Holmes and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1502
•3 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1502
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600852
GENERAL ADMINISTRATIVE DIVISION ) Re TRACEY HOLMES Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr KS Levy, RFD, Senior Member Date3 July 2007
PlaceBrisbane
Decision
The Tribunal determines that:
1. Mrs Holmes was not a member of a couple for the whole of the period under review for the purposes of section 4(2)(a) of the Social Security Act 1991, as she was living separately and apart from Mr Holmes on an indefinite basis;
2. As a result, she was entitled to parenting payment at the single rate for the whole of the period under review;
3. Therefore, no debt has accrued against her.
................[Sgd]................
Senior Member
CATCHWORDS
SOCIAL SECURITY – parenting payment – applicant was paid parenting payment at the single rate – consideration of whether the applicant was in a marriage-like relationship or was a member of a couple during the debt period – factors in subsection 4(2) and 4(3) of the Social Security Act 1991 considered – determined that applicant was not in a marriage-like relationship or a member of a couple
Social Security Act 1991 (Cth) s 4
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Re VCG and Secretary, Department of Employment and Workplace Relations (2006) 93 ALD 215
Re Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27Re SRH and Secretary, Department of Social Security (1996) 42 ALD 463
Re Secretary, Department of Social Security and Marshall (AAT 7079, 17 April 1991)
Jurd and Secretary, Department of Social Security (1990) 20 ALD 781
REASONS FOR DECISION
3 July 2007 Dr KS Levy RFD, Senior Member Introduction
1. The applicant’s case is that she has lived in a dysfunctional relationship with her husband for a very long time, and at least since 2000, prior to the debt period involving this case. Her children are said to be essentially not supportive of their father. As a result, the applicant maintains that she has been living separately and apart from him and that she is entitled to social security benefits at the Parenting Payment (single) rate.
2. The respondent argues to the contrary in terms of the statutory provisions and that as a result, there has been an overpayment to Mrs Holmes. The respondent therefore says there is a debt due to the Crown. The original decision by Centrelink has been affirmed by the Social Security Appeals Tribunal on 4 April 2006. The hearing of that appeal occurred in Launceston on 7 March 2006.
Issues
3.The following questions are to be determined by the Tribunal:
(1)Was Mrs Holmes in a marriage-like relationship with David Holmes, between 22 January 2001 and 31 May 2005, in accordance with s 4(3) of the Social Security Act 1991 (the Act)?
(2)Does Mrs Holmes owe a debt to the Commonwealth for overpayment of social security benefits (Parenting Payment) for the period 22 January 2001 to 31 May 2005?
(3)If a debt is owed under (2) above, are there any grounds for non-recovery under the Act?
4. Mrs Holmes appeared on her own behalf before the Tribunal and was assisted by her daughter Terri-Anne Holmes.
5.The following documentary evidence was admitted:
Exhibit 1 T documents lodged pursuant to section 37 Administrative Appeals Tribunal Act 1975
Exhibit 2 Statement of the Applicant, Mrs Tracey Holmes, dated 27 March 2007
Exhibit 3 A 10 page statement by Tracey Holmes (undated) received in the Tribunal on 12 January 2007
Exhibit 4 Statement by Terri-Anne Holmes (undated) received in the Tribunal on 12 January 2007
6. No witnesses were called by either the applicant or the respondent. However, both the applicant, Mrs Tracey Holmes and her daughter Terri-Anne Holmes made brief submissions or statements from the bar table as sworn evidence. This appeal is a serious matter where it is alleged Mrs Holmes has been overpaid $50,292.64 for the debt period covering 22 January 2001 to 31 May 2005. It is not a case where the applicant was entitled to a social security benefit but may have claimed a benefit at a rate higher than that which Centrelink might maintain she was entitled to. There are still investigations and consideration being given to other proceedings in relation to the facts of this matter.
Mrs Holmes
7. Mrs Holmes gave oral evidence which was very brief, and she was visibly upset. She acknowledged that she was legally married to David Holmes during the period under review by the Tribunal and that there were some loans taken out jointly in the names of herself and her husband. She emphasised however that she and her children had suffered violence, both physical and emotional.
