Newman and Secretary, Department of Education, Employment and Workplace Relations and Anor
[2010] AATA 596
•12 August 2010
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2009/3774
General Administrative Division )
Re: Susana Newman
Applicant
And: Secretary, Department of Education, Employment and Workplace Relations
First Respondent
And: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Second Respondent
ORDER TO AMEND WRITTEN DECISION
TRIBUNAL: Senior Member Jill Toohey
DATE: 13 August 2010
PLACE: Sydney
1.On 12 August 2010, the Tribunal published a decision and written reasons in this proceeding.
2.The Tribunal is satisfied that that there is an obvious error in the text of the decision and the written statement of reasons and directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision and the written statement of reasons so that they show the Secretary, Department of Education, Employment and Workplace Relations as the first respondent and the Secretary, Department of Families, Housing, Community Services and Indigenous Affairs as the second respondent.
...............[sgd]....................................
J Toohey
Senior Member
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 596
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/3774
General ADMINISTRATIVE DIVISION ) Re Susana Newman Applicant
And
Secretary, Department of Education, Employment and Workplace Relations
Respondent
DECISION
Tribunal Senior Member Jill Toohey Date12 August 2010
PlaceSydney
Decision The decision under review is set aside and the Tribunal decides instead that:
(i) Ms Newman was not in a marriage-like relationship in the period 6 July 2005 to 23 November 2007 and was not a member of a couple for the purposes of the Social Security Act 1991;
(ii) Ms Newman was not overpaid parenting payment (single) or family tax benefit during that period and does not have a debt to the Commonwealth.
................[sgd]..............................
Senior Member
CATCHWORDS
SOCIAL SECURITY - Parenting payment – Family Tax Benefit – whether applicant in marriage-like relationship – parties had lived in same household and moved interstate – other party had claimed applicant as spouse in tax return – each had nominated the other as next of kin or emergency contacts – evidence of some financial support by other party – evidence of emotional support – parties now in marriage-like relationship – factors pointing towards and away from marriage-like relationship at the relevant time – balance of evidence pointed away from marriage-like relationship at the relevant time – decision under review set aside
Social Security Act 1991
Social Security (Administration) Act 1999
A New Tax System (Family Assistance) (Administration) Act 1999
Dewhurst and Hineman and DEEWR and DFHCSIA [2010] AATA 512
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27
REASONS FOR DECISION
12 August 2010 Senior Member Jill Toohey Background
1. Susana Newman started receiving parenting payment in respect of her daughter, Samantha, in June 1999. She was paid at the rate for a single person until 30 November 2007 when Samantha was no longer in her care. In the financial years 2006-2007 and 2007-2008, Ms Newman also received family tax benefit (FTB) at the rate for a single person.
2. On 3 February 2009, Centrelink determined that Ms Newman had been in a marriage-like relationship since 6 July 2005. As a result, Centrelink determined that she had been overpaid parenting payment from that date until 30 November 2007, when her payments ceased, and that she had been overpaid FTB in the years 2006-2007 and 2007-2008.
3. Centrelink contends that, for the period 6 July 2005 to 30 November 2007, Ms Newman has the following debt to the Commonwealth:
(i)$22,871.69 in parenting payment for the period 23 July 2005 to 30 November 2007;
(ii)$2,630.27 in FTB for the period 1 July 2006 to 30 June 2007;
(iii)$1,447.36 in FTB for the period 1 July 2007 to 22 October 2007.
4. On 8 July 2009, the Social Security Appeals Tribunal (SSAT) affirmed Centrelink’s decision. Ms Newman seeks review of that decision. She represented herself in these proceedings.
Issues to be determined
5. I have to decide:
(i)whether Ms Newman was in a marriage-like relationship during the relevant period;
(ii)whether Ms Newman was overpaid parenting payment and FTB during the relevant period;
(iii)if Ms Newman has a debt to the Commonwealth, whether any or all of the debt should be written off or waived.
Relevant legislation
6. The relevant legislation is in the Social Security Act 1991 (the SS Act), the Social Security (Administration) Act 1999 (the SSA Act), and the A New Tax System (Family Assistance) (Administration) Act 1999 (the ANTS Act).
7. Parenting payment and FTB are payable at rates according to whether or not a person is a member of a couple as defined in subsection 4(2) of the SS Act. A person who is a member of a couple is entitled to payment at a rate which takes into account the income of their partner.
8. A person who is not a member of a couple is entitled to parenting payment at the pension PP (single) rate. A person who is a member of a couple is entitled to the lesser benefit PP (partnered) rate.
9. At the relevant time, subsection 4(2) provided as follows:
(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…
(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.
10. Subsection 4(2) was amended to apply from 1 July 2009 to same-sex couples. The term “marriage-like relationship” was replaced by the term “de facto relationship” but, for present purposes, sub-section 4(2) is otherwise in identical terms.
11. Subsection 4(3) provides that, in forming an opinion about the relationship between two people, 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, or in a de facto relationship with , 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 or a de facto relationship.
