Schatz; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 756

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 756

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No W 200500346

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And PETRA SCHATZ

Respondent

DECISION

Tribunal Deputy President S D Hotop

Date26 August 2008

PlacePerth

Decision The Tribunal affirms the decision under review.

............(sgd S D Hotop)...........

Deputy President

CATCHWORDS

SOCIAL SECURITY – disability support pension – respondent received disability support pension at single rate – respondent had relationship with person of opposite sex to whom not legally married – consideration of all circumstances of relationship – factors weighing for and against existence of marriage-like relationship – relationship not a marriage-like relationship – respondent not a member of a couple – decision under review affirmed

Social Security Act 1991 (Cth), s 4(3)

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546

REASONS FOR DECISION

26 August 2008 Deputy President S D Hotop

Introduction

1.      Petra Schatz (“the respondent”) was in receipt of disability support pension (“DSP”), at the “single rate”, under the Social Security Act 1991(Cth) (“the SS Act”) when, on 19 May 2005, an officer of Centrelink determined that she was then, and had been since 10 April 1994, a “member of a couple”, for the purposes of the SS Act, and, on that basis, the officer cancelled her DSP.  That decision was affirmed by an Authorised Review Officer (“ARO”) within Centrelink on 2 June 2005.

2.      On 2 September 2005, however, the Social Security Appeals Tribunal (“SSAT”) set aside the decision of the ARO and instead decided that the respondent was not a “member of a couple”, for the purposes of the SS Act, in the period from 10 April 1994 to 19 May 2005 (“the relevant period”).

3.      The Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (“the applicant”) has applied to this Tribunal for review of the decision of the SSAT

The Issues

4.      The fundamental issue for the Tribunal’s determination is whether the respondent was a “member of a couple”, for the purposes of the SS Act, during the relevant period.

5.      In the event that the Tribunal determined that the respondent was a “member of a couple” during the relevant period, it would follow that she was entitled to receive social security benefits at the “partnered rate” during that period and that, accordingly, she was overpaid social security benefits during that period.  Further issues would then arise, namely, whether the debt (comprising the amount of the overpayment) owed by the respondent to the Commonwealth should be recovered from her or whether it should instead be waived or written off.

The Tribunal’s Determination

6.      For the reasons which follow, the Tribunal has determined that the respondent was not a “member of a couple”, for the purposes of the SS Act, during the relevant period.  No issues regarding debt, and recovery or non-recovery of debt, therefore, arise in this case.

“Member of a Couple” – The Relevant Legislation

7.      The phrase “member of a couple” is relevantly defined in s 4 of the SS Act as follows:

“ 4(1) In this Act, unless the contrary intention appears:

…

member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A);

…

Member of a couple – general

4(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; or

(b)all of the following conditions are met:

(i)the person has a relationship with a person of the opposite sex (In this paragraph called the ‘partner’);

(ii)the person is not legally married to the partner;

(iii)the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

…

Member of a couple – criteria for forming opinion about a relationship

4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), 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 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.”

The Evidence

8.      The evidence before the Tribunal comprised:

·     the “T Documents” (T1-T297, pp 1-1163) filed by the applicant (Exhibit A6);

·     Exhibits A1-A5 and A7-A8 tendered by the applicant;

·     Exhibits R1-R11 tendered by the respondent;

·     the oral evidence of the following witnesses:

-Dr V Chapple, Mrs P Jury, Ms K Mennell, Mr S Watson, Mr P Maishman and three confidential witnesses (who were called by the applicant); and

-Ms L Irving, Dr J Bell, Mr B Macauley, Mr A Price, Dr R Krishnan, Mr E Marshall, Ms T Fraser and Senior Constable J Little (who were called by the respondent).

The Tribunal notes that the respondent did not give oral evidence owing to ill health.  Her evidence is, however, set out in a witness statement (filed on 18 May 2007) whose contents were confirmed by her to be true and accurate to the best of her knowledge in an affidavit affirmed by her on 25 February 2008 which was filed on 28 February 2008.  That affidavit and the annexed witness statement have, with the consent of the applicant, been admitted into evidence (Exhibit R11).

