Melvin v Secretary, Department of Social Security
[2016] FCA 375
•19 April 2016
FEDERAL COURT OF AUSTRALIA
Melvin v Secretary, Department of Social Security [2016] FCA 375
Appeal from: Secretary, Department of Social Services v Melvin [2015] AATA 248 File number(s): WAD 243 of 2015 Judge(s): GILMOUR J Date of judgment: 19 April 2016 Catchwords: ADMINISTRATIVE LAW – appeal from a decision of the Administrative Appeals Tribunal – overpayment of disability support pension – whether the appellant was a “member of a couple” within the meaning of s 4(2) of the Social Security Act 1991 (Cth) – application of criteria under s 4(3) – meaning of “living separately and apart” under s 4(3A) – whether the Tribunal erred in finding that the relevant will had not been revoked – relevance of testamentary intention – failure to set out basis of reasons and findings of fact, evidence or law to support the decision. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44(1)
Social Security Act 1991 (Cth ss 4(2), (3), 1223(1)
Marriage Act 1961 (Cth) s 88E(1)
Migration Act 1958 (Cth)
Wills Act 1970 (WA) s 14
Acts Interpretation Act 1901 (Cth) s 25D
National Health Act 1953 (Cth) s 98BD
Cases cited: Casey v Repatriation Commission (1995) 60 FCR 510
Civil Aviation Safety Authority v Central Aviation Pty Ltd (20090 108 ALD 329
Comcare Australia v Lees (1997) 151 ALR 647
Damberg v Damberg (2001) 52 NSWLR 492
Danagher v Child Support Registrar [2014] FCA 408
Dornan v Riordan (1990) 24 FCR 564
Federal Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd (2010) 186 FCR 410
Fox v Repatriation Commission (1997) 45 ALD 317
Hill v Repatriation Commission (2004) 82 ALD 60
Hill v Repatriation Commission [2005] FCAFC 23
McMullen v Commissioner for Superannuation (1985) 61 ALR 189
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Repatriation Commission v Hendy (2002) 76 ALD 47
Repatriation Commission v Holden (2014) 142 ALD 267
Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555
Re Pochi (1979) 26 ALR 247
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1
Waterford v Commonwealth (1987) 163 CLR 54
Date of hearing: 20 October 2015 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 111 Counsel for the Appellant: Ms C Thompson Solicitor for the Appellant: Welfare Rights & Advocacy Service Counsel for the Respondent: Ms C Dowsett Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
WAD 243 of 2015 BETWEEN: DIANNE MELVIN
Appellant
AND: SECRETARY, DEPARTMENT OF SOCIAL SECURITY
Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
19 APRIL 2016
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant is to pay the costs of the respondent to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GILMOUR J:
The appellant, Dianne Melvin, appeals from a decision of the Administrative Appeals Tribunal (Tribunal) made on 24 April 2015 in which it allowed the respondent's appeal, set aside the Social Security Tribunal's decision dated 24 May 2013 and in substitution for that decision decided that:
(a)Dianne Melvin was a "member of a couple", within the meaning of s 4(2) of the Social Security Act 1991 (Cth) (the Act), for the whole of the period from 6 December 1999 to 8 May 2011;
(b)Dianne Melvin received an overpayment of disability support pension in respect of the period from 6 December 1999 to 8 May 2011 and the amount of that overpayment is, pursuant to s 1223(1) of the Act, a debt due to the Commonwealth by her;
(c)and that debt is recoverable in full from Dianne Melvin by the Commonwealth in accordance with Pt 5.3 of the Act.
The appellant appeals from the whole of the decision of the Tribunal on the questions of law set out in her amended notice of appeal filed on 24 September 2015.
I would dismiss her appeal for the reasons which follow.
Statutory framework
The primary question for determination by the Tribunal was whether the appellant was a member of a couple, as defined in s 4(2) of the Act, in the period from 22 August 1995 to 8 May 2011.
From 29 September 1995 to 30 June 2009, subss (2), (3) and (3A) of s 4 of the Act relevantly provided as follows:
Member of a couple - general
4(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) …; 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;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship…
Member of a couple - criteria for forming opinion about relationship
4(3)In forming an opinion about the relationship between 2 people for the purposes of … 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 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 the 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(3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
During the short initial period under consideration, from 22 August 1995 to 28 September 1995, s 4(2)(b)(i) of the Act provided:
(i) the person is living with a person of the opposite sex . . .
From 1 July 2009, and for the remainder of the relevant period, subs 4(2), (3) and (3A) of the Act were relevantly amended as follows:
(a)in s 4(2)(b)(i) "a person of the opposite sex" was replaced by "another person, whether of the same sex or a different sex";
(b)in s 4(2)(b)(iii) "marriage-like" was replaced by "de facto";
(c)in s 4(3)(c)(i), between "to" and "each", the words ", or in a de facto relationship with," were inserted;
(d)at the end of s 4(3)(e)(iv) the words "or a de facto relationship" were added;
(e)in s 4(3A) "marriage-like" was substituted with "de facto".
