Muller; Secretary, Department of Employment and Workplace Relations and Anor and

[2007] AATA 73

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 73

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  A2006/53

GENERAL  ADMINISTRATIVE  DIVISION

)

Re

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

1^st Applicant  Applicant

SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

2^nd Applicant

And  EVE MULLER

Respondent

DECISION

Tribunal  Mr S. Webb, Member

Date26 February 2007

PlaceCanberra

Decision The decision under review is set aside and in place thereof the Tribunal decides that Ms Muller was a member of a couple living in a marriage-like relationship in the period from 21 February 2005 to 25 July 2005, in consequence of which she was over paid $5,326.73 in parenting payment and $8,058.55 in Family Tax Benefit.  Those amounts are debts due to the Commonwealth.

..........(Signed)............................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY – parenting payment and family tax benefit – single rate – member of a couple - indicia of marriage-like relationship – decision set aside

Social Security Act 1991 s 4
A New Tax System (Family Assistance) Act 1999 s 3

Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Main v Main (1949) 78 CLR 636

REASONS FOR DECISION

26 February 2007 Mr S. Webb, Member

1.      Eve Muller has four children.  Joshua Shepherd is the father of the three younger children.  Ms Muller claimed and was paid family tax benefit and parenting payment at the single rate on the basis that she and Mr Shepherd were not members of a couple.  Subsequently, investigations were undertaken.  Delegates of the Applicant Secretaries decided that Ms Muller and Mr Shepherd were members of a couple, and decided to raise and recover overpayment debts from Ms Muller.  On review, the Social Security Appeals Tribunal set those decisions aside, deciding instead that Ms Muller and Mr Shepherd were not members of a couple living in a marriage-like relationship.  That decision is presently before this Tribunal for review.

2.      The essential issue for determination is whether or not Ms Muller was a member of a couple living in a marriage-like relationship with Mr Shepherd in the period from 21 February 2005 to 25 July 2005.  If she was then she will have been paid amounts of family tax benefit and parenting payment to which she was not entitled which will constitute overpayment debts for which she is liable.  The amount of the payments during the period in issue were not challenged, nor was the Commonwealth’s right to recover any such debts from Ms Muller if she is found to be living in a marriage-like relationship with Mr Shepherd.  I will proceed on that basis.

3.      Ms Muller asserts that she and Mr Shepherd were not living in a marriage-like relationship in the period from 21 February 2005 to 25 July 2005.  In her submission, even though she and Mr Shepherd had previously conceived three children and had maintained a sexual relationship, their lives were separate and they were not in any meaningful sense members of a couple during this period.  She asserts that they were not living together and were not cohabiting, nor were they holding themselves out as members of a couple.  They did not pool financial resources nor have any legal obligation one to the other, with the exception of undertaking parental responsibilities for their children.  In Ms Muller's submission, she and Mr Shepherd did not jointly own any assets nor were they jointly liable for any debts.  She says that Mr Shepherd's provision to her of rent-free accommodation over time was in lieu of child support payments and his provision of three vehicles successively was to ensure reliable and safe transport for his children.  In Ms Muller's submission, these circumstances do not imply that she and Mr Shepherd were members of a couple and are not consistent with a marriage-like relationship.

4.      As will appear I do not agree.

5.      Eligibility for and the rate of parenting payment and family tax benefit are determined pursuant to applicable sections of the Social Security Act 1991 (“the SS Act”) and the A New Tax System (Family Assistance) Act 1999 (“the FA Act”). Whether a person is a member of a couple or not is a determinant of the applicable rate of parenting payment and family tax benefit that is payable. The definition of "member of a couple" set out at subsection 4(1) of the SS Act[1] applies under the FA Act[2].  A person is a member of a couple if the person has a marriage-like relationship with a member of the opposite sex to whom they are not legally married[3]. When forming an opinion about the relationship between two people for the purposes of the SS Act it is necessary to have regard to all the circumstances of the relationship as a whole, having specific regard to all of the matters set out at subsection 4(3) of the SS Act to form a total picture of the relationship[4].  The specified factors are as follows:

[1] See also subsections 4(2), 4(3) and 4(3A)

[2] See definition at subsection 3(1) of the FA Act

[3] Subs4(2)

[4] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at 555-556

“(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.”

