MCLEAN and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 625
•5 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 625
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/4348
GENERAL ADMINISTRATIVE DIVISION ) Re SHARON MCLEAN Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr C. Ermert, Member Date5 September 2011
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in its place decides that between 28 January 2005 and 4 February 2010, Ms McLean was not a member of a couple as defined in section 4 of the Social Security Act 1991. The Tribunal directs the respondent to determine and restore as necessary the benefits payable to Ms McLean as a result of this decision.
[sgd] Conrad Ermert
Member
PARENTING PAYMENT AND FAMILY TAX BENEFIT – whether member of a couple –whether in a marriage-like relationship – whether in a de-facto relationship – financial aspects – nature of the household – social aspects – sexual relations – nature of the commitment – decision set aside
Administrative Appeals Tribunal Act 1975 s 37
Social Security Act 1991 s 4(2), s 4(3)
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Re Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Re Dewhurst and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 512
Jones v Dunkel (1959) 101 CLR 298
REASONS FOR DECISION
5 September 2011 Mr C. Ermert, Member INTRODUCTION
1. In May 2003 Sharon McLean, the Applicant in this case, was living at 14 Cyril Grove, Noble Park (Cyril Grove) with her then husband, Eric Welch. On 20 May 2003 she lodged a claim for Parenting Payment in regard to her dependent children, Nicole Welch, Robert Palmer and Jessica Palmer. On the same day Eric Welch lodged an Assessment of Living Arrangements – Separated under one roof form with Centrelink, in which he stated that he had separated from Ms McLean approximately three years earlier and that she was then sleeping in the caravan in the yard of Cyril Grove. Centrelink, which provides services for the Respondent, granted Parenting Payment Single to Ms McLean from 12 May 2003.
2. In mid-2001 George Bromley moved into a caravan in the yard at Cyril Grove. There is conflicting evidence regarding the presence of one or two caravans. There is common evidence, however, that Mr Bromley lived in a caravan on his own.
3. On 10 January 2004 Mr Welch moved out of Cyril Grove. He and Ms McLean were divorced on 14 April 2004; after which Ms McLean moved from the caravan into the house. Subsequently, Mr Welch moved back into Cyril Grove to look after his daughter. He occupied a bedroom separate from Ms McLean. On 5 February 2007 Mr Welch transferred half the ownership of the house to Ms McLean. No money was involved in the transfer. Until 2010, he continued to pay the mortgage and the gas and electricity bills. Ms McLean paid the telephone bills.
4. While living in the caravan, Mr Bromley used the shower, toilet and kitchen of the house. In lieu of rental payments, he maintained the yard and the outside of the house. He has had no involvement in the children’s upbringing. On 17 April 2010 Mr Bromley and Ms McLean married and he moved from the caravan into the house.
5. In January 2000 Mr Bromley commenced work with Grenda’s Bus Services (Grenda). Grenda’s records show him as married and living at Cyril Grove. Ms McLean commenced employment with Grenda on 19 June 2006. Grenda’s records show her address as Cyril Grove and her next of kin as G Bromley – Partner. Ms McLean would frequently drive Mr Bromley to and from work and they would often have lunch together.
6. The records of a travel and holiday firm, Trendwest South Pacific Finance (Trendwest), later known as Wyndham Vacation Resorts (Wyndham), include three applications for credit in both names. In August 2009 Ms McLean and Mr Bromley travelled together to Northern Ireland.
7. At different times between 2002 and 2010 Ms McLean and Mr Bromley have been treated as patients in Dandenong Hospital. The hospital records show that each was listed as the next of kin and person to contact in case of emergency, for the other.
8. On 25 January 2010 a Centrelink officer made a decision that Ms McLean and Mr Bromley have been living as members of a couple since 10 April 2006. This date was later varied to 28 January 2005. Parenting payments and family tax benefits to which individuals are entitled are reduced if they are living as members of a couple. Following the decision, Centrelink decided to raise and recover the extra parenting payments and family tax benefits paid to Ms McLean. A Centrelink authorised review officers affirmed the decisions, which were in turn affirmed by the Social Security Appeals Tribunal (SSAT) in its decision of 10 August 2010. The present matter is an application for review of the SSAT decision.