The Period
It was convenient for the Tribunal to consider the whole period in question broken up into several discrete time periods. Nonetheless the question before it concerned the periods as a whole (the Period).
The Tribunal determined in respect of that part of the Period, prior to 6 December 1999, that the appellant was not a member of a couple: at [110] and [118]. This is not challenged on appeal.
The remaining part of the Period in issue in this appeal is accordingly from 6 December 1999 to 8 May 2011 which, for convenience, the Tribunal considered by reference to the following smaller periods:
(a)6 December 1999 to 12 July 2005;
(b)13 July 2005 to 29 April 2008; and
(c)30 April 2008 to 8 May 2011.
I will refer in these reasons to these as the first, second and third periods respectively.
Questions in the appeal
There are four questions raised. I will deal with each in turn.
Question 1 - Did the Tribunal correctly apply Pelka in reaching its decision under s 4(2) of the Act?
The ground relied on in relation to this question is:
(a)The Tribunal erred in law in its approach to the application of the criteria set out in s 4(3) of the Act, by failing to have regard to the appellant's circumstances as a whole and failing to consider the total picture of the relationship as required by Pelka.
"Pelka" is a reference to Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
In Pelka French J, as his Honour then was, said at [46]:
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
(1)Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
(2) Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other.(3)In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
(4)Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
(5)Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements; or
(e) mutual commitment.
(Emphasis added)The statutory task faced by the Tribunal was described by it at [56] of its reasons:
For the purpose of forming an opinion about the nature of the relationship between Ms Melvin and Mr Markland - and considering, in particular, whether they were in a "marriage-like relationship"/"de facto relationship", within the meaning of s 4(2)(b)(iii) of the SS Act, in the relevant period - the Tribunal will have regard to the matters and associated factors specified in s 4(3) of the SS Act and to any other relevant circumstances.
The appellant submits that the Tribunal, in adopting this approach, failed to "have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3)", citing Pelka at [46(1)].
I am not persuaded that the Tribunal either misunderstood the correct test or applied the wrong test.
The statutory text requires the decision-maker, in forming the relevant opinion to "have regard to all the circumstances of the relationship including in particular …" the matters set out under sub (a)-(e) of s 4(3). Justice French in Pelka merely paraphrased the statutory language when saying that the decision-maker "must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3)".
His Honour's expression "their interpersonal relationship as a whole" is to the same effect as the statutory language "all the circumstances of the relationship".
The expression adopted by the Tribunal was that it would "have regard to the matters and associated factors in s 4(3) of [the Act] and to any other relevant circumstances". Its use of the word "circumstances" plainly adopts the same word found in s 4(3). Its expression is to the same effect as the language of s 4(3) itself as well as that employed in Pelka.
The real question of law ought to have been whether the Tribunal applied s 4(3). It was not required to apply Pelka at least in the way “apply” initially is used by the appellant in stating its first question of law.
I am satisfied that the Tribunal understood the precise ambit of its task under s 4(3). It had earlier outlined at [56] of its reasons the statutory task and expressly noted the language of s 4(3) of the Act that:
In forming an opinion about the relationship between 2 people for the purposes of … subparagraph 2(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters …
Accordingly, its reasons disclose that it was cognisant of its obligation under s 4(3) to consider "all [of] the circumstances of the relationship".
Nonetheless the appellant, as a different aspect of its first question, submits that the Tribunal failed for the purposes of s 4(3) to apply the process described by French J in Pelka.
As the appellant correctly observed, after making findings regarding the places of residence of the appellant and Mr Markland at different points in time during the 13 year period under review, the Tribunal in its reasons considered the evidence regarding:
(a)the financial aspects of the relationship: s 4(3)(a), at [69]-[79];
(b)the nature of the household: s 4(3)(b), at [80]-[84];
(c)the social aspects of the relationship: s 4(3)(c), at [85]-[90];
(d)any sexual relationship between the people: s 4(3)(d), at [91]-[92]; and
(e)the nature of the commitment of the people: s 4(3)(e), at [93]-[109].
Consideration of the characterisation of the relationship between the appellant and Mr Markland is found at [110] and following of the Tribunal’s reasons. As I have mentioned, it was not satisfied that the appellant and Mr Markland were in a "marriage-like" relationship in the period 29 September 1995 to 5 December 1999. In doing so the Tribunal had regard to the decision in Pelka at [46]. The Tribunal characterised their relationship during this period as "in the nature of a close friendship and business relationship": at [116].
There is no challenge to this finding.
The appellant makes the following challenges under Question 1 referrable to the three periods identified at [10] of these reasons, above.
The first period: 6 December 1999 - 12 July 2005
The relationship between the appellant and Mr Markland from 6 December 1999 was characterised by the Tribunal as one which "became qualitatively different from that of a close friendship and business relationship which had existed between them from about 1990" (at [132]). It concluded that they were in a "marriage-like" relationship, and accordingly that the appellant was a "member of a couple" for the first period.
