Ransley; Secretary, Department of Education, Employment and Workplace Relations and Anor and
[2008] AATA 338
•24 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 338
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1040
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS
1st Applicant
ANDand AND
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS
2nd Applicant
And
TANIA MAREE RANSLEY
Respondent
DECISION
Tribunal Ms A F Cunningham (Senior Member) Date24 April 2008
PlaceHobart
Decision The Tribunal sets aside the decision of the SSAT and substitutes therefore the decision of Centrelink made on 20 February 2006.
..............................................
Senior Member
CATCHWORDS
SOCIAL SECURITY - Parenting Payment, New Start Allowance, Family Tax Benefits debts - whether members of a couple - little change to living arrangements during claimed period of separation - applicant's evidence unconvincing and inconsistent - documentary evidence relied upon to support a finding that applicant living as a member of a couple during the relevant period - decision appealed against set aside
Social Security Act 1991, sections 4(2), 4(3)
Peck and SDSS (1992) 76 SSR 1107
Lambe v Director-General Social Security (1981) 3 ALN N72
Re Tang and Director-General Social Security (1981) 3 ALN N83
Waterford and Director-General Social Security (1980) 3 ALD 63
SDFaCS and Bell [2000] AATA 252
Utczas and SDSS (1989) 19 ALD 110
Patterson and DFaCS [2006] AATA 689
Re Pearce and Director-General of Social Security (1983) 5 ALR N143
Milovanovic and SDEWR [2006] AATA 930
SRQ and SDSS [1998] AATA 12954
Cassaroto and Australian Postal Commission (1998) 17 ALD 321
REASONS FOR DECISION
24 April 2008 Ms A F Cunningham (Senior Member) 1. The Secretary has appealed a decision of the Social Security Appeals Tribunal (SSAT) dated 16 February 2007 which set aside a decision of Centrelink to raise and recover debts on the basis that Tania Ransley was a member of a couple for the period between 7 October 2002 and 5 November 2005. The SSAT remitted the matter for reconsideration in accordance with its finding that Ms Ransley was not a member of a couple during the relevant period. The SSAT affirmed that part of the decision that raised a New Start Allowance debt of $1,562.48 which was raised on the basis that Ms Ransley failed to declare income from employment. That part of the decision of the SSAT is not subject to review in this appeal and is not contested by the respondent.
2. The issue for determination by the Tribunal is whether Ms Ransley was living as a member of a couple with Mr James Ransley for the period 7 October 2002 to 27 January 2005. Within that period Ms Ransley was imprisoned from 5 August 2004 to 5 November 2004.
3. The significance of a finding that the applicant was a member of a couple during the relevant period concerns the amount of benefits paid. Ms Ransley would receive higher payments from Centrelink as a single person.
4. There is no dispute that the debts raised were correctly were correctly calculated. The debts include Parenting Payment of $6,250.36 for the period 7 October 2002 to 5 August 2004; New Start Allowance debt of $1,562.48 for the period 5 November 2004 to 27 January 2005 and a Family Tax Benefit of $1,936.80 for the period 1 July 2003 to 30 June 2004.
Bacground
5. Tania Ransley and James Ransley married on 17 September 1988. They are the parents of two children namely Kyle born 28 October 1988 and Tayla born 22 November 1992. In 1998 Tania Ransley and James Ransley moved to 11 Marston Street, Clarendon Vale where Ms Ransley has continued to reside throughout the relevant period except for the 3 month period of imprisonment.
6. On 20 September 2002 Tania Ransley and James Ransley lodged "Assessment of Living Arrangements - Living under One Roof" forms with Centrelink. On 9 October 2002 Tania Ransley completed a "Parenting Payment - Change of Marital Status No Longer Partnered" form.
7. On 17 February 2006 a decision was made by Centrelink that Tania Ransley and James Ransley had been living as members of a couple from 7 October 2002 to 5 November 2005. The decision was affirmed by an Authorised Review Officer on 14 July 2006. The appeal lies against the decision of the SSAT which overturned the decision of the ARO.
Legislation
8. The legislation governing the payment of the benefits received by Ms Ransley is the Social Security Act 1991 (Cth). Particularly sub-section 4(2) which defines the meaning of member of a couple. As Tania and James Ransley were legally married to each other during the relevant period sub-section (a) is relevant and provides:
"(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 ..."
9. Sub-section 4(3) contains the criteria to which regard is to be had in forming an opinion about the nature of the parties relationship. It provides as follow:
"(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day‑to‑day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship".