6.      As will appear, and it is not surprising, there are factors pointing to a relationship that is marriage-like between Ms Muller and Mr Shepherd during the specified period and there are factors weighing against it.  There is significant difficulty attaching to cases such as this when much of the evidence is principally derived from the two people concerned and otherwise is largely circumstantial.  Furthermore, interpersonal relationships between parents take many forms in a modern society and it is unlikely that the existence of any single factor, such as the parties cohabiting or sharing finances or performing parental or familial responsibilities or engaging in intimacy, alone will reasonably found a conclusion that the relationship is marriage-like.  In the words of O'Loughlin J in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 173

“… it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements.  Those reasons will be better indicators in determining the correct nature of their relationship.”

7.      The case must be decided to the reasonable satisfaction standard of proof, on the balance of probabilities.  Mere suspicion is not sufficient.  While there is no onus of proof in proceedings before the Tribunal, in so far as there is any evidentiary onus, in this case it lies with the Applicant Secretaries.

credit

8.      I found Ms Muller’s and Mr Shepherd’s evidence to be unreliable. Their evidence was infected with inconsistencies and explanations of convenience that evolved over time.  It strikes me as likely that they tailored their evidence and misrepresented key facts in order to enhance Ms Muller’s case that she was not living in a marriage-like relationship.  In all likelihood, inconsistencies in their evidence arose, in part at least, from such misrepresentations.  Even so, I do not discount their evidence entirely.  Considering their accounts and the evidence that has been accumulated over time, there is some consistency in relation to key issues that are presently before the Tribunal.  It is more likely than not that such consistency is not the result of serial misrepresentation but points to the true relationship between Ms Muller and Mr Shepherd.  One must be cautious when assessing evidence that may have been embellished or coloured by misrepresentation in order, properly, to distinguish the kernel of fact from the cloak of fabrication.  Thus I will proceed with caution when evaluating aspects of their evidence, especially in the absence of independent corroboration.

financial aspects

9.      Ms Muller and her children reside at 3 Newbury Drive, Penrose in New South Wales and have done so since July 2002.  It is not in dispute that at all relevant times the property at Newbury Drive was owned by Mr Shepherd.  There is no evidence before me that Ms Muller has any interest or lien over the property.  Initially Ms Muller paid Mr Shepherd $200 per week rent through a real estate agent, however that arrangement ceased in 2004 when it was purportedly agreed that Mr Shepherd would forego rental payments in lieu of his child support payment responsibilities[5].  I have seen no documentation formalising this arrangement.

[5] T82 folio 385

10.     There is evidence that Mr Shepherd reported taxable income from rent prior to June 2004 but no rental income thereafter[6].  That evidence lends weight to the existence of the arrangement as asserted by Ms Muller (I note that there is no evidence that Mr Shepherd was obtaining rental income from other sources).  However, Mr Shepherd’s taxation return for 2005 reveals that he recorded Ms Muller as his spouse, with 3 dependent children, and that he was living at 3 Newbury Drive, Penrose[7].  That evidence is not consistent with Ms Muller’s assertion that she and Mr Shepherd were not members of a couple at that time and were living separately. 

[6] T84

[7] T84

11.     There is no evidence that Ms Muller and Mr Shepherd jointly own any assets or have any joint liabilities.  There is no clear evidence of any pooling of financial resources.  I note however that Mr Shepherd took out a loan and purchased a Toyota Landcruiser for Ms Muller's use in or about August 2003 (having previously provided her with two vehicles for her use).  The evidence is that he made repayments on the loan of approximately $297 per fortnight[8].  Road Traffic Authority records indicate that Ms Muller registered this vehicle in her own name[9].  I note that Ms Muller previously gave contradictory and inconsistent accounts about the acquisition and use of these vehicles[10].   Mr Shepherd gave evidence that he provided Ms Muller with the vehicle in order to ensure that his children had safe transport that otherwise she could not afford to provide.  That he did so when his business was experiencing financial difficulties points to his strong commitment to Ms Muller and his children. 