The appellant submits that the Tribunal in so deciding failed to apply the test in Pelka, by failing to:
(a)have regard to the interpersonal relationship as a whole, beyond the factors set out in s 4(3); and
(b)give proper consideration to factors weighing against the relationship, being relevantly, the paucity of evidence as to the appellant's residence in the period, the lack of evidence as to social interaction, the evidence of the friends, family and associates, the lack of sexual relationship and the fact that the appellant's assisting and caring for a long-standing friend is just as explicable by friendship as it is by a marriage-like relationship.
I reject these submissions. They are, in effect, an impermissible merits-based challenge to the findings of fact by the Tribunal.
It is telling that, despite the complaint that the Tribunal took into account only the factors listed in s 4(3)(a)-(e) but not all the circumstances of the relationship, the factors referred to by the appellant as not having been given consideration, namely, social interaction, evidence of friends, family and associates, sexual relationship, are all factors set out under s 4(3)(c) and (d). Those factors were all taken into account along with other factors and carefully considered and weighed by the Tribunal at [126]-[132] of its reasons.
The Tribunal there employed language such as “on balance” (at [126]), “weighs against” (at [127]), “on balance, clearly weigh in favour of” (at [129]), and “on balance, weigh in favour of” (at [130]). These all demonstrate, consistently with the approach described in Pelka, the weighing by the Tribunal of factors both for and against the existence of a “marriage-like relationship”.
No error of law has been demonstrated in this respect.
The second period: 13 July 2005 - 29 April 2008
The Tribunal concluded that during the second period the appellant and Mr Markland resided primarily in different residences: at [63] points 5 and 6. The Tribunal at [145]-[151] considered whether, in those circumstances, the evidence established that the "marriage-like relationship" found to exist in the first period "had broken down or ceased to exist": at [149]. This, the appellant submits, is the wrong test.
Rather she submits that the Tribunal was obliged to consider two tests: that in Pelka and that in s 4(3A) of the Act. I will again set out the provisions of s 4(3A):
4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
She submits that in light of the clear words of s 4(3A) of the Act, it was not open to the Tribunal to have found that she was in a marriage-like relationship during the second period.
Apart from the s 4(3A) point, the appellant submits that the Tribunal was obliged to consider all aspects of the Pelka test during this period but failed to give any, or any proper consideration, to:
(a)the interpersonal relationship as a whole, beyond the factors set out in s 4(3); and
(b)factors weighing against the relationship, being relevantly, the lack of evidence as to social interaction, the evidence of the friends, family and associates, the lack of sexual relationship and the fact that the relationship is just as explicable, if not more so, by friendship and gratitude on the part of Mr Markland for the appellant's assistance in selling his business, as it is by a marriage-like relationship.
I reject all of these submissions.
The Tribunal at [145] was satisfied that the appellant was primarily residing at a different address than Mr Markland, and then stated:
… That being the case, the question arises whether the "marriage-like relationship" which, in the Tribunal's opinion, existed between Ms Melvin and Mr Markland throughout the period from 6 December 1999 to 12 July 2005 continued to exist throughout the period 13 July 2005 to 29 April 2008 or, alternatively, whether Ms Melvin was "living separately and apart from [Mr Markland] on a permanent or indefinite basis", within the meaning of s 4(3A) of the SS Act, in the latter period.
As the respondent correctly observes, no question of law is asked in the Amended Notice of Appeal concerning "living separately and apart … on a permanent or indefinite basis".
Nonetheless I am satisfied that [145] of the Tribunal's reasons for decision make it clear that it asked itself the correct question.
Although identified as a period within the total period, the starting point was that in respect of the first period the Tribunal had found that the appellant was living in a marriage-like relationship with Mr Markland.
That it posed the question in respect of the second period in terms of whether this was a continuing fact was just another way of asking whether in the second period the appellant’s relationship with Mr Markland was a marriage-like relationship which was then relevant to the ultimate question whether the appellant was a member of a couple.
The Tribunal at [145], in the alternative, also asked itself the question, implicitly, by reference to the language of the provision, whether s 4(3A) was engaged.
The Tribunal’s conclusion at [149] was that the pre-existing marriage-like relationship had not broken down during the second period which was just to say that in that period they were in a marriage-like relationship and that, accordingly, in effect, s 4(3A) had no application.
The appellant’s complaints that the matters set out at [39] above were not considered by the Tribunal are unfounded. As to social interaction, the Tribunal at [85]-[87] and [90] considered evidence covering all three periods. It was not obliged to break its findings up related only to the second period.
It did likewise in relation to the evidence of family, friends and associates at [88] and at [130] considered that evidence again in a cumulative fashion.
It also considered the sexual relationship across all these periods and found at [92] that there was no evidence supporting such a relationship although at [127] advanced reasons which might at least partially explain this.
Her complaint that the Tribunal could have come to a different conclusion as to the nature of the relationship is not directed to an error of law.
