QJWJ and Secretary, Department Of Employment and Workplace Relations & Anor
[2011] AATA 223
•4 April 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 223
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nº 2010/2936
GENERAL ADMINISTRATIVE DIVISION ) Re QJWJ Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
SECRETARY, DEPARTMENT OF FAMILIES HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondents
DECISION
Tribunal Mr John Handley, Senior Member Date4 April 2011
PlaceMelbourne
Decision The Tribunal sets aside the decision under review and in substitution decides that between 7 July 2004 and 1 December 2009 the applicant was not a member of a couple.
...............[signed].........................
Senior Member
SOCIAL SECURITY – parenting payment – family tax benefit – child care benefit – payment at single rate ‑ overpayment – legally married – whether member of a couple
Social Security Act 1991
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22
REASONS FOR DECISION
4 April 2011 Mr John Handley, Senior Member 1. The applicant seeks review of a decision made by the Social Security Appeals Tribunal (SSAT) on 4 June 2010. The SSAT decided to affirm two decisions made by an authorised review officer (ARO) of Centrelink on 16 February 2010, namely:
(i)to raise and recover the sum of $35,310.29 being an overpayment of parenting payment within the period 7 July 2004 to 1 December 2009 (T39); and
(ii)a decision to raise and recover the sum of $31,388.92 being an aggregate of payments of family tax benefit and child care benefit within the period 7 July 2004 to 30 June 2009 (T40).
2. The applicant acknowledges that during between 7 July 2004 and 1 December 2009 (the relevant period) she was legally married. She remains legally married. However, she challenges the decisions made by the ARO as affirmed by the SSAT on the basis that was living separately and apart from him on a permanent or indefinite basis. In those circumstances she was not a member of a couple within the meaning of s 4(2)(a) of the Social Security Act 1991 (the Act).
3. The respondents contended that during the relevant period the applicant was receiving parenting payment (PP), family tax benefit (FTB) and child care benefits (CCB) as a single person. However, during the relevant period, the applicant was partnered with her husband in a marriage-like relationship. Therefore, she was not entitled to receive the social security benefits at the single rate. The respondents contend that there is an overpayment which is a debt due to the Commonwealth.
LEGISLATION
4. Section 4(2)(a) of the Act provides as follows:
(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis …
5. Section 4(3) of the Act provides that:
(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), … 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.
CONFIDENTIALITY
6. Applications for review of decisions made under s 4(2) of the Act involve an intimate enquiry into relationships of persons, including an applicant, the person with whom a relationship is alleged and, often, many others.
7. Tribunal decisions are published and can be readily found on the internet. Persons reading decisions of the Tribunal may identify a party and become aware of matters concerning that party or the witnesses. In the present application, the circumstances of the applicant and those of a number of others were of a particularly personal nature.
8. When reflecting on the evidence in the course of drafting these reasons, I decided that a confidentiality order should be made because of the personal nature of the evidence before me. The parties were advised of my decision and were given the opportunity to object to the proposed order within 7 days. There was no opposition by either party. An Order was made in accordance with s 35(2) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting publication of the applicant’s name and address and those of her children and witnesses. The Order also restricts access to documents lodged with the Tribunal and received into evidence which identify the applicant, the children and the witnesses.
9. Accordingly, the applicant will be described as the applicant, her husband will be described as husband, the three children of the marriage will be identified as S, M and J and the remaining witnesses will be described either by their relationship with the parties or their occupation.
BACKGROUND
10. The applicant and her husband married in 1990. They separated in December 1999. The husband then left the matrimonial home. There are three children of the marriage, namely, S, M and J. During the relevant period, S was aged between 14 and 20 years, M was aged between 11 an 16 years and J was aged between 9 and 14 years.
11. The applicant has been receiving benefits from Centrelink from 10 January 2000. On 7 July 2004 which is the first day of the relevant period, the Commonwealth Bank opened a home loan account on behalf of her husband. The loan concerned the purchase by him of a house and land adjoining the property upon which the former matrimonial home (the home) is located and where the applicant continues to reside. The applicant was a guarantor for her husband in his application for the loan. She consented to the home, which continues to be registered in the joint names of the applicant and her husband, being offered as security for his loan.
12. The hearing of this application was heard over two days. Evidence was given by the applicant, her husband, the husband's sister, the applicant's mother, S who is the eldest child and a Sergeant of Police.
13. Statements were received from the applicant’s general practitioner, cousin, aunt and sister. Mr de Uray who appeared on behalf of the respondents indicated that those persons were not required for cross-examination.
14. The evidence will be summarised as it applies to the criteria specified in s 4(3) of the Act. There is some overlap between the criteria. For example, s 4(3)(c)(i) enquires whether the parties to the alleged relationship hold themselves out as married and s 4(3)(e)(iv) enquires whether those same persons see their relationship as a marriage-like relationship. I will attempt to avoid repetition of relevant evidence.