THE HEARING
9. The hearing was held on 7 June and 15 August Ms McLean represented herself and tendered as evidence an undated letter (Exhibit A1). Mr Tim Noonan, a Centrelink advocate, represented the respondents. He tendered a statement by Michael Thorn of Grenda, dated 10 May 2011 (Exhibit R1), a statement by Patrick McKay, also of Grenda, dated 31 May 2011 (Exhibit R2), a copy of a facsimile from Bendigo Bank dated 24 March 2010 with attachments (Exhibit R3), another bundle of documents from Bendigo Bank (Exhibit R4) and a bundle of documents from Veda Advantage Information Services (Veda), dated 11 January 2010 (Exhibit R5).
10. The Tribunal also had before it the documents provided by the respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
11. Ms McLean and Mr Bromley gave oral evidence for Ms McLean. Mr Patrick McKay and Mr Michael Thorn, both of Grenda, gave oral evidence via telephone for the respondent.
THE ISSUE
12. The issues are:
(a)Whether Ms McLean was a member of a couple with Mr Bromley between 28 January 2005 and 4 February 2010;
(b)if so, whether there has been a resultant overpayment of parenting payment and family tax benefits;
(c)whether the overpayments are legally recoverable debts; and
(d)whether all or part of the debts should be waived or written off for a period.
13.The primary issue in contention is whether Ms McLean was a member of a couple with Mr Bromley. The other issues are only activated if it is found that Ms McLean was a member of a couple. In this matter they are not contested.
THE EVIDENCE
Ms McLean
14. Ms McLean said that in 2001 she agreed to a request from a friend to allow Mr Bromley to stay in a caravan parked in the yard at Cyril Grove. Ms McLean said that she used to drive Mr Bromley to and from work as he had no car. When necessary she drove Mr Bromley to Dandenong Hospital and gave her details to the hospital staff as the point of contact because there was nobody else. She agreed that occasionally they would have lunch together. Ms McLean said that people at Grenda just assumed that she and Mr Bromley were partners. However, that was not the case.
15. Of her holiday trip to Northern Ireland with Mr Bromley, Ms McLean said that they paid their own way, and that she shared a room with Mr Bromley but they had separate beds.
16. Ms McLean said that her loan from the Bendigo Bank was a personal loan and that she had no joint accounts with Mr Bromley. She said that Mr Bromley had given her a card to access to his bank account as he had difficulty in accessing the account himself.
17. Under cross-examination, Ms McLean said that from about 2000 to early 2004 she lived in a caravan in the yard at Cyril Grove. She did not move into the house until her divorce from Mr Welch in April 2004. Ms McLean said that Mr Welch subsequently moved back into the house to help care for Nicole but he occupied a separate bedroom. She said that Mr Welch continued to pay the mortgage payments and paid the electricity and gas bills. Ms McLean agreed that Mr Welch transferred half ownership of the house to her name and that no money was involved.
18. Ms McLean said she moved into a caravan in the yard in about 2000. When Mr Bromley arrived in 2001 he lived in a second caravan. She said that she stayed in the caravan until 2004 when she moved into the house after her divorce from Mr Welch. Mr Bromley stayed in the caravan until January 2010 when he joined Ms McLean in the house. Ms McLean said that the second caravan was sold but she could not remember when. Ms McLean agreed that she occasionally cooked meals for Mr Bromley and washed his clothes.
19. When asked about the records of credit applications to Trendwest shown as joint applications (T documents, pp. 163 and 165), Ms McLean said that the Trendwest people wrote joint in the documents in spite of Ms McLean telling them that the applications were to be separate. She was adamant that the loans were entirely for Mr Bromley’s benefit and he makes all the repayments. About the account with Wyndham in both names (T documents, p. 188) and the Application for Holiday Credits with Wyndham (T documents, p. 190), Ms McLean said that Mr Bromley had told her to just sign and that he would pay for the holiday to Northern Ireland. She did not know why she was shown as a joint account holder. Ms McLean insisted that the account and credits were all for Mr Bromley and that he made all the repayments. She said that she has never paid any money to Trendwest or Wyndham.