8.In cross-examination, Mr McIntyre elicited the following information:
· In 2001, Mrs Holmes did not know the whereabouts of her husband.
· Mrs Holmes was referred to Exhibit 1 folio 229 where she had previously told Centrelink that her husband moved into a caravan in the driveway of their house in January 2001.
· She said he moved in, in March 2001, after an incident at the school involving their daughter.
· She denied having advised Centrelink in April 2001 that she and her husband had been reconciled. However, a record of a telephone message shows that on 9 April 2001 she advised Centrelink that she and her husband (described as ex-partner) were thinking about reconciling and that he was visiting two nights per week to see their children. She further stated that she did not know why she had made that statement.
· At an interview on 21 June 2005, she acknowledged in a formal record of interview that some information she had supplied to Centrelink was either incorrect or incomplete (T 30A, folio 228 – 233).
· She stated that she and her husband owned a house in Tasmania.
· Her evidence was that she paid the rates and insurance. She claimed these would have been paid by direct debit from the ANZ bank account.
· Her husband David paid her $175.00 to a Connect Credit Union account which she used. This amount was calculated by the Child Support Agency. He also paid $75.00 off a loan on her behalf.
· She and her husband entered into a loan for a motor vehicle in April 2002.
· In 2004, another loan for another motor vehicle was entered into and it was recorded in those papers that they were “married”.
· In 2002, whitegoods were updated and new contracts entered into in the names of herself and her husband.
9.The documentary evidence provides additional context.
Exhibit 2
· Her concern has always been for the welfare of her children.
·Mr Holmes controls the lives of her and her children.
·She is angry and afraid, and particularly afraid of leaving the house.
·She discovered from friends in Tasmania that her husband had had an affair.
·Mr Holmes was the only person who brought money into the house.
·While the house was not a safe place, her husband nevertheless provides a roof over their heads, food and personal items.
·Mr Holmes does the shopping and pays the bills, however, the statement also says that Mr Holmes is angry at times as he cannot buy food for the children, and takes his frustration out on Mrs Holmes.
·She and her husband jointly own assets, in particular, a house in Tasmania and two motor vehicles, one in joint names and one in Mr Holmes’ name only. The statement also claims that the mortgage repayments on the house are in arrears.
Exhibit 3
10. The sequence and facts pertaining to the relationship during the period under review is:
·Christmas 2000 – Mr Holmes left Mrs Holmes and the children.
·January 2001 – Mrs Holmes received a message that he did not want to talk to her but only wanted the children to contact him.
·After the children returned to school all three children were emotionally affected, even though the household was calmer than when Mr Holmes was present. However, the middle child developed behavioural problems and demonstrated violence towards her sister and her brother, as well as to her mother.
·Mr Holmes returned and was angry, having heard there were some difficulties with the second daughter. After a long discussion, it was apparent that the children wanted their father around, so he returned home but lived in a caravan in the back yard. He did not have a key to the house, but sought access when he needed to use the shower or toilet. He did not stay there all the time, but was often away for several days and nights.
·Christmas 2001 – Mr Holmes removed the caravan and went away until February 2002.
·In February 2002, Mr Holmes returned with the caravan and started shift work.
·The children sometimes refused to spend time with him. Mrs Holmes said that was a quieter year, although she had her brother or sister staying with her at various times throughout that year.
·Mid 2003 – Mr Holmes was angry and came to the house making various accusations about Mrs Holmes. There was “yelling, pushing and shoving”. He got a knife and threatened to kill himself in front of the children.
·The children were hysterical and the police arrived. Mrs Holmes did not make any formal complaint against him.
·Mr Holmes often subsequently made threats he would kill himself.
·Mr Holmes tried to run Mrs Holmes down in front of their youngest son.
·Late 2003 - Mrs Holmes had an injured leg and Mr Holmes stayed at home with her sister and brother to look after the children.
·October 2003 – the caravan was sold and Mr Holmes lived elsewhere for a period.
·Early 2004 – When Mr Holmes’ alternative living arrangements became unsatisfactory he asked if he could stay in the back room in the house.
·Mrs Holmes said that she did not want to leave the house and considered suicide.
