MARIA WEYMAN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS - [2012] AATA 139

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL        )
  )         No: 2010/5070
General Administrative Division           )

Re: Maria Weyman
Applicant

And: Secretary, Department of Education, Employment and Workplace Relations
Respondent

DIRECTION

TRIBUNAL: N Isenberg, Senior Member

DATE: 13 March 2012

PLACE: Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application:

By inserting seven paragraphs following paragraph 78 of the original decision.
By renumbering paragraphs 79 to 100, such that they will now be numbered 86 to 107 of the decision.

.............[sgd]......................................................

N Isenberg
Senior Member

[2012] AATA 139

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2010/5070
Re	MARIA WEYMAN
APPLICANT
And	SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS
RESPONDENT

Decision

Tribunal	Ms N Isenberg, Senior Member
Date	6 March 2012
Place	Sydney

The Tribunal sets aside the decision under review.

.....................[sgd]............................................

Ms N Isenberg, Senior Member

Catchwords

SOCIAL SECURITY - whether member of a couple for purpose of calculating entitlement to parenting payment single

Legislation

Social Security Act 1991

Administrative Appeals Tribunal Act 1975

Cases

Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
In the Marriage of Todd (No 2) (1976) 9 ALR 401
In the Marriage of Pavey (1976) 10 ALR 259
SRWW and Secretary, Department of Family and Community Services [2001] AATA 495
Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789

Secretary, Department of Family and Community Services and WAP [2000] AATA 7

REASONS FOR DECISION

Ms N Isenberg, Senior Member

BACKGROUND

Centrelink decided to raise a debt in relation to the payment of parenting payment single paid to Mrs Weyman during the period 9 July 2002 to 5 April 2010 in the amount of $96,789.57. That decision was affirmed on internal review and by the Social Security Appeals Tribunal (SSAT). Mrs Weyman seeks the review of the decision that during the relevant period she was a member of a couple and that her entitlement, if any, was at the married rate.

THE ISSUE

The issue for determination is whether Mrs Weyman was a member of a couple for the purpose of calculating her entitlement to parenting payment.

LAW

Mrs Weyman was paid parenting payment single from 8 March 2000 to 5 April 2010.
Under the Social Security Act 1991 (the Act) a person is only eligible for parenting payment single if he or she is not a member of a couple.
The term "member of a couple" is defined in s 4(2) of the Act. Specifically, in relation to married couples, the Act 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; or...
Section 4(3) states that the Secretary must consider all the circumstances of a       relationship, specifically including the following:
(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...
The decision-maker is to have regard to all the circumstances of the relationship, including, in particular, the matters set out in s 4(3) of the Act (Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92).
It may be relevant to examine and contrast the state of the marital relationship before and after the alleged separation (Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 175 (per O’Loughlin J), referring to In the Marriage of Todd (No 2)(1976) 9 ALR 401 and In the Marriage of Pavey (1976) 10 ALR 259). Separation means more than physical separation - it involves the breakdown of the marital relationship (the consortium vitae) and each case inevitably varies (Staunton-Smith v Secretary, Department of Social Security at 175).

