MICHELLE LIZARS and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

[2009] AATA 742

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 742

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5752

GENERAL ADMINISTRATIVE DIVISION		)
Re		MICHELLE LIZARS

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date25 September 2009

PlacePerth

Decision

The Tribunal sets aside the decision under review and, in substitution therefor, decides as follows:

·     the applicant was a “member of a couple”, for the purposes of the Social Security Act 1991 (Cth) (“the Act”), for the whole of the period from 27 September 2002 to 9 February 2006;

· the applicant was not a “member of a couple”, for the purposes of the Act, in the period from 10 February 2006 to 9 May 2008;

· the amount of overpayment of parenting payment under the Act received by the applicant in respect of the period from 27 September 2002 to 9 February 2006 is a debt due by the applicant to the Commonwealth under s 1223 of the Act; and

· that debt is recoverable in full from the applicant by the Commonwealth in accordance with Pt 5.3 of the Act.

..........[sgd S D Hotop]........

Deputy President

CATCHWORDS

SOCIAL SECURITY – parenting payment – applicant received parenting payment at single rate in period September 2002-May 2008 – applicant had relationship with person of opposite sex in that period – consideration of all circumstances of relationship – relationship a marriage-like relationship in period September 2002-February 2006 – applicant a member of a couple in period September 2002-February 2006 – applicant received overpayment of parenting payment in respect of period September 2002-February 2006 – amount of overpayment is debt due to Commonwealth – recovery of debt – debt cannot be waived – debt cannot be written off – debt recoverable in full – decision under review set aside

Social Security Act 1991 (Cth), s 4(1), s 4(2), s 4(3), s 4(3A), s 1223, s 1236, s 1237A and s 1237AAD

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546

REASONS FOR DECISION

25 September 2009 Deputy President S D Hotop

Introduction

1.      Michelle Lizars (“the applicant”) received parenting payment at the single rate under the Social Security Act 1991 (Cth) (“the Act”) in respect of the period from 27 September 2002 to 4 October 2004 and the period from 18 October 2004 to 9 May 2008.

2.      On 15 May 2008 an officer of Centrelink decided to cancel the applicant’s parenting payment on the ground that she was a “member of a couple” and had not provided any details about her partner to Centrelink.  It was also decided that the applicant had received an overpayment of parenting payment (the amount of which was provisionally calculated as $50,625.08) in respect of the period from 27 September 2002 to 4 October 2004 and the period from 18 October 2004 to 9 May 2008 and that that overpayment was a debt due by her to the Commonwealth and was to be recovered in full from her.

3.      On 20 June 2008 a Centrelink Authorised Review Officer (“ARO”) decided that the applicant was a “member of a couple” and had been overpaid parenting payment in respect of the period from 27 September 2002 to 4 October 2004 and the period from 18 October 2004 to 9 May 2008 but that the amount of that overpayment was to be recalculated on the basis of her partner’s income in those periods and the recalculated amount was to be recovered from her as a debt due by her to the Commonwealth.

4.      On 20 October 2008 the Social Security Appeals Tribunal (“SSAT”) affirmed the decision of the ARO.

5.      On 28 November 2008 the applicant applied to this Tribunal for review of the ARO’s decision as affirmed by the SSAT.

The Issues

6. The fundamental issue for the Tribunal’s determination is whether the applicant was a “member of a couple”, for the purposes of the Act, in the period from 27 September 2002 to 9 May 2008 (“the relevant period”).

7.      In the event that the Tribunal determined that the applicant was a “member of a couple” in the relevant period, it would necessarily follow that she was overpaid parenting payment in that period and that the amount of that overpayment is a debt due by her to the Commonwealth.  Further issues would then arise for determination, namely, whether that debt should be recovered from her by the Commonwealth, whether it should instead be written off, or whether the Commonwealth’s right to recover that debt should be waived.

The Tribunal’s Determination

8. For the reasons which follow, the Tribunal has determined that the applicant was a “member of a couple”, for the purposes of the Act, for the whole of the period from 27 September 2002 to 9 February 2006 but that she was not a “member of a couple”, for the purposes of the Act, in the period from 10 February 2006 to 9 May 2008. The Tribunal has further determined that the amount of overpayment of parenting payment received by the applicant in respect of the period from 27 September 2002 to 9 February 2006 is a debt due by her to the Commonwealth and is recoverable in full from her by the Commonwealth.

“Member of a Couple” – The Relevant Legislation

9. The phrase “member of a couple” was relevantly defined in s 4 of the Act (as in force at all material times) as follows:

“ 4(1)   In this Act, unless the contrary intention appears:

…

member of a couple has the meaning given by subsection (2), (3), (3A), (6) and 6A);

…

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)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or

(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 for the purposes of section 23B of the Marriage Act 1961.

…

Member of a couple – criteria for forming opinion about relationship

4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a)the financial aspects of the relationship, including:

(i)any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)any significant pooling of financial resources especially in relation to major financial commitments; and

(iii)any legal obligations owed by one person in respect of the other person; and

(iv) the basis of any sharing of day-to-day household expenses;

(b)the nature of the household, including:

(i)any joint responsibility for providing care or support of children; and

(ii)the living arrangements of the people; and

(iii)the basis on which responsibility for housework is distributed;

(c)the social aspects of the relationship, including:

(i)whether the people hold themselves out as married to each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which the people make plans for, or engage in, joint social activities;

(d)any sexual relationship between the people;

(e)the nature of the people’s commitment to each other, including:

(i)the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see their relationship as a marriage-like relationship.

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.”

The Evidence

10.     The evidence before the Tribunal comprised:

· the “T Documents” (T1 – T76, pp 1 – 1027) lodged with the Tribunal by the Secretary, Department of Education, Employment and Workplace Relations (“the respondent”) in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);

·   Exhibits A1 – A5 tendered by the applicant;

·   Exhibits R1 – R18 tendered by the respondent; and

·   the oral evidence of the applicant and the following witnesses (who were called by the applicant), namely, Steven Richards, Raymond Cattach and Kerry Richards.

The Factual Background

11.     The following background facts are found by the Tribunal on the basis of the T Documents and documentary exhibits tendered by the respondent.

12.     In January 1996 the applicant and Steven Richards jointly purchased a house in Beechboro (“the Beechboro property”). (T23, p 266)

13.     On 13 October 1998 the applicant notified Centrelink that her marital status was “de facto”, but on 30 July 1999 she notified Centrelink that her marital status was “separated”.  On 1 July 2001, however, she notified Centrelink that her marital status was “de facto”.  (Exhibit R1)

14.     In August 2001 the applicant’s first child was born.  (T23, p 269)

15.     On 20 August 2001 the applicant lodged with Centrelink a claim for parenting payment.  In the claim form the applicant provided (inter alia) the following information:

·     her current marital situation is “de facto” and she “started living de facto” on 15 February 1996;

·     her current partner is Steven Richards;

·     her home address is the Beechboro property where she had lived for 5½ years and that is also the home address of Steven Richards.  (T4, pp 49, 50)

16.     On 10 October 2002 the applicant lodged with Centrelink a fresh claim for parenting payment.  In the claim form the applicant provided (inter alia) the following information:

·     her current marital situation is “separated” and the date of separation was 26 September 2002;

·     her former partner is Steven Richards;

·     her home address is the Beechboro property and Steven Richards’ home address is in Ballajura;

·     she shares ownership of her home with Steven Richards whose relationship to her is “ex-de facto”;

·     no person of the opposite sex regularly stays at her address 2 or more nights per week.  (T5, pp 75, 76, 83, 86)

17.     On 17 October 2002 Steven Richards lodged with Centrelink a claim for family tax benefit for the 2002 – 2003 financial year.  In the claim form he provided (inter alia) the following information:

·     his home address is in Ballajura;

·     his current marital status is “separated” and the date of separation was “26/09/01”;

·     he does not own the home in which he lives;

·     he pays $50 per week to Ray and Mandy Cattach for lodgings in Ballajura;

·     he has a dependent child who was born in August 2001;

·     the child entered his care on “14/10/02”;

·     he has 43% care of the child;

·     the child also spends time with the applicant whose address is the Beechboro property.  (Exhibit R6)

Steven Richards subsequently received family tax benefit for the period up until 18 November 2002.  (Exhibit R8)

18.     On 21 November 2002 the applicant notified Centrelink that she now had 100% care of the child and she was subsequently paid family tax benefit on that basis.  (T25, p 420)

19.     On 5 October 2004 the applicant notified Centrelink that she and Steven Richards had “become partnered” on 4 October 2004 when he moved in with her at the Beechboro property.  (T25, p 429)

20.     On 25 October 2004 the applicant lodged with Centrelink a “Parenting Payment – Change of Marital Status:  No longer partnered” form in which she provided (inter alia) the following information:

·     her current marital status is “separated”;

·     the date of separation was “13/10/04”;

·     her address has not changed since she ceased being a member of a couple;

·     her former partner is Steven Richards;

·     Steven Richards’ address is in Nollamara.  (T8, pp 108, 109)

21.     On 18 January 2005 the applicant made a claim for family tax benefit following the birth of her second child in January 2005.  (T25, p 435)

22.     On 7 December 2005 the applicant lodged with Centrelink a “Parenting Payment Service Update” form in which she provided (inter alia) the following information:

·     her home address is the Beechboro property and she has lived there for 10 years;

·     her current marital status is “separated”;

·     no person of the opposite sex regularly stays at her address;

·     she is the mother of 2 children who are in her care, one born in August 2001, the other born in January 2005;

·     the non-custodial parent of the children is Steven Richards whose address is in Nollamara;

·     she shares ownership of her home with Steven Richards, her “ex-partner”.  (T9, pp 114 – 119)

23.     On 17 July 2006 the applicant made a claim for family tax benefit following the birth of her third child in July 2006.  (T25, p 442)

24.     On 5 September 2006 the applicant lodged with Centrelink a “Parenting Payment Single Update” form in which she provided (inter alia) the following information:

·     her home address has not changed since she last advised Centrelink;

·     her current marital status is “single” and the date of separation was “13/10/04”;

·     she has a newborn child who was born in July 2006;

·     the non-custodial parent of the child is Steven Richards whose home address is in Nollamara;

·     Steven Richards is the father of her children and he “comes over to see the children on weekends”;

·     her relationship with Steven Richards “has not changed” and has “always been the same” – they are “friends”;

·     she shares ownership of her home with Steven Richards whose relationship to her is “ex-husband boyfriend (sic)”.  (T44)

25.     On 28 March 2008 the applicant informed Centrelink that she was living at the Beechboro property as a single person and that Steven Richards lived in Nollamara.  (T70, p 1000)

The Evidence of the Applicant

26.     The applicant tendered in evidence her signed statement dated 14 May 2009 (Exhibit A1) whose contents, as affirmed by her, are as follows:

“ 1.     I was born … [in] November 1975 and am currently 33 years of age.

2.I grew up in the Balga/Mirrabooka area.  I went to Mirrabooka High School until year 10 then I moved to Balga High School for the rest of my time at school.

3.I left school in 1993 when I was 18.  I had completed a pre-apprenticeship course in hairdressing at Balga TAFE.

4.I completed the apprenticeship course when I was about 22 years old.

5.I first met Steven Richards when I was about 15 years old. I started going out with him when I was about 17.  I was by then a student at TAFE.

6.We started living together in our own house [the Beechboro property] when Steve was 21 and I was 20.  This was in 1996.

7.Before this Steve would often stay with me at my Mum’s place before we bought the house together.

8.We had planned to go on a holiday but we decided to buy the house instead.

9.We have a joint mortgage.  Each of us makes a contribution to the mortgage.

10.We had a daughter … in 2001.  Things started to go badly in my relationship with Steven about three months after [she] was born.

11.I was suffering from post-natal depression at the time.

12.Steve would take a lot of drugs and drink a lot of alcohol.  We had a lot of fights.

13.My brother … told me around this time that Steve was using heroin.

14.I told Steve to move out of the home because there was no point in continuing with the relationship.

15.We did not break up straight away.  It was about a year later, in September 2002, that we finally finished as a couple.  Steve was still taking drugs at that stage.

16.When Steve moved out I didn’t know where he was.  It was very difficult to contact him at this time.

17.Any payments Steve made towards the mortgage were very irregular.

18.I got a job as a hairdresser with Dominic’s in about March 2003.  I worked there for about 12 to 18 months.  I had to ring up Centrelink and report my earnings.

19.I remember Steve got himself cleaned up and off the drugs in 2004.  I used to see him once a fortnight or so, sometimes once a month.

20.We then met again at a party of a mutual friend.  As a result of us meeting we had sex, which resulted in the birth of … our second child.

21.Shortly before [our second child] was born we got together again for a couple of weeks.  This was around October 2004.  I then found out that he had slept with someone else.

22.The relationship broke down again by October 2004.  Steve moved out again.  I didn’t know where he was.

23.In my opinion, our relationship was certainly over by the time [our second child] was born.

24.After [our second child] was born, Steve used to come around to the house every so often.  On average it started as a weekly visit and then drifted to a fortnightly visit.

25.Our third child … was born in July 2006.  I had met Steve at a party again. We got talking.  I was under the influence of alcohol and we had sex, resulting in the birth of [our third child].

26.When I am out or if I am working Nanna or Steve usually comes around to look after the kids.  Nanna is my grandmother.

27.If Steve comes to look after them, he sleeps in the lounge.  He has usually gone by the time I get up in the morning. 

28.Steve has not lived in the house since the two weeks in October 2004.

29.When Steve lost his driving licence he left his car at [the Beechboro property].  He said that I could use it.  I did because his had air-conditioning and mine didn’t and it was better for my kids.  Sometimes I would use my own if I had to move something big.

30.Steve also left his motorbike at [the Beechboro property].  As far as I know it doesn’t work. He thinks [the Beechboro property] is a safer place to leave it than where he lives.  I know he was happier leaving his car here than leaving it in Nollamara.

31.When I had my money cut off by Centrelink Steve started paying about three quarters of the mortgage.  Now I have the night filling job with IGA we are now back to half and half.

32.I reduced the mortgage payments to $300 a month which is $150.00 each.

33.In the past when I have been really broke I have borrowed money from my Nanna or relied on redrawing from the mortgage.

34.Steve doesn’t buy food for the kids.  He might buy them an ice cream occasionally.

35.He takes the kids to the park about once a month and very occasionally for some other outing.

36.We do not have any family get togethers or share meals.  In the past few years I have met up with Steve socially very rarely and it was never pre-arranged.

37.I do all of the housework and most of the repairs.  I have done the painting, tiling and brick paving.

38.I do not depend on Steve to do practical repair jobs around the house.  I do most of them myself.

39.Steve did put the fence back up when it blew down and did fix the hot water system because I couldn’t afford to have it repaired but that is about it.

40.I am not in a de facto or marriage-like relationship with Steve.  I described him as my next of kin on a hospital form because I misunderstood what it meant.

41.We do not have a sexual relationship.  Since splitting up we have only had sex on a couple of occasions and I conceived [our second child] and [our third child] during those times.

42.…  Steve Richards does not do household repairs and installations at my home.

43.…  Steve’s vehicles were [at the Beechboro property] for security reasons because of the loss of his licence.

44.… Steve Richards does not live at [the Beechboro property].