No error of law has been demonstrated.
The third period: 30 April 2008 - 8 May 2011
During this period, the appellant and Mr Markland resided together at Oakover Road.
The appellant complains, again, that in its reasons concerning this period (at [136]-[143]), the Tribunal has again failed to apply the test in Pelka, by failing to:
(a)have regard to the interpersonal relationship as a whole, beyond the factors set out in s 4(3); and
(b)give proper consideration to factors weighing against the relationship, being relevantly, the limited evidence as to social interaction, the evidence of the friends, family and associates, the lack of sexual relationship, the nature of the commitment, including the fact that Mr Markland had a relationship in Indonesia, as was known to the appellant, and the fact that their companionship and care for each other, to the extent that it exists, is just as explicable by friendship as it is by a marriage-like relationship.
In its consideration of the third period the Tribunal, by reference to identified evidence in the passage of its reasons referred to, once again engaged in a process of weighing matters both in favour of and against the existence of a "marriage-like relationship". This is consistent with the approach set out in Pelka. The Tribunal concluded that the appellant was in a "marriage-like" relationship, and therefore a "member of a couple" for this period.
My observations above in respect to the second period and the factors complained about again in respect of the third period are to the same effect. There is no need to repeat them.
No error of law has been established.
Question 2 - Was it open to the Tribunal to make a finding of fact which differed from a fact agreed between the parties in their Statements of Facts Issues and Contentions, and without giving the parties the opportunity to make submissions on why that fact ought to be found differently to that agreed between them?
The grounds relied on in relation to this question are:
(a)The Tribunal erred in law in finding that Mr Markland's 1993 marriage was not proved, and consequently not finding that his 1991 will (the Will) had been revoked by reason of this marriage, in circumstances where the fact of Mr Markland's marriage was agreed between the parties, so that the finding was illogical, irrational or lacking a basis in the evidence.
(b)In finding that Mr Markland's Indonesian marriage had not been proved, the Tribunal erred in law in treating the Will as relevant to the question of whether the appellant was in a marriage like relationship with Mr Markland, at any time after Mr Markland's marriage.
This, in effect, is a question of law arising from an asserted denial of procedural fairness.
That Mr Markland married after executing a will disclosing the appellant as sole beneficiary was a fact advanced by the respondent. The respondent in his Statement of Facts Issues and Contentions (SFIC) filed on 18 November 2013, at [68] made the following statement:
On 29 August 1991, Mr Markland executed a will in which he appointed Ms Melvin executor and sole beneficiary. Mr Markland subsequently married an Indonesian woman in 1993 and had a daughter with her in 1997.
That fact was not put in contention by the appellant. Mr Markland gave evidence that the marriage ended in 1997.
Nonetheless, the Tribunal found at [76] that the 1993 marriage was not proved in the absence of official documentary material or the evidence of the Indonesian woman. The Tribunal did not flag during the hearing that it might not accept that this marriage had occurred.
Section 14 of the Wills Act 1970 (WA) (Wills Act) provides that a will is revoked by a subsequent marriage, and “marriage” has the same definition as in the Marriage Act 1961 (Cth) (Marriage Act), which defines marriage to mean "the union of a man and a woman to the exclusion of all others, voluntarily entered into for life". Section 88E(1) of the Marriage Act recognises in Australia a marriage solemnised overseas, subject to some exceptions. None of the exceptions apply in this case.
The appellant submits that the legal effect of the 1993 marriage was to revoke the Will and that the Tribunal’s findings (at [112], [120] and [128]) that the Will had presumably remained in force are plainly wrong.
Accepting, for present purposes, that this is the case, the question remains as to what follows from it.
The appellant submits that the revocation of Mr Markland’s Will by operation of law means that it did not reflect his testamentary intention after the marriage, and so was irrelevant to the question of his testamentary intention and not of itself probative of whether he and the appellant were in a marriage-like relationship at any time after it was revoked.
However, in my view, in this case, it is Mr Markland’s appreciation of his testamentary intention which was relevant to the characterisation of the relationship with the appellant rather than the legal consequences of statutory provisions which he was neither aware of nor considered.