12. 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.
Was Ms Newman in a marriage-like relationship during the relevant period
13. On 29 August 2007, Centrelink suspended Ms Newman’s parenting payment on the ground that she was in a marriage-like relationship with Mr Jeffrey. On 31 August 2007, Centrelink affirmed that decision. However, on 23 October 2007, an Authorised Review Officer determined that the evidence did not indicate a marriage-like relationship. Ms Newman’s parenting payment was reinstated and she was paid arrears for the period of the suspension. Her payment ceased on 30 November 2007 when Samantha was no longer in her care.
14. On 26 November 2008, having conducted further investigations, Centrelink determined that Ms Newman and Mr Jeffrey had been in a marriage-like relationship since 6 July 2005 and the debt that is the subject of these proceedings was raised.
15. Ms Newman claims that she and Mr Jeffrey have been a couple since New Years Eve in 2007 but says that, prior to that date, although it was close in many respects, the relationship was not marriage-like.
Ms Newman’s evidence
16. Ms Newman was brought up in different homes and was a ward of the State until she was 18. She has a number of foster brothers and sisters, most of whom she has little contact with, other than one foster brother with whom she was living when she met Mr Jeffrey.
17. Ms Newman separated from her daughter’s father in 1999. From about late 2004, she was in a relationship with a man who is referred to here as B. She ended her relationship with B in August 2006, although she says he continued to pursue her for some time after that.
Living and household arrangements
18. The evidence about when Ms Newman and Mr Jeffrey met was not altogether easy to follow and the difficulty was compounded by some questions put to her in cross-examination (at T-9; see also at T-80) which suggested counsel for Centrelink was also confused about some dates.
19. Ms Newman gave evidence that she met Mr Jeffrey in 2005, about three months before he came to live at a property in Birt Avenue, Surfers Paradise, that she shared with her brother. Mr Jeffrey had recently moved to Queensland and was looking for somewhere to live. He moved into a garage at the rear of the property for a couple of weeks, and had the use of the kitchen and the bathroom, before the lease expired on 23 May 2005 and they all had to find somewhere else to live.
20. Ms Newman’s oral evidence about when she met Mr Jeffrey was consistent with what she told the SSAT. In contrast, a record of a Centrelink interview in August 2005 indicates that she referred to Mr Jeffrey moving in “last year”. In the end, little turns on this point but it was typical of apparent inconsistencies in the evidence generally.
21. In any event, there is no dispute that, from 6 July 2005, Ms Newman, Mr Jeffrey and Samantha shared accommodation. Ms Newman gave evidence that, when the lease expired on Birt Avenue, her brother moved away and she had to find somewhere to live. She did not think she could get somewhere on her own, and she and Mr Jeffrey decided to lease a property together. She gave evidence that “that’s how it’s been all my life with moving in with people is, you know – when you don’t have anywhere to go and you’re stuck, you take the next possible option”.
22. Ms Newman gave evidence that, in the six weeks or so between leaving Birt Avenue and moving to the new property with Mr Jeffrey, she stayed with a friend of her brother in Nerang.
23. On 6 July 2005, Ms Newman and Mr Jeffrey entered into a six-month lease on a two-bedroom apartment at “The Sands” in Surfers Paradise. Ms Newman and Samantha shared one bedroom and Mr Jeffrey had the other. He paid the bond of $1300 because she could not afford it, and she later repaid him. She paid $135 rent per week and he paid $190. They shared utilities costs, although sometimes he paid more to help her. They mostly bought their own food. She did most of the housework but did not clean his room. Her partner at the time, B, spent a lot of time at the apartment and Mr Jeffrey was often away for work.
24. Records obtained by Centrelink from the National Tenant Information System show that, in her tenancy application, Ms Newman gave her address immediately before moving into The Sands as “Earls Court Motor Inn, Southport – period 3 days”. Mr Jeffrey’s application shows the same. In cross-examination, Ms Newman said she stayed at the motel for one night only, once she knew she would be moving to “The Sands”. There were three beds and she, Samantha and Mr Jeffrey slept separately. The evidence is not clear, but it appears they were not in the same room.
25. On 25 July 2005, Centrelink wrote to Ms Newman. A copy of the letter is not on file but Centrelink records indicate it asked Ms Newman to complete a form about her living arrangements “as you are sharing accommodation with Adam Jeffrey”. The basis for this statement is not clear but nothing turns on this.
26. On 18 August 2005, Ms Newman attended an interview at which Centrelink’s record shows she said she was “living with Adam Jeffries (sic) who is a friend of her brothers and a flatmate only. They have not lived together before except for a couple of weeks when Adam came to stay when [she] was sharing with her brother last year”.
27. Centrelink apparently accepted Ms Newman’s account of the relationship because, following this interview, she continued to receive parenting payment at the rate for a single person.
