O'CONNOR and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2011] AATA 767
•31 October 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 767
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0587
GENERAL ADMINISTRATIVE DIVISION ) Re SUSANNE O’CONNOR Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Ms J Toohey, Senior Member Date31 October 2011
PlaceSydney
Decision The Tribunal sets aside the decision under review and in its place substitutes the decision that the applicant was not a member of a couple throughout the relevant period.
...................[sgd]........................
Ms J Toohey
Senior Member
CATCHWORDS
SOCIAL SECURITY – sole parent pension – disability support pension – applicant still legally married – applicant paid at single rate – overpayment – whether applicant was a member of a couple – factor to be taken into consideration – decision under review set aside.
Social Security Act 1991, s 4
Administrative Appeals Tribunal Act 1975, s 37
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
In Marriage of Todd (No 2) (1976) 25 FLR 260
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
31 October 2011 Ms J Toohey, Senior Member 1. Susanne O’Connor has received social security payments at the rate for a single person since October 1991, when she says she separated from her husband. She received a sole parent pension until March 1997. Since then, she has received a disability support pension.
2. In 2007, Centrelink was informed of allegations that Ms O’Connor, who is still legally married, had not separated from her husband in 1991, as she had claimed, but was still living with him.
3. After extensive investigations, in January 2009 Centrelink determined that Ms O’Connor had not separated but had remained in a marriage-like relationship since 1991 and, as a consequence, had been overpaid benefits since that date.
4. Centrelink contends that Ms O’Connor has a debt to the Commonwealth comprising $43,470.70 in overpayments of the sole parent pension, and $113,045.21 in overpayments of the disability support pension, which should be recovered in full.
5. Centrelink does not assert an overpayment for the period from October 1991 to April 1992. The reason for this is not clear but Centrelink apparently accepts that Ms O‘Connor was not a member of a couple during this period. Whatever the reason, this period is not in issue in these proceedings.
Background
6. Ms O’Connor is now 54. She married Wayne O’Connor in 1977. They have two children: Gregory aged 31, and Christina, aged 22.
7. From a young age, Ms O’Connor suffered from allergies and reactions to chemicals. When she married, Mr O’Connor was working for Edgell, and they lived on a company property outside Dubbo where she came into contact with chemicals which made her ill. In 1989, they moved to an Edgell property in Forbes where her health deteriorated.
8. In October 1991, Ms O’Connor was hospitalised for two weeks and diagnosed with chronic fatigue and post-viral syndrome. Her doctor advised she should not live at the Forbes property. According to Ms O’Connor, her husband could not accept that advice and, when she did not return to Forbes, their marriage ended. Mr O’Connor also identifies this as the time when their marriage ended. The children were aged ten and two at the time. On 24 October 1991, she was granted a sole parent pension.
9. After she left hospital, Ms O'Connor and the children stayed for a short time with her parents in Dubbo, and for a time in rented accommodation. Mr O’Connor remained in Forbes but would visit the children every second or third weekend, sometimes staying overnight and sleeping on the couch or in his swag. This period appears to coincide with the period for which an overpayment is not asserted.
10. In 1992, Ms O’Connor moved with the children into a house in Birch Avenue, Dubbo, which she and Mr O’Connor had bought as an investment some years previously. Around the same time, he left Edgell and started work for a kitchen company in Dubbo. His job required him to travel around New South Wales. When he was in Dubbo, he would generally stay at his parents’ house, or on a couch or in his swag at Birch Avenue.
11. At Birch Avenue, Ms O’Connor had continuing problems with neighbours whose spray painting chemicals made her sick and, by April 1997, she could no longer live there, and she and Mr O’Connor sold the house. With financial help from her mother, she bought a property in Oxlea Road, several kilometres outside Dubbo, where she now lives. The children lived with her until they grew up and left home.
12. Mr O’Connor spent some nights, most weeks, at Oxlea Road when he was in Dubbo, and kept most of his possessions in a shed on the property. He continued to stay sometimes at his parent’s house. When Gregory O’Connor moved out in July 2005 and rented a flat in Dubbo, Mr O’Connor would occasionally stay with him.
13. Gregory O’Connor has a medical condition similar to his mother. After leaving home in July 2005, he moved back to Oxlea Road in early 2008 after he became unwell. He moved out finally in 2009 and bought his own house in Dubbo, and Mr O‘Connor moved in with him. Since early 2011, Mr O’Connor has lived in his own rented accommodation in Dubbo.
14. Christina O’Connor left home in July 2007 when she turned 18. She is estranged from her mother and, it appears, from the rest of the family.
The issue
15. I have to decide whether, during the relevant period, Ms O’Connor was a member of a couple for the purposes of the Social Security Act 1991 (the Act). That requires me to determine whether, while legally married, she was living separately and apart from her husband on a permanent or indefinite basis. If I find that she was a member of a couple, I have to decide whether all or any of the resulting overpayment should be waived.
16. For the following reasons, I am satisfied that Ms O’Connor was not a member of a couple throughout the relevant period. It follows that the question of waiving any overpayment does not arise.
Legislation
17. The rate at which a person is paid a disability support pension is calculated according to a formula in the Act. A member of a couple is paid less than if she or he were single, the rationale being that a couple has the ability to pool resources and live more cheaply than if each was single.