The evidence of the respondent

9.      The respondent’s abovementioned witness statement is as follows:

“I, Petra Schatz of … Cohuna Drive, Armadale, Western Australia, homemaker, say as follows:

At the time of making this statement and in the few weeks prior to it in March 2007 I have been extremely unwell.  On the advice of my GP I have attended Armadale Hospital for severe chest pain on 14 and 18 March 2007.  My mental wellbeing is poor and I am unable to concentrate.  I have been attending counselling with a psychologist.  It is difficult for me to recall detail.  As a result of the medication that I have taken over the period under review, including valium and anti-depressants, I have found it difficult to recall details of current and past events.

It is under these circumstances that the following statement is made.

1.My name is Petra Schatz and I live at … Cohuna Drive, Armadale with my daughter Sharnie Louise Markham Schatz.

2.        My date of birth is … July 1963.

3.I am on a Disability Support Pension.  I receive Disability Support Pension because of work accidents and car accidents.  I had been employed as a cutter in the rag trade.  I suffer from chronic pain and see a rheumatologist for ongoing supply of medication for my chronic pain.  I also suffer from migraine headaches, chronic gastritis, carpal tunnel syndrome, folic acid deficiency, dizzy spells and chronic dermatitis.

4.I also suffer from depressive symptoms and I am taking Avanza for this.  I also take MS Contin 90mg twice daily for chronic pain, folic acid, Somac and Maxalon for nausea.  I also take Celebrex when necessary for tightness of the chest.

5.In the past I have been on other medications, such as valium, morphine, pethidine and have been prescribed anti-depressants previously.

6.I am currently seeing Dr Raji Krishnan as my General Practitioner.

7.I have lived at … Cohuna Drive since around the end of 2003, early 2004 but I can’t be sure of the exact dates.

8.I rent the house from Homeswest.

9.From the end of 2002 and during 2003 I lived with my sister, Angela Marshall and her husband Errol Marshall at … Offord Street, Armadale.

10.Prior to living at Offord Street I was living at … Heppell Gardens, Clarkson.

11.Prior to living at Heppell Gardens I was living at … Pearl Parade, Scarborough.

12.I moved into Pearl Parade sometime in the ’80s and lived there for about 6 years.

13.I first met David Markham when he was living in … Pearl Parade with his brother, whose name was Steve.  I did not know Steve’s last name.  But I have since found out that it was Steven C….  I can’t remember when they moved in.

14.There were 10 units at Pearl Parade and all the residents got to know each other.  I got to know David Markham as I did other residents.  We used to all sit on the grass and socialise.  I am not sure, but at that time I think he was seeing someone who I think was his girlfriend.  I don’t know why he moved in with his brother.

15.At some point after I had met David Markham, he was involved in a heated and violent argument with his brother, who evicted David from the unit they were sharing.  I offered to let David store some of his belongings at my flat, and to use my address to receive mail, as I could see he was desperate.

16.I was seeing Sharnie’s father at the time.  He is known by several names, including Rolf Meister, Hino Meister, Peter Schmidt and Wolfgang Hauser.

17.I agreed to let David Markham use my address as his mailing address because I know what it is like to be kicked out on the streets without any support.  He worked away, but he came around occasionally.  I believed that we were friends, and I was just trying to help him out.  I thought that this situation was going to be a temporary one.

18.I found out I was pregnant in 1994.  Sharnie’s father was someone that I met through nightclubs.  He was my boyfriend and I was seeing him for over twelve months but less than 2 years.  I never lived with him.  I told Sharnie’s father of the pregnancy, and that was the last time I saw him.  I went to the place where we used to drink socially but no-one would tell me where he was.  I have never seen him since this time.  My daughter knows that her father is somewhere, but she has never met him.

19.I transferred my accommodation to Clarkson because I was attacked by someone with a knife at the flats in about 1988/1989.  I requested a Homeswest transfer and had to wait for about 5½ years before I was moved.