NATURE OF RELATIONSHIP
15. In addition to the criteria specified in s 4(3) of the Act, I must also consider all the circumstances of the relationship. Two significant matters emerged from the evidence which have been, in my view, very influential in defining the nature of the relationship between the applicant and her husband, namely an illness suffered by M, the middle child, and the accommodation arrangements of the husband.
16. M suffers from severe attention deficit hyperactivity disorder (ADHD), learning difficulties and he does not speak (T47). In evidence, the applicant said that M was very violent and would harm his brothers as well as himself. She said that her husband returned to the home 18-24 months after they separated because of M’s difficulties. M needed a male parental influence and the applicant needed assistance with M. The applicant was advised by a psychologist that M needed a routine, as well as family support and connection. Her husband agreed in evidence that he returned for those reasons.
17. The evidence of the applicant, her husband and a number of other witnesses was consistent. They all said that the applicant’s husband renovated a garage on the property where the home is located for the purpose of living in it for two or three weekends of each month. The home is located on a small acreage and the garage is some distance from the home. During the week, he lives in a bus in a timber camp, where he is employed, some distance away from the home.
the financial aspects of the relationship
18. Prior to separation the applicant and her husband had obtained a home loan jointly for the purchase of the home. A joint mortgage in favour of the Commonwealth Bank remains registered against the title to the property which also remains in joint names. There has not been any settlement of property. From January 2000, being the month after separation, mortgage payments of $349.00 per fortnight have been paid by the applicant only. The husband regards the home as belonging to the applicant. He does not regard it as his own home (Transcript, p 52). The applicant regards the matrimonial home as her home (Transcript, p 97).
19. The applicant said that she has never contemplated a property settlement. She said that she remained in the home after separation and cared for their three children who were then aged 9, 11 and 14, respectively. She said he hasn't wanted money. I'm not offering money (Transcript, p 18). She said if the property was sold and the proceeds divided, the relatively small equity held in it would not allow her to purchase another property, she would not qualify for a loan to purchase elsewhere and any rented accommodation would not be comparable to the home she presently has together with the surrounding acreage.
20. In July 2004 the husband purchased a property which bordered on the property upon which the home is situated. That property comprises a few acres with a home. Monies were borrowed to finance the purchase. The husband is registered as the sole proprietor of the property. The applicant said that being a guarantor for the loan taken out by (her husband) meant nothing to her. She said that prior to marriage, her husband had owned another property which he sold and the proceeds from that sale were used to purchase the home. She acknowledged that he agreed that she and he would be the joint proprietors of the home and added:
…So he's got money in that house. So, by me signing a piece of paper – that's all I did, I didn't give him any money – I'm not responsible for anything by signing – and so he could get that loan because he had equity in my house that he had put money into. (Transcript, p 97).
21. The husband was asked whether he understood that the application for the loan to purchase his property recorded he and the applicant as being married. He said he was aware that they were described in that manner and said that if he and the applicant had notified the bank that they were married but separated then it might be getting complicated. It's just easier to just go with the flow … (Transcript, p 58).
22. When the applicant’s husband was asked to explain why he had asked the applicant to be guarantor for his loan yet was asserting that he was separated and living separately from her, he said because it's going to benefit her children too (Transcript, p 74). The applicant said that by consenting to be guarantor for his loan it was keeping me in that house (Transcript, p 103).
23. In her evidence, the husband's sister frequently referred to the home as [the applicant's] place (Transcript, p 36, 40, 42). Similarly, the applicant's mother also regarded the home as (the applicant's) and the ultimate owners would be the children (Transcript, p 129).
24. The house on the property owned by the husband has tenants and he receives rental income. Mortgage payments over that property are funded through the rent received and from his wages. Neither the applicant nor the husband has any other real estate.
25. The applicant receives $400 per fortnight in child support. She has access to the account into which her husband’s wages are paid. The applicant said that there were occasions when she would withdraw more than $400 per fortnight from that account, especially if there were major purchases required on behalf of the children. In those circumstances, she would notify her husband that more than $400 per fortnight was being withdrawn. He consents to those arrangements (Transcript, p 56).
26. The applicant said she pays the electricity and telephone bills over the home. The invoices for those charges record the name of the applicant only. The husband said he contributes $40 to $50 every two weeks or a month to the electricity bill via direct debit from his bank account (Transcript, p 55). (It is not known whether the garage has a separate meter and whether the payment by direct debit by the husband is the cost of the electricity for those premises only or whether he contribute to the cost of the total domestic supply).
27. The applicant and her husband independently of each other meet the cost of their respective grocery and food purchases and the costs of running of their respective motor cars.