…

47.Until about May 2008 stayed at home looking after my kids.  I now have a night filling job at IGA in Inglewood.

48.… I do not look to Mr Richards to do practical installation work at [the Beechboro property].  Since being forced to take on night filling work I do rely on his help with looking after the children.”

27.     In her oral evidence-in-chief the applicant elaborated on the contents of her abovementioned statement as follows:

·     after their first child was born in August 2001 she had post-natal depression and Steven Richards was on drugs and their relationship was chaotic and they were constantly fighting;

·     Steven Richards then went to live with his father but he went “back and forward” between his father’s house and the Beechboro property until September 2002 when they finally decided that their relationship was over and he moved out of the Beechboro property;

·     she thereafter saw Steven Richards when he came to the Beechboro property to see their child but he did not “sleep over”;

·     Steven Richards made “very irregular” financial contributions in respect of their child and no financial contributions to household expenses in respect of the Beechboro property;

·     Steven Richards was then living “all over the place” – with his uncle, with his father or in his car;

·     Steven Richards “may have stayed overnight occasionally” at the Beechboro property when he baby-sat their child when she went out;

·     Steven Richards did no housework at the Beechboro property;

·     she did not then refer to Steven Richards as her “partner” or “de facto”;

·     Steven Richards moved back into the Beechboro property for 2 weeks from 4 to 18 October 2004 and they lived together and slept together during that period;

·     after that period in October 2004 Steven Richards did not live with her and he did not share in, or contribute to, the running of the household at the Beechboro property, with the exception of making “the odd contribution” to mortgage payments;

·     Steven Richards then went to live with “Big Steve”, her step-father, in Nollamara;

·     she and Steven Richards continued to have mutual friends but they did not socialise together;

·     from October 2004 to May 2008 Steven Richards came to the Beechboro property to see their children on a fortnightly basis and also when she wanted to go out, which was “not very often”;

·     she started to rely on Steven Richards more when she started night-fill work in May 2008;

·     in 2007 Steven Richards left his car at the Beechboro property for 12 months when he lost his driver’s licence because he wanted to leave it where it would be safer than at the Nollamara address where he was living;

·     Steven Richards does no “handiwork” around the Beechboro property but, if she needed the hot water service replaced or a fence rebuilt, she would ask him to do it – otherwise, she does “everything”;

·     the Beechboro property has stayed in the joint names of her and Steven Richards because:

-the bank will not give her a loan in her own name and she cannot afford to “buy him out”;

-neither she nor Steven Richards wants to sell the property – they want to keep it for their children;

·     if she and Steven Richards had no children, she would not be seeing him and they “may well have sold” the Beechboro property;

·     she does not look to Steven Richards for emotional support or companionship.

28.     In cross-examination the applicant gave the following evidence:

·     she and Steven Richards bought the Beechboro property in early 1996 and they moved in;

·     then they bought second-hand furniture but most of it was replaced in 2006 using mortgage finance, including the purchase of a lounge suite, television, furniture for the children’s bedrooms, and a fridge;

·     initially their relationship was good – although they both drank, there were no drugs;

·     their relationship started to deteriorate before their first child was born in August 2001;

·     Steven Richards initially “helped around the house” but after the child was born he was “on drugs” and was “not helpful”;

·     the “crunch time” was when she found syringes in the house and she went to his workplace and confronted him about it but he denied it;

·     there followed “constant arguing” between them before he eventually moved out of the Beechboro property;

·     Steven Richards went to stay with his father in Girrawheen and later went to stay with his uncle (Raymond Cattach);

·     she remained in the Beechboro property;

·     in October 2004 there was a period of reconciliation and she advised Centrelink that she and Steven Richards had reconciled on 5 October 2004;

·     she was then 6 months pregnant and Steven Richards had “cleaned up his act a bit” and they each initiated the reconciliation;

·     Steven Richards then moved back into the Beechboro property and he was “more helpful” and “chipped in”;

·     the reconciliation only lasted for about 2 weeks and Steven Richards then moved out of the Beechboro property.

29.     The applicant was questioned at length and gave evidence, in her examination-in-chief and in cross-examination, about the contents of numerous documents in the T Documents and the exhibits tendered by the respondent.  The Tribunal has had regard to that evidence for the purpose of its analysis in paragraphs 40 – 75 below.

The Evidence of Steven Richards

30.     A signed statement of Steven Richards, dated 15 May 2009, was tendered in evidence by the applicant (Exhibit A3).  The contents of that statement, as affirmed by Steven Richards, are as follows:

“1.     I was born … [in] 1975 and I am 34 years of age.

2.I work as a dismantler at Tony’s Auto Wreckers.  I have been working at Tony’s for about 12 months.

3.As a boy I grew up in and around the suburbs of Balga.  I went to Balga High School.

4.My memory is hazy but I think I left High School when I was about 15 years old.  This would have been in about 1990.

5.When I left school I got a job through my uncle.  To the best of my memory I then got a job as a forklift operator/storeman with a company called Comgroup Supplies.  They were located in West Perth.  The company supplied meat patties and other meat products to fast food restaurants.

6.I stayed with Comgroup for quite a few years.  I think I would have been employed by Comgroup until I was in my mid-twenties.

7.I have always lived in and around the Balga area.

8.I was previously in a relationship with Michelle Lizars.  We have 3 children together.

9.I first met Michelle when I was about 17 years of age.  I think I was at a mate’s place. This would have been in about 1992.

10.We started seeing each other after that.  When I was in my early or mid-twenties I bought a house with Michelle.  The house is located at … Beechboro.  We still own the house together.

11.When we bought the house we moved in together.  I guess you could have called us a de facto couple at that stage.

12.Soon after moving in with Michelle, I started using a lot of drugs and drinking a lot.  I took heroin and speed and I was also drinking a lot of alcohol.

13.I lost my job with Comgroup because of my drug habit.

14.My relationship with Michelle changed for the worse when I lost my job.  Our relationship pretty much broke down soon after that and I moved out of the [Beechboro] house.

15.As far as I can remember this happened just around the time [our first child] was born.  We were back on again around the time when [our second child] was about to be born but we didn’t last long.

16.When I left [the Beechboro house] I stayed at my uncle’s place in Ballajura for a while - probably 6 to 8 months.  My uncle’s name is Ray Cattach.  Dad used to live in Girrawheen.  I also stayed with him for about 2 months.  His name is Len Richards.  After staying with Ray and then my Dad I moved into a mate’s house at … Nollamara.

17.My mate’s name is Steve McDonald (sic).  As stated above, his place is at … Nollamara.  Normally the two of us live there but sometimes Steve’s sons stay over.  The house has 3 or 4 bedrooms.  I don’t pay any rent but I buy beer for the house.

18.Steve rents the property.

19.Anyone who knows me and Michelle will know that we have been broken up pretty much since the time after [our first child] was born.

20.I usually drop around at the [Beechboro] house on Fridays when I get paid. I give Michelle $100 a week if I have got it.  The $100 is for the mortgage.

21.When I give Michelle money for the mortgage, I sometimes buy the kids a bag of chips.

22.Michelle asks me to look after the kids if her Nan doesn’t do it.

23.I usually see the kids when I drop the money off.

24.I have lost my licence a couple of times.  I left my car and my bike at [the Beechboro house] because they were safer there than where I live.  I let Michelle use my car because it had air-conditioning and Michelle’s didn’t.

25.My car is a 1998 white Commodore sedan.

26.When I look after the kids I don’t stay overnight at [the Beechboro house].  I go back home to Nollamara.

27.I got my licence back late last year or the beginning of this year.

28.Michelle and I don’t see each other on a social level.

29.Michelle still sees a bit of my family.  She sees more of the family than I do.