18. Prior to July 2009, the Act provided that a member of a couple was a person in a “marriage like relationship”. Many of Centrelink’s documents concerning Ms O'Connor use that phrase. By amendments to the Act in July 2009, it was replaced by the phrase “de facto relationship”. Nothing turns on the change; the criteria for assessing a relationship remain the same.
19. By s 4(2) of the Act, a person is a member of a couple for the purposes of the Act if she or he is legally married to another person and is not, in the Secretary's opinion, living separately and apart from the other person on a permanent or indefinite basis.
20. Section 4(3) of the Act provides that, in forming an opinion about the relationship between two people, the Secretary must have regard to all the circumstances of the relationship including, in particular:
(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.
The evidence
21. The following persons provided written statements and gave oral evidence before the Tribunal:
(i)Susanne O’Connor
(ii)Wayne O’Connor
(iii)Gregory O’Connor
(iv)Shirley Jeffery, Ms O’Connor’s mother
(v)Daisy O’Connor, Mr O’Connor’s mother
(vi)Heather Crosby, Ms O’Connor’s sister
(vii)Alison O’Neill, a clinical psychologist
(viii)Jill Martin, an acquaintance of Ms O’Connor
22. It is not in dispute that Ms O'Connor has a physical and psychological disability. She leads a fairly solitary existence and spends much of her time in bed. Her recollection of events was hazy at times and her evidence was not always coherent. The written reasons of the Social Security Appeals Tribunal (SSAT) indicate that her evidence before that tribunal differed in some respects from her evidence in these proceedings. However, I found her to be a credible witness overall.
23. I note that the SSAT heard evidence over two days in December 2009 and January 2010. Ms O’Connor attended on the first occasion by videolink, and on the second by telephone. Mr O’Connor and Mrs Jeffrey spoke with the SSAT by telephone on the second occasion. I had the benefit of hearing the evidence of all three in person as well hearing from other witnesses who supported Ms O’Connor’s claims. All impressed me as truthful. Mrs Jeffrey and Gregory O'Connor, in particular, were impressive witnesses.
24. Documents provided by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the “T-documents”) include Centrelink forms, correspondence and file notes, and reports of surveillance carried out over two periods in 2008.
25. Also in evidence are copies of documents seized from Ms O’Connor’s property in October 2008 pursuant to a search warrant including photographs and cards, accounts and receipts, correspondence from real estate agents, and extracts from Mr O’Connor’s diary.
26. Other documents in evidence include medical reports, a report of a social work assessment, and documents concerning court proceedings against Ms O’Connor’s neighbours in Birch Avenue in 1997.
27. The most convenient way to deal with the evidence is to consider it broadly under each of the headings in s 4(3) of the Act, although there is considerable overlap between them.
Financial aspects of the relationship
28. Ms O'Connor and Mr O’Connor have not reached any formal property settlement since their claimed separation. Both gave evidence that, had they not had children, they would have settled their property, and matters between them would have ended there, but their financial circumstances at the time made the cost prohibitive and they needed to provide for their children.
Apart from their continuing joint interest in the property at Oxlea Road, a number of documents seized under the warrant suggest a continuing financial relationship consistent with Ms O’Connor and Mr O’Connor being a couple.
Real estate: the Birch Avenue and Narromine properties
29. Ms O'Connor and Mr O’Connor bought the house in Birch Avenue as an investment before they separated. They held it as joint tenants. In June 1992, around the time Ms O’Connor and the children moved to live at Birch Avenue, Mr O'Connor bought a block of land at Narromine, near Dubbo. He bought an unfinished granny flat and moved it onto the property with a view to fixing it up and living in it. He did some work on it but did not complete it, and in the end rarely stayed there.
30. Mr O'Connor borrowed $40,000 to buy the Narromine block. His interest in Birch Avenue was security for the loan. Documents from the Commonwealth Bank show the loan account was opened in his and Ms O'Connor's joint names in May 1992. The bank required her to be a party to the loan, and on the title of the Narromine property, because of her joint ownership of Birch Avenue. Mr O'Connor made all the repayments on the Narromine property.
31. Ms O'Connor gave evidence that she agreed to the joint loan on the advice of her parents and her solicitor who said it would protect her in the event that Mr O'Connor defaulted on the loan; her only alternative was to sell Birch Road and divide the proceeds with Mr O'Connor, which would have left her insufficient money to buy somewhere for herself and the children. She gave evidence that she was not concerned that Mr O’Connor might default because her parents would have helped her financially if he did.
The Oxlea Road property
32. Ms O'Connor had continuing problems with her neighbours at Birch Avenue over their spray-painting. Gregory O’Connor also was becoming unwell. In 1997, Ms O’Connor obtained an apprehended violence order against the neighbours. Mr O’Connor was not involved in those proceedings.
33. In April 1997, Ms O’Connor decided she had to move for her health but she could not afford to buy another house herself. Mrs Jeffrey stepped in and found a “safe” house in Oxlea Road, some distance from town, away from chemicals. She arranged to buy Birch Avenue from Mr and Ms O’Connor for $160,000. Mr O’Connor received nothing from the sale. The proceeds went towards the $205,000 purchase price of Oxlea Road. Mrs Jeffrey lent Ms O’Connor the balance on condition the property be in Ms O’Connor’s name with (an unregistered) mortgage in Mrs Jeffrey’s favour.
34. Mr O'Connor sold the Narromine property in May 1997 for $75,000 and put the proceeds towards the purchase of Oxlea Road, in effect putting all of his real estate interests into Ms O’Connor’s name.