EVIDENCE

Voluminous documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were in evidence. Additionally, Mrs Weyman tendered evidence, and gave oral evidence, as did Mr Weyman and their elder daughter, Brittany.
Mr and Mrs Weyman married on 17 April 1999. They had been in a relationship for some time and had two children; Leigh (born in 1989) and Brittany (born in 1993); before they married. Problems in the marriage became evident as early as January 2000, due to domestic violence.
Mrs Weyman said that she and her husband separated in about March 2000 because he was having affairs. At that time she applied for, and was granted parenting payment single. Mrs Weyman was subsequently issued with numerous information notices given under social security law relating to her parenting payment single. These notices informed her of her obligation to notify Centrelink within 14 days if she started living with someone of the opposite sex as if she was married. She said in cross-examination that she did not read the back of the forms and understood that she had to advise Centrelink if she lived with someone, and not just if there was a relationship.
At some time in March 2000, Mr and Mrs Weyman purchased a house at Hebersham together (the family home).
In cross-examination Mrs Weyman agreed that in November 2000 she had attended Blacktown Hospital and had recorded Mr Weyman as being her next of kin, describing him as her husband. She said she “had no-one else”. Her mother may have moved to Queensland at the time, but in any event, her relationship with her mother was “not good.” Although her brother may have been residing in New South Wales at the time, Mrs Weyman nominated Mr Weyman. She said she nominated him because, if anything happened to her, she would want her children to hear about it from their father rather than someone else.
Mrs Weyman said that after the separation, attempts were made to re-establish the relationship. They were not living together and she thought their daughter, C, may have been conceived after a one-night stand. By the time Mrs Weyman became pregnant with C in 2001 the relationship was poor. Mrs Weyman had wanted the relationship to resume for the children's sake, but her husband's previous conduct made the prospects uncertain. She said that Mr Weyman was at her residence only part of the time, and she had thought he was spending the rest of the time staying with friends or his cousins.
In September 2001 Mrs Weyman and the children went to New Zealand where Brittany was performing dance. On her return she was told that Mr Weyman had been seen with another woman. By January/February 2002 Mrs Weyman thought that her husband had formed a relationship with another woman, as he started saying that he had to go away for work. On 6 April 2002 she followed him to a house at Casula occupied by Ms K. She was furious, and confronted him at the house. Mr Weyman said he vividly recalled the confrontation and at the time he was “fairly close” to Ms K. He could not recall where he was living at that time.
As to why learning of this relationship was different to Mr Weyman’s earlier affairs, Mrs Weyman said in cross-examination that she was pregnant, severely depressed and was “the laughing stock of Plumpton.”
In cross-examination she did not remember that she told a social worker that Mr Weyman no longer wanted to be married or be in a relationship for the sake of the children. On 5 April 2002 she was recorded as reporting that there were still problems with her husband, and that she would stay with her mother for the time being.
She took the children and stayed at her mother’s for a few nights. Mr Weyman took away whatever belongings he had had at the family home. She said in cross-examination that once someone else was involved, “it (the relationship) was finished.”
After learning of Mr Weyman’s relationship with Ms K, Mr and Mrs Weyman again separated and Mr Weyman moved out of the family home, which was immediately put on the market, although it was not sold until August 2002. Mr Weyman visited the family home a number of times, but the visits almost always ended in arguments; more than once the police were called.
After the family home was put on the market Mrs Weyman and the children moved to Caspian Place, Plumpton (Caspian Place). Mr Weyman helped them move because he had a truck. In May 2002 Mrs Weyman notified Centrelink of the change of address. It was noted that Mrs Weyman's “ex-partner” was on the lease but she said that this was necessary as “no one would give her a place to rent as a single parent”. She said that Mr Weyman was not living with her but was still residing at the family home. Mr Weyman wrote in his statement that he had always allowed Mrs Weyman to use his name on any lease applications, because he believed she would not be able to get a lease due to her financial circumstances. He said he had never lived at those premises.