28. The husband has a Mastercard account in his name alone. An additional card over that account was issued to the applicant in May 1994 being five and a half years before separation. The account remains current. He said in evidence that he did not know that a card had been issued to the applicant but acknowledged that he may have forgotten (Transcript, p 59-60 and T79, p 866). He and the applicant are the joint holders of a line of credit issued by the Commonwealth Bank on 29 April 1998. He said he was not aware of that account or if he had been, he had forgotten. A joint account was opened on 17 October 1995. He said that it was an account which was used by him but from which the applicant withdrew fortnightly child support payments only. He has a mortgage loan account with the Commonwealth Bank in his name only for the monies he borrowed to purchase his property. He alone makes repayments on that home loan.
the nature of the household
29. The applicant said that the three children of the relationship were all boisterous at separation. She said that M has had severe problems since birth and was subsequently diagnosed with ADHD. He was assessed and treated by a number of psychologists. She alone attended medical appointments with him. The nature of his disability caused him to damage property. He damaged cars belonging to people who would come to the home to visit and eventually they would park some distance from the home to avoid the damage.
30. M was aged three when his parents separated. The applicant’s mother and sister assisted her with the children during the 12-18 months when the husband had no contact with either the applicant or the children.
31. The husband resumed contact with his children at the invitation of the applicant a few years after they separated. He lived in the renovated garage when he attended the home. In evidence, he said that he resumed contact because of the children’s behaviour, particularly M who was a handful (Transcript, p 48). He wanted to assist the applicant in her care of M. The applicant agreed in cross examination that she was honestly saying that the primary reason for (husband) coming back into your life was to assist primarily with M (Transcript, p 14). She also agreed that the only reason that he returns is because of M and the other two children.
32. The applicant said that M’s behaviour improved after her husband resumed contact. She said that he took M and the other boys on camping trips and interacted with them in a manner that she could not. She said the boys looked forward to her husband’s visits and spending time with him.
33. S recalled that he was about 9 or 10 years of age when his father returned and then on weekends only. The applicant's mother confirmed that the husband returned mainly to assist M and rebuild a relationship with his three boys.
34. The applicant said that initially when her husband returned, he drank alcohol heavily and she would not allow him to take the boys away. He then reduced his alcohol consumption and she felt more secure about allowing him to take the boys away which also gave her some respite.
35. The husband's sister is an integration aide. She was aware that M suffered ADHD and a language disorder. She knew that he was struggling at school and funding was not available for an integration aide. She volunteered to assist him for 12 months in his school until funding was provided. She also elected to be a contact person for M, S and J in the event that a parent could not be located. She accepted that responsibility because she was aware that her brother was away during the week (Transcript, p 44).
36. The applicant said that she alone has been responsible for attending all parent teacher interviews and taking the children to doctors when they were ill. The husband's sister also confirmed that her brother never attended a parent teacher interview or cared for the children when they were sick. The husband said he was not interested in attending parent teacher interviews (Transcript, p 70). On reflection, the applicant recalled that on one occasion when her husband took M on a trip to Darwin, M became ill with glandular fever. That was the only occasion that her husband was responsible for any medical care for the children. The general practitioner reported that the applicant had been his patient since 1993 and she had brought her children to [him] on a regular basis (Exhibit A8).
37. The applicant said that one of the psychologists treating M suggested – in knowledge of the separation – that it was important for M to be reassured of some unity within the family. It was suggested that on the occasions that her husband returned on weekends, she, her husband and the boys should come together for a family meal. Accordingly, the applicant and her husband agreed that on Sundays, they would come together in the home with the three boys for a meal. It was only on those occasions that the applicant and her husband shared a meal. The applicant would pay for the groceries needed for the Sunday meal. She would also prepare the meal and tidy up after the meal without any assistance from her husband (Transcript, p 71). But for one or two limited exceptions which I will discuss below, the husband would only enter the home for Sunday meals.
38. The husband said that there have been one or two occasions where he entered the home when the applicant was absent. On one occasion he entered to have a meal of fish and chips with J. The husband's sister recalled an occasion when she attended the property to visit her brother and found him inside the house with J eating fish and chips. The applicant said she was not aware of those occasions.
39. The husband said on one or two occasions he entered the house in the absence of the applicant to take some food. He specifically recalled entering the home once to take an onion. The applicant said she was not aware that he had been inside the home in her absence and did not like him doing it. She also said she did not know that he had taken food. She said that the key to the house is buried and he would know where it is located.
40. The applicant and her husband agreed that there was an occasion about two years ago where he drove her motor car. He took the three boys to the beach. His only vehicle is a Ute which will not take three passengers. The applicant's car is a sedan. The applicant consented to her husband using her vehicle for that purpose. S confirmed that his father did take the car with his mother's consent and agreed that his father owned a Ute only.