20. Mr Noonan asked Ms McLean about her responses to the SSAT in regard to being a guarantor for Mr Bromley’s holiday credit application, and her personal loan from Bendigo Bank of about $6,000 (T documents, p. 34). She said that the money was not for Mr Bromley. She gave him some money to help him out and to enable him to get credit but she could not remember how much it was. She said it was not $5,000. She agreed that she had given Mr Bromley the money required for repairs to his car.
21. In regard to her access to Mr Bromley’s bank account, Ms McLean said that Mr Bromley could not access the automatic teller machines because of his bus travel to and from work. Additionally, Mr Bromley sometimes works for a friend on Saturdays. Mr Bromley also has difficulty seeing the numbers on the machines and that he cannot remember his password. Ms McLean said Mr Bromley had a big debt when they first met and that she helped him sort it out. However, she shared no liabilities with Mr Bromley and their only joint asset is the bed bought at the time of their marriage.
22. Ms McLean’s evidence was that Mr Bromley made some small contributions towards the gas and telephone costs, but not much. He did not pay rent for the caravan but cleaned up outside. He did not contribute to the mortgage repayments. Ms McLean said that, while he was living in the caravan, Mr Bromley had access to the house toilet, bathroom, kitchen and lounge room. She said that she did all the cooking, cleaning and washing, including washing for Mr Bromley until 2006. After she started work, Ms McLean cleaned only her own room. Her daughter and son‑in‑law cleaned the rest of the house. She said that Mr Bromley had no role in the housework and that he only cleaned up outside the house.
23. Ms McLean said that prior to 2006 they would all sit down together for the evening meal. She said that after she started working, she generally did not eat with the others because of her work times. On the occasions she did eat with the others in the evening, it was with all of them and not just with Mr Bromley. Ms McLean agreed that she ate lunch with Mr Bromley, after 2004. She also agreed that since Mr Bromley got rid of his car, in about 2004, she has driven Mr Bromley to work every day. She said that it would take him about 20 minutes if he went by bus.
24. Ms McLean said that Mr Bromley had no involvement in bringing up the children.
25. In cross-examination Ms McLean was asked about her children living in the house. Of Robert she said that he stayed in the house off and on, sometimes staying with his father. She said that Robert did not like Mr Bromley and stole money from George’s money box. Ms McLean said also that Robert had problems with drugs and alcohol.
26. Mr Noonan referred Ms McLean to the document signed by Mr Dosser of Grenda, dated 13 November 2006 (T documents, p. 160) in which he inserted Mr Bromley’s name in the spaces for next of kin and the person to be contacted in case of emergency. Ms McLean was adamant that she had not provided that information, that she had never signed a paper with this information, that it was wrong and was just an assumption by Mr Dosser.
27. When asked about the Dandenong Hospital admission record dated 4 June 2002 (T documents, p. 209), Ms McLean said that Mr Bromley took her to the hospital on that occasion but she had no idea why he was shown as next of kin and the person to contact. When Mr Noonan asked Ms McLean about the information regarding Mr Bromley’s eight admissions to Dandenong Hospital (T documents, p. 211), Ms McLean said that she took him to the hospital because he had no family nearby. She said that she told the hospital staff she was a friend and that they should put her down as the next of kin, as Mr Bromley was living in a caravan at the back of her place and there was nobody else.
28. Mr Noonan asked Ms McLean about whether she had meals with Mr Bromley at an RSL club. She said that this happened in 2009 but on an irregular basis and as part of a group, not just with Mr Bromley. Of their attendance together at work functions, Ms McLean stated that they went together because there was only one car available. However, they were not partners. Ms McLean agreed that Mr Bromley would do odd jobs for her mother because Mr Welch was not able to do them. She also agreed that she and Mr Bromley would share their birthday celebrations. However, they were always with other friends.
29. Ms McLean stated firmly that she had not had sex with Mr Bromley until he moved into the house in 2010. She said that before 2010 they were just friends. Their feelings towards each other changed in 2010, which is why they got married. She denied that her appeal against the Centrelink decisions had any influence on their getting together.