10. Sub-section 4(3)(a) provides:
"(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"
Evidence
11. In her Parenting Payment - Change of Marital Status form completed by Ms Ransley on 9 October 2002, she claimed her date of separation as 1 June 1999. Her former partner is described as her husband, James Ransley. However on an earlier document completed on 11 January 2000, namely her claim for Parenting Payment Ms Ransley described her then current marital situation as "married" and the name of her current partner as James Ransley.
12. At the appeal hearing Ms Ransley maintained that she separated from her husband in 1999 but that he continued to stay at the former matrimonial home for various periods for the purpose of visiting the children. Ms Ransley said that her husband did not initially tell her where he was living but that she later discovered he was staying with Michael Horton on the East Coast. She said that Mr Ransley returned to the matrimonial home on two or three occasions each month and would stay for a night or two. The SSAT recorded in their decision that from 1999 until a couple of years ago, Mr Ransley would be at the house five times a month for one or two nights at a time. Ms Ransley did not dispute that she gave this evidence to the SSAT and contended that it was just an estimate. She said in her evidence to this Tribunal that she really did not know how many times Mr Ransley used to visit, it could have been one day a week of three days a week. It was Ms Ransley's evidence that prior to their separation when Mr Ransley was working as a truck driver for Tasmanian Sea Life, he was away from home a lot, and only spent on average three nights at home per week. On the basis of Ms Ransley's own evidence, it would thus appear that there is little difference between the amount of time that Mr Ransley spent at the matrimonial home even after the date of their claimed separation.
13. Kyle James Ransley, the applicant's son gave evidence at the hearing. He said that his parents had separated just before he went to high school which was approximately six years ago. He remembered an argument between them after which his father stayed away from home a lot. He recalled his father coming to stay perhaps three to four times a month and that sometimes they would play a game of golf together. He said that he spent little time with his father who was often inebriated when he returned from school. Kyle said that his father shared his double bed when he came to stay. He confirmed that his father also spent a lot of time away from home when he was working but he could not recall where his father was working in 1999. Kyle recalled arguments between his parents and one particular occasion when the police were called.
14. Kyle Ransley's evidence was of little assistance to the Tribunal apart from confirming that Mr Ransley spent a deal of time away from home when he was working and that he continued to visit the home on a fairly regular basis after the date of the alleged separation. Kyle Ransley said that he was aware of the nature of these proceedings in that Centrelink is claiming that his mother owes a debt of around $10,000.00.
15. Three other witnesses who had prepared witness statements were not available to give evidence at the hearing and could not be contacted. They included James Ransley whose mobile had been switched off, Donna Holmes a friend of the applicant and Suzanne Howell a former work colleague.
16. Oral evidence was given by telephone from Dr Roger Cox who has been Tania and James Ransley's general practitioner for over ten years. Dr Cox stated in his witness statement that Tania had told him during consultations that her relationship with James was over. In his oral evidence to the Tribunal however, he could not confirm when he was first given this information by Tania as he could not recall what he knew prior to last year. Dr Cox understood from both Tania and James Ransley that there were extreme difficulties in their relationship. He was aware that James Ransley had several sexual relationships with other women during the period of the marriage. He said that he understood that James Ransley was sharing a house with Michael Horton but is not sure how he came by this information. He said that it could have been from what Tania Ransley had told him. When asked about his statement that Tania and James had not lived a normal married relationship during the last eight years, his explanation was that Mr Ransley was continuing his extramarital affairs.
17. The Tribunal found Dr Cox's evidence of little assistance in establishing whether Tania and James Ransley were living separately and apart from 1999 or whether there has been much change to the pattern of their relationship.
18. The criteria listed in sub-section 4(3) are expressed in terms of circumstances which suggest a marriage-like relationship. Regard should be had to all of the circumstances. The criteria in s4(3) does not contain an exhaustive list of criteria nor in every case is equal weight given to each of the criteria. As noted by the Tribunal in Peck and SDSS (1992) 76 SSR 1107:
"The Tribunal would note at the outset that s.4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a "marriage-like relationship" exists (Re Staunton-Smith and Secretary, Department of Social Security (1990) 21 ALD 456) and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship. Much will depend, in forming the requisite opinion in any instance, on matters of degree and impression. (Re Bourke and Secretary, Department of Social Security (Dec No 4184; 2 March 1988))".
Financial Aspects of the Relationship
19. Whilst it is recognised that the provision of financial support is not determinative in itself, it is significant (Lambe v DGSS (1981) 3 ALN N72, Re Tang and DGSS (1981) 3 ALN N83 and Waterford and DGSS (1980) 3 ALD 63), nor as found in SDFaCS v Bell [2000] AATA 252, is an absence of financial dependence.