41. About two years after separation the husband returned for the benefit of M and his brothers. It was intended that he would reside in a garage on the property where the home is located. It needed to be renovated. He said he stayed in the home for a couple of days whilst the garage was being renovated because at that time he had nowhere else to stay on weekends.
42. The garage has been extensively renovated and now incorporates a bedroom, bathroom, toilet, kitchen and living area. Photographs were received into evidence of the renovated garage. Consistent with the husband’s evidence, it is fully furnished and has water and electricity connected.
43. The husband returns to the home on an average of two or three weekends of each month. He cooks his meals and sleeps in the garage. The boys frequently spend time with him in the garage when they do not go away together. The boys also use the garage when he is not there for recreation. They do so with his consent. S had his 21st birthday in the garage. The husband said that he also rings the boys between Monday and Friday to speak with them and they also contact him. He does not ring to speak with the applicant.
44. The applicant said that she rarely ever enters the garage. She does not clean it and is aware that her husband maintains the garage and cleans it himself. She is also aware that he washes his clothes at premises where S now lives because he does not have a washing machine of his own. The applicant said that she has refused to do his washing in her washing machine. She is aware that the children have access to the garage and she is content for them to do so. The children keep some of their belongings in the garage and she also stores some of her belongings there. She is aware that he does cook his meals in the garage and has seen him do so. She has never had a meal with him in the garage and when she was asked whether she had ever done so she said, why would I? (Transcript, p 92).
45. S confirmed that his father returns and stays in the garage on two or three weekends of each month. He said if the boys were not living at the home he probably wouldn't go there at all (Transcript, p 121). He was aware that his father cooks meals in the garage and has seen him do so. He also said that he could never recall his mother going into the garage (Transcript, p 118).
46. The husband's sister confirmed that he stays in the garage when he returns on weekends. She described her brother as a person who just prefers to be away, who was not settled. She also wondered whether he was a loner (Transcript, p 35-36). She said on occasions when she has sought to contact him, she has attended the home on weekends and has seen him in the garage. She has seen him cook meals in the garage. She also understood that her brother attended the home to help with its maintenance.
47. The husband said that he sometimes cuts the lawns and prunes trees if there is danger of limbs falling. He also said he has helped to mend fences. The applicant said that she sometimes cuts the lawns and on other occasions S has been known to do it. The applicant agreed that her husband does prune trees because he has a chainsaw which he carries in his Ute. She said that he also cleans the gutters because she wouldn't even think to go up and clean out the gum leaves … (Transcript, p 90).
48. A Sergeant of Police in a neighbouring town said he has known the applicant, her husband and other family members for about 20 years. He is aware that the applicant and her husband are separated. He said the husband occasionally stays in a bungalow and that he had returned to assist with M. The witness said that the applicant and her husband were on friendly terms. However, he was never under the impression that they were going to get back together again (Transcript, p 113). He has never seen the husband inside the home.
49. The Sergeant has been to family functions when the applicant has been present. He has never seen the husband on those occasions. He was aware that the applicant, her husband and two children travelled to the United States but it did not change his perception of their association.
the social aspects of the relationship
50. The husband's sister said that she was aware that the applicant and her brother do not go out together. The only occasions where she has seen both of them at the same place was at her daughter's 21st birthday and the 21st birthday of S which was held in the garage. This was consistent with the evidence of the applicant and her husband.
51. The applicant’s sister described their relationship as friends and believed they would never live together (Transcript, p 40). She said her brother and the applicant do not have a relationship. She said that he returns only for the sake of the children and both the applicant and her brother would do anything for the boys (Transcript, p 35, 39 and 40). She was aware that the applicant did attend her father’s funeral some years ago which was located at a country town some distance from the home. She said they did not travel together nor did they sit together during the service.
52. The applicant and her husband agreed that they had Sunday meals together on occasions but neither regarded that as a social event. They considered Sunday meals as an occasion to reassure M and to assist with his treatment as recommended by M’s treating psychologist.
53. The applicant described her relationship with her husband as one of friendship. When asked whether they were good friends she said it’s a different friendship. She said a good friend is a person with whom you would confide. She said she does not confide with her husband except for matters that concern the children. Later when the circumstances of the relationship were discussed, she agreed that the relationship could be described as a civil working relationship (Transcript, p 96).
54. The applicant agreed that she did not notify Centrelink that she was sharing accommodation with him. She explained that she did not advise Centrelink (in response to recipient notices) because she was not sharing accommodation with him. She said that she occupied the home and he occupied the garage on the occasions when he returned on weekends.
55. The applicant said that she does not hold herself out as married or in a defacto relationship with him. She said that persons who are aware of their relationship would also be aware that she and her husband are separated.
56. S said that he considers his mother and father to be separated (Transcript, p 119). He added that he sees them as two different people.