35. Ms O’Connor, Mr O’Connor and Mrs Jeffrey all gave evidence that Mrs Jeffrey insisted on this arrangement in order to ensure Ms O'Connor and the children had a secure home. She would not allow Mr O’Connor’s name on the title because he and Ms O’Connor were separated. She knew he had used Birch Avenue as security for the purchase of the Narromine block and she did not want him having an interest in Oxlea Road. In oral evidence, she and Mr O’Connor both said he was not happy about this arrangement but he agreed to it so that Ms O'Connor and the children would have a place to live.
36. Mrs Jeffrey confirmed the arrangement in a letter dated 3 June 1997 which she addressed to Mr and Ms O'Connor jointly. She kept Ms O'Connor’s copy herself for safe-keeping. A copy is in evidence.
37. It is submitted for Centrelink that this arrangement was to enable Ms O’Connor to receive benefits at the single rate while still a member of a couple. An extract from Mr O'Connor's diary dated 27 March 1997, which was seized under the warrant, includes the following:
Susie and her mother went to [the solicitor] and put Oxlea Road in Susie's name due to the conditions we were in with Susie's payments and how we would pay for [the property]. I hope that everything works out OK with doing it this way.
38. Centrelink says this entry suggests the purpose of putting the property into Ms O’Connor’s name was to give Centrelink the impression that she was separated. Mr O’Connor cannot remember what he meant by the entry but he denies Centrelink’s suggestion. Having heard Mrs Jeffrey’s evidence, I am satisfied that she instigated the arrangement following the separation and that Mr O’Connor felt he had no option but to go along with it.
39. Mr O'Connor gave evidence that he felt his interest in Oxlea Road was protected because Ms O'Connor agreed she would not sell the property. However, by 2004, her health had deteriorated, her father died and her behaviour had become erratic. Around this time, he learned that she and their daughter, Christina, had been looking at houses, and he became concerned she might be planning to sell Oxlea Road. On his solicitor’s advice, he lodged a caveat in 2004. He did not discuss the caveat with Ms O’Connor or Mrs Jeffrey and it came as a surprise to them.
40. Mr O’Connor would sometimes stay three or four nights a week at Oxlea Road, arriving around 8pm and leaving again around 4.30am. He slept on a sofa in the lounge or in Gregory’s bed, and sometimes in the shed. Since Gregory moved out, Ms O'Connor has lived alone in the house at Oxlea Road. It is still in joint names. Mr O’Connor gave evidence that, until recently, he could never see the value in renting accommodation of his own when he was away so much.
Bank accounts and related information
41. Information from the Commonwealth Bank shows that Ms O'Connor and Mr O’Connor had three joint bank accounts during the relevant period:
(i)a statement account opened in March 1983, closed in October 2004;
(ii)a home loan account opened in May 1992, closed in May 1997;
(iii)a statement account opened on 30 December 1997, closed one month later.
42. According to Ms O’Connor, it was Mr O'Connor's job as the primary account holder to separate their bank accounts but he did not get around to it. As far as she could recall, she last used the first account around 1991; she had given him the cards attached to it and had no access to it. I accept her evidence about this. The second account was the loan for the Narromine property. It is not clear why there was the third account. Bank records show it was opened with a credit of two dollars and closed one month later without any further transactions. Ms O'Connor had no recollection of it and, whatever the reason for it, it does not appear to be significant.
43. Throughout the relevant period, Ms O'Connor has operated several accounts in her own name including a MasterCard account. There is also evidence that, between November 2002 and February 2006, she made three loan applications in her own name. The first application, in November 2002, did not ask details of her marital status. On the others, made in September 2003 and February 2006, she stated she was separated. I note the comment by the SSAT that her applications would have had more chance of success had she stated she was married but she chose to apply in her own name, based on her Centrelink income. I am satisfied that, for all practical purposes, she and Mr O’Connor kept their banking affairs separate.
Household expenses
44. Ms O’Connor pays the telephone and electricity at Oxlea Road through Centrepay. Her bank account shows she pays for water rates and the energy bill.
45. Mr O'Connor gave evidence that he would contribute to the electricity bill because he used power in his shed and as part of their child support agreement. He would contribute to the telephone bill for the same reason. He would buy food for the animals, and will sometimes buy groceries for Ms O’Connor. She gave evidence that, occasionally, if he rings to let her know he is coming, she will ask him to pick up something from the supermarket which she pays him for when he arrives. When the children were at home, Mr O’Connor would often buy groceries for them, and he helped pay for Gregory O’Connor’s medical bills. His and Gregory O’Connor’s evidence about this is dealt with below.
46. Documents seized under the warrant include accounts from a stock feed supplier in Dubbo in April, May and July 2005, and September 2006 for lucerne hay and other goods. The accounts are addressed to Mr and Mrs O'Connor. Ms O'Connor gave evidence that they had had an account with that supplier since 1977, and Mr O’Connor had possibly had an account in his own name even before then, and he simply had not changed it; she had rarely been to the supplier herself. Apparently, Mr O’Connor closed this account in December 2009.
47. Also seized were receipts from a veterinary hospital in Dubbo in February and May 2008 addressed to Mr and Ms O'Connor at Oxlea Road. Ms O'Connor gave evidence that they had used the same vet for more than 10 years; it did not concern her that accounts continued to come in joint names but she had advised the hospital they should be sent to her only.