[8] T52, folios 198-200

[9] T54,folios 272-276

[10] See T65 folios 272-276 for example

12.     On the evidence before me the only legal obligation between the parties is in relation to support for the children they have produced.  I note that Ms Muller applied for child support assessments in 1996 and 1997.  However on 17 July 2001 she was granted an exemption from taking child support action against Mr Shepherd on the basis of her fear of violence[11].  On 18 June 2004 Ms Muller was granted a further six months’ exemption from taking child support action against Mr Shepherd as a result of her fear of violence[12].  That evidence weighs against the existence of a marriage-like relationship at that time.  However, the basis for Ms Muller’s fear is not clear and it appears that the exemption was granted on the basis of her account alone.  There is no independent corroboration of her account or verification of the reason for her purported fear before me.  Subsequently in 2004, on Ms Muller’s evidence, she ceased paying Mr Shepherd $200 per week rent for the Newbury Drive property in lieu of child support. There is no evidence before me that any other action was taken by Ms Muller or the Child Support Agency against Mr Shepherd in respect of child support payments for his three children by Ms Muller.

[11] T27, folio 133

[12] T47

13.     There is scant evidence concerning day-to-day expenses in Ms Muller's household.  Ms Muller’s evidence was that she pays all of the day-to-day expenses herself.  The telephone account and the electricity account were in her name alone.  Mr Shepherd materially contributed to the household by foregoing rent for 3 Newbury Drive and by purchasing a vehicle for Ms Muller’s use. 

14.     Mr Shepherd was very clear in his evidence that he had wanted to live with Ms Muller and his children as a family, but alleged that Ms Muller would not permit it until October or November 2005.  He expressed his frustration about the nature of his relationship with Ms Muller prior to July 2005 (when her benefits were cancelled) and stated that as long as Ms Muller was receiving parenting and FTB payments she would not reconcile or live with him, and only did so once the payments ceased in July 2005.  On that evidence it can be seen that Ms Muller managed her relationship with Ms Shepherd, at least in part, in order to retain payment of benefits as a single parent.

nature of household

15.     Ms Muller gave evidence that she had primary care of and responsibility for the children.  She had been a single mother since 1992 and had never lived with Mr Shepherd as a couple.  She explained that living with someone as a couple was different than being ‘with’ the person: “you can be ‘with’ them but not live with them”.  She had been ‘with’ Mr Shepherd in 1997, but had separated from him in August that year as recorded on Centrelink forms she completed at the time[13] .  By her account she was not ‘with’ Mr Shepherd during the period in question and only reconciled with him after the cessation of payments in July 2005.

[13] See T12 folio 73, for example

16.     Ms Muller and Mr Shepherd both gave evidence that they lived separately during the period in question in 2005.  Their evidence was that Ms Muller and the children lived at 3 Newbury Drive, whereas Mr Shepherd lived in a shack and a caravan on a property owned by his father, Kit Guyat, at Wombat Hollow, a short distance away.  Mr Guyat lives in a house on that property.  Mr Guyat was not called to give evidence in these proceedings.  However attention was drawn to the report of his evidence given before the Social Security Appeals Tribunal[14].  It appears that Mr Guyat described the relationship between Ms Muller and Mr Shepherd as having been "on and off" for quite some time, where they "would spend some time together but then they would have some ‘blue’ and the relationship was ‘off’".  Mr Guyat apparently told the Social Security Appeals Tribunal that he was confident that Mr Shepherd was living at Wombat Hollow during the period from February to July 2005.  However that evidence could not be tested. I note that Mr Guyat’s house is some distance from the shack and caravan in which Mr Shepherd was allegedly living at the time.  Mr Shepherd gave evidence that Mr Guyat’s house is separated from the shack by steep terrain and bushland and there is no line of sight between the two.

[14] T2, folios 11-12

17.     Mr Shepherd's taxation records[15] for the 2002, 2003 and 2004 financial years show his residential address to be Wombat Hollow, Wingello Road, Penrose.  During these years he has declared rental income but he has not recorded a spouse or any dependent children.  However his tax records for the 2004-2005 financial year list his residential address as 3 Newbury Drive, Penrose, and also list Eve Muller as his spouse and three dependent children[16]. 