The Tribunal made the following findings at [146]-[147]:
146. Although Ms Melvin and Mr Markland were, for the most part, residing at the abovementioned different address in the period from 13 July 2005 to 29 April 2008, the evidence indicates that various factors indicative of the continuation of the “marriage-like relationship" which, in the Tribunal's opinion, existed between them throughout the immediately preceding period from 6 December 1999 to 12 July 2005, were satisfied in the period from 13 July 2005 to 29 April 2008. That evidence may be summarised as follows:
Ÿas regards financial aspects:
ŸMr Markland and Ms Melvin were registered as the proprietors of Oakover Road, as joint tenants, on 13 July 2005, and have continued to be so registered from that date and for the whole of the relevant period;
Ÿa mortgage over Oakover Road to Bank of Western Australia Ltd was registered on 13 July 2005 and discharged on 13 September 2006;
Ÿa mortgage over Oakover Road to RAMS Mortgage Corporation was registered on 13 September 2005;
ŸMr Markland and Ms Melvin established the "Alan & Dianne Superannuation Fund" on 22 June 2007 and Mr Markland nominated Ms Melvin as the sole beneficiary of his interest in that Fund;
ŸMs Melvin continued to be the nominated sole beneficiary of Mr Markland's estate in Mr Markland's Will;
Ÿas regards day-to-day household expenses:
ŸSynergy electricity supply account in respect of Oakover Road has been in the name of "Mrs Dianne Markland" from 19 July 2005;
ŸStatement of Usage in respect of a Telstra BigPond internet service at Oakover Road, for the period from 25 July 2007 to 24 August 2007, was addressed to "Ms Dianne Markland" at Oakover Road;
Ÿnotice issued by CIL Insurances, dated 21 March 2007, regarding the renewal of an insurance policy, in the names of "Mr Alan Markland" and "Mrs Dianne Markland", covering a Roadstar Voyager 4000 caravan in the insured amount of $45,100;
Ÿas regards social aspects:
Ÿa business finance application by Ms Melvin (on behalf of Allwest) to Capital Finance, dated 15 June 2006 and signed by Ms Melvin, refers to her marital status as "de facto";
Ÿa personal application for finance by Ms Melvin to Macquarie Mortgages, dated 22 June 2006 and signed by Ms Melvin, refers to her marital status as "married" and her "spouse's name" as "Alan Markland";
Ÿan application by Mr Markland for a BP-Citibank MasterCard, dated 7 June 2007, refers to his marital status as "de facto" and his "spouse's name" as "Dianne" and includes details of an additional cardholder in the name of "Mrs Dianne L Markland" signed by Ms Melvin as "D Markland";
Ÿan invitation addressed to "Diane [sic] & Alan" to attend a wedding reception on 9 December 2007;
ŸMs Melvin and Mr Markland travelled to Singapore together in December 2007 and visited Ms Melvin's son (Adam), his (then) fiancée and their baby daughter.
147. Furthermore, it is common ground that:
ŸMr Markland provided accommodation to Ms Melvin at Pawlett Way for the period from 13 July 2005 to 29 April 2008;
Ÿthe purchase of a Mercedes Benz motor vehicle for $86,319 in the name of "Dianne Lillian Markland" on 20 August 2007 was paid for by Mr Markland.
These considerations related to some of the factors set out under s 4(3)(a), (b) of the Act. Consideration of the Will as a factor may arguably fall within s 4(3)(a), alternatively it may be an additional circumstance.
Whatever the case, the Tribunal was not considering the question whether as a matter of strict law, by operation of the Wills Act and the Marriage Act, the Will was revoked by reason of Mr Markland’s marriage to an Indonesian woman.
Despite the fact of the marriage not being in issue no submission was put to the Tribunal by either party that the Will was either valid or invalid. The appellant did not advance as part of her case that as a result of the marriage the Will was thereby revoked and that accordingly the existence of the Will was an irrelevant factor to the Tribunal’s considerations. Indeed the question of the validity of the Will had been raised by the Tribunal with counsel at the hearing. Counsel for the respondent replied by informing the Tribunal that she was not making any submission based on the Will but rather on the testamentary intent of Mr Markland and whether it had ever changed. This clearly directed the Tribunal to the point that the relevant question was not the validity or otherwise of the Will but rather what was Mr Markland’s testamentary intention, subjectively, between the time he executed his Will and the trial in this proceeding, so far as it related to the appellant.
What the evidence demonstrated was that Mr Markland had executed a will naming the appellant as his sole beneficiary and that his testamentary intention never changed from the time he had executed it.
In his written statement set out at [34] of the Tribunal’s reasons, he stated at para 16:
My ex-wife is very well connected and is financially very well off. She has never asked me for financial assistance. I did not get advice about changing my will as I did not think there was any reason to. As I said before when I made my will Dianne was bring [sic] up 2 boys on her own and since then she had continued to help me out when I asked her. My wife and daughter were better off than me.
Then during his cross-examination, Mr Markland confirmed, in effect, that his testamentary intention that the appellant be his sole beneficiary had not changed since 1991 when he executed his Will. The following exchange occurred:
You made a Will back in 1991, I think, or 1990 is that right, in which you made Dianne the sole beneficiary of your will? Is that right?---That’s correct, yes. Yes, that’s correct.
Does that remain your testamentary intention, that she have your estate?---Yes.
Have you made any other Will since that one?---No.
I do not accept the appellant’s submission that this exchange merely disclosed his testamentary intention as at the date of the Tribunal hearing. It concerned his intention from 1991 onwards.
Accordingly, the relevance of the Will was not its validity but rather that it contained Mr Markland’s testamentary intention as at the date of its execution. Then, his oral testimony was to the effect that his intention in that respect had not changed since that time.