20.I was moved into Homeswest accommodation at … Heppell Gardens, Clarkson in 1994.  I was living on my own at that time.  The accommodation was listed in my own name.

21.At the time I was living at Heppell Gardens, David Markham was still using my address as his mailing address.

22.I asked him to make other arrangements for his mail, and he said he would and that he would do something soon but he never did.

23.I asked the Post Office if I could open a PO Box in his name, they said that this was not possible.  I gave David Markham the forms to fill out, but he didn’t do it.

24.I informed Centrelink that Mr Markham was using my address as a mailing address and I was always told this wouldn’t be a problem.  This was at Joondalup Centrelink.

25.One time during my pregnancy I felt pains.  David Markham was at a friend’s house, but he had a pager on which he could be contacted.  I was talking to him on the phone when I felt pains.  I told him that I was having pains and he arranged for a taxi to take me to hospital.  He booked the taxi and when it came, I went on my own to hospital, which was Wanneroo Hospital.

26.David Markham met the taxi at the Hospital.  I saw him for about 5 minutes, and he asked me whether I wanted him to stay.  I said no, because I wasn’t sure how long it would take.  If I had asked him to wait, I assume that he would have waited for me like any other friend.

27.Sharnie was born on … March 1995.

28.Sharnie was born at Joondalup Health Campus.  I went to the hospital not long before Sharnie was born.  A friend of my sister, Ali Gibbons, came with me to the hospital at that time as I had no-one else.  My sister was not in the country at that time.  He was pretty agitated about the food that I had been given to eat in the hospital. He may have spoken to the staff about other issues but I am not aware of this.

29.David Markham was not in Perth when I went into labour with Sharnie.  My sister was not in the country and I had no other family support.  No-one else except hospital staff were with me when Sharnie was born.

30.I was in hospital with Sharnie for a few days and the midwife visited me at home after Sharnie was born.

31.I decided to call my daughter Sharnie Louise Markham Schatz as a gesture.  David Markham is Sharnie’s godfather.  That is how my daughter knows Mr Markham.

32.David is the one who originally gave me the money to pay the taxi.  I paid him back.

33.When I sent Sharnie’s details into Centrelink with a copy of her birth certificate they saw that her name is Sharnie Louise Markham, last name Schatz.

34.When they sent out her Health Care Card, it came out as Sharnie Louise, last names Markham-Schatz.

35.I wrote to them in 1996 when I had applied for Child Disability Allowance for Sharnie.  In that letter I asked them to change their records to show Sharnie’s last name as Schatz.  This still did not happen.

36.Sharnie’s Medicare card also had her last name as Markham-Schatz.  Her last name would appear at the doctor’s as either Schatz or Markham-Schatz.

37.Medicare finally changed the Medicare card to Sharnie Louise Markham, last name Schatz in 2006.

38.In 1996 I started dating a guy named Paul K….  I can’t remember exactly how long I dated him for but it was over two years.  He did not live with me; we were only dating.

39.David Markham worked away from Perth.

40.When he came back to Perth from working away, he would come to Heppell Gardens.  Sometimes he would come to my house the first night, sometimes later.  He would come back to pick his mail up and see how I was.  It was always my understanding that he stayed with other people when he was back in Perth.

41.I lived at Heppell Gardens for about 9 years.

42.Sharnie went to Peter Moyes Anglican Community School, for Pre-Primary and part of Grade 1.

43.Then I moved her to Quinns Baptist College.  I moved her there because I wasn’t satisfied about the assistance Peter Moyes were giving Sharnie.  Sharnie has concentration problems, ADHD, a violent temper at times, sleeping problems, migraines, sinuses, ears damaged, back problems and learning problems.  She was on dexamphetamine at the time but they made her like a zombie.  She slept most of the time.

44.When I registered her at Peter Moyes in 1999 I told them her last name was Schatz.  At day care, she was really severely teased about her name, to the point that she did not want to go to day care.  I know how she feels because I went through the same thing.