48. Documents from the Child Support Agency (CSA) show that, in November 1991, Ms O’Connor requested advice as to how much child support was payable following her separation in October 1991. Advice from the CSA was that approximately $288.00 was payable fortnightly and could be paid in cash or by payment of bills such as rent, child care, school fees or other bills. Mr and Ms O’Connor gave evidence, which I accept, that this was the basis on which he paid various bills and provided things like firewood, an arrangement that continued until Christina O’Connor left home in 2007.
Motor vehicles
49. Ms O’Connor drives a small Sigma sedan that her parents bought for her and which is registered in her name. Two other vehicles are kept at Oxlea Road, both of which are registered in Ms and Mr O’Connor’s joint names. One is a utility which they bought in 1985 and is no longer driven. Gregory O’Connor drives the other.
50. Mr O'Connor gave evidence that he keeps both vehicles registered at Oxlea Road because it is the only place he has to keep them secure. Neither he nor Ms O’Connor saw any need to transfer them into one name only. It is not clear why they have not transferred the car driven by Gregory O’Connor into his name.
Tax records
51. Mr O'Connor's tax records and correspondence from the accountants who prepared his tax returns from 2004 to 2008 show that he last claimed a spouse rebate in 1992. He has not claimed a spouse rebate since.
Wills
52. Ms O’Connor told the SSAT that her will leaves her share of Oxlea Road and the remainder of her estate to her children equally. She told the SSAT she has not got around to amending her will to exclude her daughter, Christina; she was not sure if Mr O’Connor has a will. Mr O’Connor told the SSAT he has not made a will; he has a small amount of superannuation but has not nominated a beneficiary.
53. Ms O’Connor’s will is not in evidence, and no evidence was led in these proceedings about either of their wills. Other than his interest in Oxlea Road, Mr O’Connor’s estate is apparently modest.
Nature of the household
54. Ms O'Connor gave evidence that, while he was still at Forbes, Mr O'Connor stayed only a couple of times at Birch Avenue. The house had four bedrooms. She and the children had a bedroom each and the fourth was used as a sewing or junk room. She says that, after Mr O’Connor left Forbes, he did not stay very often because she did not want him there; he was not part of her life any more, although she wanted him to be a father to their children.
55. Evidence from Mr O’Connor and Gregory is that he stayed more often at Birch Avenue and at Oxlea Road than Ms O’Connor recalls. However, she says she would not be conscious he was there if she was “in a relapse”. Given the hours he arrived and left, and the time she spent in bed, that is quite plausible. Given the difficulties with Ms O’Connor’s evidence generally, I think the evidence of Mr O’Connor and Gregory O’Connor is more reliable. Their evidence is dealt with further below.
56. A number of documents seized from Oxlea Road suggest that Mr O’Connor regarded it as his home. He kept a mail box in town but used Oxlea Road as his residential address. Until 2009, he continued to use Oxlea Road as his address for various purposes including his driver’s licence, vehicle registrations and registration of two companies of which he was director. Ms O’Connor says he did not ask if he could use her address and did not tell her he was.
57. In a number of diary entries throughout the relevant period, Mr O'Connor refers to domestic matters and to Oxlea Road as “home”. For example, in August 2003 he wrote: “Mostly at home. Unload ute and put wood and wheat away”. In December 2006, he wrote: Headed home early to help Susie do a few jobs outside for Spring cleaning”. There are other examples where he refers to “home” and to doing work around the property.
58. Mr O’Connor gave evidence that he has kept a diary for many years, mostly to do with his work but also so he could tell the children, if they ever asked, what he had done for them. He says his diaries are not complete and should not be relied on, and references to domestic chores were things he did for Gregory and Christina rather than for Ms O’Connor. He says he made notes of Ms O’Connor’s health at different times in case he ever needed to step in and take care of the children.
59. Mr O’Connor kept all his possessions in the shed, and still keeps some things there. There is no evidence that he kept anything inside the house. There is nothing to suggest that his documents were ever kept inside the house, or that hers were kept with his.
60. There is no other evidence of shared domestic responsibilities. Ms O'Connor gave evidence that Mr O’Connor has not cooked for her since the children were little. If he was occasionally there at mealtime, she would share the meal with him so he could eat with the children. Mr O’Connor gave evidence that he cooks himself and would rarely prepare some food for Ms O'Connor because she has a special diet and is particular about what she eats.
61. Mr O'Connor's diaries indicate there were occasions over the years when he did things inside the house like cleaning, vacuuming and packing the dishwasher. Ms O'Connor says he did these things for himself but not for her; she expected him to clean up his mess because she did not want any evidence of him being there. More often, the diaries refer to work outside the house such as cutting up logs, feeding animals and so on.
62. Gregory O’Connor gave evidence, which is dealt with below, about the extent to which he took on the burden of housework including washing and ironing, from a young age, although that could equally reflect his father’s absence and his mother’s illness as the state of their relationship.
Social aspects of the relationship
63. Other than one or two friends and some involvement in a support group, Ms O’Connor has had almost no social life for many years because of her illness. Other than family, there is no evidence that she and Mr O’Connor have friends in common or that they socialise together. I accept that they lead separate existences, although that may well reflect her illness rather than anything about their relationship itself. Given her illness, it is unlikely they would have shared social activities in any event.