·Mrs Holmes was conscious that life was not good for the children in that environment, but she was concerned that they would not cope if anything happened to her.
·2005 – Mr Holmes suggested reconciliation. Mrs Holmes discussed this with her general practitioner who suggested marriage counselling. Mr Holmes refused that suggestion.
·Mrs Holmes is concerned that the children blame themselves for the parental turmoil. The middle child was suicidal.
·2006 – The family moved to Queensland.
Exhibit 4
11.This was the statement of the eldest daughter, Terri-Anne Holmes. It states:
·She recalled the police coming to the house when her father was threatening self-harm with a knife.
·She did not care for her father – he was “controlling, arrogant, self-centred and heartless”.
·Her mother’s life has been hell for the last ten years.
·From her observations, her parents did not have a real relationship.
·They still currently argue, and Mrs Holmes has no control over her life.
Consideration
12. I have considered all of the factual and legal material relevant to the issues to be determined by the Tribunal in this case.
13. The Secretary’s theory of this case is that the facts presented should lead me to infer that Mrs Holmes has a financial relationship with her husband and that the nature of her household is such that they should be seen as living in a marriage-like relationship. The theory of the case, according to Mrs Holmes, is that the financial and other aspects of their lives conceals the true nature of their relationship and that they do not live together as husband and wife.
14. If the documentary evidence was the only evidence available, then it would be a convincing case of the applicant living in a marriage-like relationship. However, that is not the only evidence. The oral evidence presented by Mrs Holmes and her daughter, which amplifies her written evidence, reveals a different story. There is much inconsistency in some of Mrs Holmes’ evidence, both before this Tribunal and the Social Security Appeals Tribunal (SSAT) and in the documentary evidence. However, I found her to be a witness who is highly anxious and likely to be confused if one accepts the degree of verbal and emotional abuse which she has put in evidence. Mr Holmes was not called by either Mrs Holmes or by the respondent. He did, however, give evidence at the SSAT and that evidence is available to this Tribunal. Notwithstanding inconsistencies in the factual material, I accepted Mrs Holmes to be a truthful witness insofar as she described the conduct of Mr Holmes’ treatment of her and his behaviour in the presence of their children. Her demeanour, together with that of her daughter, who assisted her at the bar table, place a context on Mrs Holmes’ evidence that counter-balances to some degree the documentary evidence and any inference that might be drawn from the factual material therein.
15. I recognise the difficulty in cases such as this, that in long term relationships, evidence of the marriage relationship as described by Mrs Holmes should not be regarded necessarily as exaggerated or unrealistic. It rather reflects the deteriorated relationship with her husband which continued to exist in part because of her fear and habitual patterns, personality factors of Mr and Mrs Holmes, a degree of psychological entrapment and maternal loyalty to her children.
16. The questions for the Tribunal here are fundamentally, whether there was a marriage-like relationship in any ordinary sense, or conversely, whether Mrs Holmes and her husband should be regarded as living separately and apart. In determining this question, it is important to have a concept of marriage against which to assess this question. Marriage is generally regarded as having the characteristics of, or “….. a sense of union between two people and a common purpose” (see the comprehensive discussion by Deputy President Forgie in VCG and Secretary, Department of Employment and Workplace Relations (2006) 93 ALD 215). The union and common purpose would generally be regarded by each of the parties to the dyadic relationship as having a level of emotional attachment and commitment to each other. While there is a powerful effect of the cultural context in any society on a dyadic relationship, personality or combination of personality factors are also strong influences on the degree of success in such relationships.
17. A marriage or marriage-like relationship might be differentiated from other dyadic friendships or relationships and must be expected to have at least some degree of intimacy. The emphasis in this context must have more to do with shared feelings rather than any emphasis on sexual interaction. Intimate feelings suggest some degree of closeness by at least one party to the relationship and in stronger dyadic relationships that a reciprocal closeness or warmth of the relationship should exist. This could be expected to include a feeling of trust, loyalty, safety and commitment by the parties to that relationship.