30. Although Ms McLean could not recall receiving the various notices sent by Centrelink, she did agree that she had seen and read the information requiring information to be provided to Centrelink regarding a change in personal circumstances. Ms McLean did not dispute the calculations of overpayment of parenting allowance and family tax benefits. In regard to her own financial position, Ms McLean agreed that she is employed by Grenda, she is a 50% owner of Cyril Grove (valued at about $140,000) although she does not know how much of the mortgage is still to be paid, and that she has no debt liabilities. She said her health is not good and that she suffers with eye problems and problems with her feet and arms. She treats the problems with Panadol, as she cannot afford to see a doctor.
Mr Bromley
31. Mr Bromley told the tribunal that he moved into a caravan in the back yard at Cyril Grove in mid-2001. He said that there was only one caravan in the yard and that Ms McLean was living in the house. When asked again whether there was a second caravan he said he could not remember but reiterated that from 2001 onwards there was only one caravan. He said that he did not pay rent but did maintenance around the house. Mr Bromley said that he used the shower, toilet and kitchen in the house.
32. Mr Bromley stated the occupants of the house to be Ms McLean and her husband (Mr Welch), the two daughters, the son and the husband of one of the daughters. He said that occasionally there were others. He said that Mr Welch would come and go to check up on his daughter. When asked about the son, Robert, Mr Bromley said that Robert’s relations with the family were not too bad. He said that Robert was away for long periods and he was not aware that Robert had drug and alcohol problems.
33. Mr Bromley said that he had no involvement in the upbringing of the children. He said that he sometimes made his own meals; otherwise, he would have takeaway food or go to the RSL. Mr Bromley agreed that about once a week he would share a meal at Cyril Grove with the others. Mr Bromley said that he did not contribute to the groceries, the household bills or the mortgage.
34. Of the account with Trendwest and Wyndham, Mr Bromley said that Ms McLean should not have signed the application as he is the only one who pays money into the account. He said he did not know why the account was classified as joint. Mr Bromley said that the account provides credits for use on holidays and he used some credits for the trip to Northern Ireland in 2009. He said that the credits paid for the accommodation, airfares and a hire car. He said that he and Ms McLean shared a room but slept in separate beds while on holiday, paid for their own food and contributed to the petrol for the car.
35. When asked about a personal loan of about $5,000 that Ms McLean had taken out from the Bendigo Bank, Mr Bromley said that Ms McLean used the money to have her car repaired. He could not recall if she had given any of the money to him. Referring to his personal financial issues, Mr Bromley said that he has not made a will and that the beneficiary of his life insurance was his ex-wife, who has passed away. There is currently no nominated beneficiary.
36. Mr Bromley stated that he has been an employee at Grenda since 2000. He does not know why he and Ms McLean are shown as partner and next of kin and/or the emergency contact on each other’s records at Grenda (T documents, pp. 160 and 174). He said that shortly after he started living at Cyril Grove his car was smashed and since then Ms McLean has driven him to and from work. He said that he walks to work sometimes. He said that for the last two years Ms McLean would pick him up at work at lunchtime to get away from the noisy environment.
37. When Mr Noonan asked Mr Bromley about the hospital records, Mr Bromley had no explanation why he was shown as Ms McLean’s partner (T documents, p. 209), nor why Ms McLean was shown as de facto/partner first contact for him (T documents, p. 211).
38. Referring to social functions, Mr Bromley said that he went to the RSL with Ms McLean on only two occasions on a Sunday night. He also said that he and Ms McLean went together only once to a workplace Christmas function.
39. Mr Bromley reiterated his evidence to the SSAT that he and Ms McLean did not have a sexual relationship before January 2010; and that, prior to 2010, Ms McLean was a friend.
40. When asked why he had given Ms McLean access to his bank account he said that he was not good at managing his own money. He said that when he met Ms McLean he had debts and Ms McLean had helped him to get back on track.