64. Ms O'Connor gave evidence that, in general, she did not tell people that she and Mr O'Connor were separated; she is not a gossip and only told people who needed to know. Mr O’Connor gave evidence that he does not present himself as being married and he does not believe that people around town regard him and Ms O’Connor as a couple. Mrs Jeffrey gave evidence that she believes that people in town know they are separated.
65. Ms O’Connor’s family continue to invite Mr O’Connor to some family events such as Christmas but they arrive and leave separately and have little to do with each other when they are there. Mrs Jeffery and Ms Crosby confirmed that this is so.
66. An entry from Mr O'Connor's diary in May 2008 shows “lunch at Dubbo golf club with Susie today”, suggesting some social life. However, both gave evidence, which I accept, that they met to talk about their problems with Christina; they arrived and left separately. As far as Ms O'Connor can recall, they met but did not have lunch together.
Photographs
67. Approximately a dozen photographs of the family from around 2000 and 2001 were found when the warrant was executed. A number of them show both Mr and Ms O’Connor with the children, although none of them alone together. On the face of it, they appear like any other family celebrating occasions such as Christmas and Gregory’s birthday. Ms O’Connor insists that the tension between them is clear in the photograph. I am not sure that is so, but Mrs Jeffrey gave evidence to the same effect.
Letters from real estate agents
68. The documents seized under the search warrant include several letters from real estate agents in 2006, some addressed to Mr and Mrs O'Connor, some to Mr O'Connor only. They all open with the salutation “Dear Suzanne and Wayne” or “Dear Wayne and Suzanne”. They all appear to be standard letters inviting attendance at auctions or home opens. Some refer to their “recent attendance” to inspect various properties.
69. Ms O'Connor gave evidence that she and Christina would go looking at houses for entertainment; it is something her family has always done, including her mother who has several investment properties. I note that Ms O’Connor told the SSAT that it was also around the time that Gregory was making plans to go to university and they were looking for a suitable property for him, and Mr O’Connor was there to inspect what maintenance and repair they needed. She told me Gregory had become unwell and they were looking around at properties in the town that might be suitable for him.
70. Ms O’Connor denies attending as a couple and says Mr O’Connor would turn up sometimes after Christina had told him they would be looking at a particular property. She says she always gave her name separately but the agents apparently took them to be a couple and sent letters to them jointly. She says she repeatedly asked them to stop sending joint letters, for which the agents apologised. Mr O’Connor supported her evidence.
Other correspondence jointly addressed
71. A letter dated September 1994 from Dubbo City Council to Mr and Mrs O'Connor at Birch Avenue refers to their application, plans and specifications in relation to a patio enclosure addition to the house at Birch Avenue, and advises that approval has been granted.
72. This letter was apparently a response to an application by Ms O'Connor to put an extension on the back of the house at Birch Avenue to closing part of the property because of the spray-painting next door. The council would not process an application in her name only because the property was jointly owned.
73. Ms O'Connor gave evidence that, as best as she could recall, she wanted to enclose the patio on account of the spray-painting next door and the application had to be lodged in joint names as the property was jointly owned.
Other evidence
74. In August 1997, an allegation was made to Centrelink that Ms O'Connor was in a relationship with her husband. While investigating an allegation, Centrelink wrote to Mr O'Connor's employer for information about him. A document in evidence shows that his employer advised that his marital status was “Married”; his next of kin or contact in case of emergencies was Ms O'Connor; and he did not claim any dependents for taxation purposes.
Sexual relationship
75. Ms O’Connor and Mr O’Connor claim they have not had a sexual relationship since 1991. There is no evidence directly supporting or contradicting their claim but I have no reason to doubt it.
76. An entry in Mr O’Connor’s diary from 1997 refers to them discussing a matter “while in bed”. Ms O’Connor thought this meant he had telephoned her; he thought he might have been sitting on her bed talking to her. Either way, I accept it does not signify a sexual relationship.
Nature of the people's commitment to each other
77. Mr O'Connor gave evidence that, from the time of their separation, he did not regard himself as being married. He and Ms O'Connor spoke about getting a divorce but he is Roman Catholic and regards a marriage vow as indissoluble. He has not had another relationship because of his religious beliefs. Ms O’Connor says she has no interest in men, and Ms O’Neill’s report indicates she would have a great deal of difficulty establishing an intimate relationship with anyone.
78. Ms O'Connor and Mr O’Connor both told the SSAT and this tribunal that they have no plans to divorce. Mr O’Connor has his religious views, and she says she does not want the expense and tension of legal proceedings. In any event, she says, even if he had another family, he would still have come to the house to see Gregory.
79. There is no evidence that Ms O’Connor has any real commitment to Mr O’Connor, although there is evidence that she has relied on him at times for help in various forms. There is evidence that he has helped around the house from time to time (there is no evidence of him helping inside the house) and done occasional repairs. He has done shopping on occasions. He has taken her to hospital on some occasions, although Ms O’Connor says she cannot recall such an occasion.
80. In November 2003, Ms O'Connor had a procedure in hospital. Records show that she nominated her sister, Ms Crosby, as her next of kin.
81. Documents seized under the warrant included an undated Valentine's Day card from Mr O'Connor to Ms O'Connor with the inscription “Susie, lots of love from Wayne.”
82. There is also a 40th birthday card to Mr O'Connor in 1993 wishing him “Love and best wishes always from Suzanne Greek and Christina”.