30.I do not have a sexual relationship with Michelle.  We only really had sex at the times when she got pregnant.

31.I have had relationships with other girls since Michelle and I broke up.  I have met these other girls at the pub.

32.I spend about five nights a week at [Nollamara].  The other nights I crash at Brian’s or Pop’s place in Beechboro.

33.I would not describe my relationship with Michelle as marriage like since we broke up around the time that [our first child] was born.”

31.     In his oral evidence Steven Richards elaborated on the contents of his above-mentioned statement as follows:

·     he started drinking when he was 15 years old and first “tried” marijuana at the same age;

·     he later became addicted to heroin and “speed” and used it every day;

·     when he was living at the Beechboro property he did some things around the house such as lawnmowing and repairs;

·     he and the applicant were still together after their first child was born “until the drugs took over”;

·     he became bad-tempered, their relationship got worse and they were arguing all the time;

·     when their first child was still a baby they became separated and he went to live with his father for a couple of months and then stayed with his uncle, Ray Cattach, for about 3 months until he “kicked [him] out because of drugs”;

·     he then went to live with a mate, “Big Steve”, in Nollamara and he is still there – he sleeps there at least 5 nights per week and he sometimes stays overnight with his “pop” in Beechboro;

·     he and the applicant “tried to get back together” but it “didn’t’ work” and only lasted a couple of weeks because he was “too drunk”, so he left the Beechboro property again;

·     he was “probably still on heroin” at that time but he did not tell the applicant – “someone else did”;

·     he also “cheated” on the applicant with one of her friends;

·     since October 2004 he has visited the applicant once a week to drop off money for the mortgage and to “check on the kids”, and he stays half an hour to one hour but not overnight;

·     he has lost his driver’s licence a number of times and he left his car at the Beechboro property while he was not using it so that it would not get broken into;

·     he also leaves his motorbike at the Beechboro property because he does not like it “sitting at Big Steve’s”;

·     he got his licence back in September 2008 and he then took his car back;

·     their second child was conceived in his car when he saw the applicant at a party;

·     he does not remember the circumstances in which their third child was conceived;

·     he has now been “off drugs for 2 – 3 years”;

·     he has a key to the Beechboro property and he can “get in and out any time [he wants]” but he “very rarely” uses the key and he “usually” only goes to the Beechboro property when the applicant is there.

32.     Steven Richards was questioned at length and gave evidence, in his examination-in-chief and in cross-examination, about the contents of numerous documents in the T Documents and the exhibits tendered by the respondent.  The Tribunal has had regard to that evidence for the purpose of its analysis in paragraphs 40 – 75 below.

The Evidence of Raymond Cattach

33.     A signed statement of Raymond Cattach, dated 14 May 2009, was tendered in evidence by the applicant (Exhibit A4).  The contents of that statement, as affirmed by Raymond Cattach, are as follows:

“ 1.     I was born … [in] May 1960.

2.     I am presently employed as a yardman at a scaffold hire company

3.     I am an uncle to Steven Richards. Steven’s mother is my sister, Kerry.

4.     I first met Michelle Lizars when she was about fifteen years of age.

5.     I later got to know Michelle when she and Steve started going out together.

6.     I used to see her and Steve at Kerry’s place.

7.     I knew that they had bought a house in … Beechboro together.

8.     I visited the house in [Beechboro] a few times when they lived together.

9.     Michelle and Steven had kids together.

10.When Steve left school I got him a job with the company I worked for called Comgroup.

11.I worked for the company for about 12½ years then went back for another 12 years.

12.Steven was at Comgroup for about ten years.

13.Steven was asked to leave Comgroup because of his drinking habit and his drug habit.

14.Steven came and lived with me after splitting with Michelle.  This was at about the end of 2001.

15.Steven stayed at my place for about 8 months.  I asked him to leave because of his drinking habit.

16.I know Steven has lost his driving licence a few times. 

17.When Steven and Michelle were together I used to visit them about 2 or 3 times a year.

18.Now Michelle is on her own I visit her and the kids 2 or 3 times a year.

19.I usually visit Michelle and the kids on a Sunday, usually in the afternoon.

20.Steven has not been at [the Beechboro house] whenever I have visited Michelle.

21.As far I know (sic) Steve and Michelle do not socialize together with any group and not with the family.

22.I have not seen anything at [the Beechboro house] that suggests Steven is living there.

23.I know Steven’s car was left there because he had lost his licence.

24.I last saw Steven about three years ago.

25.My sister Kerry had told me that Steven now lives in Nollamara.

26.From what I know of them Steven and Michelle are not together or a couple but he is the father of her kids.”

The Evidence of Kerry Richards

34.     A signed statement of Kerry Richards, dated 15 May 2009, was tendered in evidence by the applicant (Exhibit A5).  The contents of that statement, as affirmed by Kerry Richards, are as follows:

“1.     I was born … [in] 1954. I am fifty four years of age.

2.I currently work full-time in Personnel and Payroll for the Department of Education and Training.

3.I know Michelle Lizars through my son, Steven Richards.  Michelle Lizars is an ex-partner of my son.

4.I have 3 children, Steven is the oldest.  He was born … [in] 1975.

5.My son Steven attended Balga High School until about Year 10.

6.Michelle and Steven first commenced their relationship when they were about seventeen or eighteen years of age.

7.They were together for several years before deciding to buy a house.

8.They later bought the [Beechboro] house in I think about 1996.

9.They have three children together. …

10.I think they split up because of Steve taking drugs and his drinking.

11.Michelle and Steven were in an on-again, off-again relationship but now there is no relationship and has not been for many years.

12.They still remain friends though probably because there are three children involved.

13.It is not true that Steven has been living out of [the Beechboro house] for most of the last twelve years.

14.Steve has been living at … Nollamara for some years with Steve McDonald (sic), who I know as ‘Big Steve’.

15.As far as I know, Michelle and Steven are still joint owners of the house in … Beechboro. I am not aware of them taking any action to sort this out.

16.I do not know if Steven pays rent at his current accommodation in Nollamara.

17.Steven still drinks and smokes a lot.

18.Steven had a job on the railways last year. He lost this job when he failed the drug tests.

19.I do not know if Steven and Michelle are members of any social groups.

20.Michelle makes the decisions about looking after the children.

21.I don’t know what stuff Steven keeps at [the Beechboro house].  I know his motorbike is there but it doesn’t work and when he lost his licence his car was there because it was safer there.

22.I look after [the second-born child] once every six weeks or so. I do not look after all three children at any one time.

23.I always look after the kids at my place. 

24.I visit the children on their birthdays.

25.Steven sometimes looks after the boys on Saturdays while Michelle takes [their daughter] dancing.

26.I very rarely, if ever, see Steven or Michelle together. I have visited Steven a couple of times at his house in … Nollamara. I call him occasionally on his mobile phone to see if he is alright.

27.A couple of times I have taken food around to Steven and Michelle separately.

28.I sometimes call Michelle to see how the kids are doing.

29.I last visited [the Beechboro house] the other night when I had to dropped (sic) off fifty dollars to Michelle for a lay by. Steven was not there at that time.

30.I usually visit [the Beechboro house] about once a month.

31.In my opinion, Michelle and Steven are not in a marriage-like relationship.”

35.     In her oral evidence Kerry Richards elaborated on the contents of her abovementioned statement as follows:

·     the relationship of the applicant and Steven Richards was “rocky” before their first child was born in August 2001 because of their drinking and arguing;

·     they were still together when their first child was born and they used to bring the child over to see her;

·     later Steven Richards “got into heavy, dangerous drugs and needles”;

·     the applicant telephoned her on one occasion in 2002 (when their child was about 1 year old) to tell her that she had found a syringe in the house and did not want Steven Richards in the house anymore;

·     the applicant then “kicked him out” of the house;

·     he then lived with Ray Cattach for a while and with his father;

·     they continued to be “on again/off again” because the applicant was suffering from depression and wanted his help with their child;

·     he has been living with “Big Steve” since their second child was born “or a bit before then”;

·     after the applicant kicked him out, they have not been in a relationship – instead, only a friendship because of the children.