Mr Weyman wrote in his statement that after they separated he lived with his sister-in-law for at least a year. He also lived with a cousin and with another male friend. He said he lived with Ms K for three months in 2002.
Brittany recalled that her parents separated when she was very young. She first met Ms K when she was about eight or nine years old (approximately 2001-2), at about the time her mother caught her father with Ms K. She recalled outings with her father, Ms K and Ms K’s daughter. She said her father told her he was living with Ms K.
In March 2002, according to Western Sydney Health (WSH) records, Mrs Weyman was referred to a doctor. The referral notes that she was very upset with developments in the pregnancy, with her husband not wanting the baby and not wanting to do anything with her. She sought anti-depressants.
Mrs Weyman attended Blacktown Hospital on 9 April 2002 due to depression during her pregnancy with C. Mrs Weyman again nominated Mr Weyman as her next-of-kin. In cross-examination, said she had done so because she was severely depressed at the time.
On 15 April 2002 police attended the family home. Mrs Weyman said that the children had contacted their grandmother who had phoned the police. The incident giving rise to police attendance was an argument after it was established that Mr Weyman had been having an affair for the previous six weeks. The argument became very heated and Mrs Weyman slapped Mr Weyman on the face and grabbed at his groin area. The police record of the attendance records that Mr Weyman called the police. It describes Mr and Mrs Weyman as having been in a relationship for 13 years.
On 19 April 2002 Mrs Weyman was recorded by a social worker at WSH as saying she was still living in the marital home, but was searching for another residence.
On 31 May 2002 she was described by a social worker at WSH as having recently separated from her husband.
On 19 June 2002 WSH records note that Mrs Weyman was “very stressed due to separation from partner”. She said he had left her. She was attending counselling and on examination looked anxious. The following day a social worker wrote that Mrs Weyman was suffering from depression and was finding it difficult to cope without medication.
In late June 2002 Mrs Weyman gave birth to C. It was unclear who attended, with Mrs Weyman having nominated her mother and Brittany as support persons. Mrs Weyman said she had a difficult pregnancy, and had repeated visits to Blacktown Hospital because she was depressed and not coping. She was on her own and getting no support from her husband, although he paid child support of about $100 per week. At about that time Mrs Weyman sold her engagement and wedding rings.
On admission to Blacktown Hospital, when C was born, Mrs Weyman’s address was noted as Caspian Place, and the “person to notify” was her “husband”, Mr Weyman, whose address was recorded as the family home.
C’s birth certificate lists Mr Weyman as her father with both parents as the informants. C’s birth certificate records their address as Caspian Place. Mrs Weyman said it was a mailing address for Mr Weyman and, with some vehemence, words to the effect that she did not care where he was living.
On 1 July 2002 Mrs Weyman was referred to Dr Ong and a memorandum to Dr Ong noted that Mrs Weyman “has been enduring very difficult circumstances and uncertainty regarding her relationship with her husband” and “couples therapy may be needed.”
Social worker records from WSH dated 28 June 2002, during her confinement, note that her husband had told her early in the pregnancy that he was leaving her for another woman but has been coming back to her.
During 2002 Mrs Weyman referred her children to the school counsellor, Ms Landon, who provided a letter dated 1 June 2010. Ms Landon wrote that Mrs Weyman had concerns about the children’s emotional reaction to the marital conflict, and that in the second half of the year “the husband left the family and Maria was left looking after the children.”
On 10 July 2002 Mrs Weyman claimed Family Tax Benefit in relation to C. Mrs Weyman did not declare Mr Weyman as her partner. She also did not complete question three relating to her marital status.
The family home was sold in August 2002. The proceeds of sale were split between Mr and Mrs Weyman. The settlement sheet from the solicitor shows two cheques were drawn, each one to "M Weyman" in different amounts. Mrs Weyman recalled that she received more money from the sale because she was looking after the children and thought the split was 75/25. There have never been any Family Court orders concerning property.