83. A postcard dated 1997 from Ms O'Connor's sister is addressed “Dear Suzanne, Wayne, Gregory and Christina” and a Christmas card from an aunt and uncle is addressed to “Wayne Susanna Greg and Christina”.
84. Mr O’Connor said that the Valentine's card was something the children wanted him to write on to “buck her up a bit”. He could not recall the 40th birthday card or the circumstances of that birthday. Ms O'Connor denies the cards indicate she still has feelings for him. She says were that so, there would be cards for more than a few years many years ago. She claims the cards were written for the children’s sake and that she has kept them for her craft work. I accept her explanation.
85. Now that both children have left home, there appears to be little contact between Ms O’Connor and Mr O’Connor. Indeed, there was a period of some weeks in early 2011 when her pension was cut off when she was without food or power for some time and had to rely on food parcels. It is reasonable to conclude that Mr O’Connor would have done something had he been in contact and known the dire situation she was in.
Evidence of the witnesses
Wayne O’Connor
86. Mr O'Connor gave evidence that, while Ms O'Connor and the children were at Birch Avenue, he was often away for most of the week and, while he was in Dubbo he often stayed his mother’s house. The pattern changed from time to time; it was never regular. There would be times when he would not go to Birch Avenue for a week or 10 days. He did not agree that he spent more time at Oxlea Road but he agreed that it would be fair to say that from 1997 to 2008 he stayed overnight there at least once or twice a week, although there were times when he was away for longer. It depended on what the children needed at the time.
87. Mr O'Connor gave evidence that he would have had a property settlement were it not for the children. He confirmed her evidence that it was part of their agreement with the CSA that he would provide in kind support by way of things like providing firewood and paying bills.
88. Ms O’Connor maintains that Mr O’Connor does not have a key to Oxlea Road. However, he gave evidence, which Gregory supported, that Gregory gave him his for use in emergencies. He had only used it four or five times, and never when Ms O’Connor was home.
89. Mr O’Connor says the work he did around the yard, such as cleaning the veranda, was because he could not stand the state of the place and worried about the children getting sick; it was not to help Ms O'Connor. He was also worried about snakes and so would keep the yard mowed and tidy. He did some repairs and maintenance at Oxlea Road but only because he had his own interest in the property.
90. Mr O'Connor gave evidence that he has always kept a diary. He believes some of the diary entries cited in evidence have been taken out of context because some of his diaries were ruined by vermin. He says that observations in his diaries such as that Ms O’Connor was sick or had been in bed all day might be something that one of the children had told him rather than a personal observation.
Shirley Jeffrey
91. Shirley Jeffrey is Ms O’Connor’s mother. Her husband, Ms O’Connor’s father, died some years ago. She is well off and owns a number of properties. She is a strong character, and was forthright and firm in her evidence. Her relationship with Ms O’Connor has evidently had its difficulties over the years, and she has not visited Oxlea Road since around 1999, but she strongly supported Ms O’Connor’s claims. I accept her evidence without reservation.
92. Mrs Jeffrey says Mr O’Connor’s family wanted nothing to do with Ms O’Connor and the children when they separated in 1991. She and Mr Jeffrey put the Birch Avenue house in order for them; she insisted that Mr O'Connor help at the time, but she never saw evidence of him living there. Nevertheless, she has maintained a good relationship with him and sees him from time to time because he lives near to her.
93. Mrs Jeffrey says she has asked Mr O’Connor many times why he and Ms O'Connor do not try to reconcile, but each time he has said, in effect, that the marriage is over. She believes he has never divorced because he is waiting for her to “drop off the perch” (apparently because he might have some entitlement to her property). She says all of the family know they have been separated since 1991.
94. Mrs Jeffery says that Mr O'Connor has supported Ms O'Connor and the children as much as he could; and he has worried about the children, but he made a decision they were better off with their mother than with someone else or with him. She gives him credit for doing his best in a difficult situation. She says he and Ms O'Connor put on a good face at family gatherings only for the sake of the children, but she has never seen them have a personal conversation on any family occasion. She believes he would help Ms O'Connor if she asked him to but she would not ask.
95. As I noted above, Mrs Jeffrey was an impressive witness. She is clearly a strong personality and speaks her mind. Her strong support for Mr and Ms O’Connor’s evidence weighs heavily in Ms O’Connor’s favour.
Gregory O’Connor
96. Gregory O'Connor recalls his parents being together in Forbes and then moving to Dubbo with Ms O’Connor and Christina. He did not see his father very often but, once they moved to Birch Avenue, he would visit them once or twice a week and would sleep in the lounge room sometimes.
97. Once Ms O'Connor and the children moved to Oxlea Road, they saw more of their father. They spent most of their time with him outdoors. He would visit to check they were okay and because they did not have much of a social life because Ms O’Connor was too sick to take them anywhere.
98. Throughout the period from 1997 to 2008, Gregory O’Connor says his father would stay at Oxlea Road for a night or two, sometimes more, each week but he did not move in to the house; he more or less lived out of a suitcase. There was nothing in the house that belonged to him, no clothes or personal effects. When he would come home to have a shower he would bring a toiletry bag and a change of clothes. He sometimes came several times a week and would often bring his laundry with him. Gregory would do the laundry for him because he did everybody else's, and he also used to do his ironing from time to time. Gregory did the cooking and occasionally Mr O'Connor would do it when he was unwell himself. He recalls doing a lot of the housework and his father working outside the house doing things like sweeping the veranda.
