Lai; Department of Family and Community Services
[2000] AATA 783
•8 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 783
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1999/1337
GENERAL ADMINISTRATIVE DIVISION )
Re SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Applicant
And YUEN LING LAI
Respondent
DECISION AND ORAL REASONS FOR DECISION
Tribunal WJF Purcell (Senior Member)
Date8 August 2000
PlaceBrisbane
Decision For the reasons given orally at the hearing, the Tribunal sets aside the decision under review and affirms the decision of the Authorised Review Officer of 15 April 1999.
.
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
SOCIAL SECURITY – respondent was in receipt of sole parent pension when the Department determined that she was in a marriage-like relationship and not entitled to pension at that rate -–whether respondent was in a marriage-like relationship with her flatmate
Social Security Act 1991 ss4(3), 4(4)
ORAL REASONS FOR DECISION
8 August 2000 WJF Purcell (Senior Member)
This is an application for review of a decision of the Social Security Appeals Tribunal (SSAT) of 11 November 1999 which by a majority decision overturned the decision of an Authorised Review Officer of 15 April 1999 and decided that a marriage-like relationship did not exist between the respondent and Mr Mario Sandoval; and that the respondent was not a member of a couple and she remained qualified for parenting payment at the single rate.
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with the exhibits tendered by the parties. Mr Walsh appeared for the applicant (the Department) and Mr Harrison, of Counsel, represented the respondent who gave oral evidence with the assistance of Mr Chang, an interpreter, in the Cantonese/English languages, and called Mr Sandoval as a witness.
The respondent gave evidence at length. I found her an unimpressive witness. It is difficult to understand how a person born in Macau, who lived in Kowloon from about three years of age, was educated in a Protestant school and learnt English for two years after leaving school, after year six, and attended English classes in Australia after arriving here in 1987, would be unable to speak English and require the assistance of an interpreter. It became clear in the course of the respondent's cross-examination, and having observed her in the witness box, that her level of understanding of the English language was much more extensive than the impression she would wish us to have. And indeed, the services of Mr Chang were dispensed with, except for some three or four occasions when the respondent requested his assistance during the balance of the cross-examination and her re-examination.
On the applicant's evidence also, she has sufficient command of the English language to prepare and file her own application for divorce in the Family Court in Melbourne, and to attend to the ancillary matters such as satisfying the Court as to the arrangement for the child of the marriage. The respondent impressed me as a person who attempted to present herself as a self-effacing innocent lady. I consider that she prevaricated in her evidence as to her relationship with Mr Sandoval. I am firmly of the view that she attempted to mislead the Tribunal about her relationship with Mr Sandoval. This does not mean I reject all her testimony, but that I prefer to rely on other evidence in support of my findings of fact in important areas of conflict in the evidence.
Mr Sandoval gave lengthy evidence also. I found him an even less impressive witness. His evidence was unconvincing to the point of being incredible on occasions. I consider that he also prevaricated in his evidence as to the depth of his relationship with the respondent. He impressed me as a man determined to obtain from the Department the maximum benefit for himself, the respondent, and their children. He had no compunction in stating deliberate untruths in Departmental forms, such as in the interstate transfer "form" (exhibit A1) which he completed on 29 July 1991 and stated, (he says in evidence untruthfully), that he was paying $70 per week rent to the respondent and residing in the home of the respondent and her then husband, Mr Chiu. His explanation to the effect that he would thereby receive $30 more per week from the Department, and that was why he did what he did, concluded with the words: "If you were hungry you would do it too – trust me." This does not mean, of course, that I reject all his testimony, but I prefer to rely on the documentary evidence in any area of dispute in the evidence.