Mr McKay
41. Mr McKay was questioned about his statement dated 31 May 2011 (Exhibit R2). He said that he had regular contact with Mr Bromley at work. He said his contact with Ms McLean was not as frequent and was more in the way of a greeting in passing or when passing on a message regarding Mr Bromley’s health. Mr McKay said that he observed from time to time that Ms McLean would pick up Mr Bromley at lunchtimes and he thought this happened on most days.
42. From his observations of the lunchtime pick-ups, the reports of Mr Bromley’s health and the overseas holiday, Mr McKay said that he formed a view that Mr Bromley and Ms McLean were partners. In answer to a question from Ms McLean he said he had no reason to ask about their relationship and that his views were only an assumption. He agreed with Ms McLean that he would also help a friend who had no nearby family and no car.
Mr Thorn
43. Mr Thorn was questioned about his statement dated 10 May 2011 (Exhibit R1). Mr Thorn said that he met Mr Bromley soon after he started at the depot in October 2004. He said he would bump into Mr Bromley most mornings and once or twice each day. Mr Thorn said he saw Ms McLean on most afternoons. Mr Thorn said he saw Ms McLean drive Mr Bromley to work quite often, more so from 2008 onwards.
44. When asked what conversations led him to believe they were in a de-facto relationship, Mr Thorn said they were casual conversations with other staff, conversations with Ms McLean about Mr Bromley’s health and also her conversations with others who expressed their concerns about Mr Bromley’s health. Mr Thorn had the feeling that they were fairly close together.
45. When asked why he had referred to Ms McLean as Mr Bromley’s wife in an email (T documents, p. 185), Mr Thorn said he could not comment because he could not recall the email. When asked generally why he thought that they were in a de‑facto relationship, Mr Thorn said that it was based on what he was told by others, and from his observations of the way they talked to each other. Mr Thorn said the detail of the relationship was not of interest to him or to Grenda. It was obvious to him that they were a couple of some sort and it looked like a relationship.
SUBMISSIONS
46. Ms McLean submitted that the evidence that she and Mr Bromley were a couple was based on people’s assumptions. Others presumed they were a couple. Ms McLean agreed that she would drive Mr Bromley to work and pick him up at lunchtimes but she re-iterated that he lived in a caravan while she lived in the house and that they had no sexual relations until they eventually married.
47. Mr Noonan handed up written submissions. The overall assessment is:
·The Secretary submits that the applicant was a member of a couple with B (Mr Bromley) during the period 28 January 2005 to 4 February 2010 particularly in the light of the:
·Duration of B’s residence at Cyril Grove;
·Applicant’s practice to drive B to his workplace in the morning and at lunchtime from the workplace to Cyril Grove & return to the workplace;
·Objective evidence in the form of employment, financial & hospital records;
·Applicant’s unrestricted access to B’s bank account;
·Absence of any significant difference between the relationship prior and subsequent to January 2010 apart from the commencement of a sexual relationship in January 2010;
·B’s access to the Cyril Grove house;
·Applicant’s failure to call witnesses, which was unsatisfactorily explained, gives rise to an inference that their evidence would not have assisted her case.
48. In her response to the written submissions, Ms McLean restated that the holiday company made a mistake in recording the credit applications as being from joint applicants. She re-iterated that she paid no money to the holiday fund, that she and Mr Bromley had slept in different beds and paid their own way and the joint loan application was not a relevant consideration. Ms McLean said that she was a co‑signatory on the January 2009 loan application so that Mr Bromley could get the credit.
49. Ms McLean said that she had access to Mr Bromley’s bank account as he does not know how to operate automatic teller machines and does not have time to get to the bank. She also said that she did all the banking for Mr Bromley as he was not good at it. She stated that the telephone bill is in her name. Ms McLean said that there were two caravans at Cyril Grove: one belonging to her uncle, which was subsequently sold; and one belonging to Mr Welch, now owned by Mr Bromley.
50. Referring to the fact that she did not call additional evidence, Ms McLean stated that her mother had declined to give evidence as she did not want to come to the court and that her son also did not want to appear. Ms McLean contended that the High Court decision in Jones v Dunkel (1959) 101 CLR 298 was irrelevant. Mr Noonan’s written submissions refer to that decision and it is considered later in these reasons.
