Hodges and Secretary, Department of Employment and Workplace Relations
[2006] AATA 255
•17 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 255
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/186
GENERAL ADMINISTRATIVE DIVISION ) Re SHARON HODGES Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr S. Webb, Member Date17 March 2006
PlaceCanberra
Decision The decision under review is affirmed.
..............................................
Mr S. Webb, Member
CATCHWORDS
Social Security - parenting payment single - overpayment - marriage breakdown and subsequent reconciliation - period of separation - periods when living as a member of a couple - onus of persuasion - credit - standard of proof - decision affirmed
Social Security Act 1991 ss 4
Staunton-Smith v Secretary, Department of Social Security (1991) 14 AAR 325
Re Roberts and Secretary, Department of Social Security (1987) 12 ALD 723
REASONS FOR DECISION
17 March 2006 Mr S. Webb, Member 1. By this application Sharon Hodges is seeking relief from the decision of the Respondent that she was living as a member of a couple from 30 October 2002 to 4 November 2003 while receiving parenting payment single, in consequence of which a recoverable debt in the amount of $11,827.93 was raised against her. The decision was affirmed on review by the Social Security Appeals Tribunal.
2. The matter came on for hearing in Canberra. Mrs Hodges was represented by Mr Simon Munslow. She and her husband, Gary Hodges, gave oral evidence. The Respondent Secretary was represented by Mr George Lozynsky, a Centrelink advocate.
factual context
3. The following facts arise from the documents in evidence.
4. Mrs Hodges has two children by Mr Hodges: Daniel (date of birth - 28 August 1987) and Cassandra (date of birth – 31 August 1990).
5. On 1 April 1995 Mr and Mrs Hodges were married. They remained married during the period in issue (from 30 October 2002 to 4 November 2003) and are still in that state.
6. On 9 November 1997 Mrs Hodges separated from her husband. At that time and subsequently she resided at 7 Harman Place Queanbeyan. Mrs Hodges was paid a sole parent pension from 10 November 1997 (T9).
7. Following the separation from his wife Mr Hodges resided in an apartment at his work premises at 177 Gilmore Road Queanbeyan. During the period in issue Mr Hodges has operated a business at those premises, Ace Automotive Detailing, that is ongoing.
8. On 28 May 2001 Mr Hodges authorised Mrs Hodges to operate his business bank account with the Snowy Mountains Credit Union (T20).
9. Mr Hodges has a back injury of long standing that causes him to suffer short periods of incapacity several times each year. Mr Hodges was admitted to the Canberra Hospital on 29 January 2002 with a broken leg and attended as an out patient in the period to 15 May 2002 (T63). The Canberra Hospital records list his address as 177 Gilmore Road Queanbeyan and list Mrs Hodges as Next-of-Kin at 7 Harman Place Queanbeyan.
10. On 30 October 2002 Mrs Hodges completed a Queanbeyan High School Family Record form recording “Mr and Mrs Hodges”, as resident at 7 Harman Place Queanbeyan (T51).
11. On 23 June 2003 Centrelink received a tip-off that Mr and Mrs Hodges were not separated (T26).
12. On 29 June 2003 Mrs Hodges completed an enrolment form for the Karabar High School in which she recorded 7 Harman Place Queanbeyan as the address for herself and for Mr Hodges (T37).
13. From 17 October 2003 to 1 November 2003 Centrelink conducted surveillance of 7 Harman Place and 177 Gilmore Road Queanbeyan (T36).
14. On 28 October 2003 Mrs Hodges informed Centrelink that she commenced employment at Ace Automotive Detailing on 27 October 2003 (T34).
15. On 7 November 2003 Mrs Hodges’ parenting payment single was cancelled from 4 November 2003 (T38). She gave a detailed statement to Centrelink officers on 18 November 2003 (T41).
16. On 24 November 2003 and subsequently Mrs Hodges requested a review of the decision to cancel her parenting payment single (T44, T69 and T43). On 16 February 2004 Centrelink determined to raise and recover a debt in the amount of $11,827.93. The decision was affirmed by a delegate of the Respondent Secretary on 20 February 2004 (T75), by an Authorised Review Officer on 3 August 2004 (T86) and by the Social Security Appeals Tribunal on 9 June 2005 (T2). Mrs Hodges made application for review of that decision by the Tribunal on 1 July 2005 (T1).
issues and legislation
17. The applicable legislation is the Social Security Act 1991 (“the Act”).
18. The first issue for determination is whether Mrs Hodges was a member of a couple in the period from 30 October 2002 to 4 November 2003, or part thereof. The term ‘member of a couple’ is given meaning by s 4 with the effect that, for a person who is legally married, the person will be a member of a couple if he or she is not living separately and apart from the marriage partner on a permanent or indefinite basis (subs 4(2)). It is necessary for present purposes, when forming an opinion about the relationship between two people, to have regard to all of the circumstances of the relationship, including financial aspects, the nature of the household, social aspects of the relationship, any sexual aspects of the relationship, the nature of the people’s commitment to each other and whether the people see their relationship as a marriage-like relationship (subs 4(3)).