The respondent lodged a claim for sole parent pension on 13 May 1993 in Queensland. She indicated that she had been residing at 39 Minore Street, Chermside, for 12 days. She had a child under 16 years of age, Mandy Elizabeth Chiu, who was born on 29 January 1987. She stated that she paid $35 per week rent to Mr Sandoval, who she described as a 34 year old male who had lived in the same residence as a flatmate since 29 April 1993. On a sole parent review form dated 5 August 1993, the respondent stated that she intended to continue to share accommodation with Mr Sandoval until she found another place to live [T10/51]; and on 28 October 1993 she stated that she and Mr Sandoval had purchased together a washing machine for $579, an evaporative cooler for $229, and paid home insurance in the sum of $130.20. In answer to question 19 she stated that she shared a fixed term deposit of $2000 with Mr Sandoval.
In the course of a Departmental review of the respondent's living arrangements she was interviewed on 14 February 1994, and stated that the father of her daughter Mandy, Mr Chiu, her former husband, currently resided in Hong Kong or China. At T17/71 the respondent is recorded as stating:
"I am a friend of the sister of Mario Sandoval. When I wanted to move from Melbourne, she knew that Mario wanted to share with someone so she arranged things. I did not know Mario prior to moving here in April 1993. This house is convenient for me because my daughter's school is across the road, it is close to the shopping centre. Mario is a bankrupt and can't hold a bank account. So he has some money (1/2 share) in my fixed term account with Suncorp. There is certain furniture here that belongs solely to me. Mario owns only the TV and radio (stereo) and VCR as well as a bed. We bought together certain items as the washing machine and coffee table. If either were to move out we would sell these items and take half each. We also bought an evaporative cooler together and that normally operates in the lounge room. Mario has a girl friend who lives elsewhere. I have a separate bedroom to Mario. We usually go out separately. My daughter sleeps in the same room as myself." [T17/71]
A statement by the respondent dated 4 March 1994, which appears at T19/83 reads in part as follows:
I reside at 39 Minore Street with Mario Sandoval (with my daughter as well), but there are no other occupants. I was living at 165/76 Canning Street, North Melbourne prior to this. I met Mario through his sister, at Melbourne about 5 years ago. We never shared accommodation prior to our current address. Mario moved to Brisbane and his sister mentioned this to me. I was not happy with Melbourne so I decided to move to Brisbane (after his sister asked if it would be all right. Mario pays more rent than me because he works and I do all the cooking and washing (including Mario's) in exchange for the reduced rent, and I also clean the house. Mario sometimes borrows my car if his won't start and he pays for the petrol. Mario and I jointly purchased a washing machine and an evaporative cooler together in cash and we will sell these if one of us leaves. We purchased these goods together because they are necessary house items. We also took out a joint household contents Policy through Suncorp, Chermside. I ticked the wrong box for the Superannuation question. The Super Policy is solely mine and Mario is not the Beneficiary on it. I have a Suncorp Account in my name only. I continue my statement on page two. I have read this statement and it is true and correct in every detail –
I continue my statement from page one. Mario has trouble saving money so he asked me if he could deposit money into my account. $1,000 of the money is his and he has no right or access to the money purely so he can't withdraw it. Neither Mario nor I have nominated each other as partners on our Tax returns. Mario gives me $80 per week to buy his food and I buy my own food. I had needs as a woman and I had a brief sexual relationship with Mario. We never had a meaningful relationship and at this stage Mario is seeing someone else. I don't think there will be any continuation of this sexual relationship. We have separate bedrooms. I have never used Mario's surname for any reason. Mario has never told me that he refers to me as his wife and I had no knowledge of this. I have never presented myself as his partner to anyone but I do not know how they would see us. I don't believe that I am living in a marriage-like relationship but it has been explained to me that this is how the Department will be assessing things. My appeal rights have been explained to me but I am considering moving out and will advise within 14 days." [T19/83-84]
A statement by Mr Sandoval, dated 21 March 1994, reads in part as follows:
"I reside with Yuen Ling Lai and I am not living in a marriage-like relationship with her. This evidenced by our independence….we sleep in separate bedrooms. We have our own social life and I go out and meet people. I'm here to meet other ladies and I am not restricted in doing this. I do not want to start a relationship with a woman who already has children. So this means that it won't happen with Yuen Ling. I represented myself as a married to get the house, but this has been corrected with the landlady. I have been declared bankrupt and this is why I put money in Yuen Ling's bank account. The house contents insurance was taken out jointly purely to cover all items which are in the house, some owned by Yuen Ling some by me. We have had a sexual relationship, but this was only brief and will not continue. [T21/86]