18. The Tribunal must assess whether Mr and Mrs Holmes are in a marriage-like relationship based on the way they function in their relationship and with their children. This is not assessed against some hypothetical standard which assumes that a marriage or marriage-like relationship is mostly full of positive aspects and goodwill. Families and those within them, the adult members and children, are all capable of the range of human emotions including the negative traits such as violence, hatred, selfishness and mental health disorders. The complexity of human behaviour and the capacity for some to withstand the stressors of life to a greater or lesser degree makes it complex and often unpredictable.
19. The present case demonstrates a relationship or interaction of human frailty and convenience and is devoid of any overtones of romanticism. It presents, on the part of Mrs Holmes, a bifurcation of an attempt by her to maintain a degree of normalcy for her children, while there was apparently a world of transgressions and savagery towards Mrs Holmes, which clearly had a psycho-social impact on herself and her children.
20. This context and analysis is important in assessment of the facts against the legislative provisions.
21. I make the following findings of fact:
(1)The applicant and her husband jointly own real estate (a residential house) in Tasmania.
(2)The applicant and her husband jointly own bank accounts, one primarily used by Mr Holmes and a credit union account primarily used by Mrs Holmes. Mr and Mrs Holmes jointly have liabilities for a number of loans. These include a mortgage on the residential property and loans for the motor vehicles and white goods.
(3)The marriage was clearly fragile prior to the debt period as Mr Holmes had arranged to pay maintenance to Mrs Holmes of $175 per week (as calculated by the Child Support Agency) and $75 per week to cover a loan.
(4)The electricity and other bills are paid for by Mr Holmes.
(5)Much of the provision of household food and goods was provided by Mr Holmes during that period.
(6)Mr Holmes left the family household on Christmas 2000, but returned some months later in 2001. He then lived in a caravan in the backyard of the house. His presence was intermittent and for periods of time he was completely absent.
(7)In late 2003, the caravan was sold and Mr Holmes again lived elsewhere for some months.
(8)In 2004 Mr Holmes returned and it was agreed he would live in the backroom of the house.
(9)Mr Holmes has subjected Mrs Holmes and her children to angry outbursts and violence from time to time and must be regarded as being unsupportive of Mrs Holmes.
(10)Mr Holmes has an interest in his children, and there has been a degree of co-operation between Mr and Mrs Holmes, especially where the children are concerned.
(11)A suggested reconciliation of Mrs Holmes to her husband in 2001 and 2005 were considered by either or both of them but does not appear to have been seriously or effectively pursued.
(12)The psychological imbalance between Mr and Mrs Holmes has resulted in a concealment of their marital difficulties, both for the purposes of their small community and for appearances to their own family (particularly Mr Holmes’ father).
(13)The relevant legislation is contained in s 4(2) and 4(3) of the Social Security Act 1991 as follows:
“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; or …
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, 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 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. “
(14)Section 4(3) is not an exhaustive list of matters which the Tribunal must take into account. I must take account of the relevance of the evidence presented, the credibility of witnesses and all of the circumstances of the relationship taken as a whole, based on the weight of the various aspects of evidence. (Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27).
The Financial Aspects Of The Relationship
22. It is apparent that Mrs Holmes and Mr Holmes jointly own a residence in Latrobe, Tasmania. There is documented evidence of this and it is not in dispute. Likewise, there is a joint account with the ANZ Bank since 28 February 1995. There is also a joint account held with Connect Credit Union and that is not in dispute.
23. There is also ample evidence that Mr Holmes has paid child support of $250 on a regular basis ($175 as calculated by the Child Support Agency and $75 towards a personal loan). This arrangement commenced from at least July 2000 and continued unchanged throughout the period of the alleged separation from January 2001. An account with the ASG Friendly Society was opened on 3 August 2001 (almost eight months after the commencement of the claimed separation) and this account was opened in joint names also. Contributions have been made to that account from the Connect Credit Union account, an account operated mainly by Mrs Holmes. There have also been loans for motor vehicles ($23,917.80 and $49,032.60) as well as leases for the upgrading of a washing machine and dryer, which were also in joint names, despite Mrs Holmes stating in evidence that her name should not have been on the lease relating to the washing machine.