57. The applicant was referred to a White Pages internet search which records her and her husband as the joint subscribers to the home telephone service (T34, p 104). She said that she was not aware of the telephone listing until Centrelink alerted her to it. When she telephoned the White Pages, she was advised that the listing is based on the account holder details provided by Telstra. The applicant did not understand why she and her husband were listed as joint subscribers when the Telstra account was held solely in her name (Transcript, p 82-83). (I note that the White Pages search which records the applicant and her husband as joint subscribers at T34 is undated. Consistent with the applicant’s evidence, copies of telephone accounts issued in July 2003, September 2003 and September 2005 were addressed to her and indicate that she alone is the account holder for the home telephone service (T9, T11, T21). Unlike the first two invoices, the third does not record the telephone number.)
58. She said that the joint entry in White Pages (internet) should not be understood as them holding themselves out as married or in a defacto relationship with each other.
59. The husband agreed that his driver's licence has the home address recorded and the White Pages also records him at that address. He said that his mail is received at that address because I know I will get it (Transcript, p 54). (S, who now lives elsewhere, said he now receives his father's mail – Transcript, p 120).
60. A rate notice issued to the home in September 2003 was addressed to the applicant and her husband, reflecting a joint liability (T10, p 56). This is consistent with a titles search which indicates that the applicant and her husband are the joint proprietors of the home (T32, p 92).
61. Accounts for the provision of electricity to the home in 2004, 2005, 2006 and 2010 are in the name of the applicant only (T16, p 67, T17, p 68, T20, p 74, T23, p 77, T24, p 79, T26, p 81 and T45, p 212).
62. The husband's Medicare Card records his name only. He could not recall when the card also contained the name of the applicant and the children. A Medicare Card issued to the applicant records her name and the names of the three children only (T53, p 230).
63. During the hearing, the respondent relied on information the applicant included as part of her profile on Facebook and photographs posted on her Facebook page. An extract from Facebook dated 21 May 2009 records the words (applicant) is married. Her first name and married name also appears on the same page and under it are the words stupid thing!! Was trying to re-do it, and put maiden name on it (T33, p 93).
64. During cross-examination, the applicant said that the Facebook page was set up by her children. She said that she tried to include both her married name and her maiden name so that persons who wanted to find her could locate her (and she gave the example of persons that she previously went to school with). That is to say, persons attempting to locate her would seek to do so by looking for her in her maiden name and they may not necessarily know her married name (Transcript, p 20).
65. The photographs posted on the applicant’s Facebook page were taken on a trip to the United States that the applicant, her husband and the two youngest boys, M and J, took together in 2009. The respondent considered these photographs particularly relevant to the issue of the social aspects of the relationship and whether she and her husband were engaged in joint social activities together and holding themselves out as married. She denied that persons looking at the photos would form the view that they were married. Whilst she agreed that one of the photos shows her husband having his arm around her, the applicant said that the photograph was taken by a little Chinese guy whose job was to take photos. When asked whether the photograph could give the impression that she and her husband were a married couple she said, I will ask you a question, what would a separated couple in a photo look like … and where would you have liked me to be standing as a separated person (Transcript, p 21).
66. The applicant explained she posted the photos on Facebook because it was the cheapest way to communicate with mum who knows we're separated (Transcript, p 21).
67. The applicant agreed that she, her husband and M & J did travel to the United States together and returned together. She also agreed that they went to Disneyland and to Universal Studios. However, there were occasions when her husband would go off with the children and she would do other things alone. The reverse occurred. She agreed that they did have some meals together and during the holiday there was an occasion where they all shared one room which contained two double beds and she slept with J. On another occasion they stayed in a hotel where they had two rooms and she shared a room with J alone and her husband shared a room with M.
68. The applicant said that as a child she always wanted to travel to the United States to go to Disneyland. She had also hoped to take the children. She said she could not afford to do so with two children. However, her husband was planning to take the two boys to Disneyland.
69. In about 2009, the applicant was invited to attend a wedding in the United States but it did not proceed. She had spoken about it to the children and her husband later suggested that they should all travel together. She said that he paid the travel costs for himself and the two boys and she paid her own fare. She said she was able to obtain a cheap flight which cost $999. Initially her husband decided that he would travel with the two children alone but J had pestered her to go. The applicant explained that travelling together was convenient and a good opportunity for her and the children to see Disneyland. She would not be responsible for all the travel costs and would be able share the experience with her boys. Later she agreed that it was possible that the two children would have gone to the United States with her husband had she refused (Transcript, p 21-23).
70. The husband said in evidence that M and J were on my back a bit going over there all the time so I decided to take them. When asked how he felt about them also wanting the applicant to travel with them, he said whatever makes them happy … Didn't really bother me, I suppose. If it did I would have just cancelled the trip I suppose (Transcript, p 53).