[15] T84

[16] T84

18.     Mr Shepherd gave evidence that he would drive from work to visit his children at 3 Newbury Drive on most days, at least three or four days per week.  His evidence was that he would stay until they went to bed but would not eat dinner with Ms Muller and the children, and he would not stay the night.  He would leave his vehicle at that property and would walk or ride a bicycle or a motorbike to the shack at Wombat Hollow, returning in the early morning to collect his vehicle. 

19.     However, the video surveillance evidence[17] reveals that Mr Shepherd’s vehicles[18] were observed to be parked overnight at 3 Newbury Drive on a frequent and regular basis during the periods 21 February 2005 to 26 February 2005 and 5 April 2005 to 10 April 2005.  A man was observed to take the children to school on the morning of 21 February 2005 in Ms Muller’s Toyota Landcruiser, but otherwise Ms Muller was seen to undertake this task.  Ms Muller was adamant that this person was not Mr Shepherd, suggesting that it was more likely to have been one of Mr Shepherd’s workmates.  She produced no evidence to support this proposition.

[17] T57 and Exhibit A8

[18] A Nissan Patrol and an International truck

20.     Under cross examination Mr Shepherd denied that he would stay overnight at 3 Newbury Drive, unless he was babysitting in Ms Muller’s absence.  He told the Tribunal that during the period in question in 2005 he would usually walk between 3 Newbury Drive and Wombat Hollow because he was on a fitness regime.  He estimated that this journey would take him 15 to 20 minutes.  He asserted that he could traverse the path without difficulty at night without a light.  He said that he had grown up at Wombat Hollow and knew the terrain extremely well.  When he was asked to indicate on a detailed topographic map of the locality[19] the route he would usually take, he described a route which would require him to traverse steep terrain and to cross a number of properties, including fences, a creek, pasture land and bushland.  I am satisfied that using the route indicated by Mr Shepherd the distance between 3 Newbury Drive and Mr Shepherd’s alleged residence at Wombat Hollow is approximately 1.8 - 2 kilometres.  Thus for a person to cover this distance in 15 to 20 minutes he or she would need to be travelling at 5 to 6 km per hour.  It is possible that a person of reasonable fitness with a good knowledge of the local terrain could achieve this on a walking track.  It would not be possible to do so if no track exists.  There is no independent evidence that the track indicated by Mr Shepherd exists.  Even if it does exist, by Mr Shepherd’s own account he was somewhat overweight and was consuming a large amount of marijuana everyday at that time (I note that this evidence was not consistent with other evidence concerning Mr Shepherd’s drug use).  I am satisfied that it is unlikely (and is simply implausible) that Mr Shepherd undertook this journey at the times and with a frequency that he claimed. 

[19] Exhibit A6

21.     Mr Shepherd informed me that he would park his work vehicles at Wombat Hollow because Ms Muller would not have them parked at 3 Newbury Drive.  He indicated that he did this despite difficulties manoeuvring the larger vehicles, being earthmoving equipment, on the narrow fire trail and access road at Wombat Hollow.  This evidence is not consistent with other evidence he gave and evidence he gave to the Social Security Appeals Tribunal.  Apparently he informed that Tribunal that he parked his work vehicles at 3 Newbury Drive for reasons of safety.  It appears that Ms Muller informed the Social Security Appeals Tribunal that Mr Shepherd left his vehicles at 3 Newbury Drive because he was concerned about Eucalyptus sap damaging the paintwork.  Ms Muller informed me that Mr Shepherd did not leave earthmoving equipment at 3 Newbury Drive on a regular basis, but he would often leave smaller work vehicles at that address as a matter of convenience.  Mr Shepherd confirmed that he would often leave some work vehicles, an old four-wheel-drive for example, at 3 Newbury Drive overnight for convenience.  I am satisfied that these confused and conflicting accounts have little merit and are intended to provide an explanation for surveillance video material which shows Mr Shepherd's work vehicle or vehicles parked overnight at 3 Newbury Drive. 

