's evidence that he then moved to a friend, Nigel Brown's residence at Lyell Highway, where he currently resides.

19.     Following the parties separation Mr Herring paid Mrs Herring maintenance for the children in the sum of $150.00 per week.  The parties' two children have continued to reside with Mrs Herring since separation.  Mrs Herring's eldest son is the child of a former relationship of Mrs Herring but has always been treated by Mr Herring as his son.  Upon him turning 16 years of age Mr Herring reduced the maintenance from $150.00 to $100.00 per week.  The amount of child maintenance was in excess of that assessed by the Child Support Agency at around $101.00 per week. 

20.     Both Mr and Mrs Herring have appointed each other as the beneficiary of their superannuation entitlements.  In their evidence to the Tribunal they both stated that the intention was on ensure that the children would be provided for by the other party.  They were unaware that they could have appointed the children as the beneficiaries. 

21.     The property at Allunga Road Chigwell is rented by Mrs Herring from the Department of Housing and she is solely responsible for the rental payments of $180.00 per week. 

the nature of the household

22.     It was Mrs Herring's evidence that following the parties' separation, Mr Herring has maintained a separate place of residence apart from a short period following the death of her brother in November 2008 when Mr Herring stayed overnight to look after the children.  Mrs Herring's brother's sudden death was the source of much distress for herself, her parents and the children.  Because she was having trouble coping, on occasions Mr Herring stayed overnight to assist.  This continued for some two to three months.

23.     The house at Allunga Road has three bedrooms, one of which is occupied by Mrs Herring, the second bedroom by her daughter, with the two boys sharing the third bedroom.  It was Mr and Mrs Herring's evidence that whenever Mr Herring slept overnight, he slept on the couch.  They both maintained that they had not resumed a sexual relationship since their separation in October 2003.

24.     During cross-examination it was put to both Mr and Mrs Herring that Mr Herring's vehicle had been seen parked in the driveway at Allunga Road at around 6.15 am in the morning and that he had been observed working in the garden on another occasion.  Mr Herring advised that the surveillance of him doing gardening at the residence was a one off occasion when he fitted some sleepers for a garden bed.

25.     It was Mr Herring's evidence and the surveillance notes confirm that on the occasion when his vehicle was observed in the driveway he transported Mrs Herring to her place of work at Big W.  Both Mr and Mrs Herring stated in evidence that for a period of time following an incident when Mrs Herring had been threatened by some girls who she had accused of stealing from her place of work, she had asked Mr Herring to drive her to and from work for which she paid him $20.00 in petrol money.  Mrs Herring does not have a drivers licence and on other occasions her parents would transport her. 

26.     Mr Herring stated in evidence that there were occasions when following a night shift, rather than returning to his residence at Lyell Highway, he would travel direct to Allunga Road and sleep on the couch.  At times he did not have sufficient petrol in his car to travel back to the Lyell Highway address and then return to Allunga Road in order to care for the children during school holiday periods.

27.     It was Mrs Herring's evidence that following the parties separation in October 2003 she worked at Big W principally during school hours for the first twelve months.  During this period Mr Herring's contact with the children took place away from the home.  He attended Allunga Road for the purpose of collecting and returning the children.

28.     When Mrs Herring's working arrangements changed and she did not finish work until 6.00 pm, the children were cared for after school either by Mr Herring or Mrs Herring's parents.  Mrs Herring's parents would generally care for the children a couple of days per week with Mr Herring looking after the children at their home on the other days of the week.  On occasions when Mrs Herring's parents could not look after the children, Mr Herring cared for the children for five consecutive days after school.  At times when his night shift commenced at 10.00, Mr Herring often remained at the home and sometimes shared a meal of pizza or fish and chips with the children.  Mr Herring stated that he never ate with Mrs Herring.  On some occasions she would visit her friend Joanne whilst Mr Herring was at home with the children.

29.     It was Mr and Mrs Herring's evidence that Mr Herring did not contribute to the household expenses.  He said that he occasionally bought a meal of fish and chips for the children and made additional contributions above the maintenance payments for clothing, sports gear etc.

30.     Mr Herring was asked why he maintained Allunga Road as his mailing address.  He responded that it was partly out of laziness and the fact that he was spending a lot of time at the residence meant that it was convenient to collect his mail from that address.  Both Mr and Mrs Herring confirmed that Mr Herring does not have a key to the house and that either the back door was left open for him or one of the children had a key and would provide Mr Herring with access after school.

social aspects of the relationship

31.     There was no evidence that Mr and Mrs Herring held themselves out as a married couple or that they engaged in joint social activities other than those relating to the children's birthdays.  They both described their current relationship as just good friends and parents of their children.  Mrs Herring said that the main difference in the relationship since their separation was the lack of joint social activities such as going to parties together, having meals out and socialising with friends.  Mr and Mrs Herring separated when Mr Herring's formed a relationship with another woman.  Since their separation both parties have had a number of other relationships.  Although they have not initiated divorce proceedings, Mrs Herring advised that she is now engaged.  Mr Herring has been in a steady relationship with the same woman for the past 18 months. 