Additional Evidence

36.     There is much relevant documentary material in the T Documents and the exhibits tendered by the respondent.  The Tribunal will refer to some of that material in the course of the following analysis.

Analysis

37.     In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 French J, after considering various authorities relating to former statutory provisions corresponding to s 4(2) and s 4(3) of the Act, said (at 555-556):

“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; and

(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.”

38. The matter for the Tribunal’s consideration is whether, in its opinion, the applicant had a “marriage-like relationship”, for the purposes of s 4(2)(b)(iii) of the Act, with a male person during the relevant period. The respondent submits that the applicant had a “marriage-like relationship” with Steven Richards for the whole of the relevant period.

39. For the purpose of forming an opinion about the nature of the relationship between the applicant and Steven Richards – in particular, whether they were in a “marriage-like relationship”, for the purposes of s 4(2)(b)(iii) of the Act, during the relevant period – the Tribunal will, in considering the whole of the evidence before it, have regard to the matters and associated factors specified in s 4(3) of the Act and to any other relevant circumstances.

Financial aspects of the relationship

Joint ownership of real estate and joint liabilities

40.     The applicant and Steven Richards jointly purchased the Beechboro property in January 1996 and from that date they have continued to own that property as joint tenants.

41.     In January 1996 the applicant and Steven Richards jointly mortgaged the Beechboro property to Keystart Home Loans as security for a loan of approximately $76,000 to finance the purchase of that property.  That mortgage was discharged in February 2006 and the applicant and Steven Richards then jointly mortgaged the Beechboro property to Westpac Banking Corporation as security for a home loan of $150,000.  (T57; T37, pp 496 – 499; 562)

42.     The applicant and Steven Richards have at all material times been jointly liable for the payment of local council rates and charges in respect of the Beechboro property. (T66)

43.     The applicant and Steven Richards, at all material times, have jointly held an insurance policy in respect of the Beechboro property and have been jointly liable for the payment of the premiums for that policy.  (T50)

Any significant pooling of financial resources

44.     The only joint accounts which have been held by the applicant and Steven Richards in the relevant period, according to the evidence before the Tribunal, are the abovementioned home loan accounts.  There are certain bank accounts referred to in the evidence before the Tribunal which are held either solely by the applicant or solely by Steven Richards, namely:

·     Bankwest “Feesaver Account” (from February 2000 to February 2006); and

·     Westpac “Classic Plus Account”/”Deeming Account” (from February 2006);

held solely by the applicant; and

·     Commonwealth Bank “Streamline Account” (from October 2002 to April 2006); and

·     Westpac “Classic Plus Account” (from April 2006);

held solely by Steven Richards (T61; T37, pp 524 – 560; T38; T63, pp 858, 901 – 984).  There are also two Westpac “Bonus Saver” accounts, each account being in the name of the applicant and one of her children (T37).

45.     The Tribunal notes, however, that the abovementioned Westpac home loan account, which the applicant and Steven Richards jointly opened in February 2006 by way of re-financing the mortgage on the Beechboro property, has a facility whereby each of them can draw on that account and, according to their own evidence, they have each done so from time to time – for example, on 24 February 2006 an amount of $8,395 was withdrawn (T37, p 562) for the purchase of a car for the applicant, and on 14 August 2006 an amount of $10,000 was withdrawn (T37, p 577) for the purchase of a car for Steven Richards.  Steven Richards gave evidence that he has “moved money around” from that joint home loan account to his Westpac “Classic Plus Account”, and the applicant and Steven Richards each acknowledged that they have each occasionally allowed the other to access her/his personal bank account to pay for purchases during the relevant period.

Mutual legal obligations

46.     Mutual legal obligations, as between the applicant and Steven Richards, which have existed throughout the relevant period include the abovementioned joint housing loans, the annual rates and charges payable in respect of the Beechboro property, and the house insurance policy in respect of that property.

Day-to-day household expenses

47.     As regards the payment of the day-to-day household expenses, the evidence before the Tribunal is not entirely clear but it seems to the Tribunal that, throughout the relevant period, there has been a sharing, as between the applicant and Steven Richards, of those expenses (including home loan repayments, council rates and water charges, electricity and telephone accounts, food and other household shopping expenses), with different expenses being paid out of different personal bank accounts and substantial sums being withdrawn from the joint home loan account from time to time for the payment of house maintenance and other expenses in respect of the Beechboro property.

Conclusion

48. The Tribunal is satisfied, on the basis of the evidence before it, that, throughout the relevant period, there has been a financial interrelationship and substantial financial cooperation between the applicant and Steven Richards. In the Tribunal’s opinion, the financial aspects of the relationship between the applicant and Steven Richards during the relevant period clearly weigh in favour of the conclusion that there was a “marriage-like relationship”, within the meaning of s 4(2)(b)(iii) of the Act, between them for the whole of that period.

Nature of the household

The living arrangements of the applicant and Steven Richards

49.     In order to consider the nature of the relevant household, it is necessary for the Tribunal first to make a finding, on the whole of the evidence before it, regarding the place or places where the applicant and Steven Richards each resided in the relevant period.

50.     The Tribunal understands it to be common ground that the applicant and Steven Richards resided together at the Beechboro property from 1996 until about September 2002 (when the relevant period commenced) and for about 2 weeks in the first half of October 2004.  It is also common ground that the applicant has at all material times resided, and continues to reside, at the Beechboro property.  The parties are, however, in dispute regarding the place or places where Steven Richards resided in the relevant period (other than in the abovementioned 2-week period in October 2004).  The evidence in relation to that matter is far from consistent.

51.     The applicant and Steven Richards each gave evidence that Steven Richards moved out of the Beechboro property but their evidence regarding the date, or even the approximate date, when that occurred was not consistent.  The applicant’s evidence was that Steven Richards moved out of the Beechboro property in September 2002 but that he returned and resided there for about 2 weeks in the first half of October 2004 before moving out again on or about 18 October 2004, and he has not resided there since that date.  Steven Richards’ evidence in relation to this matter was more vague.  His evidence was that, as far as he could recall, he moved out of the Beechboro property around the time their first child was born (August 2001) and returned around the time their second child was born (January 2005) but that did not last long and he then went to stay with his uncle (Raymond Cattach) in Ballajura for about 6 – 8 months, and then with his father in Girrawheen for about 2 months before finally moving in with “Big Steve” in Nollamara where he has resided ever since.

52.     Raymond Cattach gave evidence that Steven Richards stayed with him in Ballajura for about 8 months from about the end of 2001.  Unfortunately, “Big Steve” (Stephen McDonnell) was not called as a witness and the Tribunal, therefore, did not have the benefit of hearing evidence from him regarding the period (if any) during which Steven Richards has resided with him in Nollamara.