I am not persuaded that there was any procedural unfairness concerned with the validity of the Will. There was no such issue before the Tribunal. The Tribunal’s finding as to the lack of proof of the asserted marriage between Mr Markland and an Indonesian woman was irrelevant to the issues which were before it and did not operate to influence the decision reached by the Tribunal. The finding that the Will presumably remained in force, absent proof of the marriage and this not being put to the parties by the Tribunal was not a denial of procedural fairness. It did not result in any practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at [38].
Question 2A - Was it open to the Tribunal to find that from 6 December 1999 to 12 July 2005 the appellant resided with Mr Markland at Pawlett Way on a regular substantial basis?
This question relates to the first period.
The grounds relied on in relation to this question are:
(a)In finding at reasons [66] that [the appellant] resided with Mr Markland at Pawlett Way on a regular substantial basis in the period 6 December 1999 to 12 July 2005, the Tribunal erred in law as there was no evidence capable of supporting the finding.
Section 4(3A) of the Act, throughout the first period, at all material times provided, relevantly, that the respondent must not form the opinion that the relationship between a person and her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis. Consequently, the appellant submits that if the finding that she resided with Mr Markland at Pawlett Way on a regular substantial basis has no evidentiary foundation, the Tribunal is precluded from coming to the finding at [133], that the appellant was a “member of a couple”, within the meaning of s 4(2) of the Act for the whole of the first period.
This submission is flawed. The proscription found in s 4(3A) is directed to a factual situation where the person and their partner are living separately and apart on a “permanent or indefinite basis”.
The question is, not whether they were not living together on a “substantial basis”.
It was open to the Tribunal on the evidence to find that the appellant lived at Pawlett Way from time to time during the first period. They lived neither separately nor apart on a permanent or indefinite basis. They physically lived together from time to time. That of itself is not determinative. The meaning of the expression “living separately and apart” was considered at length by the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 at [43]-[58] albeit in the context of provisions of the Migration Act 1958 (Cth). There is both a physical and mental element involved and the mental element is independent of whether the parties lived in the same house. This cuts both ways. Characterisation of a relationship as not marriage-like may be reached even where the persons live in the same house.
Moreover, the mental element supporting the existence of a marriage-like relationship may be inferred, despite the persons’ subjective evidence to the contrary, as here, from objective circumstances including those set out in s 4(3)(a)-(e). The Tribunal by reference to all the circumstances of their relationship found that they were living during the first period in a marriage-like relationship. This being so, s 4(3A) was not engaged.
The appellant complains, even so, that there is “no evidence” to warrant the finding of fact that she resided with Mr Markland at Pawlett Way on a regular substantial basis during this period.
The appellant submits that "substantial" means of large size, so that one must expect that in a period of over six years, or about 292 weeks, or 73 months, the appellant would have lived at Pawlett Way for at least half, or perhaps even more of the time, for a finding that she lived there on a substantial basis.
There is no basis in the legislation or principal for such a conclusion. “Substantial” is a word, in this context, which is the product of an evaluative judgment. Its meaning will be derived from its particular context.
Certainly there was no evidence of the precise length of time she lived at Pawlett Way during this period. What is clear from the evidence, as the appellant concedes, is that:
(a)between late 2001 and 2004, she lived at Pawlett Way for three months after each of three back surgery operations, along with intermittent days at other times in this period, that is, a total of nine months plus additional days;
(b)at the time Oakover Road was purchased she was living at Pawlett Way;
(c)a car finance application dated 13 February 2004 states that she had lived at Pawlett Way for ten years, although the appellant said the form is inaccurate;
(d)during the period 1995 to 2001 she was moving backwards and forwards to Pawlett Way.
The finding by the Tribunal was that the appellant resided with Mr Markland on a “regular substantial (although not full-time) basis” (at [66]). This was the fact. The appellant regularly resided there for periods of three months following Mr Markland’s back surgery operations. Those regular periods of residence may readily be described as substantial. Even cumulatively those collective periods of nine months, together with the other, non-specific, days may also be regarded as substantial within the entire period.
Accordingly, there was evidence to support the Tribunal’s finding of fact. Its adequacy or sufficiency does not give rise to any error of law.
Question 3 - Has the Tribunal failed to exercise its decision making power in accordance with law by reason of a failure to adequately set out (a) the basis of its reasoning and (b) the findings of fact, evidence or law on which its decision is reached?
The grounds relied on in relation to this question are:
(a)The Tribunal erred in:
(i)failing to provide any analysis or reasoning as to why it did not accept the evidence of Adam Melvin;
(ii)failing to provide any analysis or reasoning as to why it did not accept the evidence of Shannon Melvin;
(iii)failing to provide any analysis or reasoning as to why it did not accept the evidence of Lysa Goldy;
(iv)failing to provide any analysis or reasoning as to why it did not accept the evidence of Michael Hatton;
(v)failing to provide any analysis or reasoning as to why it did not accept the evidence of Gail McMahon;
(vi)failing to provide any analysis or reasoning as to why it did not accept the evidence of Heather McGarrity;
(vii)failing to provide any analysis or reasoning as to why it did not accept the evidence of Bernadette Russie; and
(viii)failing to provide any analysis or reasoning as to why it did not accept the evidence of Paul Montani;
so that, the reasons as a whole do not provide:
(ix)a foundation for the conclusion that the appellant was a member of a couple from 6 December 1999 to 8 May 2011; or
(x)findings on material questions of fact and evidence, as required by s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).