20. It was contended by the Secretary that the circumstances of Ms and Mr Ransley point to a significant degree of ongoing financial interdependence during the relevant period.. For instance, they each claim in forms provided to Centrelink that they pay $55.00 of the weekly rental on the Marston Street property of $110.00. They have also named each other as beneficiaries of their superannuation and insurance policies. Ms Ransley and Mr Ransley have owned their vehicles jointly, for instance, a 1982 Mazda 323 and have shared the use of their vehicles. The parties obtained a loan in their joint names for the purpose of purchasing books for their daughter, Tayla in October 2002, which is two years after the date they claimed to have separated.
21. The evidence in relation to the payment of child support was inconsistent and unreliable. The evidence that Ms Ransley gave to the SSAT was that she had applied for child support when the parties first separated and that payment had been via a private arrangement between herself and Mr Ransley. She claimed that Mr Ransley had paid his child support liability by in-kind activities such as lawn mowing and maintenance of the home. In her oral evidence to this Tribunal she said that Mr Ransley had been paying child support in the sum of $342.00 each fortnight since the date of their separation. Ms Ransley also told the Tribunal that she used this money to pay one half of the rent on the home. The evidence was however, that the total fortnightly rental commitment was only $110.00. When questioned in cross-examination as to why she had told the SSAT that Mr Ransley didn't really pay regular child support, Ms Ransley replied that he had not paid it because his mother had paid it on his behalf. When asked why she had not informed the SSAT that his mother had paid the child support she replied, "no-one ever asked".
22. The Tribunal finds this evidence most unconvincing. There are significant inconsistencies between Ms Ransley's evidence to this Tribunal and that given to the SSAT. Further the new claim that Mr Ransley's mother paid the child support when this had never been raised stated previously. The question must be asked as to how the parties arrived at the amount of $342.00 per fortnight when no child support assessment had been sought or undertaken. The amount of $342.00 did not relate to any particular outgoing and certainly not to the fortnightly rental amount to which Ms Ransley claims the money was directed. It is reasonable to conclude that the evidence in relation to the payment of child support is a fabrication in an attempt to persuade the Tribunal that the parties were living separately and apart.
Nature of the Household
23. There was no dispute that at all relevant times Ms Ransley was residing at 11 Marston Street, Clarendon Vale. The evidence was that Mr Ransley also visited the home and stayed overnight on a fairly regular basis. Whilst Ms Ransley contended that Mr Ransley was residing on the East Coast with Andrew Horton during the relevant period, the Tribunal was not provided with an address nor was there any evidence that Mr Ransley used Mr Horton's address as his own for the delivery of his mail or any other purpose. Indeed there was evidence that Mr Ransley used the Marston Street address for this mail and that it was recorded as his address on several documents during the period when Ms Ransley claims they were separated. On the Housing Tasmania Household Income Statement completed by Ms Ransley and Mr Ransley on 2 December 2003, each is recorded as a tenant of the Marston Street property. The Income Statement is completed for eligibility for public housing rental assistance. In the Assessment of Living Arrangements Form completed by Ms Ransley and Mr Ransley on 17 September 2002, both state that the lease agreement with respect to the Marston Street property is in their joint names.
24. On 2 May 2005 Mr Ransley completed and signed a School Information Validation Form in respect of his daughter Tayla. The address for Mr Ransley is recorded as 11 Marston Street. Ms Ransley and Mr Ransley's home and mobile telephone numbers are recorded as being the same. Despite a request on the form to check the typed information and make corrections or additions where necessary no alterations were made. In cross-examination Ms Ransley contended that she had corrected this information soon after discovering the error. In the SSAT decision it was recorded that when the school had sent Ms Ransley the completed details she realised her mistake and corrected it in early 2005. In her evidence to this Tribunal she said that it was within a few months. However the documentary evidence confirms that it was not until 10 March 2006 which was some ten months later and followed the decision made on 20 February 2006 which found Ms Ransley to be a member of a couple.
25. Centrelink sought information from Australia Post regarding Mr Ransley's mailing address. The information revealed that Mr Ransley had a post office box where mail was received for both himself and his wife individually as well as jointly addressed mail. His address was recorded as 11 Marston Street, Clarendon Vale. Similarly the Registrar of Motor Vehicles records Mr Ransley's address for the period 1 February 2002 to 20 January 2005 as 11 Marston Street. On 11 May 2002 Mr Ransley advised his address as 11 Marston Street which was only recently changed on 16 May 2007 to 135 Rheban Road, Orford.