19. If the first issue is resolved in the affirmative, a second issue arises in relation to the raising and recovery of a debt against Mrs Hodges in the amount of $11,827.93. However, I was informed during the hearing by Mr Munslow that, in those circumstances, Mrs Hodges did not dispute the amount of the debt nor did she contend the existence of any special circumstances that would render it appropriate to waive recovery of the debt. Considering all of the evidence I accept those concessions and find accordingly.
consideration and findings
20. Making this decision I have carefully considered all of the evidence, the submissions of the parties, the relevant case law and legislation.
21. As often arises in cases such as this, the reliability of the evidence given by Mrs Hodges and her husband is in issue. As will appear, having heard their sworn testimony I am satisfied that there are substantial inconsistencies on critical questions of fact which render their evidence unreliable. For that reason evidence given by either Mrs Hodges or her husband must be treated with caution unless it is supported by independent corroboration.
financial relationship
22. The evidence is that Mrs Hodges has been authorised to use Mr Hodges’ Snowy Mountains Credit Union account since 28 May 2001 and I so find. Mr Hodges’ evidence was that this was as a result of his back problems and periodic incapacity and is purely a matter of his convenience for business purposes only and subject to a daily or weekly limit. Mr Hodges stated that he would always obtain cash from Woolworths, as a matter of convenience. By his account it was in Mrs Hodges’ interests to assist him with the business, as it was the business that generated the money with which he paid her regular ‘maintenance’ as specified by the Child Support Agency. His evidence was that he always paid those amounts to Mrs Hodges in cash.
23. Mr Hodges’ evidence is to be contrasted with that of Mrs Hodges. Mrs Hodges stated that, from time to time, she would pay her electricity and gas bills, and her car registration, using Mr Hodges’ bank account. Her evidence was that Mr Hodges did not always pay her a regular amount of child support in cash: he would pay her in cash if she asked for money, otherwise he would buy items for the children and he would pay her bills. I prefer the evidence of Mrs Hodges. Her oral evidence is reasonably consistent with the statement she gave Centrelink in November 2003. To the extent that there are inconsistencies between her oral evidence and that earlier statement, I place greater weight on the contemporaneous statement she gave in November 2003 than on her oral evidence given a number of years later.
24. I am reasonably satisfied and find that Mr Hodges paid amounts in cash to Mrs Hodges as well as paying or contributing to her regular outgoings and bills and buying items for the benefit of the family, not just the children. For example by his own account Mr Hodges paid to install Foxtel equipment in 7 Harman Place.
25. Mr and Mrs Hodges’ accounts of her work in Mr Hodges’ business were reasonably consistent. That is, Mrs Hodges commenced without pay in or about February 2003 and performed clerical duties on a casual basis, for which she was paid from September 2003 or thereabouts. Mrs Hodges gave evidence that she would take work home. Mr Hodges disagreed. Plainly enough, Mrs Hodges worked in her husband’s business without pay from February 2003 to at least September 2003, and I so find. However, I am also satisfied that, in all likelihood, Mrs Hodges assisted in the business prior to February 2003, at least from time to time from May 2001.
26. Prior to June or July 2003 Mrs Hodges drove a Mitsubishi Pajero vehicle that was owned by her husband, although it was registered in her name. That vehicle it appears was a consideration given to Mrs Hodges for her withdrawal from the car detailing business. Nevertheless, from June or July 2003 she drove a Mazda vehicle that was owned and registered by Mr Hodges, bearing artwork for his business. At the time the surveillance was carried out on 7 Harman Place, the Pajero vehicle was observed with artwork for Mr Hodges’ business. Mr Hodges’ explanation was that the vehicle had a fault, so he drove it instead of his wife and he affixed the artwork at that time.
27. In any event, I am satisfied and find that Mr and Mrs Hodges pooled their resources and engaged in flexible financial arrangements cooperatively and for their mutual convenience in a manner that would be unusual for people who are separated and apart, and not living as members of a couple.
nature of the household
28. During the hearing it was conceded that Mrs Hodges lived with Mr Hodges as a member of a couple from September 2003, predating the surveillance that was carried out, presumably with the intention of negativing that evidence. Nonetheless, Mrs Hodges’ previous denials before the Social Security Appeals Tribunal that she and Mr Hodges were living as a couple prior to November 2003 are noted. In his oral evidence, Mr Hodges maintained that he had not resumed living as a member of a couple with Mrs Hodges until February 2004. I do not accept that evidence.