Section 43(2) of the AAT Act requires the Tribunal to provide reasons for its decision.
Where a statement of reasons is a requirement for the exercise under a statute of a decision-making power a substantial failure to provide reasons is an error of law: Dornan v Riordan (1990) 24 FCR 564 at 573. Some authorities describe the obligation to give reasons as one to give “adequate reasons”: see, for example, Repatriation Commission v O’Brien [1984-1985] 155 CLR 422 at 445-446; Comcare Australia v Lees (1997) 151 ALR 647 at 658-659 per Finkelstein J and Civil Aviation Safety Authority v Central Aviation Pty Ltd (2009) 108 ALD 329 at [30] per Perram J.
The Full Court in Dornan expressed the error of law as one where there is a substantial failure to state reasons for a decision. It may be that this is no different from characterising the error of law as a failure to give adequate reasons.
The Full Court in Dornan (at 567), discussing the obligation to provide reasons under s 98BD of the National Health Act 1953 (Cth) and s 25D of the Acts Interpretation Act 1901 (Cth), held that the duty to provide reasons "must be sensibly interpreted and applied with a view to achieving good and effective administration".
I note that the National Health Act contained no additional provisions to the same effect as s 43(2B) of the Act in this case. However, the Court had regard as it should, to the provisions of s 25D of the Acts Interpretation Act which is to the same effect as s 43(2B) of the Act.
However it may be described or paraphrased in the cases, just what, at least, is required to be included in the Tribunal’s written reasons is set out in s 43(2B) of the AAT Act, namely, its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.
Importantly, as was explained by the Full Court in Repatriation Commission v Hendy (2002) 76 ALD 47 at [39], the obligation under s 43(2B):
… is not a requirement that the reasons provide an unarguable logical progression to a conclusion. It will, in almost every case, be that alternative conclusions are possible based on the evidence and other material to which the reasons refer. The fact that the tribunal may come to a conclusion contrary to that which the court or a tribunal differently constituted might come is not a reviewable error, so long as the reasons include the factors set out in s 43(2B) of the AAT Act.
In Hill v Repatriation Commission (2004) 82 ALD 60, it was held at [28] that:
The requirement of s 43(2B) of the AAT Act is that the tribunal's process of reasoning be adequately exposed to indicate how the tribunal has gone about its task, and why it has reached its conclusion.
The grounds relied upon in support of this asserted question of law allege error by the Tribunal in relation to family members, friends and associates of the appellant in that it failed to provide any analysis or reasoning as to why it did not accept their evidence.
Their written statements were set out in full in the Tribunal’s reasons at [40], [42], [44], [47]-[51]. The reasons also set out passages from the cross-examination of some of them at [41], [43], [45].
As previously mentioned, at [88] of its reasons, the Tribunal sets out a summary of the evidence of the family, friends and associates which is as follows:
There is in evidence a signed statement by each of the following:
ŸAdam Melvin (Ms Melvin's son) who relevantly stated that, on the basis of conversations with Ms Melvin and his own observations, it had "always been [his] understanding that the relationship between" Mr Markland and Ms Melvin had been "one of mutual friendship" (Exhibit R2, para 8);
ŸShannon Melvin (Ms Melvin's son) who relevantly stated that, based on what he knows and what Ms Melvin has told him, Ms Melvin and Mr Markland, although sharing a house, "live entirely separate lives", and that "they are not a couple" because he had "never heard or witnessed any affection between them or seen them say or do anything that would indicate to [him] that they are a couple" (Exhibit RI0, para 37);
ŸLysa Goldy (Ms Melvin's sister) who relevantly stated that, based on everything she had seen and heard herself and what Ms Melvin has told her over the years, "there is not a relationship between them" (Exhibit R7, para 19);
ŸMichael Hatton (Ms Melvin's brother) who relevantly stated that he "couldn't see any attraction between" Ms Melvin and Mr Markland and he had "never seen anything over the years to indicate they were a couple"; he does not "think of them as a couple or invite them to things as a couple; from what he has observed at Oakover Road, "nothing points to them being in a relationship" (Exhibit R6, paras 9, 10, 16);
ŸGail McMahon who relevantly stated that she has known Ms Melvin since "the early 1970s" and that they had become "close friends" over the years and Ms Melvin is "more of a sister to [her] now"; in all the time she had known of Mr Markland as a friend of Ms Melvin, she had "never thought of them as romantically involved or as a couple" (Exhibit R5, paras 1, 2, 9);
ŸHeather McGarrity who relevantly stated that she has been "a close friend" of Ms Melvin since 1970; Ms Melvin had never told her that she was in a relationship with Mr Markland and, because they are such close friends, Ms Melvin "would tell [her] if this was the case"; on the "few occasions" she had seen Ms Melvin and Mr Markland together, she had "never witnessed any intimacy or affection" (Exhibit R8, paras 1, 9);