24. In November 2004, a home loan for $99,000 from the ANZ bank was also obtained. This loan again was in joint names. There was a further loan for $114,000 from the ANZ bank on 21 February 2005, that loan also has been recorded in the names jointly of both Mr and Mrs Holmes. The respondent, therefore argues that the extent of the financial arrangements during the period are not indicative of a couple who are living separately and apart.
25. Mrs Holmes argues that these arrangements were made as she could not otherwise have obtained a loan in her own name. Her evidence is also that even though she regarded the household as being unsafe for herself and her children, Mr Holmes would not consider divorce as he said he had too much to lose. I also note that there were endeavours made to conceal the marital difficulties between Mr Holmes and Mrs Holmes, particularly from members of Mr Holmes’ family in the small community in which they lived. It may be accepted that fear on the part of Mrs Holmes is a contributing factor to her entering into financial arrangements jointly with her husband. However, these may also reflect a lack of financial prudence in their circumstances rather than any emotional or financial commitment as a legally married couple. I also accept that there was a degree of convenience for her in these arrangements.
26. These arrangements do not explain Mrs Holmes’ application for single parenting payment nor why she did not reveal the truth or all of the circumstances surrounding Mr Holmes’ accommodation arrangements in the debt period. That may not be entirely relevant to assessing the financial aspects of the relationship but is relevant to understanding the degree of insecurity she felt in the relationship.
The Nature Of The Household
27. The respondent argues that the nature of the household shows Mr Holmes working long hours for six days per week and was therefore unable to spend large amounts of recreation time with his children. The respondent also says that the evidence of Mr Holmes to the SSAT, that he only came to the house to shower and use the toilet and not to watch television or eat meals in the house, should be regarded sceptically. The respondent points to Mr Holmes having arranged a pay television contract for the residence from 9 April 2001 until July 2003. The respondent says this suggests Mr Holmes had far more access to the residence than he admitted in evidence. The respondent also submits that Mr and Mrs Holmes maintained a joint responsibility for the care of their children, and that this was not indicative of them living separately and apart on a permanent or indefinite basis.
28. I have formed the view that on the balance of all of the evidence, Mrs Holmes has accommodated her husband in order to appease her children. There is evidence of Mr Holmes living in the caravan as well as in the back room of the house over the period in question. There is also undisputed evidence that the marriage was not a strong one and he left home for various other periods during the debt period, other than when he slept in the caravan or in the back room of the house.
29. It seems to me that it is inconsistent for Mrs Holmes to argue convincingly that Mr Holmes did not have a key to the house for the period in which Mr Holmes lived in the caravan. This is inconsistent both with the notion that he is a joint owner of that home and had been for many years, but it is also inconsistent with the notion that he was a dominating personality who was self-centred and of whom Mrs Holmes was fearful. But seeing his personality in that light, it is not inconsistent to conceive of a personality such as this, but one who also admires his children, to have some access to his house, at least for the basic incidents of living. While Mrs Holmes says that he did not watch television or have meals in the house, there is other evidence that he occasionally had a meal in the house. This must be seen in the context of him having meals only when family visited (such as his father) to who, it was said, both Mr and Mrs Holmes hold themselves out as being in a stable marriage. They jointly concealed their marital difficulties from others, particularly family and those in the community. The demonstration to the outer world of a less dysfunctional marriage than existed in fact, was a façade.
30. It is also said that Mr Holmes recommenced the pay television contract on 5 April 2005, two months before it appears that they reconciled. One must be careful not to over-emphasise points such as this as it is apparent that they were attempting to reconcile in 2005 and in fact did commence such an attempt. Those circumstances of course do not just improve overnight and it might be fair to assume that the parties were making an attempt to have a more effective reconciliation. As Mrs Holmes advised Centrelink the following month (May 2005) that she and Mr Holmes were again living as a couple, the commencement of a pay television contract does not seem surprising. It may be, however, that there was an expectation that they needed, at least, to appear to be a more functional family unit, as Mrs Holmes indicated to Centrelink in May 2005, that they were again living as a couple for a number of reasons including:
“1. David’s father is ill and he may need to move in with us for care.
2. I wanted to work on my marriage,
3. I was aware of an investigation concerning Leah and Shane Webb and I was afraid that Centrelink would find out that David was living here. ….”