51. Referring to the social aspects of their relationship, Ms McLean said that she would drive Mr Bromley to work, pick him up from work at lunchtime and drive him back to work after lunch. She said that other family members would pick him up after work. Ms McLean submitted that Mr Thorn and Mr McKay only assumed that she and Mr Bromley were a couple. She did not know why the hospital recorded Mr Bromley as next of kin as she always put down her mother as next of kin. Ms McLean said that she told the hospital that Mr Bromley was a friend.
52. Ms McLean’s final submission was that all of respondent’s evidence about her relationship with Mr Bromley was based on other people’s assumptions and nobody had ever asked her about the relationship.
LEGISLATION
53. The relevant legislation is contained in the Social Security Act 1991 (the Act). Subsections 4(2) and 4(3) provide relevantly as follows:
(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…; or
(b) all of the following conditions are met:
(i)the person has a relationship with a person of the opposite sex (in this paragraph called the partner);
(ii)the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
...
(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.
54. Amendments to the Act effective from 1 July 2009 replaced the term marriage-like with de facto, however there were no other changes relevant to this matter.
CONSIDERATION
55. In referring to the list of circumstances provided for in subsection 4(3) of the Act, the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 stated at 170:
It is not suggested that this list is exhaustive nor will each of these subects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.”
56. The Tribunal in Sperring and Secretary, Department of Employment and Workplace Relations (2007) AATA 1050 stated:
[70] … being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.”
57. The Tribunal will proceed to consider each of the criteria of the Act and then all the other material relevant to reaching its decision.
Financial Aspects of the Relationship
58. There is no evidence of joint ownership of real estate or other major assets, nor of joint liabilities between Ms McLean and Mr Bromley. Mr Welch gifted half ownership of the Cyril Grove property to Ms McLean and has always paid the mortgage. There is no evidence of legal obligations between Ms McLean and MrBromley. There are no joint bank accounts. They are not beneficiaries of each other’s wills or insurance policies.
59. Of the pooling of financial resources, the Tribunal notes the joint account for holiday credits with Trendwest and Wyndham. Ms McLean and Mr Bromley testified that Mr Bromley made all the payments. However, Mr Noonan submitted that Ms McLean still benefited from the credits, as she did not have to contribute to the airfares, accommodation, or hire car expenses for their trip to Northern Ireland.
60. Mr Noonan submitted that Ms McLean’s access to Mr Bromley’s bank account is compelling evidence of financial interdependence and a substantial element of trust. Mr Noonan referred also to the evidence that Ms McLean assisted in managing Mr Bromley’s debts. In her evidence, Ms McLean said that she accessed Mr Bromley’s account for him because he found it too difficult and that she helped managed his debts because he was not good at it. There is no evidence, however, that Ms McLean provided this assistance for the purposes of pooling financial resources. However, Ms McLean did receive a benefit from Mr Bromley’s account by the way of the holiday credits already referred to.
61. There is evidence of Mr Bromley sharing some of the household expenses. However, Ms McLean stated that the amount was not much and that the telephone account was in her name. Ms McLean also said that she gave Mr Bromley some of the money from her loan from the Bendigo Bank.
62. The Tribunal considers the joint benefit from the holiday credits and the gifting of money from the Bendigo Bank loan to be more in the nature of occasional gifts, one to the other, rather than the pooling and sharing of financial resources. There is, however, the evidence of Mr Bromley sharing some of the household expenses, which does fall within this section.
The Nature of the Household
63. Ms McLean testified that she separated from her then husband, Mr Welch, in about 2000 and lived in one of two caravans in the yard at Cyril Grove. She stated that Mr Bromley arrived at Cyril Grove in 2001 and lived in a second caravan. Ms McLean said that she moved into the house after her divorce in 2004. Mr Welch still lives in the house at Cyril Grove but now occupies a separate bedroom. Ms McLean’s daughter, her daughter’s husband and child, and her son also live in the house, although her son is often away. Another friend, Roy, occasionally slept on a mattress in the house.