ŸBernadette Russie who relevantly stated that she first met Ms Melvin in "about 2000" when she commenced to do the bookkeeping for Allwest and that, since becoming "a close friend" of Ms Melvin, she had "formed a view about the nature of the relationship" between Ms Melvin and Mr Markland "based on what [she] has seen and on what [Ms Melvin] has told [her] over the years"; their relationship is "unusual but mutually beneficial"; their relationship was based on the operation of Allwest and also involved Ms Melvin performing the role of Mr Markland's "personal assistant"; she never saw Mr Markland and Ms Melvin "arrive at work or leave work together" or "go out to lunch together" and she has never heard Ms Melvin refer to Mr Markland "as her husband, partner, boyfriend etc" (Exhibit R9, paras 1, 5, 18, 36);
ŸPaul Montani, Chartered Accountant, who relevantly stated that he first met Ms Melvin and Mr Markland in "approximately June 2007" when they asked him to prepare the final accounts and tax returns for Allwest; he has also advised them about the operation of the "Alan & Dianne Superannuation Fund" and prepared the tax returns for that Fund; during the meetings that he has had with Mr Markland and Ms Melvin over the years, he has never heard Ms Melvin refer to Mr Markland as her partner or husband and he has never heard Mr Markland refer to Ms Melvin as his partner or wife; nor has he ever seen either of them show any physical affection or express any verbal affection towards the other; if he "had to categorise their relationship" it was "as if [Ms Melvin] was [Mr Markland's] assistant or carer"; in all his dealings with Ms Melvin she "never used the name Dianne Markland" (Exhibit R4, paras 1, 2, 7, 9, 14, 15).
The Tribunal did not accept their evidence and explained why this was so at [130]:
… The Tribunal notes the evidence of Ms Melvin's children, siblings and close friends (referred to in paragraph 88 above) which points against the existence of a "marriage-like relationship" between Ms Melvin and Mr Markland. The Tribunal, however, is not satisfied that any of those persons is fully, or even substantially, aware of all the circumstances of the relationship between Ms Melvin and Mr Markland, and, in any event, given their family or other close relationship with Ms Melvin, their evidence cannot reasonably be regarded as entirely disinterested and objective. Their evidence, furthermore, does not sit well with the (objective) 50th birthday party invitation from Mr Markland's brother addressed to "Alan & Dianne" (referred to in paragraphs 89 and 123 above). Accordingly, the Tribunal attaches little weight to the abovementioned evidence of Ms Melvin's children, siblings and close friends regarding the nature of the relationship between Ms Melvin and Mr Markland.
Section 4(3)(c) of the Act required the Tribunal to consider "the assessment of friends and regular associates ... about the nature of the relationship". It is apparent from the passage at [130] that it did so.
The Tribunal was not obliged to accept the evidence of the appellant's friends and family, even if that evidence was not contradicted by means of cross-examination or otherwise: Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555 at [119].
The Tribunal was not bound to set out findings that it did not make. The obligation was to set out material questions of fact. This does not involve an objective or external standard of materiality. Rather, the requirement focuses upon the subjective thought processes of the decision-maker. All that is required pursuant to s 43(2B) is for the Tribunal to set out its findings on those questions of fact which it considered to be material to its decision and to the reasons it had for reaching that decision. Such was the construction placed variously by the members of the High Court with the exception of Kirby J in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 when considering s 430 of the Migration Act 1958 (Cth), which is to the same effect as s 43(2B) of the AAT Act.
Moreover, it should not be thought that at [130] of its reasons the Tribunal was simply referring to the contents of the birthday party invitation.
The Tribunal at [130] also referred to its earlier findings that each of the appellant and Mr Markland had represented to organisations, on various occasions, that they were in a spousal or de facto relationship with each other. It found the appellant’s evidence as to why she used Mr Markland’s surname as her own on various occasions as “unconvincing”. Those documents which point overwhelmingly to the conclusions of fact reached by the Tribunal are set out in its reasons at [61], [70], [72], [73], [77], [79], [86], [106], [107] and [109].
When the Tribunal discounted, in the same passage, the evidence of family members, friends and associates because in part it was not satisfied that they were “fully, or even substantially, aware of all the circumstances of the relationship between [the appellant] and Mr Markland”, I apprehend that this was a reference to their ignorance of the documentary evidence to which it had referred.
Accordingly, the Tribunal assessed their evidence and for stated reasons attached little weight to it. It met its obligations under s 43(2B) of the AAT Act. No error of law has been demonstrated.
Orders
The appeal will be dismissed, with costs.
I certify that the preceding one hundred and eleven (111) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 19 April 2016
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