Later, Mr Weyman asked her to use some of her money from the sale of the family home to buy him a car; and she gave him $10,000. She said she thought by giving him the money things between them might improve.
In October 2002 Mr Weyman wanted to take the two older children to the United States for a holiday, using some of the money from the sale of the family home. Mrs Weyman did not want the children to go, but neither did she want to stop them going. She told Mr Weyman that she would also go, and they would split the expenses. From 29 October to 10 November 2002 Mr and Mrs Weyman and the three children travelled to the United States. During the trip they would only have one room, but she and Mr Weyman had separate beds. She focused on looking after C while Mr Weyman and the older children went out together. There was a lot of tension between them although the children seemed untroubled.
On their return to Australia from the United States, Mrs Weyman filled out her immigration card, as well as Mr Weyman’s immigration card, noting the residential address of both her and Mr Weyman as Caspian Place. She said in cross-examination that Mr Weyman and his girlfriend didn’t want her to know where they lived, and had recorded her address because it was also Mr Weyman’s mailing address.
After they had separated she was still a signatory to Mr Weyman’s bank account. To her recollection, sometime around the trip to America, Mrs Weyman took some of his money - about $2,000 - out of the account because she was angry with him “about the whole situation.” When he found out he was very angry with her and removed her authority to draw on the account.
The police were again called, to Caspian Place by Mrs Weyman, on 24 January 2003. Mrs Weyman and Mr Weyman had become involved in an argument and had begun to a scold each other and hit each other about the head. Although Mrs Weyman requested an Apprehended Violence Order she continually stated that she held no fears for her safety, and that she “gave him better than he gave her”. In the police record Mr and Mrs Weyman were described as being in a domestic relationship for the past 11 years. She said in cross-examination that she was not going to tell everyone her business about her relationship.
Mrs Weyman and the three children moved to Minahan Place, Plumpton (Minahan Place), at the end of 2002 or the beginning of 2003. In March 2003 Mrs Weyman notified Centrelink of the change of address. Centrelink records that address as Mrs Weyman's residence from 8 February 2003 to 1 April 2004. Her evidence was that Mr Weyman would visit the house.
Records from the New South Wales Roads and Traffic Authority show that Mr and Mrs Weyman both updated their address to Minahan Place from 5 March 2003. As she remembered it, Mr Weyman visited Minahan Place more often during the weekend than during the week. She thought at the time was that he was living with Ms K.
Brittany said her father would still often come and visit her and C a few times a week after the separation. He would stay in C’s bedroom and C would sleep in her mother’s room.
Mrs Weyman said she contemplated taking the children to the United Kingdom, in 2003, and sought legal advice from a “Chamber Magistrate.” She stated she would have sold everything to get away. Exhibit A9 is the records of the solicitor from whom she sought legal advice in January 2003. When seeking advice, Mrs Weyman described herself as being recently separated.
As Minahan Place had to be vacated because of a mortgagee sale, Mrs Weyman and the children moved to Royal Avenue, Plumpton (Royal Ave) and notified Centrelink of that change of address in April 2004.
The arrangements with Mr Weyman at Royal Ave were the same as they had been at Minahan Place. Mrs Weyman was prepared to be flexible and allow him access to the children whenever he wanted because he had agreed not to take them to Ms K’s place. Mr Weyman would come to see the children on weekends and, as far as she knows, while he had taken them out, he had not taken them to Ms K’s.
From 23 September to 7 October 2004 Brittany competed in a dance competition in New Zealand. Mr and Mrs Weyman, C, and Mrs Weyman's mother travelled with her in a group of about 30. Mrs Weyman said it was not a family holiday. On their return to Australia, Mr and Mrs Weyman both declared their residential address as Royal Ave.
Mrs Weyman said in cross-examination that she didn’t remember where Brittany was living at that time, but thought it was mostly with her, although she had run away at some stage. She was unaware that Mr Weyman had made a claim for Family Tax Benefit in respect of Brittany.