22.     It may be true and I accept that from time to time Mr Shepherd may have parked his work vehicles at 3 Newbury Drive as a matter of convenience.  3 Newbury Drive is more accessible and convenient than Wombat Hollow, which is more than 2 kilometres along an unsealed fire trail.  I also accept that on occasion Mr Shepherd would obtain lifts with his workmates or friends and would leave his vehicle at 3 Newbury Drive.  However I am not satisfied that mere convenience in the sense that Ms Muller and Mr Shepherd attempted to imply, or Mr Shepherd obtaining lifts with friends, provide a satisfactory explanation of what is recorded in the video surveillance footage.  I am satisfied that it is more likely than not that Mr Shepherd parked his work vehicles at 3 Newbury Drive when he was in attendance at the property as it was most convenient for him to do so.  The proposition that Mr Shepherd would visit his children at 3 Newbury Drive three or four nights per week and would leave at half past eight or nine o'clock at night to walk to Wombat Hollow, leaving his vehicle parked in the driveway, only to return early in the morning to collect his vehicle and proceed to work, is unlikely and simply implausible.

23.     Ms Muller and Mr Shepherd separately gave evidence that the house at 3 Newbury Drive originally contained three bedrooms and an L-shaped living room.  In or about 2003 the house was modified by Mr Shepherd to provide four bedrooms and a smaller living room.  Ms Muller gave evidence that each of the children then had their own bedroom and she shared the fourth bedroom in the living room with her youngest son (born June 2003).  Subsequently, after her alleged reconciliation with Mr Shepherd she shared the fourth bedroom with him.  I note that there is scant evidence concerning the living arrangements at 3 Newbury Drive during the period in question.  Nor is there any substantial evidence concerning the division of domestic responsibilities and chores, if any, between Ms Muller and Mr Shepherd.

24.     Ms Muller asserts that she and Mr Shepherd commenced living together in October or November 2005 having purportedly reconciled their differences after the cessation of her Centrelink payments in July 2005.  Previously in her application for child support assessment in 1996 Ms Muller indicated that she and Mr Shepherd had never lived together.  However, on 20 August 1997 in her applications for sole parent pension and child support assessment she indicated that she had lived with Mr Shepherd but they had separated without any prospect of reconciliation on 19 August 1997[20].  Curiously Ms Muller's daughter Chelsea was born on 7 August 1998.  That being so she must have been conceived in or about November 1997, only two or three months after the alleged separation between Ms Muller and Mr Shepherd on 19 August 1997.  Furthermore, it is curious to note that Ms Muller was granted exemptions from pursuing Mr Shepherd in relation to his child support obligations in 2001 and 2004, on the grounds of her fear of violence, but she and Mr Shepherd managed to produce a child in June 2003.

[20] T10 folio 58 and T12 folio73 respectively

social aspects

25.     Ms Muller and Mr Shepherd gave evidence that they did not socialise together or hold themselves out as a couple prior to their reconciliation after July 2005.  The records of the Wingecaribe Health Service[21] and the Bundanoon Primary School[22] were obtained.

[21]  T56

[22]  T64

26.     It is a fact that Mr Shepherd recorded that Ms Muller was his spouse in his tax return for 2005.  It is also a fact that the Bowral Hospital records show Ms Muller and Mr Shepherd recorded their address as 3 Newbury Drive Penrose[23].   Those records reveal that Ms Muller indicated that Kye did not have a non-custodial parent when he was admitted on 21 April 2004[24].  In the applicants’ submission this is clear evidence that Ms Muller and Mr Shepherd were holding themselves out to be a couple at this time.  I am compelled to agree.  The records reveal that Kye attended the hospital Emergency Department, where he was admitted at 02:45.  Ms Muller identified her handwriting on the admission form.  I note in passing that the Hospital uses a 24 hour clock to record time.  The Hospital record at 12:30 records that “initial obs hard to obtain as child screaming when approached by staff.  Nil resp effort.  Happy playing with Dad.  Pulled Np off (halfway) in sleep SaO2 97% with O2 out, Dad anxious about leaving prongs out…”.  That evidence indicates that Kye was screaming and experiencing difficulty breathing on admission.  Those circumstances support Ms Muller’s explanation that she was not thinking clearly or concentrating on the admission form when she completed it and circled ‘No’ in answer to the question about non-custodial parent.  Furthermore, in her submission, she did not record Mr Shepherd’s address at Wombat Hollow as there was not space on the form.  However, it can be inferred from these notes, and I am reasonably satisfied, that Mr Shepherd attended the Hospital with Ms Muller and their son.  Even though I accept that the situation was stressful for Ms Muller, I am reasonably satisfied that she completed the admission form truthfully, recording accurate information that was in her mind at the time without pause for thought of fabrication in difficult circumstances. 