28. Ms Newman and Mr Jeffrey renewed the lease at “The Sands” twice before it expired on 5 January 2007, after which they both moved to his mother’s house in Dudley, near Newcastle.
29. The dates on which Ms Newman and Mr Jeffrey each moved to Dudley are in dispute. Centrelink contends that she moved on or about 5 January 2007 when the lease on The Sands expired, and that he moved at, or around, the same time. Centrelink contends the dates are relevant and significant because, consistent with a marriage-like relationship, they moved together.
30. Ms Newman gave evidence that, after they left “The Sands”, Samantha stayed with her father and Ms Newman’s employer allowed her to stay in rooms where she was working. She moved to Dudley on 14 February 2007, about seven weeks later. This is consistent with what she told Centrelink in June 2007.
31. However, Ms Newman’s bank records show withdrawals from ATM machines in Queensland up to 19 January 2007 and, from 22 January 2007, from ATMs around Newcastle, clearly indicating that she moved between these dates. In cross-examination, she said she did not finish work in Surfers Paradise until the last week of January or first week of February 2007 but conceded she could have moved to Dudley as early as mid- to late- January.
32. Ms Newman gave evidence that she ended her relationship with B in August 2006 but he was emotionally and physically violent and continued to pursue her. In January 2007, Mr Jeffrey had already moved to Dudley and he offered her a place to stay. She had two options on leaving “The Sands”: to move to Western Australia to live with a girlfriend, or take up Mr Jeffrey’s offer and move to Dudley. She chose Newcastle because Western Australia was a long way, Mr Jeffrey was offering her somewhere she didn’t have to pay rent, and moving to Western Australia would have been more disruptive for her daughter. Her daughter had finished school for the year and she only planned to stay in Dudley between two weeks and three months. However, she got on well with Mr Jeffrey’s mother and ended up staying; she looked for work in Newcastle but could not find any and so started a legal real estate course at a business college there.
33. In June 2007, Ms Newman completed an Assessment of Living Arrangements questionnaire at Centrelink about her relationship with Mr Jeffrey. Her responses are referred to here and below.
34. On the form, Ms Newman wrote that she moved to Dudley on 14 February 2007 and she added the comment “Me only”. She was asked in cross-examination what this meant. She said the form asked her to indicate if she and Mr Jeffrey were married or de facto; it was “black and white” and did not allow her to answer the question correctly, which was ‘Yes I was living there but no, we weren’t in a de facto relationship’. We weren’t in a relationship we were just good friends …”.
35. Also on the form, Ms Newman stated the reason she started sharing accommodation at Dudley with Mr Jeffrey was “trust and needed to get away from ex”. She stated she was not sure how long she intended to stay as “I was only to be hear (sic) for short term 2-3 months at most”.
36. The Dudley house was jointly owned by Mr Jeffrey’s mother, Mr Jeffrey’s uncle and Mr Jeffrey’s grandmother, all of whom lived there. There were seven bedrooms. Ms Newman, Samantha and Mr Jeffrey lived downstairs and the others lived upstairs. Centrelink does not assert, and there is no evidence, that Ms Newman and Mr Jeffrey shared a room. She did not pay rent but she paid for food, and cooked and cleaned “to help me get on my feet”. Everyone in the household did their own washing and put in $60 for food; she put in $100 for herself and Samantha, and they split utilities bills between them when they arrived. She and Mr Jeffrey would shop together once a week or once a fortnight but they had separate shopping trolleys. I accept her evidence about these arrangements.
37. On 20 September 2007, after her Centrelink payments were suspended (they were later reinstated: see above), Ms Newman returned to Queensland with Samantha because she had “absolutely no money”. She says Mr Jeffrey and his mother were telling her to stay and finish her course but she had to sort things out with Samantha, who went to live with her father (or friends; the evidence is not clear but nothing turns on this: once Samantha was no longer in her care, Ms Newman’s entitlement to parenting payment ceased).
38. On 7 November 2007, Ms Newman returned to live with Mr Jeffrey and his mother. Samantha wanted to stay in Queensland and did not return to Dudley with her. Ms Newman says she returned because Centrelink suggested she should finish her study so that she could be paid a benefit. She returned to Dudley, finished her course and was then offered a job which she accepted. She denies that she returned in order to be with Mr Jeffrey.
39. Ms Newman contends that, had she been in a marriage-like relationship with Mr Jeffrey, he would have supported her at this time and she would not have had to move back to Queensland. She denies that she “came out” about their relationship once her entitlement to parenting payment had ceased.
Nature of the relationship and how it was represented to others
40. Ms Newman and Mr Jeffrey both gave evidence that he had a good relationship with Samantha. Ms Newman told the SSAT that, for example, if she was cross with Samantha, he was patient and would explain things to her. In cross-examination Mr Jeffrey said he would help Samantha out if she needed it, for example, he picked her up from school several times, but he did no regard himself as a kind of step-father to Samantha.