In 2003 Mr Weyman and Ms K entered into a lease. Mr Weyman said they intended to live together but he only stayed there two-three nights a week and stayed the balance at his cousin’s.
Mrs Weyman and the children later had to leave Royal Ave when the house was sold. In September 2006 Mrs Weyman notified a change of address to Buckwell Drive, Hassall Grove (Buckwell Drive). Mrs Weyman advised that the total rent was $380 per week, but she was paying only $190. It was noted in Centrelink records that she had reported that she “is sharing with brother”. The names on the tenancy agreement are “Maria Weman (sic) and Matthew Weyman”. Centrelink records that as her residence from 31 August 2006 to 31 March 2007. To Mrs Weyman's recollection her brother, Richard Morris, also lived at Buckwell Drive for a period. The arrangements with Mr Weyman continued as before.
She did not remember if Mr Weyman went to inspect the property at Buckwell Drive. She agreed in cross-examination that she wanted the landlord to believe Mr Weyman was living there otherwise she would not have been able to get the lease as a single mother on Centrelink benefits.
In October 2006, while at Buckwell Drive the police were again called by Mrs Weyman, in respect of a domestic dispute between her and her son. Mr Weyman was recorded as being present at the time.
In January 2007 both Mrs Weyman and Mr Weyman went on a holiday to the Gold Coast but, Mrs Weyman said in cross-examination, while in the Gold Coast they went their own ways. She said that there was no need to notify Centrelink because the circumstances had not changed for more than 14 days.
Mrs Weyman and the children next moved to Parkwood Street, Plumpton (current address). Centrelink records that as her residence from 31 March 2007. Mrs Weyman advised Centrelink that her “ex-partner”, Mr Weyman's, name was again on the lease to help her “get the place”. Centrelink notes record that the gross rental property amount was $375 but that her net rental amount was $185. She was invited to provide a letter from real estate stating he does not live there or proof that her husband lives at a different address, but she did not do so.
Before C started school she went to day-care. Sometimes Mrs Weyman’s sister would pick her up. She did not remember Mr Weyman having collected her. C started kindergarten in 2008.
In 2008 Mrs Weyman had some medical procedures. The hospital records note her marital status as “separated” and her next of kin as Mr Weyman, her ex-husband.
Mrs Weyman said she commenced working as a medical receptionist in 2008. Her regular shifts are: Tuesday 2.00 pm to 6.00 pm; Wednesday 2.00 pm to 6.00 pm; Friday 8.00 am to 2.00 pm; and every 2nd Saturday 9.00 am to 6.00 pm. If the surgery is busy she will not finish until 6.30 or 7.00 pm. Sometimes additional shifts are available when other receptionists take leave. Her work colleagues know she is separated.
Since Mrs Weyman started work C has gone to after-school care which finishes at 6.30 pm. There is an arrangement whereby on Tuesdays and Wednesdays Mr Weyman collects C after he has finished work. He confirms the arrangements with Mrs Weyman during the day; occasionally Mr Weyman will be unable to collect C, in which case Mrs Weyman tells the others at the surgery that she has to leave at 6.00 pm. Mr Weyman takes C to the current address and he waits there with C until her mother comes home. He has a key so they can enter the house. Mrs Weyman usually has already cooked dinner for C and Mr Weyman leaves once Mrs Weyman arrives home.
During school holidays Mrs Weyman previously paid for vacation care but has been unable to afford it. Instead, C has gone to work with Mr Weyman in his truck. There is no one else to help - Mr Weyman’s parents are both dead; Mrs Weyman’s father is in Queensland and her mother has passed away; Mrs Weyman is now estranged from her siblings.
Mrs Weyman said Mr Weyman kept a car, a lawn mower and a whipper-snipper in the garage, and had kept a plastic bag with clothes in it in Leigh's room.
In November 2008 Mr Weyman co-signed a Foxtel agreement. Mrs Weyman said that if Foxtel “couldn’t find her, they could contact him.” Mr Weyman has insurance over the contents of the property because, she said, she can’t afford it and there are a lot of robberies in the area. He said he has done it to insure the contents of the house for the children.
On 23 May 2009 the police were again called to the current address, in respect of a domestic dispute between Mrs Weyman and C. Mr Weyman was described as being a witness.
Leigh had been living with Mrs Weyman and his sisters and paying half the rent, but in April 2010 he went to prison and was therefore unable to continue contributing. Mr Weyman moved in then and paid half the rent so Mrs Weyman and the children did not “lose the house.” Mr Weyman said he was “not going to see [my] kids without a roof over their heads.” Mrs Weyman said that it had been planned that Mr Weyman would leave the current address once Leigh was out of gaol, but as Centrelink cut off her payments within a week of Leigh being released in October 2010, Mr Weyman did not leave until April 2011 when Centrelink resumed Mrs Weyman’s payments. They completed a Centrelink ‘separated under one roof form’ on 6 December 2010 , to “get Centrelink off our back”.
At the time he made his statement in March 2011 Mr Weyman was still in a relationship with Ms K, although she has since moved interstate. Mrs Weyman speculated that maybe Mr Weyman had been having a rough time with Ms K and that is why he had been prepared to move back in. During the time he was there Mr Weyman said he did all his own cooking and washing, and he and Mrs Weyman socialised separately.
Mr Weyman does not contribute towards the household expenses of the current address. Brittany said she continues to see her father regularly as he lives nearby. Mrs Weyman said that Mr Weyman’s mail still comes to her address as it has always done. Mr Weyman said he normally collects his mail when he comes to see the children.
According to Mrs Weyman, Mr Weyman has provided little financial or emotional support to Leigh in recent years and she has paid $5,000-$7,000 in legal fees for him, and another $1,000 in bail. She said she had always paid Brittany's dancing expenses, and Mr Weyman had paid for C’s swimming lessons. Everything in the house is hers except for the television.
Mrs Weyman does not have any loans or joint bank accounts with Mr Weyman, and has not had access to any of his accounts since approximately 2002. Mr Weyman said that he has never removed her from entitlement because he was unaware that he could transfer entitlement to his children.
Mr Weyman has bought, developed and sold land in Queensland without the knowledge or involvement of Mrs Weyman. She was unaware that he had been on a lease with Ms K.
Mrs Weyman said that she has had little knowledge of Mr Weyman’s living arrangements since they separated in 2002. She presumed he had been living with Ms K. She also thought he may have had an itinerant lifestyle because of his work as a truck driver. She understood him to currently live in a lodge.
When Centrelink ceased Mrs Weyman’s payments she became behind in her rent, and now has a number of significant debts that she is unable to pay. Although Mr Weyman knows of the debts, Mrs Weyman said he has contributed nothing, and neither would she ask him to assist. She is contemplating bankruptcy.
Mr Weyman has paid child support for C since she was a baby on the basis of assessments by the Child Support Agency (CSA). The CSA also made assessments in respect of Brittney since 2005.
Mrs Weyman said C’s school and her work know that she is separated, but said in cross-examination that there were probably people who still thought they were together. Mr Weyman said he has never discussed his domestic arrangements with his employer or anyone else.
In August 2008 Mrs Weyman attended Blacktown hospital for a colonoscopy. On the admission form she stated Mr Weyman was her ex-husband but gave his address as Parkwood Street because, she said, he had never given her a straight answer as to his address and, in any event, he had his mail delivered there. She said in cross-examination that receiving his mail at her address did not make them “lovers”.