26. There was no independent verification or evidence that Mr Ransley considered any address other than 11 Marston Street, Clarendon Vale, as his home address. In a form completed by Mr and Mrs Horton, Andrew Horton's parents, on 22 January 2006, they confirmed that they owned property at Hoods Road, Spring Beach and answered "no" to the question whether Mr Ransley had ever been a permanent resident at that address. In response to a question how many nights per week would Mr Ransley stay at your property, the response was "not applicable".
27. In the Living Arrangements Form completed by Ms Ransley on 17 September 2002 she states that Mr Ransley "stays for two days during the week to be with the kids".
28. Reference was made by Ms Ransley's solicitor to the Family Violence Order report completed by Tasmania Police which states that Mr Ransley "is not currently listed on the Housing Tenancy Agreement". Nor is he named as a tenant on the report. It is noted however, that this form was completed on 6 November 2005 which is several months after the period being considered in this appeal.
29. This report follows an incident which occurred at 11 Marston Street in November 2005. As a result of the incident Mr Ransley was inter alia ordered to keep the peace towards Ms Ransley and their two children. In the application for a Family Violence Order the nature of the parties relationship was described as "married" rather than divorced/separated. The length of the relationship was stated as 18 years and that the parties had lived together during that time.
30. In her written statement made on 6 November 2005, Ms Ransley detailed the physical violence that had taken place at Marston Street that afternoon and referred to previous incidents of physical violence over a number of years. She stated that the behaviour had been going on for too long and that she had had enough. She stated "I no longer want anything to do with James. I no longer want him living with us or coming near us". No reference is made to a separation between the parties at that time. Nor is there any reference in the Police Incident Reports to a separation, rather it is stated that the victim and offender have been married for 17 years. Ms Ransley's explanation for this omission was that she was not asked the question whether they were separated. The Tribunal does not accept this explanation and concludes that the parties separation would have been a very relevant factor had it been true.
31. A follow-up police report completed on 16 November 2005 states:
"Victim wants offender to return home as the day of the incident was just one big mistake. ... As far as I am aware, the whole family wants the offender to come home. I know from being there on the day of the incident that the son did not appear at all worried about being involved in the incident. The whole family dynamics appear very strange to me as he has apparently been cheating on her since Easter this year but that's okay and they all want him home and according to her she never actually wanted him charged with assaulting her in the first place".
32. In the Tribunal's view the evidence in relation to this incident is consistent with a finding that the parties were not living separately and apart although the nature of the relationship was strained, with family violence being a not uncommon feature. The fact that Mr Ransley spent part of the week away from home during the relevant period was most likely due to work commitments and time that he spent with his girlfriend on the east coast, a relationship which was known to Ms Ransley. As the Tribunal stated in Patterson and DFaCS (2006) AATA 689:
"The fact there was a residential gap at times is not conclusive of separation given the proportion of time the couple were engaged in contact and interaction".
33. Documentation from Centrelink, Ms Ransley's employer, the Clarence High School records and Housing Tasmania indicate that both Ms Ransley and Mr Ransley shared the use of three different mobile phones at various times during the relevant period. This would be particularly difficult if the parties were living separately and apart as alleged and is more consistent with them living as members of a couple. In the decision Uctzas and SDSS (1989) 19 ALD 110 the Tribunal said:
"Although the applicants maintain separate households, they are in every other sense married. They maintain daily telephone contact and see each other, on average, about twice a week at Mrs Spett-Utczas' home".
34. In the present case there is no convincing evidence that Mr Ransley maintained a separate household during the relevant period. He may have spent several days a week away from home due to work or other social commitments but this in the Tribunal's view, does not support a conclusion that Ms Ransley and Mr Ransley were living separately and apart. The evidence as outlined above, supports a conclusion that they lived as members of a couple. Mr Ransley stated that in September 2002 he shared household tasks at 11 Marston Street by mowing the lawn, keeping the garden tidy and removing rubbish and helped look after the children. This domestic pattern is consistent with the arrangements of a married couple rather than two people living separately and apart.
Social Aspects of the Relationship
35. The evidence was that the pattern of the parties relationship during the relevant period differed little to their arrangement prior to the date of the alleged separation. As noted above, the witnesses that the respondent had proposed to call were not available to give evidence in support of her case. There was accordingly no independent or corroborative evidence as to the nature of the relationship during the relevant period or whether Ms Ransley or Mr Ransley held themselves out as married to each other. The documentary evidence referred to instead supports a finding that they have represented themselves as a married couple and not living separately and apart. Whilst Ms Ransley contends that they did not go out socially during the relevant period other than for an occasional meal at the pub with the family, there is no evidence that this differed from their social life as a married couple.