[23] see T56 folio 229-31, for example

[24] T56 folio 231

27.     It is not disputed that Ms Muller and Mr Shepherd were observed attending a festival together with their children by surveillance operatives.  Nor is it disputed that on some occasions they would attend school commitments or community events together in support of their children.

28.     No evidence was adduced from friends of Ms Muller or Mr Shepherd, or from local people who know them, concerning the nature of their relationship.

29.     It was not disputed that Ms Muller would take the children to visit her parents and that Mr Shepherd was not involved in these activities.  It is alleged that Ms Muller’s parents had difficulties with Mr Shepherd in the past that resulted in an anti-violence order being issued against him.  I have not seen direct evidence to support this allegation.

sexual relationship

30.     There can be no doubt that Ms Muller and Mr Shepherd have engaged in a sexual relationship from time to time over the period of at least ten years.

31.     Their evidence concerning sexual relations and intimacy in the period prior to and during the period in question in 2005 was not consistent.  Ms Muller maintained that she did not have a sexual relationship with Mr Shepherd following Kye’s birth in June 2003.  Mr Shepherd’s evidence was that they would still engage in sexual relations from time to time.  Mr Shepherd had no apparent reason to lie and has given consistent accounts on this point over time.  Thus I prefer his evidence on this point to that of Ms Muller.

32.     Ms Muller gave evidence that she engaged in an occasional sexual relationship with another man in Goulburn during the period in question.  However she did not name the person and produced no evidence to support her assertion.  The issue of exclusivity is but one factor to be considered.  Considering all of the evidence it is more likely than not that Ms Muller’s relationship with Mr Shepherd contained elements of exclusivity, that is, at least to the extent of Ms Muller’s description of being ‘with’ someone.  There is evidence, to which I have referred, pointing to Ms Muller being ‘with’ Mr Shepherd during the period in question, whether or not they lived together at 3 Newbury Drive on a permanent and on-going basis.  However, even if she did have a casual sexual relationship with another man that would not necessarily resolve the matter in her favour. 

commitment

33.     Ms Muller asserted that she and Mr Shepherd were not committed to each other or to their relationship prior to their purported reconciliation in October or November 2005.  However, she conceded that Mr Shepherd wanted them to be together as a family prior to and during the period in question.  Mr Shepherd’s evidence was consistent on this point.

34.     There is evidence that Mr Shepherd gave Ms Muller support in her dealings with Centrelink, and attended an interview with her in the role of ‘support person’ on 8 July 2005.

35.     Ms Muller and Mr Shepherd have maintained an interpersonal relationship for more than a decade.  Mr Guyat characterised their relationship as ‘on and off for several years’.  Plainly enough there has been a sexual element to their relationship for a long period of time, although it is not clear on the reliable evidence that the extent and degree of that intimacy has been constant throughout.

36.     Ms Muller gave evidence that during the period in question she expected that the arrangements she had agreed with Mr Shepherd, including her residing at 3 Newbury Drive rent free and continuing to drive a vehicle that Mr Shepherd purchased for her to use, would continue into the future.  Her evidence was that she had not forgiven Mr Shepherd for leaving her when she was pregnant with his daughter in 1994, and that she would not have him back while he was taking drugs.  Thus it can be seen that Ms Muller identified two key determinants for reconciliation with Mr Shepherd: a change in his drug-taking behaviour and the cessation of parenting benefits at the single rate.  When both factors came to pass the purported reconciliation is said to have occurred.  It is plain enough that Ms Muller expected that her relationship with Mr Shepherd would continue into the future at that time.