99. Gregory O’Connor recalls his father buying groceries and food from time to time, but says he did a lot of the shopping himself, riding to the local shopping centre on his pushbike, because his mother was too sick to leave the house. He agreed that his father was concerned about him and Christina and helped out because Ms O'Connor could not afford to pay for everything on her own. Normally, however, he would just leave things like dog food or birdseed on the veranda of the house, where his mother could find it.
100. Gregory O’Connor gave evidence that only he and Mr O'Connor had a key to the shed; Ms O'Connor never had a key to it. When he moved out of Oxlea Road, he gave his key to the house to his father if he ever needed to go out to the property. Mr O'Connor would give it back to him after he had used it.
101. According to Gregory O’Connor, their father was concerned for the welfare of his children. In the time leading up to when Christina left home, when there was a lot of trouble with her, he recalls him spending more time at Oxlea Road. He thinks his father has a genuine compassion and sympathy for Ms O'Connor, even though there is not any love in the relationship. He believes they have a connection with their children and says he is grateful that his father chose to participate in the capacity he did.
Daisy O’Connor
102. Daisy O'Connor is Mr O'Connor's mother. She supports Ms O’Connor’s claim to have been separated since 1991 and says Mr O’Connor has moved on with his life. She says both should be commended for the way they have conducted their separation; they have always put the children first and could not have ensured a safe home for them without putting aside their animosity and working together.
Heather Crosby
103. Ms Crosby is Ms O'Connor's sister. Their relationship is rather distant and they do not discuss personal matters. Ms Crosby gave evidence that Mr and Ms O'Connor have not lived together for a long time. She says she has no ill feeling to Mr O'Connor but she rarely sees him. She invites him to Christmas or family gatherings for the sake of the children.
Jan Martin
104. Ms Martin gave evidence that she met Ms O’Connor approximately 20 years through a chronic fatigue syndrome support group. She has visited Ms O'Connor at Birch Avenue and Oxlea Road. She recalls Ms O'Connor telling her on one occasion at Oxlea Road that she and Mr O'Connor were separated. She recalled seeing Mr O'Connor at Birch Avenue on one occasion, outside the house, and once in the yard at Oxlea Road. She apparently has only sporadic contact with Ms O'Connor and her evidence does little to assist me to determine the nature of Ms O’Connor’s marriage.
Alison O’Neill, clinical psychologist
105. Ms O’Neill saw Ms O'Connor for three and a half hours in July 2011 for assessment. She provided a detailed written report and gave oral evidence. She concluded that Ms O'Connor had “significant psychological difficulties dating back to adolescence”, and demonstrated features of personality disorders which made it likely that she was incapable of maintaining a marriage and that her marriage dissolved in 1991 as she reported.
Surveillance reports
106. In the course of its investigations, Centrelink had surveillance conducted on two occasions at Oxlea Road. Reports of both are in evidence.
107. On the first occasion, surveillance was carried out for a total of 26 hours over five days between 25 January and 9 February 2008. Ms O'Connor was not sighted during that period. According to the report, both Gregory O’Connor and Mr O'Connor were “observed to reside” at the property. Mr O'Connor was observed leaving from, and returning to, the property in a work vehicle “on a daily basis to attend work”. On one occasion, he was seen going to an ATM machine in town.
108. On the second occasion, surveillance was carried out for 49.5 five hours over seven days between 8 September and 14 September 2008. Ms O'Connor was not sighted. Gregory was seen arriving and departing “on a regular basis”. Mr O'Connor was not observed until the end of the week when he was seen driving into the property on Friday evening and leaving on Sunday morning; he was believed to have been away for work at the beginning of the observation. He was observed at a supermarket on one occasion, paying for goods.
109. The fact that Ms O'Connor was not sighted on either occasion suggests that she may have been inside, lying down, which she claims to do a lot of the time. Otherwise, the reports are broadly consistent with the other evidence and neither adds a great deal to it.
110. Ms O’Connor gave evidence that, around the time the first surveillance was carried out, her relationship with Christina broke down completely. The circumstances are not entirely clear, but she has had no contact with Christina since she moved out in mid-2007 and obtained an apprehended violence order against her mother. Ms O’Connor concedes that this time was different from the rest of period in question because Mr O'Connor was spending more time at Oxlea Road while they prepared for various legal proceedings involving Christina. Mr O’Connor, Gregory O’Connor and Mrs Jeffrey support Ms O’Connor’s evidence.
View of the Oxlea Road property
111. At the suggestion of counsel for Ms O'Connor, the Tribunal paid a short visit to the property at Oxlea Road. It was useful insofar as it was an opportunity to understand the general layout of the house and see the shed where Mr O'Connor still keeps some of his equipment. It is fair to say – and Ms O'Connor herself acknowledged – that the inside of the house was rundown, untidy and dirty, and the outside was much the same. However, the view really added nothing to the matters I have to determine.
Consideration
112. It is trite to say that every marriage is different, but that is precisely what makes it difficult to determine whether any two individuals are members of a couple or not. Just as every marriage is different, so is every separation.
113. In Staunton-Smith v SDSS (1990) 32 FCR 164, O’Loughlin J noted the comments of Watson J in In Marriage of Todd (No 2) (1976) 25 FLR 260, at 262-263:
In my view, separation means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used in the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such a dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in private and public relationships.
When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case.