45.I asked the school if it was okay for her to use the name Markham to stop the teasing.  They agreed because they believed that it would harm Sharnie’s learning if she was teased all the time.  All the reports were written with the surname Markham.

46.I have listed 3 friends who could pick up and drop off Sharnie from school.  David Markham was only to be contacted as an emergency if I had given notice to the teachers or school and only if no-one else could be contacted in an emergency and only if he was in Perth.  He was hardly ever in Perth as far as I knew.

47.When I transferred Sharnie to Quinns Baptist in 2001, in my enrolment agreement, I asked that her surname was listed as Markham because of the teasing.  I showed them all the paper-work, including Sharnie’s birth certificate which showed that her surname was Schatz.  This was photocopied for their records.  The school agreed with the other school because Sharnie has learning problems, so it would affect her more if she got teased about her name, and might make her ADHD worse.

48.At Quinns Baptist, myself, Wendy Taylor and Yvonne Lowe were the only people with permission to pick up Sharnie from school.  This was only if I notified the school.

49.I did not list David Markham as an emergency contact.

50.David Markham never went to the school to pick up Sharnie.  He never did homework with her.  He told me he is totally illiterate.

51.It was at the end of 2000 when I started seeing Alan W….  I met him at a coffee shop in town.

52.My relationship with Alan W… was that we were friends at first.  Everything was fine at first.  He did not live with me, or stay over at my house.  He was living with friends in a flat in Wembley, and a couple of times I stayed over with him.

53.Alan started getting possessive.  Over time his behaviour got worse.  He was really controlling and started checking up on me.  He also started asking harassing telephone calls.

54I hadn’t seen David Markham for over a month when he came screaming down my drive-way.  I mentioned mildly to him that I was having problems.  But this day when he came to pick up his mail he was in a foul mood.  He came screaming up the drive-way, and he was so wild.  I asked him what was wrong, and he started cursing all women.  He called all women under the sun all sorts of words, and that (sic) they were nothing but trouble.  I asked him if he wanted to talk, but he said that I was just one of them.  He snapped at me, grabbed me and threw me to the side.

55.After that I went to Homeswest sometime in 2002 and asked for a transfer closer to my sister.

56.In December 2002 I moved to my sister’s place in Armadale.  I wanted Sharnie to finish the year at Quinns Baptist.  The school term finished around December 2002.  While Sharnie was going to school, we were still living in Clarkson.

57.I previously did not know where my sister was, but I contacted my mother and she told me my sister’s address.

58.David Markham never had keys to my house at Scarborough, Clarkson or at Armadale.

59.From December 2002 until late 2003/early 2004 I was living at my sister’s full time.  I was going back to Clarkson on and off to check on the place.  I put my furniture in storage at Kelmscott Self-Storage.  I didn’t hand my keys in to Homeswest until I’d been given my transfer and was given the keys to the other place.

60.I think the transfer happened around October 2003.

61.I didn’t move in straight away because my stuff was still in storage and I didn’t have the money to get it out.  My brother-in-law, Errol Marshall, and I fixed up a few things, like painting, before I moved in.

62.Errol helps me out a lot around my place.  My sister and he are there about 3 or 4 times a week; sometimes they would be there more than that.  This is usually in the evening as I am helping at Sharnie’s school during school hours.

63.The sorts of things that he helps with is the gardening and he has just finished building a pantry for me and a cupboard for Sharnie.

64.Following the end of 2002 Sharnie no longer attended Quinns Baptist College.  For the first two weeks after school began she did not attend school and I picked up school work for her to do at home.  After that she went to Gwynne Park Primary School in Armadale.

65.When I moved into Cohuna Drive, David Markham turned up one day with his new car.  This was a new Holden Monaro.  He asked me whether he could store the car behind the gates at my house until he made alternative arrangements.

66.He had found out where I had moved to because he had gone to my sister’s house to get his mail as he still hadn’t changed the PO Box address.  My sister gave him my address.