29. I accept that Mr Hodges resided at his business premises, albeit without consent from the local council, following his separation from Mrs Hodges. The Canberra Hospital records and other materials that are related to his business, such as the Snowy Mountains Credit Union records, show his address as 177 Gilmore Road Queanbeyan. However, the forms Mrs Hodges completed for the Queanbeyan High School on 30 October 2002 (T51) and for the Karabar High School in 29 June 2003 (T37) record that she and Mr Hodges were residing at 7 Harman Place Queanbeyan. Mr Hodges denied any knowledge of those forms and claimed that he only became involved in Daniel’s schooling in or about June 2003, when Daniel was experiencing problems at Queanbeyan High School and transferred to Karabar High School. I accept that Mr Hodges was not extensively involved in arrangements for the education of his children, but became more involved with Daniel in or about June 2003 when there was a need. Mr Hodges’ evidence was that he made a telephone call to the school principal on one occasion only. I am reasonably satisfied that Mr Hodges’ lack of involvement in the education of his children was not predicated on him living separately and apart from his wife, and does not point to any such finding, and is, in fact, a reflection of the nature of the household and the division of roles and responsibilities between Mr and Mrs Hodges.
30. In Mr Hodges’ account when Daniel experienced problems at school he commenced spending a lot of time, “almost everyday”, at Mrs Hodges’ house ‘visiting’ early in the morning, sometimes as early as 6.00am, purportedly to ensure that Daniel attended school, and after work to late at night, sometimes later than 10.00pm, purportedly to teach Daniel to drive. Mrs Hodges gave similar evidence. It became clear that those accounts were agreed and coached prior to hearing, and will carry little weight. If their evidence was accepted as true, and it is not, it would mean that Daniel was receiving a large number of hours of driving tuition from his father everyday from June 2003. Daniel turned 17 on 28 August 2004 and, by Mr Hodges’ own account, subsequently failed his driving test on two occasions. I do not accept the explanations given by Mr and Mrs Hodges to explain the substantial periods of time he was spending at 7 Harman Crescent prior to September 2003.
31. There is conflicting evidence concerning the division of household tasks and chores between Mrs Hodges and her husband. Mrs Hodges’ evidence was that she washed her husband’s clothes up to twice per week and that he would do some work in the garden and “if something was broken he would fix it sometimes”. Mr Hodges denied that, asserting that he did his own washing using Mrs Hodges’ facilities and did no work or chores at her house, only once removing a fallen tree. I do not accept that evidence. Mrs Hodges’s statement in November 2003 (T41) carries more weight. In that statement she stated that Mr Hodges would perform duties around the house and they would go shopping together from time to time. She stated “How can I deny he goes there to my house when he is there all the time”, and stated that Mr Hodges had regularly spent at least two days each week staying overnight at her house. I accept her contemporaneous evidence.
32. I am satisfied that the nature of Mrs Hodges’ household was increasingly inclusive of Mr Hodges during the period in question from October 2002, at least to the extent of shared household responsibilities and living arrangements as indicated by Mrs Hodges’ statement in November 2003.
social relationship
33. I am satisfied that Mrs Hodges, at least, held she and her husband out as married and residing at the same address during the period in question from October 2002. Evidence of that is found in the school records to which I have referred. However, that is to be compared to the Canberra Hospital records which show Mr Hodges to be married but separated and residing at a different address than his wife in June 2002.
34. Perhaps for obvious reasons, there is no evidence from family members, friends or associates of Mr or Mrs Hodges concerning the nature of their relationship.
35. Mrs Hodges gave oral evidence that she accompanied Mr Hodges and the children to a property at Goulburn on one occasion and stayed overnight in a caravan. By her account Mr Hodges stayed outside in a tent. That evidence is to be compared to the written statement she gave Centrelink on 18 November 2003 in which she stated that she would accompany Mr Hodges and the children to the Goulburn property every four to six weeks. Mr Hodges’ oral evidence was that Mrs Hodges accompanied he and the children only once to the Goulburn property and they did not stay overnight. He confirmed that when he and the children stay on that property, they do so in a caravan that he owns. I do not accept Mr Hodges’ evidence. Mrs Hodges’ statement in November 2003 carries more weight than her oral evidence. It is contemporaneous and was given when the matters contained therein were fresh in her mind.