53.     There is much documentary material in evidence which contains references to the home address of Steven Richards in the relevant period, including the following:

·     Commonwealth Bank statements in respect of Steven Richards’ “Streamline Account”, for the whole of the period from 18 October 2002 (when the account was opened) to 21 April 2006 (when the account was closed), which are addressed to him at the Beechboro property (T38);

·     claim form for family tax benefit signed by Steven Richards, lodged with Centrelink on 17 October 2002, in which Steven Richards’ home address is stated to be in Ballajura (Exhibit R6);

·     10 tax file number declarations by Steven Richards, in the period from December 2002 to November 2005, in each of which his address is stated as the Beechboro property (T33, pp 474 – 483);

·     Keystart “Loan Increase Application” form signed by the applicant and Steven Richards, dated 18 October 2004, in which the Beechboro property is stated as the present address of each of them (T40, p 655 – 659);

·     information provided to Centrelink by Remson Steel Pty Ltd in May 2006 that Steven Richards was employed by it from 17 June 2005 to 20 July 2005 and that his address was the Beechboro property (T39), although in an Employment Separation Certificate issued by that company on 15 August 2005 Steven Richards’ address is stated to be in Nollamara (T47, p 695);

·     Nationwide Recruitment Services “Employment Application Form” signed by Steven Richards, dated 22 August 2005, in which his address is stated as the Beechboro property (T36, p 488);

·     Westpac Banking Corporation “Personal Finance Application” form signed by the applicant and Steven Richards, dated 10 February 2006, in which the applicant’s address is stated as the Beechboro property and Steven Richards’ address is stated to be in Nollamara (T37, pp 496 – 499);

·     Westpac Banking Corporation statements in respect of Steven Richards’ “Classic Plus Account”, in the period from 21 April 2006 (when the account was opened) to 12 November 2007, are addressed to Steven Richards in Nollamara (T63, pp 858, 901 – 982);

·     Swan Districts Health Service Admission Registration Record, dated 12 July 2006, which records the applicant’s address as the Beechboro property and Steven Richards’ address as in Nollamara (T49, p 703).

The Tribunal notes, furthermore, the information provided to Centrelink by Western Australia Police on 17 December 2007 that 2 vehicles, namely, a 1998 Holden Commodore sedan and a 1998 Yamaha motor cycle, are currently registered in the name of Steven Richards and the registered address of each vehicle is the Beechboro property (T60, p 782).  There is also DVD surveillance evidence before the Tribunal, covering the period from 3 April 2008 to 22 April 2008, which confirms that Steven Richards’ Holden Commodore sedan and a motor cycle (whose registration number was not visible) were located at the Beechboro property throughout that period (Exhibit A2; T71, pp 1005 – 1010).

54.     The Tribunal accepts the evidence of Raymond Cattach that Steven Richards resided with him in Ballajura from late 2001 for about 8 months (that is, prior to the commencement of the relevant period), but it derives no assistance from his evidence in determining where Steven Richards resided in the relevant period.  The evidence of Kerry Richards in respect of that matter was, in the Tribunal’s opinion, likewise of little, if any, assistance to it in determining that matter.

55.     As regards Steven Richards’ place, or places, of residence in the relevant period, the Tribunal attaches greater weight to the contemporaneous documentary material referred to in paragraph 53 above than it does to the inconsistent, and obviously self-serving, evidence of the applicant and Steven Richards.  That documentary material generally refers to the Beechboro property as Steven Richards’ address up to, and including, November 2005.  That documentary material, however, refers to Steven Richards’ address in 2006 as being in Nollamara.  The earliest relevant document in 2006 is the Westpac “Personal Finance Application” form, dated 10 February 2006, which the Tribunal regards as a significant document because it evidences the first occasion (referred to in the documentary material) on which the applicant and Steven Richards presented to a third party as separated from each other and living at different addresses, and especially because they did so, on that occasion, for the purpose of jointly applying for a housing loan in respect of the Beechboro property.  The Tribunal also regards it as significant that, when Steven Richards opened a Westpac account in his own name in April 2006, he provided an address in Nollamara as the address to which account statements were to be sent, whereas account statements in respect of the Commonwealth Bank account which he held from October 2002 to April 2006 were sent to the Beechboro property.  That documentary material indicates that Steven Richards has in fact been residing at the stated Nollamara address (the residence occupied by “Big Steve”) from at least 10 February 2006.  There is, unfortunately, no contemporaneous documentary material before the Tribunal (other than the “Parenting Payment Service Update” form, referred to in paragraph 22 above, lodged with Centrelink by the applicant on 7 December 2005, to which the Tribunal attaches no weight) which indicates where Steven Richards was residing in the period from December 2005 to 9 February 2006, and the Tribunal is not satisfied, on the material before it, that Steven Richards was residing at an address other than the Beechboro property in that period.  Although the evidence is far from conclusive, the Tribunal is prepared to find (although with substantial reservations) that:

·     Steven Richards continued to reside generally at the Beechboro property from the commencement of the relevant period (27 September 2002) to 9 February 2006 (although the Tribunal accepts that he probably spent substantial time away from that address in that period); but that

·     from 10 February 2006 Steven Richards ceased altogether to reside at the Beechboro property and from that time he has resided generally with “Big Steve” in Nollamara.

56.     As regards the detailed living arrangements of the applicant and Steven Richards at the Beechboro property in the period from 27 September 2002 to 9 February 2006, the Tribunal, not surprisingly (given their denial that Steven Richards was living there in that period, with the exception of a 2-week period in the first half of October 2004), has not been provided by them with information regarding Steven Richards’ role as a member of that household in that period.  The Tribunal is prepared to infer, however, that, for the whole of that period, the applicant and Steven Richards were living together at the Beechboro property and sharing all areas of that property, including a bedroom.

Distribution of responsibility for housework

57.     The Tribunal is likewise prepared to infer that, for the whole of the period from 27 September 2002 to 9 February 2006, the applicant undertook responsibility for the bulk of the household tasks at the Beechboro property, including the cooking, cleaning, washing and shopping, while Steven Richards undertook responsibility for such tasks as lawnmowing and general house maintenance.

58.     In the period from 10 February 2006 (when the Tribunal is satisfied that Steven Richards was not living at the Beechboro property), however, the Tribunal accepts that the applicant was solely responsible for performing day-to-day household tasks and general house maintenance.

Joint responsibility for providing care or support of children

59.     It is common ground that the applicant and Steven Richards are the natural parents of 3 children (born August 2001, January 2005 and July 2006).  The Tribunal understands that no formal custody order or child maintenance order has been sought or made in respect of any of those children.

60.     The Tribunal is satisfied that, from the birth of each child, the applicant and Steven Richards have jointly accepted responsibility for providing care and support to that child.  The Tribunal accepts, however, that, in practice, it has fallen to the applicant to provide the vast bulk of that care and support, especially from 10 February 2006 when Steven Richards has not been living at the Beechboro property with the applicant and their children.

Conclusion

61.     Having regard to the whole of the evidence regarding the nature of the household, the Tribunal is of the opinion that, in the period from 27 September 2002 to 9 February 2006 when Steven Richards was living at the Beechboro property with the applicant and their (then) 2 children, the nature of that household weighs in favour of the conclusion that the applicant and Steven Richards were living in a marriage-like relationship for the whole of that period.  As regards the period from 10 February 2006, however, this matter, in the Tribunal’s opinion, weighs against the conclusion that the applicant and Steven Richards have been living in a marriage-like relationship in that period.

Social aspects of the relationship

Have the applicant and Steven Richards held themselves out as married to each other?