64. Mr Bromley testified that he started living in a caravan at Cyril Grove in 2001. He said there was only one caravan there at the time and that Ms McLean lived in the house.
65. Although there is a clear discrepancy between their evidence, there is no evidence that they both occupied the same caravan or lived together in the house during the period in question. Ms McLean and Mr Bromley were firm in their evidence that they did not live together in the house until 2010.
66. There is evidence that Mr Bromley occasionally ate his evening meal with the others in the house. He joined the others in birthday and Christmas celebrations. However, there is no evidence that Mr Bromley had any involvement in the care or upbringing of the children. In regard to housework, the evidence is that Mr Bromley did no household chores inside the house. He cleaned up the outside area in lieu of paying rent for the use of the caravan. Ms McLean did his washing for him at the same time as she did the washing for the others in the house.
The Social Aspects of the Relationship
67. Both Ms McLean and Mr Bromley testified that they did not hold themselves out as being married to each other. However, the employment documents at Grenda, the Trendwest/Wyndham holiday credit application and the hospital admission documents all record Ms McLean and Mr Bromley as partners and persons to contact in case of emergency.
68. Mr Thorn and Mr McKay, work supervisors at Grenda, testified that they assumed that the two were partners. Their assumptions were based on observations of Ms McLean driving Mr Bromley to work and picking him up at lunchtimes and Ms McLean’s concern for Mr Bromley’s health. Ms McLean contended that their views were just assumptions as she had never been asked about her relationship by either of them. Mr Thorn and Mr McKay said that they had no reason to ask and agreed that their views were based on assumptions.
69. There was evidence that Mr Bromley and Ms McLean went together to an RSL club for meals. However, they both testified that this occurred on only one or two occasions. They also went to one work-related Christmas function together. They testified that they went together for the convenience of sharing the one car. The major activity taken together was their holiday to Northern Ireland.
Sexual Relationship
70. There is no evidence of a sexual relationship between Ms McLean and Mr Bromley during the period in question.
Commitment to Each Other
71. The relationship between Ms McLean and Mr Bromley started when he came to stay at Cyril Grove in 2001. The relationship continued, apparently unchanged, until 2010. Their testimony was that they did not see their relationship as marriage‑like during that time. They were just friends.
72. They both testified that in 2010 their feelings towards each other changed, they married and he moved into the house. There is evidence of considerable companionship and emotional support from Ms McLean towards Mr Bromley. She would drive him to work and pick him up most lunchtimes. She managed his debts and finances because he was not good at it. Mr Thorn and Mr McKay testified that Ms McLean showed concern for Mr Bromley’s health. She also took him to the hospital when necessary. Ms McLean stated that these were the actions of a friend; actions that anyone would take under the same circumstances.
73. Looking at the continuing nature of their relationship, it is clear that it has continued beyond the period in question but in a different state. They are now married.
74. In his submissions, Mr Noonan referred to the matter of ReDewhurst and Secretary, Department of Education, Employment and Workplace Relations [2010] AATA 512, in which the Tribunal stated, at paragraph 69:
The real question on the evidence is whether the behaviour demonstrated by the evidence is attributable to a “marriage-like” relationship, or a strong and enduring friendship with practical and emotional benefits to each of them.
75. Mr Noonan contended that this criterion pointed to their being a member of a couple.
Consideration of all of the Evidence
76. As in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 and Re Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050, the Tribunal must consider the totality of the evidence and all the circumstances and not be confined to the examples given in the Act. Taking all the evidence as presented, the Tribunal is not persuaded that Ms McLean and Mr Bromley were members of a couple. It is clear that they had a relationship of sorts, indeed, in many ways quite a close relationship. The Tribunal considers, however, that the relationship was more akin to that of a housekeeper looking after a lodger whom she befriended. The Tribunal considers their relationship can be well described by the expression used in Dewhurst as a strong and enduring friendship with practical and emotional benefits to each of them.