37.     Ms Muller and Mr Shepherd stated that at the time they did not see their relationship as marriage-like.

marriage-like relationship

38.     Doing the best with the available evidence, considering all the relevant factors and the overall picture of the interpersonal relationship between Ms Muller and Mr Shepherd, and the reasons for the arrangements they made, I am reasonably satisfied that their relationship was marriage-like during the period from 21 February to 25 July 2005. 

39.     The interpersonal relationship between Ms Muller and Mr Shepherd has endured for more than 10 years.  Three children have been produced.  Until 2004 the relationship was fairly characterised as ‘on and off’.  I accept that Mr Shepherd engaged in drug-taking behaviour and was prone to become aggressive or violent.  Perhaps for this reason Ms Muller resisted cohabiting with Mr Shepherd despite engaging in an ‘on again off again’ but essentially on-going sexual relationship with him.  However I accept Mr Shepherd’s assertion that Ms Muller’s receipt of parenting payments and FTB at the single rate was also a factor.  Ms Muller conceded that she and Mr Shepherd commenced living together at 3 Newbury Drive soon after her parenting and FTB payments ceased in July 2005.

40.     Their financial affairs were substantially separate.  They did not jointly own assets and did not have joint liabilities, but made financial arrangements that were mutually beneficial.  Mr Shepherd provided a vehicle at his cost for Ms Muller’s use, but she paid for the registration and running costs of the vehicle.  Mr Shepherd did not make child support payments, but charged Ms Muller no rent.  There is no evidence that Mr Shepherd overtly contributed to the day to day living expenses of Ms Muller and her four children.  Ms Muller maintained telephone and electricity accounts in her name alone.

41.     Mr Shepherd was a frequent and regular visitor to 3 Newbury Drive.  In all likelihood he frequently stayed overnight there during the period in question.  Ms Muller was primarily responsible for the care of the children, although Mr Shepherd would regularly assist.  The evidence is that Mr Shepherd was committed to his children and maintained an involvement in their education, health and welfare in some degree.  It is unlikely that Mr Shepherd undertook any housework at 3 Newbury Drive, although it is more likely than not that he undertook maintenance tasks, including renovating the lounge to provide a fourth bedroom.

42.     Mr Shepherd represented he and Ms Muller as a couple sharing the same address in his tax return for the 2004-2005 financial year, when previously he had not done so.  There are hospital and school records that record contact details for Ms Muller and Mr Shepherd at 3 Newbury Drive.  Ms Muller and Mr Shepherd engage in social activities together for the benefit of their children, such as school or community events involving one or more of the children.  No evidence was adduced from friends of Ms Muller or Mr Shepherd concerning their social activities.  However, it is plain enough from the oral evidence that they have friends in common, Mr Glen Luke, for example.  I note that while Ms Muller asserted that she would call Mr Luke to give evidence, she did not do so.

43.     Considering all of the evidence regarding the period in question it can be seen that Ms Muller and Mr Shepherd were committed to each other in a number of important ways.  They have three children and a long and enduring relationship.  The relationship was sexual.  They had convenient and mutually beneficial arrangements of a financial nature, even though they did not share assets, liabilities or financial facilities.  They lived in close proximity to each other.  They shared responsibilities and jointly provided for their children.  They gained companionship from each other.  They envisaged their relationship and the arrangements of convenience continuing into the future.

44.     When these matters are considered together, the reason Mr Shepherd provided for Ms Muller not wanting to live with him during the period in question is compelling.  The reason he gave was, in effect, that she would lose her parenting payment and FTB at the single rate if she did.  If that reason is correct, and I am satisfied that in all likelihood it is, then the reasons for the arrangements that Ms Muller made with Mr Shepherd take form.  This must be considered in relation to the reasons for the arrangements given by Ms Muller.  These related to Mr Shepherd’s drug-taking behaviour, her fear of violence from him and her ‘independence’ from Mr Shepherd on the basis of her receipt of the benefits in question.  The evidence concerning Mr Shepherd’s drug-taking behaviour is inconsistent, but points to a change taking place, if it took place at all, in 2004.  There is no evidence that Ms Muller feared violence from Mr Shepherd in 2005, in fact the evidence is that the relationship between them was improving in 2004 despite Ms Muller obtaining an exemption from pursuing Mr Shepherd for child support payments in June of that year.  Thus, on balance, I am satisfied that these reasons lack substance and are not compelling.  That leaves the reason of independence, which is consistent with Mr Shepherd’s assessment, and is essentially concerned with preserving an entitlement to Family Tax benefit and parenting payment at the single rate.