67.David Markham said that I could use the car if I put the fuel in it.  At that time, I did not have a car.  David Markham told me that he couldn’t afford to put his car in storage because he has all his other stuff in storage and it would cost too much.

68.I agreed to this in the short term.  He told me he couldn’t do anything else at that time about storing the car.

69.I also told him again about getting his own PO Box.

70.I was told by David Markham that he had registered his car at my place.  He registered the car at my house and told me he had done so later.  This was only meant to be a temporary arrangement.  The car has Holden Assist, and the company required a residential address.  He did this without asking for or receiving my permission.  David Markham doesn’t think when he does things.

71.I don’t know how David Markham pays for insurance.  I don’t know what address is used for insurance.  To my knowledge I am not listed on his insurance as a driver of the vehicle.

72.I would drive Mr Markham to the airport to drop him off.  I would also pick him up from the airport when he returned to Perth.  I would pick him up and drop him off about 90% of the time.

73.I applied for and got a Myers Card under the name of Schatz.  This was in the 1980s.

74.I had a loan with the ANZ in my own name in the 1980s.

75.I had two Commonwealth Bank Accounts both in my name only.  No-one else was a signatory to these accounts.  Sharnie had a Dollarmite account to which I am a signatory solely.

76.I used to have a National Australia Bank account prior to my knowing David Markham.

77.I also had a Westpac account that was solely in my name.  This account was closed in 2004.

78.I have two accounts with Bankwest.  Both accounts are solely in my name.

79.David Markham was a signatory to the account that my DSP went into.

80.He asked me if there was any way I could pay his bills if he organised to give me the money.  He only ever put money in to pay the bills.  He would put close to the correct amount into my account.

81.I have looked through my bank statements and although my recollection was that this only happened a few times, it looks like it happened about 19 times.

82.Sometimes David Markham would help me out with bills as well, especially if I had disconnection notices for power.  He would transfer money to my Bankwest account and I would always pay him back, usually by Bpay over the phone.

83.I was declared bankrupt in the 1980s, and have been discharged.

84.I had private health cover with HBF between 6 June 2000 and 22 March 2001.  I was told by an assistant at HBF that everyone situated at the same address could be included on the same policy.

85.When I went to HBF to include him on my policy, I asked how to write him down.  A customer service officer advised me to write him down as a partner.  I said that he wasn’t my partner.  She said that this would mean that he would definitely be covered.

86.The policy lapsed because he made the first couple of payments, but I couldn’t afford to keep asking for money to keep up the policy.

87.I am not aware of the details of any loan applications that David Markham has made, and the addresses that he uses.  He has never discussed his loan applications with me.

88.I have no knowledge of a statement that David Markham apparently made in relation to a girlfriend in 1995.

89.When I attended Stirling Lakes Medical Centre the surgery would sometimes refer to Sharnie as Sharnie Markham Schatz and sometimes Sharnie Schatz.  This is a problem that I have had because of the Medicare card and the Centrelink card having her surname as Markham-Schatz.

90.Since all this has happened with Centrelink David Markham has been violent towards me.  On 22 January 2006 he came to my house at … Cohuna Drive and was violent towards me.  He threatened me and Sharnie.  A neighbour in an adjoining street called the police and they came.  He exploded when he saw the police.  The police arrested him and placed a restraining order on him.  He wasn’t allowed to come near the house or us.

91.I went to the Armadale Court and was given a Violence Restraining Order against him.  The Violence Restraining Order covered me and Sharnie.

92.As far as I know the police have not been able to serve the Violence Restraining Order on David Markham as they do not know where he lives.  I can’t tell them where he lives as I don’t know his whereabouts.

93.We have a reserve at the back of my place and he comes to the reserve and if he sees me in the back yard he yells out ‘you are going down you fucking mole’.  He has threatened to ‘gut Sharnie and me like pigs’ and at night time we hear noises and tapping and trees have been pulled out of my front yard.

94.I am too scared to phone the police because if he is hanging around in the reserve and sees them I don’t know what he will do.