On 21 March 1994 a delegate of the Department decided that the respondent and Mr Sandoval were not living in a marriage-like relationship and payment of pension continued. A statement by the respondent received by the Department on 9 June 1994 reads in part as follows – it is headed 24 Sandpiper Street, Inala:
"I did not lodge my Sole Parent Review Form due 14 April 1994 because my de facto spouse Mario Sandoval and I purchased a house together at the above and moved in on 22 May 1994"
The T documents comprise 167 pages and there were some 6 to 7 exhibits. It is not my intention in these brief reasons to attempt to outline the evidence in much detail. The documentary evidence discloses that from about 27 January 1991 Mr Sandoval, in forms lodged with the Department, gave his residential address as the respondent's address, 165/76 Canning Street, North Melbourne (Canning Street). He registered a change of address to Canning Street as his residential address for display on his driver's licence. When he filed his application for divorce from his wife in early 1992, he gave his residential address as Canning Street. I do not accept his evidence that he never lived at that address, and used it only as a mailing address. The respondent's evidence does not support him on this topic, as she denies that he ever used her home address as a mail address, and she says that she never collected mail for him as she only "met" Mr Sandoval at this time, and she did not "know" him until she moved to Queensland. I prefer to rely on the documentary evidence. I am satisfied on the evidence that Mr Sandoval resided at Canning Street from about February 1991.
The respondent gave evidence that on two occasions only, in July 1994 and October 1995, she and Mr Sandoval "attempted to be a couple", but it did not work out, and both she and Mr Sandoval gave evidence to the effect that although they jointly pay the rent or purchase money to the Housing Trust, and share other expenses, there is little contact between them except in relation to the welfare of the twins. The respondent cooks her own and the twins' meals and cleans the home, with the exception of Mr Sandoval's room. Mr Sandoval does his own washing, cleaning and cooking. The evidence from both the respondent and Mr Sandoval was lengthy, sometimes in conflict, but unsatisfactory and unconvincing on this topic.
The second alleged attempt at "becoming a couple" was in October 1995 and is documented at T39/139, being a claim for additional family payment. On the application form, the respondent stated that she had "married, reconciled or started to live a de facto relationship" with her partner on 30 October 1995. On 23 October 1995, the respondent lodged a notice to stop collection of payments from Mr Sandoval to the Child Support Agency. The reason given on the notice for wanting to stop collection was that she had "reconciled with father of children on 23.10.95".
The documentary evidence discloses a file note taken by an officer of the Department on 13 December 1995 which reads in part as follows:
"Mrs Lai and partner were in office today, he stated he did not have enough to live on and were asking for any extra. Mrs Lai was invited to claim for Parenting Allowance. The form was completed, and we said it would be paid from next available payday. He was angry at this, saying we failed to advise him of the payment, and we should backdate when they reconciled. I was called over to help. We told him he could claim dependant spouse rebate for the missing period on his tax, and I was discussing "Act of Grace" payments. He took his wifes (sic) claim, tore it up, and told her to claim the pension. He left. We advised Mrs Lai that we could follow up the PGA claim, OR if they can't sort it out she can claim SPP. We also advised her of the SW help available. This was done very briefly, as she was standing up to follow her partner out of the office. She nodded to us, but as she had not spoken at all throughout the discussion I am not able to judge her English skills and comprehension." [T41/143]
On 14 December 1995, the respondent lodged a sole parent pension claim. On this form she indicated she had commenced living de facto two months ago and had separated on 14 December 1995. Also on 14 December 1995 she filled in a separation details form. On this form she indicated the reason for separation was "because we tried to live as a couple but it's not possible". Over the ensuing years, various investigations of the respondent's living arrangements have been conducted by the department, until on 5 March 1999 a delegate decided that the respondent and Mr Sandoval were living in a marriage-like relationship. An Authorised Review Officer affirmed that decision on 15 April 1999. The respondent applied to the SSAT for review of that decision, and the SSAT set aside the decision on 11 November 1999. The Department applied to this Tribunal for review of that decision on 10 December 1999.