45.     I accept that Mr Shepherd maintained an abode at Wombat Hollow, where I accept he spent some of his time during the period in question.  However, the test to be applied for present purposes is not whether two people live together permanently in the same house, it is whether their interpersonal relationship is marriage-like.  Many are the examples of married couples who spend periods of time living in different places without disturbing the marriage-like nature of their relationship.  I am mindful that subs 4(3A) requires that a relationship must not be determined as marriage-like if the parties are living separately and apart.  The concept of ‘separately and apart’ was discussed by the High Court in Main v Main (1949) 78 CLR 636 at 641 and by the Federal Court in Staunton-Smith v Secretary, Department of Social Security (supra) at FCR 175.  What must be considered is not only whether the parties live separately, in physical terms, but also, and perhaps more importantly, whether the marital relationship (the consortium vitae) has broken down.  These are matters of fact and degree.  In the present case I am reasonably satisfied that the vital relationship between Ms Muller and Mr Shepherd had not broken down during the relevant period or in the preceding months to the extent that Ms Muller asserts. 

46.     If there was a process of reconciliation between Ms Muller and Mr Shepherd, and it appears that there may have been in 2004, it can be accepted that the process may have occurred over a period of time, with the parties re-establishing aspects of their relationship that had broken down.  The evidence points to such changes occurring in 2004.  It was at that time that Ms Muller ceased paying rent to Mr Shepherd and he nominated her as his spouse with three dependent children at 3 Newbury Drive.  The evidence, conflicted as it is, concerning Mr Shepherd’s drug-taking suggests that a change in his behaviour occurred in or about 2004.  The Bowral Hospital records and Mr Shepherd’s tax records suggest that Ms Muller and Mr Shepherd were presenting themselves as a couple in 2004.  The inconsistent and often contradictory evidence and accounts given by Ms Muller and Mr Shepherd over time suggests that they were making efforts to misrepresent the truth about their relationship for the purpose of Ms Muller obtaining benefits, or at least avoiding a debt to the Commonwealth. 

47.     Having considering the evidence, the total picture of the relationship between Ms Muller and Mr Shepherd and the reasons for the arrangements they made between them I am reasonably satisfied that the relationship between Ms Muller and Mr Shepherd was marriage-like in the period from 21 February 2005 to 25 July 2005, and so find.  It follows that I am satisfied that Ms Muller was a member of a couple in that period.

overpayment and recovery

48.     That being so, Ms Muller was paid amounts of Family Tax Benefit and parenting payment to which she was not entitled.  As I understand Ms Muller’s case, she did not dispute the amounts of the overpayments.  I have not considered the calculation of the specific amounts in detail and no evidence was led to suggest that the calculated amounts are incorrect.  That being so, I accept that the amounts of the overpayments have been correctly calculated in the amounts of $8,058.55 in Family Tax Benefit and $5,326.73 in parenting payment.  These amounts are debts to the Commonwealth for which Ms Muller is liable.

49.     Issues of recovery were not agitated or ventilated before me in these proceedings.  Thus I make no findings in relation to those matters.

conclusion

50.     The decision under review is set aside.  In place thereof the Tribunal decides that Ms Muller was a member of a couple, in a marriage-like relationship, from 21 February 2005 to 25 July 2005 in consequence of which she was overpaid $8,058.55 in Family Tax Benefit and $5,326.73 in parenting payment.  Those amounts are debts due to the Commonwealth.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:       ..........[ Peter Strauch].........................................
  Associate

Date of Hearing  11 – 12 January 2007
Date of Decision  26 February 2007
Solicitor for the Applicants  Mr Z. Chami
  Clayton Utz
Representative for the Applicant             Self represented