32.     There are a number of written statements contained in the T Documents which relate to the nature of Mr and Mrs Herring's relationship.  Nigel Brown describes the relationship as one of "good friends, spending time together with the children".  Mr Brown reports that Mr Herring had lived with him for "numerous months in 2003 on and off" and also stayed occasionally after 2003.  Further that Mr Herring currently resides in a caravan on the property due to he and his wife having a newborn baby.  He notes that Mr Herring occasionally stays at Mrs Herring's place to look after the children when needed.  He understands that they are separated but remain good friends due to parenting responsibilities and get along well. 

33.     A further statement by Mrs Herring's sister, Paula Watson, reports that she understands that Mr and Mrs Herring have been separated since 2003 and are now "just friends". 

34.     Mr David Truswell reports that they are separated and that Mr Herring has lived with him and a friend Nigel since they separated.  Further, that Mr Herring has stayed at his house on and off for the past five and a half to six years sleeping in his son's room or on the couch.  He described Mr and Mrs Herring's relationship since 2003 as "similar to anyone who is friends".  He stated that he understands that Mr Herring lives with his friend Nigel. 

35.     Joanne Gulliver, a friend of Mrs Herring's described their relationship "as friends mostly for the children's sake".  She reported that she knows they are separated and have been close for six years and that Mr Herring has lived on and off with friends since 2003.   When asked to comment on the nature of their relationship she states that "they do not live together". 

36.     The Tribunal does not accept that Mr and Mrs Herring have held themselves out as a married couple.  Whilst Mr Herring has maintained Allunga Road as his postal address, the Tribunal accepts his explanation for doing so.  Mr Herring had nominated Mrs Herring as his next of kin and described her as his wife.  The parties' explanation is that this is their current legal status,  In the Tribunal's view this is not of itself indicative of an ongoing marriage-like relationship.  It is understandable that Mr Herring nominated Mrs Herring as his emergency contact for his employers Bennetts Petroleum and Anglicare.  The relationship with his only other next of kin in Tasmania, his brother was "on off" as he described it.  Again this of itself, is not suggestive of a marriage-like relationship. 

sexual relationship

37.     Both Mr and Mrs Herring maintain that they have not had a sexual relationship since their separation.  It is the usual situation in these cases, for there to be no independent evidence to the contrary.  The Tribunal found both Mr and Mrs Herring to be credible witnesses and has no reason to doubt their evidence with respect to this issue. 

38.     It is also relevant that both Mr and Mrs Herring have had several other partners since their separation in October 2003.

39.     Absence of a sexual relationship however is not of itself determinative of the issue but it is one of the relevant aspects to which regard is to be had in assessing the nature of the parties' relationship.

commitment

40.     Mr and Mrs Herring separated because Mr Herring had formed a relationship with another woman.  For the period following their separation their relationship was strained but Mr Herring maintained regular contact with the children and attended at Allunga Road solely for the purpose of collecting and returning the children.  Mrs Herring said that Mr Herring has always been very supportive of the children.  She does not drive and Mr Herring transports the children to and from their various sporting and dancing activities.

41.     Following the death of Mrs Herring's brother in November 2008 Mr Herring increased his support by agreeing to stay overnight at Allunga Road for a period of time.  He claimed that this support was solely directed towards his concern for his children and the Tribunal accepts his evidence.

42.     In their evidence to the Tribunal both Mr and Mrs Herring maintained that their relationship is now one of good friends and that their commitment is directed to the care and support of the children.

43.     It was submitted by Mr Sparkes on behalf of the respondent that the only oral evidence before the Tribunal concerning the nature of the parties' relationship was from the applicant and Mr Herring.  Mr Sparkes submitted that the Tribunal could draw an adverse inference from the applicant's failure to call other witnesses who could have provided objective evidence concerning the nature of their relationship.  These people included a close friend of Mrs Herring and Mr Herring's male friends with whom he has resided from time to time.  Mr Sparkes maintained that their evidence would have been of assistance to the Tribunal in providing an objective account of the nature of the relationship during the relevant period.  Mr Sparkes maintained that the applicant has failed to provide any reasonable explanation as to why these witnesses had not been called.

44.     Mrs Herring stated in her evidence to the Tribunal that she had not asked her friend to present evidence at this hearing but maintained that she would have been willing if asked. 