62.     There is no evidence before the Tribunal that the applicant and Steven Richards, either jointly or individually, have ever held themselves out as legally married to each other.  There is, however, much evidence that they, whether jointly or individually, have held themselves out to various third parties as being in a de facto relationship in the relevant period.  That evidence, to which the Tribunal attaches substantial weight, includes the following:

·     information provided to Centrelink by Flexi Staff Pty Ltd in December 2006 that Steven Richards was employed by it from 16 September 2003 to 23 March 2004 and that, when he commenced employment, he advised that his marital status was “de facto” and that his address was the Beechboro property (T58, pp 773 – 774);

·     Armani Aluminium Windows “Application for Employment” form signed by Steven Richards, dated 27 April 2004, in which his address is stated as the Beechboro property, his next of kin is named as “Michelle”, and her relationship to him is described as “de facto” (T7);

·     Keystart Home Loans “Loan Increase Application” form signed by the applicant and Steven Richards, dated 18 October 2004, in which it is stated that their present address is the Beechboro property (and had been for 8 years and 9 months) and that each of them is the de facto spouse of the other (T40, pp 655, 658);

·     Nationwide Recruitment Services “Employment Application Form” signed by Steven Richards, dated 22 August 2005, in which his address is stated as the Beechboro property and his marital status is described as “de facto”, and “Nationwide Recruitment Candidate Medical Questionnaire” completed by Steven Richards on the same date in which his next of kin is named as “Michelle Lizars” and her relationship to him is described as “de facto” (T36, pp 488, 490 – 491);

·     Rail Enterprises Australia “Application for Employment” form signed by Steven Richards, dated 6 November 2005, in which his address is stated as the Beechboro property, his marital status is described as “de facto”, and the “emergency contact” is named as “Michelle” (T51, pp 707, 709).

63.     The Tribunal notes that, in response to an application by the applicant following the birth of her third child on 12 July 2006, a new Medicare card was issued on 17 July 2006 in the names of the applicant, Steven Richards and each of their 3 children (T42).

Assessment of friends and regular associates about the nature of the relationship

64.     The T Documents contain the following relevant material:

·     a letter dated 28 May 2008, signed by Naomi White, which states as follows:

“ … I have known Michelle Lizars for 10+ years.  I originally met Michelle through hairdressing.  Michelle had come to me after her daughter was born and had told me that Steven and she had split up as we very (sic) close around this time.  As far as I am aware they had never reunited.  I am aware that Steven visits on weekends to visit the children but does not stay overnight.

…” (T15, p 200);

·     a letter (undated), signed by Jodi Johnston, which states as follows:

“ I … have known Michelle Lizars for about 5 to 6 yrs during this time Michelle has been in no relationship with anyone including Steven.  We do speak and I know he visits the kids often but never stays.” (T15, p 202);

·     a letter (undated and unsigned), purportedly from Raymond Cattach, which states as follows:

“ I have known Steven all of his life and I have known Michelle for 17 yrs and they have been split up for about 6 yrs the reason being is Steven is a violent drunk and is an alcoholic but won’t admit to it.  I have told him he needs help but he thinks he does not so I have not seen him for 3 yrs because of his problems.  I do see Michelle and the kids.”  (T15, p 201).

65.     Raymond Cattach was called by the applicant as a witness in this matter and his witness statement is set out in paragraph 33 above.  In his oral evidence he confirmed that he had written the abovementioned letter in 2008.

66.     Kerry Richards, the mother of Steven Richards, was called as a witness by the applicant and her evidence, including her opinion regarding the nature of the relationship between the applicant and Steven Richards, is set out in paragraphs 34 – 35 above.

Any joint social activities

67.     The evidence of the applicant and of Steven Richards was to the effect that they have not planned, or engaged in, any joint social activities in the relevant period.  There is no clear evidence to the contrary before the Tribunal.

Conclusion

68.     The Tribunal attaches greater weight to the contemporaneous documentary material referred to in paragraph 62 above than it does to the evidence referred to in paragraphs 64-67.  Having regard to the whole of the evidence regarding the social aspects of the relationship between the applicant and Steven Richards, the Tribunal is of the opinion that, on balance, that evidence weighs in favour of the conclusion that there was a marriage-like relationship between them for the whole of the period from 27 September 2002 until at least November 2005.

Sexual relationship

69.     The applicant’s evidence was that, in the relevant period, the only occasions when she and Steven Richards had sexual intercourse together were:

·     in the period of about 2 weeks in October 2004 when they attempted a reconciliation;

·     when their second child (who was born in January 2005) was conceived, namely, in or about April 2004;

·     when their third child (who was born in July 2006) was conceived, namely, in or about October 2005.

Steven Richards’ evidence was that he and the applicant “only really had sex at the times when she got pregnant”.

70.     The Tribunal, however, has reservations regarding the evidence of the applicant and of Steven Richards that the only occasions on which they had sexual intercourse together in the relevant period (other than in the abovementioned period of 2 weeks in October 2004) were the 2 occasions in or about April 2004 and in or about October 2005 in which their second child and their third child, respectively, were conceived.  The Tribunal has previously found that Steven Richards continued to reside generally at the Beechboro property with the applicant from 27 September 2002 until 9 February 2006 and, in the Tribunal’s opinion, it is likely that they continued to have a sexual relationship during that period, resulting in the conception of their second child and third child in that period.  That circumstance would, in the Tribunal’s opinion, weigh in favour of the conclusion that the applicant and Steven Richards were in a marriage-like relationship for the whole of that period.

71.     As regards the period from 10 February 2006, the Tribunal has previously found that Steven Richards has not been residing at the Beechboro property during that period and it accepts that it is unlikely that he and the applicant have had an ongoing sexual relationship in that period.  That circumstance would, in the Tribunal’s opinion, weigh against the conclusion that the applicant and Steven Richards have been in a marriage-like relationship in that period, but not conclusively.

Nature of mutual commitment

Length of the relationship

72.     According to the evidence before the Tribunal:

·     the applicant and Steven Richards commenced a boyfriend/girlfriend relationship in about 1992 when each of them was about 17 years of age;

·     they purchased the Beechboro property as joint tenants in 1996 and immediately commenced living there in a de facto relationship;

·     they subsequently had 3 children together (born in August 2001, January 2005 and July 2006).

It is common ground that the applicant and Steven Richards have continued to have an ongoing association but the nature of that association in the relevant period is a matter of dispute.  In short, the applicant claims that the de facto relationship between her and Steven Richards ceased in September 2002 and that, for the whole of the relevant period (with the exception of a 2-week period in October 2004), the nature of their relationship has been merely that of an ongoing friendship involving cooperation between them in the interests of their 3 children, whereas the respondent claims that the de facto relationship between them did not cease at any material time and has continued throughout the relevant period.

Nature of any mutual companionship and emotional support

73.     The Tribunal is satisfied that the applicant and Steven Richards provided ongoing companionship to each other while they were living together at the Beechboro property up until 9 February 2006, but not from 10 February 2006 when Steven Richards was residing elsewhere.  As regards the provision of mutual emotional support, the Tribunal accepts that that had probably ceased, in a meaningful sense, by the end of 2001 when Steven Richards had succumbed to the effects of heavy alcohol and drug abuse over the previous few years.  According to the evidence, however, Steven Richards has, for the whole of the relevant period, provided assistance to the applicant in looking after their children, if only by baby-sitting them when the applicant required him to provide such assistance.  The Tribunal notes, furthermore, that, according to information provided to Centrelink by Swan Districts Hospital in January 2007, a person named “Steve” was present at the birth of the applicant’s third child in July 2006 (T49, p 701).  It is common ground that that person is Steven Richards.

The way in which the people regard their relationship and its future

74.     According to their evidence, neither the applicant nor Steven Richards has regarded their relationship as marriage-like at any time in the relevant period (with the exception of the abovementioned 2-week period in October 2004).  As previously noted, they each regard their relationship throughout that period as no more than a friendship involving cooperation in the interests of their children.  They each consider, furthermore, that their relationship in that form is likely to continue for the period of the children’s upbringing.

Conclusion

75.     In the Tribunal’s opinion, the applicant and Steven Richards demonstrated a degree of commitment to each other for the period in which they resided together at the Beechboro property (which, the Tribunal has found, was the period up to 9 February 2006) which is consistent with the conclusion that there was a marriage-like relationship between them for the whole of that period.  From 10 February 2006, however, when (as the Tribunal has found) Steven Richards ceased to reside with the applicant at the Beechboro property, there has been little, if any, emotional commitment demonstrated by either of them to the other and such lack of commitment, in the Tribunal’s opinion, weighs against the conclusion that they have been in a marriage-like relationship from that time.