31. I note the submission that Mr Holmes was taking responsibility for his children might indicate he was not living separately and apart from Mrs Holmes. However, that of itself is not conclusive. There are many couples who live separately and apart on a permanent or indefinite basis but who have a co-operative or collaborative element of their relationship, at least for the benefit of their children. Some may do so begrudgingly, but while it is commendable that Mr Holmes clearly had a depth of feeling for his children and moved back home when there were indications of his daughter’s behavioural problems shortly after he moved out, it might be seen in that context and not as a conclusive point about whether there was a marriage-like relationship in existence with Mrs Holmes.
32. There are some indicia of a normal marital household (including difficulties with children and disputation between parents), and there seems to be a common commitment to supporting the children of the marriage. However, the ambience of the household can also be seen by the psychological impact made by the arguments and emotional distance between the parents. The fear and intimidation, as well as the absence, of Mr Holmes has had various impacts on the children, as well as Mrs Holmes. In particular, the significant incidents of Mr Holmes threatening to kill himself with a knife in front of his children, an incident requiring the attendance of the police, together with Mr Holmes attempting to run down Mrs Holmes in the presence of their youngest child (their son) also places the nature of the household in a perspective which would not be regarded as being “normal” in a marriage where there is a degree of intimacy and/or commitment. The period of time spent together is also indicative of whether a marriage-like relationship can be said to exist (Re SRH and Secretary, Department of Social Security (1996) 42 ALD 463).
33. I find that the nature of the household does not reflect a marriage-like relationship.
Social Aspects Of The Relationship
34. The respondent argued that as Mr Holmes worked very long hours and for six days a week, there was little time available for any social aspects of their marriage. The respondent also refers to the statement of Katrina Webb, the sister of Mrs Holmes (T20 folio 171). That statement is to the effect that Mr and Mrs Holmes tried to conceal their marital difficulties purely for the emotional well-being of their children. The respondent says that this however, indicates that they have presented themselves to society and to relatives as being a married couple. The respondent also refers to the financial records and the fact of a family holiday in Queensland with another family as being evidence of that.
35. I note also Ms Webb’s statement but that she seems to have been somewhat vague about her brother’s support to Mrs Holmes, despite Mrs Holmes’ evidence of his residing with her and her children for a period. Given that the length of time that she claims to have stayed at her sister’s place, the reliability of all her evidence must be called into question. However, she does say that both Mrs Holmes and Mr Holmes were stubborn and abusive physically and emotionally. I take it that this is to mean that both parties were stubborn but that it was Mr Holmes who was abusive physically and emotionally. It would otherwise be inconsistent with the other evidence presented. However, it does infer that Mrs Holmes did not have a normal marriage and Ms Webb described her observation of the relationship as it being a “distant, abusive, angry situation”.
36. Mrs Holmes has not provided any evidence of any social interaction either between themselves or with others. Indeed, she described a lack of any warmth or positive social relationship with Mr Holmes subject to the period in 1995 after she informed Centrelink of an attempt at reconciliation with her husband. I therefore find the social aspects of the relationship do not amount to a normal marital relationship of a marriage-like relationship.
Sexual Relationship
37. The respondent has submitted that the evidence before the SSAT was that Mr and Mrs Holmes did not often engage in sexual intercourse before the alleged separation in January 2001. The SSAT noted Mrs Holmes’ evidence before that Tribunal that she and Mr Holmes resumed some sexual encounters from January 2006. It noted also however there was a written statement provided by her to that Tribunal that “sexual contact” had occurred several times after January 2004.
38. It is difficult to assess whether “sexual contact” was intended in a different sense to sexual intercourse. That was not elaborated on by either party before this Tribunal. However, it seems a reasonable deduction that normal sexual relations were infrequent prior to the separation and there may have been some contact of a sexual nature after 2004. However, from 2002 to 2003 it appears that there was little or no such relationship.
39. It is to be noted however, that where sexual relations between the parties did occur, they were very infrequent and could not be regarded as a loving or permanent relationship. They were, it seems, satisfying temporal physical needs, but there is not sufficient evidence for it to be seen to be a marriage-like relationship, particularly where there was the absence of other commonly accepted elements of a marriage (Re Secretary, Department of Social Security and Marshall (AAT 7079, 17 April 1991)).