CONSIDERATION

It is trite to say that no two relationships, however described, are the same. Each matter is to be considered on its merits and the Tribunal needs to flexible in its approach: SRWW and Secretary, Department of Family and Community Services [2001] AATA 495. The ‘list’ in s 4(3) of the Act is not exhaustive and no guidance is given as to the weight of any factor; they are common-sense indicators: Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789. The total picture of the relationship that emerges from the factors must be weighed and the test is an objective one: Secretary, Department of Family and Community Services and WAP [2000] AATA 7. Having said that, what the legislation tells me to consider in determining whether the parties are a couple for the social security purposes, does not always reflect how the parties themselves see their relationship, especially when their understanding about whether they remain a couple is frequently clouded by acrimony. In the present matter, from the available evidence, it was clear to me that Mr and Mrs Weyman's relationship was a tumultuous one for some years.
The Applicant’s case was essentially that after their relationship broke down Mr Weyman remained a good father to his children and that, as such, he remained in frequent contact with them, which necessitated attendance at the children’s home (which they share with their mother). It also explained, it was submitted, some ongoing financial support which was, only incidentally, to his wife’s benefit.
As to the indication of a “marriage like relationship” in s 4(3) of the Act, there is no one feature in Mr and Mrs Weyman’s relationship that stands out as dictating a conclusion. I have reached my conclusion from the totality of the evidence.
In forming an opinion as to whether Mr and Mrs Weyman were living separately and apart permanently or indefinitely, I have had regard to all of the circumstances of their relationship as disclosed by the evidence, but particularly to the matters set out in s 4(3) of the Act (Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs). I have also taken into account any changes and contrasts in the relationship before and after the date of alleged separation on 8 March 2000 (Staunton-Smith v Secretary, Department of Social Security).
I now turn to the matters set out in s 4(3) of the Act.