36. There was a reference to information provided by the Commonwealth Director of Public Prosecutions that on 18 March 2002 Ms Ransley had provided information to Centrelink that she had separated from her husband on 1 June 1999. However she had subsequently ticked the married box when describing her marital situation in January 2000 and left blank another section which dealt with separation and the date of separation. This reference to a separation in 1999 is inconsistent with the other evidence which supports a finding that the parties were not separated during the relevant period.
Sexual Relationship
37. Ms Ransley contends that she has not had a sexual relationship with Mr Ransley since 1999. The existence or absence of a sexual relationship however is not determinative of the nature of a parties relationship and whether or not a married couple is living apart, just as a presence of a sexual relationship is not necessarily a strong indicator of a marriage-like relationship. (Re Tang and Director-General of Social Services (supra)
Commitment
38. The length of the parties relationship is significant in that they were married in 1988 and still remain married. Neither has filed for a divorce. Ms Ransley's explanation was that she had made enquiries and had been told that a divorce would cost her around $1,000.00 which she could not afford. Her evidence in this regard is hard to accept. It is now common for most people to file their own divorce application at no cost. The filing fee is generally waived for low income earners. The fact that Ms Ransley she has taken no steps to file for a divorce is inconsistent with her evidence regarding the state of her marriage and the fact that she has been separated since 1999.
Conclusion
39. It is incumbent upon the Tribunal to look at all of the circumstances of the relationship from an objective perspective. Even if the Tribunal accepted Ms Ransley's statement that she was separated, her subjective opinion is not determinative of the nature of the relationship (See Re Tang and Director-General of Social Services (supra); Re Pearce and Director-General of Social Security (1983) 5 ALN N143).
40. As noted by the Tribunal in Milovanovic and SDEWR [2006] AATA 930:
"[a]n unhappy marriage does not of itself mean that the parties to it are not a couple within the meaning of the Act and for the purposes of the entitlement of one of them to a pension or allowance".
41. There was little evidence other that that of Ms Ransley that the parties had lived separately and apart since 1999. Whilst Ms Ransley stated in oral evidence that she had separated from Mr Ransley in June 1999 she was unable to point to any documentary evidence which supported her claim. Indeed the documentary evidence referred to is inconsistent with her oral evidence.
42. This is not a case where the Tribunal is left in any doubt and is not able to make a finding on the balance of probabilities such that the applicant for a pension entitlement should be given the benefit of the doubt. Where there is inconsistency between Ms Ransley's evidence and the documentary evidence, there is no basis upon which the Tribunal would prefer the evidence of Ms Ransley. There were several inconsistencies in her evidence to this Tribunal and that given to the SSAT. She has given false evidence on previous occasions. She failed to declare on her Parenting Payment Claim that she was working. As a result she was convicted for knowingly or recklessly presenting a false document. She was imprisoned for three months following which she was overpaid a New Start Allowance for failing to declare her earnings. She accepts the overpayment of New Start Allowance resulting in a debt for her failure to declare earnings. Ms Ransley has previously been found guilty of claiming benefits to which she was not entitled and forging a signature for this purpose. As the Tribunal said at paragraph 29 in SRQ and SDSS (1998) AATA 12954:
"Her admission of previous deception and lies has to be borne in mind by the Tribunal when considering her evidence".
43. Whilst the legislation does not provide for an onus of proof, it is accepted that in a practical sense it is the applicant's responsibility:
"to ensure that there is laid before the Tribunal all material which it will be necessary for the "Tribunal to have before it to come to a decision".
(See Cassaroto and Australian Postal Commission (1998) 17 ALD 321 at 344.
44. There is much persuasive evidence contained in the T Documents tendered in evidence to support a finding that for the relevant period 7 October 2002 to 27 January 2005 Tania Ransley remained married to James Ransley and was living with him as a member of a couple and the Tribunal so concludes.
45. For these reasons the Tribunal sets aside the decision of the SSAT and substitutes therefore the decision of Centrelink made on 20 February 2006.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Senior Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 19 and 21 February 2008
Date of Decision 24 April 2008
Counsel for the Applicant Mr B Sparkes
Solicitor for the Applicant Centrelink Legal Services
Counsel for the Respondent Mr B Bartl
Solicitor for the Respondent Hobart Community Legal Services
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