40. I do not find the sexual relationship was typical of a marriage-like relationship where there was a minimal amount of emotional warmth. The latter was absent concurrently with the sexual relationship.
Nature Of The Commitment Between The Applicant And Mr Holmes
41. The respondent submits that based on the financial commitments, the assets held suggestions of attempts at reconciliation and an absence of any action to formally terminate the marriage or separate the joint assets, is indicative of a marriage-like relationship.
42. It was also submitted that Mr Holmes had told the SSAT that the motor vehicles were registered in joint names because he hoped that he and Mrs Holmes would get back together. I find that evidence is inconsistent with the evidence of his behaviour and other evidence before this Tribunal, and I reject it.
43. Mrs Holmes portrayed the nature of the commitment to each other as being virtually non-existent, at least at the time of the hearing, although there was clearly a willingness to make a level of commitment towards Mr Holmes if only for the security of herself and her children.
44. I accept that there is a level of dysfunction during the period of the debt which is outside what would come within the boundaries of normalcy in a functional family with a modicum of commitment between the parents. The evidence of the use of a knife in threatened self-attacks (and there is a suggestion of a threatening of Mrs Holmes with a knife); an attempt to run her down; emotional abuse and control of Mrs Holmes and her children have been common elements of their marriage. The emotional state of Mrs Holmes and her daughter in providing evidence leaves me with no doubt that Mr Holmes has done significant damage to his image in the eyes of his children as well as his wife. There is also evidence that the level of abuse and neglect has been significant and has left some scars (emotionally or physically) on Mrs Holmes and her children. Despite indications of attempts at reconciliation, it appears those attempts were not matched with commitment. The commitment which does exist is to capitalise on the legal marriage to gain access to loans which would not otherwise be available, particularly to Mrs Holmes. There is also a commitment to the children by each of the parents, but not to each other.
Is there a marriage-like relationship?
45. The requirements of s 4 require me to evaluate, by distillation of all the evidence, whether there can be said to be a marriage-like relationship. In other words, I must have regard to the weight to be placed on the various elements which characterise the relationship and which might be regarded on the balance of probabilities as being a marriage-like relationship.
46. In evaluating all of the evidence, it is apparent that there is not a degree of commitment between Mr and Mrs Holmes in the debt period that had any reciprocal closeness or trust which must be expected in a marriage. This must be that expectation of at least one of the parties, even if not from both parties. From the evidence presented, it appears to me that some of the evidence presented by Mr Holmes before the SSAT was either exaggerated or disingenuous. His motivation cannot be fully assessed. Nevertheless, while there are many factors which have justifiably been raised by the respondent and, on the face of it, point to the applicant being in a marriage-like relationship, the proper inference to be drawn from the analysis of factors in s 4(3) more than tip the scales in favour of Mrs Holmes. Any benefits received by Mrs Holmes have not been used to discourage contact between her husband and her children, and nor should that be the case (ReJurd and Secretary, Department of Social Security (1990) 20 ALD 781). She has not, in receiving benefits, endeavoured to deprive Mr Holmes of access to his children but appears to have tried to balance a precariously difficult situation so that her children were the beneficiaries of the influence of both parents so far as possible.
47. That does not detract from the apparent lack of veracity and the frankness with which she has dealt with Centrelink. There are clearly a number of issues left unresolved in that regard but they all matter outside the scope of this review. Nevertheless, I determine that Mrs Holmes was not a member of a couple for the whole of the period under review, for the purpose of s 4(2)(a) of the Act as she was living separately and apart.
48. As a result, I find that she was entitled to parenting payment at the single rate for the whole of the period under review. Therefore, no debt has accrued against her, at least not on the basis that she was living in a marriage-like relationship during the debt period.
49. In light of the above, it is unnecessary for me to determine Issues 2 and 3 outlined earlier.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy RFD Senior Member
Signed: Fiona Kamst
Legal Research OfficerDate/s of Hearing 16 May 2007
Date of Decision 3 July 2007
Applicant Mrs Holmes herself
Solicitor for the Respondent DLA Phillips Fox
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