Financial Aspects

When the family home was sold the proceeds of sale were split between Mr and Mrs Weyman. There was no evidence that the sale was occasioned by any reason other than the dissolution of the domestic arrangements that had existed at the time of purchase. I accept that Mrs Weyman received significantly more money from the sale because she was looking after the children. I consider this indicative of a clear intention to disentangle their financial affairs.
After they had separated Mrs Weyman did, however, remain a signatory to Mr Weyman’s bank account. Later in 2002, apparently in spite, she took about $2000 from the account. His response was to immediately remove her authority to draw on the account. I accept this as further evidence of an intention to disentangle their financial affairs.
Since then Mr and Mrs Weyman do not have any other loans or joint bank accounts. I accept that Mr Weyman has never removed Mrs Weyman from his superannuation entitlement because he was unaware that he could transfer entitlement to his children.
I note that Mr Weyman has bought, developed and sold land in Queensland independently of Mrs Weyman.
I observe that Mr Weyman asked Mrs Weyman to use some of her money from the sale of the house to buy him a car; and she gave him $10,000. I accept that she thought by giving him the money there might be less acrimony between them, but do not find that to be indicative of an ongoing relationship.
I accept that it is likely, that as a single mother, Mrs Weyman would have had difficulty in obtaining rental accommodation, especially before her return to work in 2008. I accept therefore that Mr Weyman was prepared to “be on the lease” in order to facilitate securing premises for his children, and necessarily, his wife. I accept that similar reasons may have been contemplated when Mr Weyman co-signed a Foxtel agreement. I also accept that Mr Weyman has arranged insurance over the contents of the property because Mrs Weyman can’t afford it and he has done so to insure the contents of the house for the children.
Although Mr Weyman knows of that Mrs Weyman has significant debts he has contributed nothing, and neither would she ask him to assist.

Nature of the household

The evidence was very unclear about where Mr Weyman has lived since he resided in the family home, and after he and Mrs Weyman claim to have separated. His evidence was that he has stayed, variously, with Ms K, friends and relatives, and more recently in a lodge. On the evidence of Mr Weyman, Mrs Weyman and Brittany, he has stayed occasionally wherever his children (and Mrs Weyman) were living from time to time.
The family home went on sale in early 2002 and was sold in August 2002. This is consistent, in my view, with Mr and Mrs Weyman’s contention that their relationship had ended and that they went their separate ways. There was no evidence as to any other reasons the property was sold.
In 2002, Mr Weyman had wanted to take the two older children to America for a holiday using some of the money from the sale of the family home. I accept Mrs Weyman’s explanation that she neither wanted them to go, nor wanted to stop them going, so she decided to go and split the expenses with Mr Weyman. It is not for me to assess the wisdom of such a decision, but given the acrimony between her and Mr Weyman such a course might be considered unusual. From her evidence Mr Weyman and Mrs Weyman provided an enjoyable holiday for the children, notwithstanding that there was a lot of tension between herself and Mr Weyman. To have adopted this course is consistent with their oft-stated concerns for the wellbeing of the children. Similarly, regarding the limited evidence in relation to the holiday to the Gold Coast in 2007, I was unable to draw any conclusion that this was indicative of an ongoing relationship;the evidence was that they went their own ways. As to the trip to New Zealand, I accept that this was part of a group tour with the purpose of seeing Brittany dance.
In 2003 Mr Weyman entered a lease with Ms K. As Mr Weyman was prepared to enter leases with Mrs Weyman to assist her in securing rental accommodation, it may be he was also prepared to do so to assist Ms K. Given Mr Weyman’s lack of clarity as to where he has lived since 2002, and his evidence that he did not live with her on a full-time basis, I am not satisfied that he in fact lived with Ms K for the duration of the lease. Conversely, and relevantly, I am not satisfied that he was living with Mrs Weyman either.
Up until at least March 2011 Mr Weyman was in a relationship with Ms K. He was prepared to move to the current address when Leigh went to gaol and was therefore no longer contributing to the rent of the home of his children and Mrs Weyman. I accept the evidence that during the time he was there he did all his own cooking and washing and he and Mrs Weyman socialised separately.
The evidence was that Mr Weyman maintained, or may even continue to maintain, some minor clothing and other items at Mrs Weyman’s home. I do not find this to be of any significance, given that he occasionally stays there.
I accept that Mr Weyman was helpful in sharing the arrangements about C’s after-school and holiday care. Again, this demonstrates an appropriate level of co-operation and communication necessary to maintain a level of care to their children. It is not, in my view, evidence of a sharing of household chores.