71. The husband said that he paid the accommodation costs for himself and the two boys and some of the costs at Disneyland. He said the applicant paid for lunch and some meals. He agreed that he and the applicant did some activities independently of each other and said there was an occasion where he hired a car and took the boys to a local beach. He said that he and the applicant did not do things together without the boys.
72. The applicant's mother said that the applicant travelled overseas with the children because they had wanted her to go and she had previously promised to take them to Disneyland. She said that J is a mummy's boy and had pestered the applicant to travel with them when it was first discussed that the children would travel to the United States with the husband alone.
whether there was any sexual relationship between the people
73. Both the applicant and her husband said in evidence that their sexual relationship ceased in about 1997, that is, about two years before separation (Transcript, p 71 and 105). Both the applicant and her husband said that they have had sexual relationships with other persons subsequent to separation.
74. The husband's sister confirmed that she was aware that both the applicant and her brother had male and female friends, respectively, after they separated (Transcript, p 41). The applicant's mother in response to a question of whether she could envisage the applicant and her husband getting together again said No way, no. Definitely not … There's no – nothing between them sexually or, you know, like – there's just the kids. She's not interested in him, he's not interested in her, as such (Transcript, p 131).
the nature of the people's commitment to each other
75. The applicant and her husband have had a relationship since they were teenagers. They married in 1990. Separation commenced in December 1999 when the husband left the matrimonial home. They have not divorced.
76. Both the applicant and her husband indicated that they were not interested in obtaining a divorce. The attitude of the applicant to both marriage, divorce and her relationship is probably best indicated by the following extract of her evidence (Transcript, p 18):
You’re not interested in getting a divorce at all?‑‑‑Wasn’t interested in getting married.
MR HANDLEY: Sorry, you weren’t what?‑‑‑We weren’t really interested in getting married. It’s only a piece of paper, like, you know.
MR [DE URAY]: So would you agree with this proposition? When people separate and eventually divorce, it’s usually separation of financial, emotional and other ties with the other party; you would agree with that?‑‑‑In some circumstances.
In some circumstances. And you would agree, would you not, that a divorce is a message to the community and to your family that the marriage is over? It can mean that, the marriage is over and that the parties will go their separate ways?‑‑‑I suppose that will be – you know, a good percentage of the chance, but you’ve got to put in the other factors.
Yes?‑‑‑So we’re not the normal people, you know.
Sometimes, due to children, the other party has an active involvement with the children. Sometimes, after a couple divorce, their involvement with the children still continues and that’s what you’re saying here, that the involvement is continuing. That’s right, isn’t it?‑‑‑I could get divorced. It wouldn’t bother me. We could get divorced tomorrow. But it’s still the same.
Do you have any intention to divorce?‑‑‑We never even really thought about it.
Are you philosophically opposed to divorce?‑‑‑Yes, we will. We will.
When?‑‑‑I have no idea. When it comes.
77. The husband shares the applicant’s attitude towards the relationship. He defined the relationship as legally married and separated. He said he wouldn't bother with obtaining a divorce because:
… it's another hassle, like all this is, you know, like I'm just working, living, that's it. Why do you want another hassle for? More paperwork (Transcript, p 68)
78. The husband was asked to explain why it was that he made himself available to give evidence in support of the applicant. The following is an extract from his evidence in response:
Do you regard these proceedings as a hassle?‑‑‑Well, it’s – yes, it’s a hassle that I shouldn’t have to go through.
Well, then why are you here supporting [the applicant] in this application if it’s such a hassle, she being the person from whom you’re separated and live separately from?‑‑‑No, I’m not supporting her. It’s just that I mean a hassle that we shouldn’t even be here, none of us.
But you’ve given up a day’s pay to be here to support her in her application?‑‑‑That’s right.
Why are you doing that?‑‑‑For something that’s not right.
Why are you doing it?‑‑‑Because, you know, it’s not right, what’s happening, you know, like why should people have to go through this?
What’s not right about it?‑‑‑Because people live different lives or whatever, you know.
Well, you’re not a party to these proceedings?‑‑‑What’s that?
You’re not one of the persons who are named in these proceedings as responsible for an alleged overpayment of social security?‑‑‑Yes, yes, I realise
Why is it that you’ve taken such a keen interest and are prepared to give up a day’s pay to be here to give this evidence?‑‑‑Well, try and point it out.
Point what out?‑‑‑What you want to know.
What is it? What is it that you want us to know?‑‑‑The reasons why we live like we do. Do you know what I mean? (Transcript, p 75)
79. The applicant’s husband was asked whether the applicant would ever call him on his mobile telephone. He said that the only occasions where his wife would ring him would be if one of the boys are in trouble again, or something like that, that I could, you know, have a word to them about (Transcript, p 69). He also recalled an enquiry made of him about the applicant by a friend and he said that his response was I don't know, go and find out (Transcript, p 68).