41. The Assessment of Living Arrangements form asked whether others would consider her relationship with Mr Jeffrey to be similar to a married couple. She wrote: “We get on well, we’re close and sometimes we act like an old married couple.” The form also asked how she would describe her relationship with Mr Jeffrey. She wrote: “We’re very close and there could be a special friendship in time. I possibly could find more but right now anything more is not what I want or need after a bad relationship.” Asked whether they were invited out as a couple, she wrote “No”.
42. Ms Newman gave oral evidence that her friends saw them as just friends during this period; no one perceived them as being in a relationship. Asked about the period to June 2007 in cross-examination, she said there might have been three occasions when she and Mr Jeffrey went out, for example, on birthdays; otherwise, she might run into him and his friends while she was out; she recalled running into him at a club on his birthday, and she recalled two occasions when they went out as a group; any occasional displays of affection were the same as with any other friends.
43. On several occasions, Ms Newman nominated Mr Jeffrey as her next of kin or as a person to contact in an emergency. On the Assessment of Living Arrangements form she stated she had nominated Mr Jeffrey’s mother, Samantha’s father, and Mr Jeffrey as emergency contacts for Samantha’s school. She gave her reasons as: “[Mrs Jeffrey] because she doesn’t work and is reliable and Adam because my daughter knows him and Dean because he is her Dad”.
44. In her application to lease “The Sands”, Ms Newman nominated Mr Jeffrey as “Next of Kin or other person to contact in case of emergency”. She gave oral evidence that she did not know what “next of kin” meant and she nominated Mr Jeffrey because he was the person she would be living with.
45. Ms Newman says Mr Jeffrey was infatuated with her before their relationship became intimate, although she could not say when his infatuation started. However, it was not until New Years Eve in 2007 that the relationship changed and became marriage-like. She says it is very different now: they are intimate and affectionate; they go shopping together, for example, for clothes; they go to movies and parties, not just to family events, and invitations are now made out to them together, rather than individually; they now have all their furniture together.
Mr Jeffrey’s evidence
Living and household arrangements
46. Much of Mr Jeffrey’s evidence was difficult to follow. His recollection of dates and the sequence of events was poor. Ms Newman claims he gets confused about a lot of things, and his evidence generally bore this out.
47. Mr Jeffrey gave evidence that he moved to Queensland in 2004 after a difficult separation. He was looking for somewhere to live when he met Ms Newman’s brother. His description of the living arrangements at Birt Avenue was the same as Ms Newman’s but, whereas he told the SSAT he lived there for two weeks, he told this tribunal he thought he lived there for four to six months.
48. While living at Birt Avenue, Mr Jeffrey formed a friendship with Ms Newman but says that, although they “got a little bit close”, she had a partner at the time and “it wasn’t an in-depth thing”. She was in an unhappy relationship and he tried to help her out. When the lease expired, he suggested they move together and he could help her out with the rent by paying a little bit more.
49. Mr Jeffrey gave evidence that, between leaving Birt Avenue and moving to “The Sands”, he stayed in a motel. He denied staying at a motel in Southport with Ms Newman, then said he did not recall doing so but he must have, given the documentary evidence from the National Tenant Information System.
50. Mr Jeffrey was asked in cross-examination whether it was possible he and Ms Newman had stayed at his grandmother’s address after leaving Birt Avenue. He conceded it was possible but that was not Ms Newman’s evidence, and there is no other evidence to that effect.
51. While they were at “The Sands”, Mr Jeffrey was working away from home and was away a lot. Ms Newman and Samantha shared the larger bedroom and he had the other. He told the SSAT he paid more of the rent and about three-quarters of the utilities bills, depending on how much they were.
52. The evidence about when Mr Jeffrey moved to his mother’s house in Dudley was not easy to follow. According to the SSAT decision, he told that tribunal he returned to Newcastle in June 2006 when his grandfather died, that Ms Newman was “OK with the rent” and stayed at The Sands until the lease expired. In contrast, he told this tribunal he moved to Dudley soon after the lease at “The Sands” expired on 5 January 2007 and that, during this period, he was coming to Newcastle for weekends while his grandfather was sick. (If his grandfather died in June 2006, this makes little sense).
53. Mr Jeffrey’s bank statements show transactions in Queensland between 31 July 2006 and 7 December 2006 at a frequency that suggests he was there most of that time. When these were put to him, he said he was in Newcastle “on and off’ between June 2006 and January 2007 and then agreed he only made infrequent visits to Newcastle in that time.
54. To be fair, some of the questions put to Mr Jeffrey in cross-examination did not assist. For instance, he agreed with the proposition that his employment records showed that he was employed in Queensland “up until 6 July 2007” even though records show he was last employed in Queensland on 23 June 2006. He was asked how he travelled from Queensland to Newcastle “after the lease ended on 6 July 2007” to which he replied “Flew down”, even though there is no dispute that the lease on The Sands expired on 5 January 2007 and he had been living in Dudley for some months by July 2007. That Mr Jeffrey did not dispute these dates only underlines how poor his evidence was generally.