45.     The Tribunal has referred to the various statements contained in the T Documents from these persons and apart from an inconsistency in the year nominated by Nigel Brown during which he states Mr Herring resided with him, other statements regarding the nature of the parties relationship is not inconsistent with the oral evidence presented at the hearing. 

46.     Mr Brown states at T12 that Mr Herring had lived with him for numerous months in 2003 on and off and stayed occasionally after 2003.  It was Mr Herring's evidence however that following the parties' separation in October 2003 he initially lived at Bagdad with his brother for a period of eight months.  He did not move to Nigel Brown's residence at Lyell Highway until 2004. 

47.     The only real inconsistency is the year nominated by Mr Brown in his statement.  The Tribunal accepts that he may well have been mistaken given the passage of time and that the actual year may not have been of much significance to him.  The Tribunal considers that no adverse conclusion should be drawn.

findings

48.     Neither Mr or Mrs Herring view their relationship as a marriage-like relationship.  Their current relationship is very different to the relationship that they shared prior to their separation.  Both Mr and Mrs Herring maintain that during the relevant period the purpose of Mr Herring's visits to Allunga Road was solely to care for the children.  There was no evidence to suggest that this was not the case and the Tribunal accepts their evidence.

49.     The decision of the Tribunal as to whether or not Mrs Herring was living as a member of a couple within the meaning of the Act is based on a consideration of all of the circumstances of the relationship.  As the Tribunal stated in Peck and SDSS (1992) 76 SSR 1107:

"The Tribunal would note at the outset that s4(3) does not contain an exhaustive list of criteria to be addressed in determining whether a "marriage-like relationship" exists (Re Staunton-Smith and Secretary, Department of Social Security (1990) 21 ALD 456) and the weight to be given each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship.  Much will depend, in forming the requisite opinion in any instance, on matters of degree and impression.  (Re Bourke and Secretary, Department of Social Security (Dec No 4184: 2 March 1988))".

50.     A parties subjective opinion of the nature of their relationship is not a determinative factor and the objective circumstances and relevant evidence must also be considered (Roberts and SDSS (1987) 12 ALD 723)

51.     The oral evidence given by Mr and Mrs Herring was credible and uncontradicted.  The evidence was consistent with the evidence of the other and was given in a considered manner.  Both parties were willing to concede issues which were not known to them and there was no obvious attempt to exaggerate or embellish the evidence. 

52.     Mr Sparkes submitted that the Tribunal should prefer the objective documentary evidence contained in the T Documents.  The parties were cross-examined in relation to this evidence.  The Tribunal has no hesitation in accepting their explanations and does not consider that it is inconsistent with their evidence regarding the nature of their relationship.  Mr Sparkes urged the Tribunal to take account of evidence that was not called which could have potentially contradicted the evidence provided by Mr and Mrs Herring.  The Tribunal is however satisfied on the evidence that has been presented as to the nature of Mr and Mrs Herring's relationship during the relevant period.  The Tribunal must make its decision on the basis of the evidence before it and cannot take account of evidence that was not presented and that may be potentially inconsistent.  The Tribunal has no basis upon which it could conclude that such additional evidence would be inconsistent with the evidence presented at the appeal hearing.   The Tribunal is satisfied with the evidence presented by the applicant. 

53.     The Tribunal has examined each of the relevant criteria in section 4(3) of the SS Act and concludes that the circumstances of this case support a finding of mutual friendship and ongoing commitment for the children of the relationship rather than a marriage-like relationship. 

54.     On the basis of the evidence before it the Tribunal is unable to make any positive findings in relation to the relevant criteria in section 4(3).  There was no evidence of any joint ownership of property or joint liabilities or pooling of resources.  Apart from a period of some two to three months following the death of Mrs Herring's brother, the parties have not lived together under the one roof.  Any time that Mr Herring spends at Mrs Herring's residence is solely for the purpose of caring for the parties children.  At all times during the relevant period Mr Herring maintained a separate residence.  The parties have not held themselves out as a married couple and the nature of their current relationship during the relevant period was very different from that shared by them prior to their separation.  The Tribunal accepts their evidence that they did not have a sexual relationship during the relevant period.

55.     For these reasons the Tribunal determines that the applicant was not in a marriage-like relationship during the relevant period and accordingly sets aside the decision under review and remits the matter to the Secretary for reassessment in accordance with the Tribunal's finding.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)

Signed:    R Hunt (Administrative Assistant)

Date/s of Hearing  14 December 2010
Date of Decision  24 December 2010
Counsel for the Applicant         Mr P Warmbrunn
Counsel for the Respondent     Mr Brian Sparkes
Solicitor for the Respondent     Centrelink Advocacy Branch