Conclusion regarding the nature of the relationship between the applicant and Steven Richards in the relevant period

76.     In the Tribunal’s opinion, a critical factor in determining the nature of the relationship between the applicant and Steven Richards is their living arrangements – in particular, their place or places of residence – in the relevant period.

77. As previously discussed, the Tribunal is reasonably satisfied that Steven Richards continued to reside with the applicant at the Beechboro property from the commencement of the relevant period until 9 February 2006. In the Tribunal’s opinion, having regard to the whole of the evidence regarding the circumstances of the relationship between the applicant and Steven Richards – including, in particular, the matters and factors referred to in s 4(3) of the Act – in that period, those circumstances, on balance, weigh in favour of the conclusion that there was a marriage-like relationship between them for the whole of that period.

78. The Tribunal is, however, reasonably satisfied, as also previously discussed, that from 10 February 2006 Steven Richards has not resided with the applicant at the Beechboro property. In the Tribunal’s opinion, having regard to the whole of the evidence regarding the circumstances of the relationship between the applicant and Steven Richards – including, in particular, the matters and factors referred to in s 4(3) of the Act – from 10 February 2006 to the end of the relevant period, those circumstances, on balance, weigh against the conclusion that there has been a marriage-like relationship between them in that period.

79.     Accordingly, as regards the nature of the relationship between the applicant and Steven Richards in the relevant period, the Tribunal concludes as follows:

· for the whole of the period from 27 September 2002 to 9 February 2006 the relationship between the applicant and Steven Richards was a “marriage-like relationship” for the purposes of s 4(2)(b)(iii) of the Act;

· the relationship between the applicant and Steven Richards in the period from 10 February 2006 to 9 May 2008 was not, at any time in that period, a “marriage-like relationship” for the purposes of s 4(2)(b)(iii) of the Act.

Finding

80. It is common ground that, at all material times, the conditions set out in subparas (i), (ii), (iv) and (v) of s 4(2)(b) of the Act were met in the applicant’s case. The Tribunal finds, therefore, that:

· the applicant was a “member of a couple”, for the purposes of the Act, for the whole of the period from 27 September 2002 to 9 February 2006;

· the applicant was not a “member of a couple”, for the purposes of the Act, in the period from 10 February 2006 to 9 May 2008.

The applicant owes a debt to the Commonwealth

81. The Tribunal understands it to be common ground that, in the event of a finding by it that the applicant was a “member of a couple”, for the purposes of the Act, in the relevant period, it would follow that she had received an overpayment of parenting payment under the Act during that period and that, pursuant to s 1223 of the Act, a debt, in the total amount of that overpayment, would be due by her to the Commonwealth. The Tribunal so finds.

Should the debt due by the applicant to the Commonwealth be recovered from her?

82. Part 5.4 of the Act contains provisions dealing with the non-recovery of debts which are recoverable by the Commonwealth under that Act. Part 5.4 of the Act contains the following relevant provisions:

“1236(1)     Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.

1236(1A)The Secretary may decide to write off a debt under subsection (1) if, and only if:

(a)the debt is irrecoverable at law; or

(b)the debtor has no capacity to repay the debt; or

(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d)it is not cost effective for the Commonwealth to take action to recover the debt.

1236(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

(a)the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or

(aa)the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or

(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

(c)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

(d)the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.

1236(1C)For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:

(a)     deductions from the debtor’s social security payment; or

(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or

(c)setting off under section 84A of that Act;

the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

…”

“1237A(1)    Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.

Note:     Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).

…”

“1237AAD   The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)     making a false statement or a false representation; or

(ii)     failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)it is more appropriate to waive than to write off the debt or part of the debt.”

Waiver

83. As regards waiver of the applicant’s debt pursuant to s 1237A(1) of the Act, the Tribunal is not satisfied that any part of that debt is attributable to an administrative error made by the Commonwealth. Rather, the Tribunal is satisfied that no relevant administrative error was made by the Commonwealth – in particular, Centrelink – and that the whole of that debt is attributable to the applicant’s:

·     falsely notifying Centrelink on 10 October 2002 that she and Steven Richards had separated on 26 September 2002 (T6);

·     failing to notify Centrelink that she and Steven Richards were cohabiting at the Beechboro property on and from 26 September 2002;

·     falsely notifying Centrelink on 25 October 2004 that she and Steven Richards had separated on 13 October 2004 (T8);

·     failing to notify Centrelink that she and Steven Richards were cohabiting at the Beechboro property on and from 13 October 2004.

Accordingly, the Commonwealth’s right to recover the whole of the debt due by the applicant to it cannot be waived pursuant of s 1237A(1) of the Act.

84. As regards waiver of the applicant’s debt pursuant to s 1237AAD of the Act, the exercise of the discretionary power conferred by that section is conditional on the Tribunal’s being satisfied that paras (a), (b) and (c) of that section are fulfilled. Suffice it to say that the Tribunal is not satisfied that there are any special circumstances in the applicant’s case that would make it desirable to waive the Commonwealth’s right to recover the relevant debt from her. Paragraph (b) of s 1237AAD of the Act is, therefore, not fulfilled in the applicant’s case. Accordingly, the Commonwealth’s right to recover the whole of the debt due by the applicant to it cannot be waived pursuant to s 1237AAD of the Act.

Write off

85. The discretionary power to write off a debt under s 1236(1) of the Act is expressly conditioned on the existence of any one of the alternative circumstances specified in paras (a) – (d) of s 1236(1A) of the Act. The condition specified in para (c) is obviously not satisfied, and there is no suggestion that the condition specified in para (d) is satisfied, in the applicant’s case. As regards the conditions specified in paras (a) and (b), the Tribunal is not satisfied that the debt due by the applicant to the Commonwealth is “irrecoverable at law” (within the meaning of s 1236(1B)) or that the applicant has no “capacity to repay” (within the meaning of s 1236(1C)) that debt. Accordingly, neither the condition specified in para (a) nor the condition specified in para (b) is satisfied in the applicant’s case. It follows that the debt due by the applicant to the Commonwealth cannot be written off pursuant to s 1236(1) of the Act.

Conclusion

86. The Tribunal notes that it is common ground that none of the other non-recovery provisions in Pt 5.4 of the Act is applicable in this case. The Tribunal concludes, therefore, that the relevant debt due by the applicant to the Commonwealth is recoverable in full from her by the Commonwealth in accordance with Pt 5.3 of the Act.

87.     The Tribunal is not in a position to calculate the amount of that debt and, accordingly, that task will fall to be undertaken by Centrelink.

Decision

88.     For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides as follows:

· the applicant was a “member of a couple”, for the purposes of the Act, for the whole of the period from 27 September 2002 to 9 February 2006;

· the applicant was not a “member of a couple”, for the purposes of the Act, in the period from 10 February 2006 to 9 May 2008;

· the amount of overpayment of parenting payment under the Act received by the applicant in respect of the period from 27 September 2002 to 9 February 2006 is a debt due by the applicant to the Commonwealth under s 1223 of the Act; and

· that debt is recoverable in full from the applicant by the Commonwealth in accordance with Pt 5.3 of the Act.

I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         ...............[sgd D Brodie]........................

Associate

Dates of Hearing  24-26 August 2009

Date of Decision  25 September 2009

Counsel for the Applicant  Mr T Hammond

Solicitor for the Applicant  Mr D Pugh

Sussex Street Community Law

Service Inc

Representative of the Respondent     Ms C Wallwork
  Principal Legal Services Officer
  Legal Services and Procurement Branch
  Centrelink, Perth