55. I am satisfied that “The Sands” was Mr Jeffrey’s home until the lease expired in January 2007, that he spent time in Newcastle between June 2006 and January 2007, and that he moved to live in Dudley around January 2007. His employment records show he commenced work in Newcastle with his current employer on 14 February 2007.
56. Ms Newman and Mr Jeffrey each gave his mother’s address as their forwarding address when they left “The Sands”. Regardless of the precise dates each moved to Dudley, it is clear that, at the time that the lease expired, each considered Dudley to be their next address.
57. Mr Jeffrey says he suggested Ms Newman move to Newcastle because he knew she was in a bad relationship and suggested it could be “a clean start”. He says she did not move straight away but eventually she did. Under cross-examination, he agreed he wanted to move to Newcastle with her. He also agreed that getting away from B had nothing to do with her decision to move to Newcastle.
58. Documents from the Residential Tenancies Authority show that Mr Jeffrey and Ms Newman instructed that both their shares of the bond be paid into his bank account. His bank statement shows this occurred on 1 February 2007 by way of two payments of $650. He gave evidence that he “eventually” gave Ms Newman her half-share.
Nature of the relationship and how it was represented to others
59. In oral evidence, Mr Jeffrey stated initially that he has been Ms Newman’s partner since December 2006. He later agreed with the proposition that it has been since mid-2006. In re-examination he said it was the end of 2006. In contrast, he told the SSAT they commenced a relationship on New Years Eve in 2007 when Ms Newman came to see them as “more than just friends” and “things clicked”. As with much of his evidence, he appeared oblivious to any inconsistencies and was unable to clarify them when they were pointed out to him.
60. Mr Jeffrey generally agreed with Ms Newman’s evidence about their social activities. Asked about the period around mid-2007, he said they would “probably just go for dinner or something but nothing too flash”. For example, “if it was my mothers’ birthday at home, if we had a barbeque, we’d probably invite Sue”. He told the SSAT they did not go out much together - he was working shifts and most Saturdays - but they would sometimes go and have a drink at a bar on the Gold Coast.
61. Asked whether he would agree with Ms Newman’s statement in the Assessment of Living Arrangements form that “We get on well, we’re close and sometimes we act like an old married couple, Mr Jeffrey replied “Yes. No. I seem to get on better with Sue than with my wife”. He described them as “a married couple with no spark” then said that others might think they were together “but I never thought of that”. He described Ms Newman as “like my counsellor” because he could talk to her easily and they got on well and he supposed that, when his family saw him getting on better with her than with his ex-wife, they might class them as “an old married couple”.
62. In re-examination by Ms Newman, Mr Jeffrey said he “probably got strong feelings” for her around mid-2006 but “I knew I couldn’t …”. He said some of his friends “probably thought why weren’t we a couple …” and it appears he actually told some work friends she was his girlfriend. He described the relationship during the relevant time as mainly “just friends” and said she was probably the first girl he’d had just as a friend rather than as a relationship; “and it sort of grew and then we got fond of each other”. He maintains he was not in a hurry to be in a relationship with anyone after his marriage ended.
63. As part of its investigations, Centrelink made inquiries of agencies and individuals including Mr Jeffrey’s employer. The inquiries revealed that he nominated Ms Newman as his “next of kin or other person to contact in case of emergency” in his application to lease “The Sands” and to his employer from May to August 2005 and his employers since that date.
64. Inquiries with Mr Jeffrey’s employer from May to August 2005 showed that his partner was Ms Newman. His employer from August 2005 to June 2006 advised:
Please provide details of the employee’s next of kin and/or emergency contact” Sue Newman – unaware of relationship
If the employee has a partner, please provide the partner’s name: Unknown
65. Inquiries with Mr Jeffrey’s employer from May 2007 showed:
What Next of Kin names did the employee advise when he/she commenced employment? Sue Newman
What marital status did the employee advise when he/she commenced employment? SinglePlease provide details of the marital status of the employee (if known) NA
If the employee has a partner, please provide the partner’s name NA
66. Inquiries with the head office of his last employer in February 2008 show the following responses:
What marital status did the employee advise when he/she commenced employment? Unknown
Please provide details of the employee’s next of kin and/or emergency contact” Sue Newman – partnerPlease provide details of the marital status of the employee (if known) Unknown
If the employee has a partner, please provide the partner’s name Refer Q 6
67. Mr Jeffrey gave evidence that he nominated Ms Newman as his next of kin or emergency contact while in Queensland because she was the only person he knew there, it was convenient and she was more reliable than her brother who was away a lot. It is not clear why he nominated her as his contact once he moved to Dudley. He conceded he told at least one prospective employer she was his partner but said he thought having a partner would look more acceptable. His evidence on this point was not easy to follow but he thought some employers had probably gathered Ms Newman was his partner because he had nominated her as his next of kin or emergency contact.