114. The factors in s 4(3) are not exhaustive and nor should they limit the inquiry. What comprises the marital relationship between any particular couple will vary. “The Tribunal will make its determination whether a man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it”: Staunton-Smith v Secretary, Department of Social Security (above) at 170.
115. 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 said (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.
116. His Honour noted, at 556:
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.
117. This is one such case. The circumstances of Ms O’Connor’s relationship with Mr O’Connor are unusual and take it out of the range of obvious cases. In particular, Ms O’Connor’s illness has affected her ability to care for her children as well as herself. The picture painted by Gregory O’Connor of life at home, with their mother often in bed and unable to do anything around the house, was fairly bleak. I am satisfied that Ms O’Connor’s illness gave Mr O’Connor reason to be at the house, and to help out, more than he otherwise would.
118. Mr O’Connor is clearly committed to his children’s welfare but their needs would have been different had Ms O’Connor been more able to care for them. It seems unlikely that he would have maintained the kind of involvement he had with them and their mother were it not for her illness. It has blurred their separation. The fact that Mr O’Connor’s work took him out of town for much of the time has further blurred the picture, and Gregory O’Connor’s own illness has added to the mix.
119. I am satisfied that Ms O‘Connor and Mr O’Connor consider their marriage ended in 1991 when she did not return to Forbes. However, that is not the end of it because their perceptions are only one factor to be considered.
120. There is clearly a considerable degree of intertwining of Ms O’Connor’s and Mr O’Connor’s financial affairs, in particular their interests in the Oxlea Road property. However, the reason for that background is understandable, given Ms O’Connor’s illness and the children’s ages at the time. I am satisfied that Mrs Jeffrey insisted on the arrangement. I am satisfied that she left Mr O’Connor with little option. I accept he was not happy about it but wanted to see the family in secure accommodation. That said, it was not until 2004 that he did anything to protect his interest in the property and, even now, it is not clear that they ever intend to separate their interests in the property. It seems likely that says as much about Mrs Jeffrey’s insistence on the arrangement as about the relationship between Mr and Ms O’Connor.
121. There is little evidence of actual financial dependence on each other. I am satisfied that most of the times when Mr O’Connor bought groceries were to ensure that the children were looked after. I am also satisfied that his assistance with various bills was to ensure the children were looked after, and it reflected the arrangement they had with the CSA. The mere fact that Ms O’Connor notified the CSA they had separated is not proof of separation but it tends to support her claim. I find it improbable that she did so just to fabricate a separation.
122. I do not think that the evidence of joint bank accounts weighs heavily in favour of finding Ms O’Connor and Mr O’Connor are a couple. I am satisfied that, for all practical purposes, their accounts have been separate since 1991.
123. The evidence of various bills and correspondence suggests quite strongly that Mr O’Connor regarded Oxlea Road as his home until recently. However, the evidence has to be considered in light of the fact that he did not have his own home until recently. One could be cynical and say he has only found his own accommodation since the overpayment was raised against Ms O’Connor. However, I accept the submission for Ms O’Connor that the pattern of his accommodation suggests otherwise. As Gregory O’Connor has moved out of home, back again, and then out finally in 2009, Mr O’Connor has tended to follow him. I accept that this pattern tends to support the finding that the basis of his continuing relationship with Ms O’Connor has been their children.
124. I am satisfied that Ms O’Connor and Mr O’Connor have not had any social life together to speak of since 1991. They apparently had little social life even before then, largely because of Ms O’Connor’s illness, but that does not take away from the fact that, even at times like Christmas, they apparently have little to do with each other. It is difficult to gauge how others outside the family regard their relationship but I accept Mrs Jeffrey’s evidence that people in town know they are separated.
125. The photographs that were seized certainly appear to show a normal, happy family and it is difficult to know what to make of them. However, considered in light of the efforts their parents have made to maintain a relationship for the sake of the children, I do not think undue weight should attach to them.
126. There is evidence of continuing commitment on Mr O’Connor’s part to Ms O’Connor throughout the relevant period. He appears to be a compassionate and very decent person. However, I am satisfied that his concern for his children has been the main reason for his commitment to her, and that it has declined since their children have left home. It is less clear that Ms O’Connor has maintained any real commitment to him at any time and, indeed, she tends to speak disparagingly about him. I did not detect what the SSAT described as evidence of real “affection, care and positive regard for each other”.
127. When all of the factors are weighed up, I am not persuaded, as the SSAT was, that Ms O’Connor and Mr O’Connor “just have an unhappy marriage”. I am satisfied their marriage came to an end in 1991 and that they have lived separately and apart since then. I am satisfied that, to the extent that their relationship has continued, it has been about their children rather than each other.
Conclusion
128. I accept that there have been aspects of Ms O’Connor’s relationship with Mr O’Connor throughout the relevant period that are in keeping with their continuing to be member of a couple. However, taking into account all of their circumstances, I am satisfied that they were living separately and apart on a permanent or indefinite basis throughout the relevant period.
129. The Tribunal sets aside the decision under review and substitutes the decision that Ms O’Connor was not a member of a couple throughout the relevant period.
I certify that the 129 preceding paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
Signed: ..[sgd]............................................................................
C. Taylor, AssociateDate/s of Hearing 1 and 2 August 2011
Date of Decision 31 October 2011
Counsel for the Applicant Mr P Batty
Solicitor for the Applicant Mr P Latham
Counsel for the Respondent Mr T Reilly
Solicitor for the Respondent Dr S Thompson
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