80. He said he would not take time off work to take the applicant to a doctor or a hospital because she would ring her mother or S (Transcript, p 69).
81. The applicant said that if she was ill at home and her mother was not available she did not expect her husband would care for her. She said what could he do that the kids couldn't do. However, she believed that he would pop in to see how she was. She also said that she would not go and see him if he was ill and was at his sister's house bedridden for a short period of time (Transcript, p 95).
82. The husband was not aware that the applicant had recorded him as an emergency contact person with her employer (T36, p 108) but on reflection said that he had some memory of her saying something about that. He said he had no problem with that because he is the children's father (Transcript, p 70).
83. The applicant said she recorded her husband as the emergency contact person because if I was to die she would want him to tell the children. She said she has since changed the form and now records S as the contact person (Transcript, p 84-85). She agreed that her mother is the contact person recorded at the children's school because she did not expect the children to die (at school), the chances of them getting hurt is pretty slim and her husband is not contactable. It would be hours before he even got there (Transcript, p 84).
84. The Enrolment Registrar and campus Director of the school attended by J confirmed in a letter that J has been enrolled since 2008, the applicant is recorded as the primary caring parent and she is the sole person responsible for school fees and charges (Exhibit A2).
85. The applicant's mother said that in her opinion the applicant and the husband were far too young when they married and they have outgrown each other now (Transcript, p 126). She had observed the applicant and the husband leading two separate lives because they're not in a relationship (Transcript, p 127). She said that the husband’s only interest in visiting the home was the children and if the children were no longer at the home, the husband would never return (Transcript, p 128).
SUMMARY OF WITNESS STATEMENTS
86. As referred to earlier, a number of persons provided statements which were received as Exhibits. Many of those witnesses were not called by the applicant and Mr de Uray, on behalf of the respondent, did not require those persons for cross-examination.
87. Statements completed by the applicant's aunt (Exhibit A4), sister (Exhibit A6), cousin (Exhibit A7) and general practitioner (Exhibit A8) all recorded that they were aware that the applicant and her husband had been separated for 10 years.
88. The applicant's aunt recorded in her statement that during conversations with the applicant she never indicated or implied that there was any chance of a reconciliation with her ex-husband. She also said that the applicant has always attended family functions either on her own or with the boys.
89. The applicant's sister and cousin stated that the husband returned after the initial period of absence following the separation, to assist with the children. They were also aware that the applicant travelled to the United States but only because of the insistence of the children.
REASONS FOR DECISION
90. The ARO and the SSAT decided that during the relevant period the applicant was a member of a couple. As a consequence of that finding, it was decided to raise a debt and recover more than $64,000.
91. The process of decision making by both the ARO and the SSAT is of course distinctly different from review in this tribunal. Neither the ARO nor the SSAT had the advantage of listening to the applicant and her witnesses give evidence in chief and be cross-examined over two days.
92. During the hearing I had the advantage of observing the applicant and her husband. I was impressed by their respective candour and I regard them both as witnesses of truth. I hold the same opinion of the other witnesses, especially the Sergeant of Police who is independent of the family. They did not exaggerate or embellish their evidence. Their evidence involved explanations for the contents of a number of documents and other matters which might otherwise permit a perception that they were, in fact, members of a couple. I have reached the conclusion, for reasons which follow, that the decision under review should be set aside.
93. In reaching the decision, I was also mindful of the Full Federal Court decision in Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22 where the Court said at [24] that s 4(3) of the Act does not require any finding of fact to be made but rather requires the decision maker to have regard to all the circumstances of the relationship, including the specified matters, in forming an opinion about the relationship between two people.
94. The applicant and her husband are legally married and have remained the joint proprietors of the home. The applicant was a guarantor to a loan taken out by the husband. They were recorded as joint account holders in the White Pages and the husband's driver's licence records the home address. The husband has also allowed the applicant to remain an additional credit card holder on his Mastercard account. This information may give rise to a perception that they are not living separately and apart. However, the enquiries made during these proceedings and a close assessment of the relationship suggests otherwise.
95. In this application, the nature of the relationship between the applicant and the husband can be characterised as amicable yet detached or disengaged. The nature of their relationship is one of commitment to their children. I am satisfied on the balance of probabilities that the applicant and her husband have been separated and have been living apart on a permanent basis since December 1999. Despite the applicant and her husband continuing to be married to each other, the applicant cannot be a person who is regarded as a member of a couple.
96. It is true that the applicant and her husband continue to be liable to a joint mortgage of the home. The title to that property continues to be registered in joint names. However, since separation the applicant alone has made all mortgage payments. She regards the property as her property and so does the husband. Other witnesses were of the same opinion. She has lived in it at all times with the children.