68. In his tax return for 2004-2005, Mr Jeffrey stated that Ms Newman was his spouse and claimed her taxable income for the year was $50,000. Under cross-examination he said he completed the form with the help of a tax agent and agreed that he regarded Ms Newman as his spouse at the time. However, he said Ms Newman did not know, until she received the documents in these proceedings, that he had claimed her as his spouse; he did not discuss her income with her and he “probably made up” the amount of her income. He describes what he did as “a stupid mistake”.
69. Mr Jeffrey claimed Ms Newman as his spouse again in 2005-2006. Whereas the first time was “lies”, he did not know why he did it the second time, and the statement was false, but he “probably” thought he would “get a little bit more tax”. He could not recall Ms Newman suggesting to him that he might claim for Samantha and her.
70. Ms Newman gave evidence that Mr Jeffrey would sometimes pay for something if she didn’t have enough money and so she suggested “why don’t you put Samantha and I down because you pretty much pay for everything …”. She says she thought she was helping him by this suggestion, that she did not suggest a figure and, in fact, she was not earning $50,000 as stated in his 2004-2005 return but more like $30,000 or $35,000. She only recalled making the suggestion once.
Other evidence
71. In support of her claims, Ms Newman submitted statutory declarations and letters from her former employer, two friends and Mrs Jeffrey. Her employer states she moved interstate for personal reasons to do with her former boyfriend.
72. Ismelia Apou writes that she has known Ms Newman for eight years and considers her a good friend; she started dating Mr Jeffrey in 2008. On 26 June 2009, Jennifer Rose wrote that she had known Ms Newman for 20 years and that she and Mr Jeffrey “only decided to date 12 months ago”.
73. Mrs Jeffrey’s statutory declaration states that Ms Newman and Mr Jeffrey lived at her house from early 2007; their relationship in 2007 was “friendship based”; they became a couple from January 2008.
74. I accept Ms Newman’s evidence that Ms Apou and Ms Rose are close friends. However, none of the writers was available for cross-examination. I attach no weight to the contents of their documents but, as set out below, the fact that Mr Jeffrey has met Ms Apou only once or twice, and Ms Rose not at all, is relevant when considering the social aspects of Ms Newman’s relationship with Mr Jeffrey.
Consideration
75. In determining whether a person is a member of a couple, the factors in subsection 4(3) of the SS Act are not exhaustive and nor do they limit the inquiry. Individuals’ circumstances vary substantially and regard must be had to all of the material facts of the case: Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27.
76. In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, French J (as he then was) considered a number of authorities on the meaning of the term “marriage-like relationship” and held (at 555) that:
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1.Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other.3.In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4. Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5.Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.
77. As French J noted (at 556) in Pelka:
The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
78. It has not been easy to reach a decision in this case. The task has not been made easier by the fact that, as the SSAT put it, Ms Newman and Mr Jeffrey are “generally poor historians” whose recollection of dates was often confused and whose oral evidence about their relationship was inconsistent at times. The SSAT thought this perhaps not surprising, given that events spanned a four year period but it preferred the objective or independent evidence, especially where there were inconsistencies with that evidence. I note that the SSAT did not draw any adverse conclusion about the credibility of either witness.
79. Mr Jeffrey in particular was a poor historian. He had very poor recall for dates and particular events, and he was clearly uncomfortable when asked about his feelings. However, he appeared to do his best and did not strike me as evasive or untruthful. A less truthful witness might have fabricated answers, especially to matters that should have been within his knowledge, or might have attempted to explain inconsistencies, but he did not. Moreover, his responses in cross-examination suggested he could be led to agree with most propositions. For instance, he agreed that events occurred on dates that were clearly incorrect and he tended to answer “Yes” and “No” to the one proposition. Although his evidence was difficult to follow and often inconsistent, I do not think this reflected on his credibility generally.
80. I found Ms Newman to be a credible witness who gave her evidence frankly. Her evidence to Centrelink, the SSAT and in these proceedings has been generally consistent. I find her evidence more reliable than Mr Jeffrey’s.
81. I will deal with each of the factors in s 4(3) in turn.
Financial aspects of the relationship
82. There is evidence that Ms Newman and Mr Jeffrey shared day to day household expenses: they shared utilities costs and contributed to food costs, and they both contributed to rent. There is nothing surprising in itself about people who share accommodation also sharing such costs. On the other hand, there is evidence that Mr Jeffrey did more than merely pay his way. He supported Ms Newman financially by paying a greater share of the rent and utilities at “The Sands” and paying for other things from time to time.
83. Ms Newman had the benefit of living at Mr Jeffrey’s mother’s house rent-free, although she paid her share of the utilities bills and food. I accept her evidence that Mrs Jeffrey is a generous and compassionate person but, although I have not heard evidence from Mrs Jeffrey, I think it likely she was especially generous towards Ms Newman because of her relationship to Mr Jeffrey.