In deciding whether a person is living in a marriage-like relationship, Section 4 of the Act applies, which as far as is relevant provides:
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.
…
4(4) Sole parent pension where persons not legally married if:
(a)a person claims, or is receiving, parenting payment; and
(b) a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c)the claimant or recipient is not legally married to the other person; and
(d)at least one of the following subparagraphs is satisfied:
(i)a child of both the people also lives in the residence
Mr Moore, the dissenting member of the SSAT, in the course of his reasons for decision at T2/15-16 stated:
"…
3. Subsection 4(4) of the Act sets out additional criteria which must be considered if a person claims, or is receiving, parenting payment and certain other requirements are satisfied. Mrs Lai is receiving parenting payment and the residence at 24 Sandpiper Street, Inala, has been the principal home of both Mrs Lai and Mr Mario Sandoval for a period of at least 8 weeks. Mrs Lai and Mr Sandoval have previously been members of the same couple and shared another residence with each other at 39 Minore Street, Chermside, in 1993 and 1994 until they moved to their present residence at 24 Sandpiper Street, Inala. Mrs Lai and Mr Sandoval have joint ownership of the residence at 24 Sandpiper Street, Inala and joint liabilities totalling more than $1000.00. Two children of both Mrs Lai and Mr Sandoval also live in the residence at 24 Sandpiper Street, Inala. Therefore the requirements of paragraphs 4(4)(a),(b),(c) and (d) of the Act have been satisfied and the Secretary must not form the opinion that Mrs Lai does not have a marriage-like relationship with Mr Sandoval unless the weight of evidence supports the formation of an opinion that Mrs Lai does not have a marriage-like relationship with Mr Sandoval.
4. I consider that the evidence establishes that Mrs Lai and Mr Sandoval derive mutual benefit and support from their living arrangements. In addition to the financial benefits which result from sharing accomodation (sic), the joint ownership of the property provides a stable living environment for Mrs Lai and the children and the household arrangements more closely resemble those of a family unit than two separate individuals merely sharing accomodation (sic). Although the relationship between Mrs Lai and Mr Sandoval may be regarded as unusual or unconventional and there are some aspects of it, such as the absence of a sexual relationship, which are not marriage-like, I further consider that the weight of evidence supports the formation of an opinion that the relationship between them is a marriage-like relationship.
5. Therefore having regard to all the circumstances of the relationship between Mrs Lai and Mr Sandoval and, in particular, the matters set out in subsection 4(3) of the Act, I consider that the weight of evidence does not support the formation of an opinion that Mrs Lai does not have a marriage-like relationship with Mr Sandoval
6. Therefore I consider that Mrs Lai is a member of a couple for the purposes of the Act under the provisions of subsection 4(2) of the Act and I would affirm the decision not to pay her parenting payment at the single rate."
I have examined the whole of the evidence carefully and in detail and taken into account the parties' submissions. Because of pressure of time to hand down these oral reasons, I will not set out my findings of fact in detail but adopt, with respect, the reasons of Mr Moore in paragraphs 3 to 6 of his reasons for decision.
I am satisfied on the evidence, that at the relevant time, the respondent was a member of a couple, and having regard to all the circumstances of the relationship as required by Section 4(3) and 4(4) of the Act, which in my view have been satisfied, I consider that the weight of the evidence does not support the formation of an opinion that the respondent does not live in a marriage-like relationship with Mr Sandoval.
For these reasons, the Tribunal sets aside the decision under review and affirms the decision of the Authorised Review Officer of 15 April 1999 that the respondent was not qualified for payment of parenting payment at the single rate.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of WJF Purcell (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 7-8 August 2000
Date of Decision 8 August 2000
For the Applicant Mr Walsh, Departmental Advocate
Counsel for the Respondent Mr Harrison
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