Social Aspects

I consider that the independent contemporaneous evidence of the hospital records, the police records, the school counsellor and legal advice to have been especially helpful in coming to my decision.
In March 2002 Mrs Weyman was reporting to health workers that her husband did not want the baby nor did he want anything to do with her. By April that year she told a social worker that she was looking for other accommodation. In May she said she had recently separated from her husband. In June she reported that her husband had left her. Shortly after C’s birth a social worker recorded that Mr Weyman kept returning to his wife, but I do not accept, on the evidence, that there was any real reconciliation, especially given the ongoing domestic violence which necessitated police intervention.
In hospital records Mrs Weyman had noted Mr Weyman as being her next of kin, and described him as her husband after she contended they had separated. She said she “had no-one else”, but it was unclear when her mother moved to Queensland, given that she was nominated as a support person for C’s birth. However, I accept her explanation that she nominated Mr Weyman because she thought that if anything happened to her, she would want her children to hear about it from their father rather than someone else. I observe too that it was unclear what options might be available to a person in completing the relevant forms.
I do not find it remarkable that C’s birth certificate lists Mr Weyman as her father, with both parents as the informants and nominating Caspian Place as their address. I accept that Mr Weyman used Mrs Weyman’s home (from time to time) as a mailing address because he was apparently somewhat itinerant. His notifications to Centrelink, Immigration and various authorities of his address mirroring that of Mrs Weyman is thereby, in my view, satisfactorily explained.
In 2002 Mrs Weyman referred her children to the school counsellor, Ms Landon, who noted that Mr Weyman had left the family in the second half of the year.
Mrs Weyman sought legal advice in January 2003 wherein she described herself as being recently separated.
I acknowledge that it was unhelpful that in her application for Family Tax Benefit in July 2002 Mrs Weyman did not complete the question relating to her marital status. She did, however, consistent with her representations to hospital workers, the police, the school counsellor, and the lawyer, not declare Mr Weyman as her partner.
As to how others view their relationship, C’s school and Mrs Weyman’s work know that she is separated. Mrs Weyman thought some other people may still think they are together. In my view, it almost inevitable, no matter how open the parties might be that some people may not know that Mr and Mrs Weyman have separated. On many occasions in the course of her evidence Mrs Weyman said, and I accept, that she was not one for telling other people about her personal affairs. Similarly, I accept that Mr Weyman has never discussed his domestic arrangements with his employer or anyone else. Clearly though, if he was living with Ms K, and with relatives and friends, others must know of their separation. In my view, it is almost inevitable, no matter how open the parties might be, that some people may not know them to be separated. In this matter though, I consider that there is a significant body of independent evidence, referred to above, that Mr and Mrs Weyman do not represent themselves as being together.

Sexual relationship

Mrs Weyman said that they “separated” in 2000 but that attempts were made to re-establish the relationship. They had a sexual relationship, possibly a one-night stand, in 2001 when C was conceived. There was no evidence of any relationship beyond that encounter. By April 2002 it appears that Mr Weyman was in a sexual relationship with Ms K.

The evidence was that when Mr Weyman stayed over at Mrs Weyman’s home, he slept in C’s bed.
I do not find Mr and Mrs Weyman to have been in a sexual relationship since at least C’s birth.

Nature of the commitment

Mr Weyman was having affairs from very early in their marriage. As early as January 2000, only months after they married, there was domestic violence such that police intervention was required. Domestic violence continued to be a hallmark of their relationship.
In 2001 Mrs Weyman wanted the relationship to resume for the children's sake, but her view was that once someone else was involved, “it (the relationship) was finished.” I accept that, at least as far as she was concerned, they ceased to be a couple from about April 2002, when she learnt of her husband’s relationship with Ms K.

Overall consideration

Having regard to all of the circumstances of the relationship, I consider that from 9 July 2002 Mrs Weyman was living separately and apart from Mr Weyman on a permanent or indefinite basis.

DECISION

The decision under review is set aside.

I certify that the preceding 107 (one-hundred-and-seven) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.

.................[sgd].................................................

Associate

Dated 6 March 2012

Dates of hearing	16-17 January 2012
Date final submissions received	17 January 2012
Counsel for the Applicant	M Vincent
Solicitors for the Applicant	M Pericaud
Counsel for the Respondent	R Henderson
Solicitors for the Respondent	J Larcombe