84. On the other hand, there is no evidence of joint ownership by Ms Newman and Mr Jeffrey of any major assets or liabilities during the relevant period (other than their joint liability for payment of the rent and other obligations under the lease at “The Sands”). There is no evidence of significant pooling of resources or of any legal obligations owed by either to the other. There is no evidence of joint bank accounts or access to each other’s bank accounts. Other than the bond for “The Sands”, there is no evidence that Mr Jeffrey lent Ms Newman large sums of money, although he helped her with small amounts from time to time. I do not think that payment of both shares of the bond into Mr Jeffrey’s bank account is itself of particular significance.
85. In my view, the evidence about the financial aspects of the relationship points away from it being marriage-like.
86. Mr Jeffrey’s claim for Ms Newman as his spouse in his tax returns for 2004-2005 and 2005-2006 is dealt with below along with the social aspects of their relationship.
The nature of the household
87. I accept Ms Newman’s and Mr Jeffrey’s evidence about how he came to live at Birt Avenue and the living arrangements there. I accept they decided to lease “The Sands” because they both needed somewhere to live and had developed a friendship by that time. I accept that moving together had no particular significance at the time.
88. The fact that Ms Newman and Mr Jeffrey renewed the lease on “The Sands” twice and continued to live there until January 2007 indicates, if nothing else, that they found living together agreeable.
89. I accept Ms Newman’s evidence that she was fearful of B and wanted to get away from him. Just because she did not move away as soon as she ended their relationship in August 2006 does not mean she was not afraid of him and wanted a break. The fact remains that she and Mr Jeffrey moved interstate to Dudley at about the same time, clearly indicating continuity in their relationship. It also suggests a degree of dependence, at least on Ms Newman’s part. I accept that, at the time, she planned to go to Dudley for a short time only. However, the fact that she moved to his mother’s house, and lived there rent-free, suggests more than mere friendship and, clearly, the arrangement was acceptable to Mr Jeffrey’s family.
90. I do not think any inconsistency in Ms Newman’s or Mr Jeffrey’s evidence about when they actually moved to Dudley is significant. Ms Newman concedes she could have moved three or four weeks earlier than she first said. I am satisfied that Mr Jeffrey continued to spend most of his time in Queensland until January 2007. They do not appear to have tried to hide the fact that they both moved to Dudley around this time and I do not think any discrepancy in their evidence is significant.
91. There is evidence that Ms Newman did more of the housework at “The Sands” but that is perhaps not surprising, especially given that Mr Jeffrey was away a lot of the time. Nor is it especially surprising that she did more of the housework at his mother’s house given that she was living there rent-free. They do not appear to have shared household responsibilities other than going shopping together sometimes. There is no evidence that they shared a bedroom during the relevant period and I accept their evidence that they did not.
92. I accept Ms Newman’s and Mr Jeffrey’s evidence that he has a good relationship with her daughter. He appears to be supportive but I accept that he does not regard himself as having any parental role in relationship to her and there is nothing to suggest that Ms Newman or Samantha sees him in any parental role.
93. The evidence about the nature of the household is finely balanced. The fact that Ms Newman and Mr Jeffrey shared accommodation throughout the relevant period and moved states around the same time points suggests a marriage-like relationship. However, in my view, taken as a whole, the evidence about the nature of the household points slightly away a marriage-like relationship.
Social aspects of the relationship
94. The fact that Ms Newman was in a relationship with B until August 2006 is not incompatible with being in a marriage-like relationship with Mr Jeffrey at the same time but it tends to weigh against it. I have no reason to doubt Ms Newman’s claim that B was physically and emotionally violent and would not let go. It is possible she was in a relationship with both men at the same time but it seems unlikely.
95. I accept Ms Newman’s evidence that she and Mr Jeffrey only went out together occasionally during the relevant period and that, when they did see each other, they were often with their own friends. I accept that they occasionally went to family functions together. Mr Jeffrey’s evidence suggested more frequent social occasions, such as dinners together, but even if he is correct, that would not be surprising given they were living together.
96. It is consistent with Ms Newman’s evidence about their separate social lives that she described Ms Apou as a reliable and trusted friend whom she saw out of work once a week or once a fortnight but that Mr Jeffrey has only met her one or twice, and he had never met Ms Rose whom Ms Newman also described as a close friend.
97. In my view, the evidence about the extent of their joint social activities points away from a marriage-like relationship.
98. On the other hand, the evidence about how Ms Newman and Mr Jeffrey represented their relationship to employers, Samantha’s school, and real estate agents points toward a marriage-like relationship. In particular, Mr Jeffrey’s claim in his tax returns that Ms Newman was his spouse is obviously strongly indicative of a marriage-like relationship.
99. I accept Ms Newman’s and Mr Jeffrey’s explanations for nominating each other as “next of kin or person to contact in an emergency” (or a variation of this) to various people. I accept their evidence that it was practical and convenient, in their circumstances, to do so. I do not attach any particular significance to this aspect of their relationship.