97. The applicant did assist her husband in obtaining a loan to purchase a neighbouring property. She did so by consenting to the home to be used as security for his loan. She did not believe that by using the home as security she would be exposing herself to any responsibility. In law of course, that is an incorrect belief. In the event that he defaults on his loan, she is at risk. Her explanation for doing so was to acknowledge her husband’s equity in the home because her husband sold a property that he owned before marriage and used the proceeds from the sale to purchase of the home.
98. The applicant's mother said that the children were the ultimate beneficiaries of the home. The husband said that one of the reasons he purchased the neighbouring property was for it also to benefit the children. Neither the applicant nor her husband expressed any intent to acquire the properties for their mutual benefit. The husband purchased the property in his name alone and there was no evidence which would point to any intention on his part to create a benefit for the applicant.
99. The husband pays $400 per fortnight in childcare which is withdrawn with his consent by the applicant from his bank account. That process does not involve any interaction between them. The applicant pays all domestic bills and charges with the exception of the husband’s contribution to the electricity. However, as stated earlier, it is unclear whether the husband’s payment via direct debit is a contribution to the electricity costs over all of the property or for the garage only.
100. The applicant continues to reside in the home with the children, M and J. The husband has not done so since separation. He was absent for a period of 18 to 24 months and then resumed contact. During the relevant period and presently, he returns to the home for two or three weekends of every month and resides in a renovated and fully-furnished garage. He is able to sleep, cook, bathe and toilet in the self-contained garage. Other than the Sunday meals which were undertaken on the recommendation of M’s treating psychologist and the few occasions discussed earlier, the husband does not enter the home and the applicant does not enter the garage. They do not interact together other than the occasion of Sunday meals where the children are also present. The husband washes his clothes at premises now occupied by S and the applicant indicated that she would not, in any event, wash his clothes. Although the husband's mail was previously sent to the home, it would appear that since S moved away, all of the husband's mail is now received by S.
101. The property upon which the home is located is a small acreage. The garage is within the boundary of the same property. The evidence points to two separate dwellings, one occupied by the applicant on a full time basis with the children and the other occupied for two or three weekends of each month by the husband.
102. There has virtually been no social interaction between the applicant and her husband since separation. They have both attended the 21st birthday of their son S which was held in the garage. While they also attended the 21st birthday of her husband’s niece, they travelled independently of each other. The witnesses all said that they had not seen the husband at any social function where the applicant and the children have been present, other than the two 21st birthdays.
103. The applicant and her husband both confirmed that they had not had any sexual relationship since 1997 being two years before separation. They have had sexual relationships with other persons after separation.
104. The applicant and her husband did travel to the United States but only because of the persistence of the children. The trip was of short duration, the applicant paid her own airfare, some activities were undertaken together but many were not. The trip was not a family holiday. It was an opportunity for the applicant to experience Disneyland with the children, something she had wanted to do and had been unable to afford on her own.
105. The applicant has a Facebook account which she set up with the children. Her married name is recorded but she explained that was an error and that she intended to record her maiden name so that persons might locate her. She also explained that the Facebook page permitted the uploading of photographs during the trip overseas which could be easily accessed by her mother. The photographs of the applicant, her husband and the children together might, without explanation, be perceived as them being members of a couple. However, the explanation given by both and in the context of the circumstances giving rise to the trip to the United States, satisfies me that any perception of them being members of a couple is wrong.
106. Neither the applicant nor her husband expressed any intention to care for each other in the event of illness. The applicant and the husband travelled independently of each other to the funeral of his father and did not sit with each other during the service. The applicant said that she nominated her husband as an emergency contact person for her employer. She explained that in the event that she was to die, she would want her husband to notify the children. Conversely, she said that her mother is nominated as the contact person at the children’s schools because her husband is not available during the week. She also said that it is unlikely that her children would suffer the catastrophe during school hours that she envisaged she might suffer in the course of her employment.
107. For all of the above reasons, I have reached the conclusion that the applicant and her husband no not have an emotional or intimate connection with each other. Their only connection is the three children and I accept that they live their lives as they do for the sake of their children. The applicant and her husband are legally married and have no intention of obtaining a divorce. Neither intends to remarry and obtaining a divorce would not change the nature of the relationship that they have. They do not see any purpose in obtaining a divorce and I accept their reasons for not doing so.
CONCLUSION
108. I am satisfied that the applicant, although legally married, has at all relevant times lived separately and apart from her husband on a permanent or indefinite basis. In those circumstances, she should not be regarded as a member of a couple.
109. The decision under review is set aside and in substitution I decide that between 7 July 2004 and 1 December 2009 the applicant was not a member of a couple.
I certify that the one hundred and nine [109] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member
Signed: …………………[signed]……………………………………
Grace Horzitski Associate
Dates of Hearing 17-18 January 2011
Date of Decision 4 April 2011
Advocate for the Applicant Self-represented
Advocate for the Respondent Mr T de Uray, Centrelink Legal Services Branch
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