36. On that evidence I am reasonably satisfied that the basis on which Mrs Hodges planned for and engaged in social activities with her husband and children was as a family, together, with all of the closeness and intimacy that implies, albeit only from time to time every four to six weeks. I note, however, that Mrs Hodges gave account of being accompanied by her husband to visit her father in Batemans Bay when he was unwell. Otherwise, it appears that Mrs Hodges and her children and her husband spent weekends and substantial periods during each week at 7 Harman Place, together.
sexual relationship
37. By Mrs Hodges’ account she engaged in sexual relations with her husband from time to time following their separation and prior to September 2003. Mr Hodges denied this, stating that he did not have any sexual relations with his wife until February 2004. I do not accept his evidence and prefer Mrs Hodges’ statement in November 2003 as a more accurate account. Mr Hodges gave evidence that he had engaged in an intimate relationship with another woman, but declined to give any details of that alleged liaison. It may be that Mr Hodges did entertain such a relationship, but in the absence of some corroboration it carries little weight and is not sufficient to disturb the enduring nature of his sexual relations with his wife.
nature of commitment
38. Mr and Mrs Hodges’ relationship commenced in or before 1987. It is plain enough from Mrs Hodges’ statement in November 2003 and from her oral evidence that she has remained committed to her marriage throughout the period in question. By her account her marital difficulties and the separation from Mr Hodges was in consequence of Mr Hodges’ bad behaviour and drinking at that time. I accept that she has made efforts to salvage her marriage and her family life. That Mr Hodges was willing to entrust her with his business bank account in May 2001 is an indication of the extent of his reliance and trust in his wife at that time. The same sense of mutual commitment pervades Mrs Hodges’ involvement in the car detailing business, in which she worked for no pay until approximately September 2003.
39. That sense of commitment and emotional support is evident in the household tasks each performed and in their enjoyment of activities as a family. Mr Hodges provided for his family financially and in a flexible manner. This was not on the basis of need or a child support assessment alone, but appears to have been provided on request, either by Mrs Hodges or by the children.
40. By Mr Hodges’ own account the resumption of a broken relationship is not ‘black and white’, but is characterised by a period of ‘grey’ in which the relationship is rekindled and reconstituted. I accept that is so and find that, in all likelihood, the marriage-like relationship between Mrs Hodges and her husband rekindled over a period prior to their resumption of cohabitation.
41. Mrs Hodges stated in November 2003 that she would invite Mr Hodges to stay at her house during the period of their separation because she was scared in the neighbourhood. Mr Hodges described elements of violence they had experienced in their street. I am reasonably satisfied that Mrs Hodges gained emotional support from her husband and, despite Mr Hodges’ denials, on the basis of their ongoing sexual relationship at least, Mr Hodges found emotional support and comfort in his wife’s company.
conclusion and decision
42. In the Respondent’s submission the test to be applied in cases such as this was set out by the Federal Court in the case of Staunton-Smith v Secretary, Department of Social Security (1991) 14 AAR 325. I am mindful of the other cases to which I was referred.
43. Consideration is to be given to the entirety of the circumstances pertaining. The subjective perceptions of the parties themselves and the state of their relationship are factors to be considered but are not determinative. It is to the objective circumstances that attention must principally be given (Re Roberts and Secretary, Department of Social Security (1987) 12 ALD 723).
44. I am persuaded by the evidence, scant as it is, that it is more likely than not that Mrs Hodges was not living separately and apart from her husband from October 2002. For part of the time each week she may have been living separately from Mr Hodges, although that is far from certain, but the circumstances indicate that she was not apart from him, in the sense at least of the destruction of the marital relationship. A difficult period following a nasty separation, yes, but not to the detriment or destruction of those financial, domestic, social, sexual and emotional factors that brought and held them together, in which they cooperated and shared and by which a measure of the state of their marriage can be discerned. Evidence of those factors is sufficient in my mind to compel a finding that Mrs Hodges was living as a member of a couple from at least 30 October 2002 and subsequently.
45. Overall, I am satisfied that Mrs Hodges was a member of a couple with her husband from at least July 2003 and in all likelihood from October 2002. The period from May 2001 (and possibly much earlier) to June 2003 is, in all likelihood, within the period that Mr Hodges described as ‘grey’, during which his relationship with his wife rekindled and was reconstituted. However, that subjective assessment does not disturb the objective factors that arise from the evidence in relation to the financial, domestic, social, sexual and emotional aspects of the relationship between he and Mrs Hodges, all of which point to them not living separately and apart from October 2002 at least.
46. That being so, and in the light of the concessions made by Mrs Hodges in relation to the raising and recovery of her parenting payment single overpayment debt, the decision under review is affirmed.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
Signed: .....................................................................................
Peter Edwards, AssociateDate of Hearing 17 February 2006
Date of Decision 17 March 2006
Solicitor for the Applicant Mr S. Munslow
Advocate for the Respondent Mr G. Lozynsky
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