77. Ms McLean looked after Mr Bromley’s finances because he was not good at that sort of thing; not as part of a pooling of resources. Their sleeping arrangement and the way they separated their expenses during their trip to Northern Ireland indicates that it was a more a trip of convenience and opportunity than the shared holiday of a couple. Ms McLean’s practice of driving Mr Bromley to work, their shared lunchtimes and Ms McLean’s obvious concern over Mr Bromley’s health indicates a close relationship but not necessarily a marriage-like or de-facto relationship. They can also be considered to be the actions of friends living and working in close proximity. There is also no evidence of a sexual relationship.
78. Their colleagues’ assumptions that Ms McLean and Mr Bromley were partners is understandable given their observations. However, they are no more than assumptions. Equally, the notations in the Grenda and hospital records could be explained as the assumptions of those entering the information, based on the fact that they had the same living address and nominated each other as the point of contact. Being the point of contact may indicate no more than that they were the nearest and most accessible person who had a concern for the other. The joint application for holiday credits, signed by Ms McLean is more difficult to reconcile as a mistake on the part of Trendwest and Wyndham. However, it remains the only evidence of a joint undertaking and both parties testified that the repayments were made entirely by Mr Bromley.
79. The most significant financial asset was the Cyril Grove property. This remained in the sole ownership of Mr Welch until he gifted half of it to Ms McLean. It was Mr Welch who met all the mortgage payments and paid the bulk of the gas and electricity bills. At no time has Mr Bromley had any involvement in the property. The Tribunal notes also that neither party is beneficiary of the other’s will or insurance policies.
Ms McLean’s Credibility
80. The above considerations are based on the evidence available to the Tribunal and rely on the credibility of Ms McLean. In his submissions, Mr Noonan drew the Tribunal’s attention to a number of inconsistencies in the evidence presented by Ms McLean and Mr Bromley: the number of caravans in the yard, the year in which Ms McLean moved back into the house, and whether the son had drug and alcohol problems. Mr Noonan contended that evidence from Mr Welch and Ms McLean’s mother could have resolved the inconsistencies. He contended further that Ms McLean had no sufficient reason for not calling them as witnesses.
81. Mr Noonan referred the tribunal to the High Court decision in Jones v Dunkel (1959) 101 CLR 298. In that decision, their Honours decided that the trial judge should have told the jury that it would be proper for them to conclude that the evidence of a witness not called to give evidence, without sufficient explanation of his absence, would not have assisted the defendant. Mr Noonan submitted that:
It is open to the Tribunal to draw an inference that the evidence particularly of Mr Welch and the applicant’s mother would not have assisted the applicant. The applicant’s reasons for the failure to call those witnesses were unsatisfactory.
82. The Tribunal accepts this submission, however it is not clear what parts of Ms McLean’s evidence might have been adversely affected. Ms McLean said she lived in a caravan separate from Mr Bromley until 2004. Mr Bromley said she lived in the house from 2001. Both versions show that they did not live together during the time in question. The Tribunal also does not consider relevant the question of whether the son has drug and alcohol problems.
83. While the Tribunal has some reservations about the inconsistencies in the evidence, it is not convinced that Ms McLean’s credibility is in question sufficiently to negate the earlier considerations.
FINDINGS
84. After considering all the evidence, the Tribunal finds that Ms McLean was not in a marriage-like or de facto relationship with Mr Bromley over the period in question. Consequently, the Tribunal finds that they were not a member of a couple for the purposes of section 4(2) of the Act.
85. These findings mean that there has been no overpayment of parenting payment or family tax benefits and consequently there is no debt owed to the Commonwealth.
DECISION
85. The Tribunal sets aside the decision under review and in its place decides that between 28 January 2005 and 4 February 2010 Ms McLean was not a member of a couple as defined in section 4 of the Act. The Tribunal directs the respondent to determine and restore as necessary the benefits payable to Ms McLean as a result of this decision.
I certify that the eighty-five [85] preceding paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member
Signed: .....Dianne Eva
ClerkDates of Hearing 7 June and 15 August 2011
Date of Decision 5 September 2011
Advocate for the Applicant Self-represented
Advocate for the Respondent Mr T. Noonan, Centrelink Advocacy Branch
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