100. However, the fact that Mr Jeffrey advised some employers that Ms Newman was his partner clearly points towards a marriage-like relationship. I accept his evidence that one employer probably assumed she was his partner because he had nominated her as next of kin or emergency contact, but he does not dispute describing her to others as his partner. Nor does he dispute telling workmates that she was his girlfriend.
101. I accept Ms Newman’s claim that Mr Jeffrey was infatuated with her, and he said as much himself. I accept that describing her as his partner and girlfriend largely reflected wishful thinking on his part. I also accept that he saw it as advantageous to describe himself to prospective employers as having a partner. I note that there is no evidence that Ms Newman represented Mr Jeffrey as her partner during the relevant period.
102. Mr Jeffrey’s representation of Ms Newman as his spouse in his tax returns for 2004-2005 and 2005-2006 obviously points towards a marriage-like relationship and is not easy to explain otherwise. Mr Jeffrey says he thought he would get more tax back by doing so. I note that there is no evidence about his 2006-2007 return.
103. It is difficult to understand why Mr Jeffrey claimed Ms Newman in his 2004-2005 tax return when they had not long met. I accept it incorrectly stated Ms Newman’s income and I accept his evidence that Ms Newman did not know he had actually made the claim. It is plausible that the accountant simply carried her over as his spouse in the following year although, if that is so, it is not clear how the accountant got the figure closer to Ms Newman’s actual income.
104. Were it not for the fact that Mr Jeffrey had described Ms Newman as his partner, and claimed her as his spouse in his tax return, I would find that the evidence about the social aspects of the relationship pointed away from a marriage-like relationship. However, taking those matters into account, I find the evidence on this matter points towards a marriage-like relationship.
Any sexual relationship between the people
105. Just when Ms Newman’s relationship with Mr Newman became sexual is not clear from the evidence, but she identifies New Years Eve 2007 as the point at which the relationship became marriage-like. Despite Mr Jeffrey’s evidence that they were “partners” in 2006, both deny, and there is no evidence of, a sexual relationship before New Years Eve 2007. I accept their evidence on this point.
106. In my view, the evidence about any sexual relationship between Ms Newman and Mr Jeffrey points away from it being marriage-like.
Nature of the people’s commitment to each other
107. It is evident that Ms Newman and Mr Jeffrey offered each other emotional and financial support during the relevant period and had a degree of commitment to each other, and the fact that they are now in a marriage-like relationship tends to bear this out. The question is whether the evidence about the nature of their commitment to each other during the relevant period points towards a marriage-like relationship.
108. As noted above, Ms Newman described their relationship in the Assessment of Living Arrangements form in June 2007 as “very close” and she said “there could be a special relationship in time”. In my view, her response illustrates the frankness of her evidence generally. She could have played down the attachment but she did not. However, there was clearly a degree of commitment to each other during the relevant period, demonstrated in particular by their continuing to share accommodation and moving from one state to another, and their emotional and financial support for each other.
109. As the Tribunal expressed it in Dewhurst and Hineman and DEEWR and DFHCSIA [2010] AATA 512, the real question I whether the parties’ behaviour “is attributable to a marriage-like relationship or to a strong and enduring friendship with practical and emotional benefits to each other”.
110. On balance, when considered in light of all the evidence about their relationship, I find that the evidence about the nature of Ms Newman’s and Mr Jeffrey’s commitment to each other during the relevant period points away from it being marriage-like. I am satisfied that, at the relevant time, it had more of the character of a strong and enduring friendship.
Conclusion
111. It is notable that Centrelink twice considered Ms Newman’s relationship with Mr Jeffrey – in August 2005 and October 2007 – and was satisfied that it was not marriage-like. Centrelink’s later investigation, which led eventually to these proceedings, revealed essentially the following additional information: that each had claimed the other as next or kin or emergency contact; that Mr Jeffrey had represented Ms Newman to employers as his partner; and that he had claimed her as his spouse in his tax return for two years. Other information, such as in their bank statements, was relevant to the investigation but added little of real significance for present purposes.
112. Taking into account all the evidence before me, I am satisfied that Ms Newman was not in a marriage-like relationship during the relevant period and was not a member of a couple for the purposes of the SS Act. It follows that she does not have a debt to the Commonwealth by reason of overpayment of parenting payment or FTB.
113. The decision under review is set aside and in substitution I decide that:
(i)Ms Newman was not in a marriage-like relationship in the period 6 July 2005 to 23 November 2007 and during that period was not a member of a couple for the purposes of the Social Security Act 1991;
(ii)Ms Newman was not overpaid parenting payment (single) or family tax benefit during that period and does not have a debt to the Commonwealth by reason.
I certify that the 113 preceding paragraphs are a
true copy of the reasons for the decision
herein of Senior Member Jill TooheySigned: ..................[sgd]...............................................................
Diana Weston AssociateDate of Hearing 5 July 2010
Date of Decision 12 August 2010
ApplicantSelf-represented
Representative for the Respondent: Dr Stephen Thompson, Sparke Helmore
0
2
0