95.I remember Centrelink ringing me in 1998 about who was living at my house.  In 1998 Steve C… came to stay with me for about four weeks.  At the time I was asked by friends to let him stay because he had just come out of prison.  Steve C… was David Markham’s brother.

96.Steve had tried to claim rental assistance from Centrelink and I rang Centrelink to let them know, because this was a Homeswest house and I didn’t want trouble.  I asked Centrelink not to let Steve know I was the one who tipped them off.

97.He tried to bring drugs into the house but I told him he wasn’t allowed to.

98.When Centrelink rang me I told Centrelink that David Markham doesn’t live with me and works away.  I also told them that he stays with friends when he is in Perth.

99.I told Centrelink that I would be asking Steve to leave which I did.

100.Centrelink decided at that time that there was no evidence to show that I did not live as a single person.

101.In 2001 Centrelink asked me for information about David Markham.  I gave them a letter explaining that David and I are friends and explaining how we sometimes help each other out.

102.Centrelink decided at that time that I was not in a marriage-like relationship with David Markham.

103.At present I am helping as a parent helper at Sharnie’s school.  I have done this since 2003 and I am there every day that Sharnie is at school.  I love doing this, I love the kids and I really enjoy it.

104.The school loves me being there and have told me that they can’t do without me.

105.I’m involved in the music at the school and in the class rooms and phys ed.  I also help in the office when they need.

106.At Cohuna Drive the only neighbour I know socially is Tina Fraser.

107.When Patricia and Les Jury lived at … Cohuna Drive I knew them.

108.I do not know any other neighbours other than by sight.  I do not socialise with them.

109.When living at … Heppell Gardens I generally did not socialise with the neighbours.  I was friendly with only one neighbour for a period of time.

110.In 2001 when I was living at … Heppell Gardens I provided Centrelink with the names of 4 people who could tell them about my living arrangements.  None of these people were neighbours.

111.I have a few regular visitors to my house who have red and burgundy-coloured cares.  My brother-in-law, Errol Marshall, has a burgundy-coloured sedan.  Another friend, Mr Andrew Price, drives a rich red-coloured sedan.  Both visit my house regularly during the week.

112.Mr Marshall will often take my bins back in when he visits.  This is often in the late afternoon or evening.

113.I do not put our bins out at night time because hoons come by in the night and knock them over.  I have not put the bins out at night since the first and last time I did it when I first moved into Cohuna Drive.

114.My GP has referred me to a cardiologist for the constant chest pain and to a psychiatrist for assessment”.

The evidence of the witnesses called by the respondent

Andrew Price

10.     Mr Price gave the following evidence:

·     he has lived in Mandurah since late 1994;

·     he first met the respondent, who was then a friend of his wife (who passed away in 2005), in 1995;

·     the respondent was living in Heppell Gardens, Clarkson when he first visited her there, with his wife and 3 daughters, in 1995, and he visited her at that address about 4-5 times in 1995;

·     as far as he was aware, the only people living in the Heppell gardens house were the respondent and her daughter, Sharnie;

·     the Heppell Gardens house had three bedrooms, one for Sharnie, one for the respondent, and the third room was used for storage;

·     the bathroom was a “girlies” bathroom, and he did not notice any “male belongings” there, nor did he recall seeing any belongings in the house which might have belonged to a male person;

·     when he visited the respondent he was in the house for 1-2 hours and he never went looking around the house;

·     he never met a person called David Markham and the respondent never talked to him about a person called David Markham;

·     he has never met Sharnie’s father, nor has Sharnie ever said anything to him about her father;

·     he recalled seeing a Sigma car and an orange-coloured Holden Premier car parked at the Heppell Gardens house;

·     from 1996 to 2000 he worked away from Perth on mine sites and he did not see the respondent much in that period;

·     in 2000 the respondent introduced him to a man called Alan, and, when her relationship with Alan ended after about 6 months, she told him that Alan had been physically abusive towards her;

·     from 2002 to 2005 he and his wife visited the respondent at Cohuna Drive, Armadale about once a fortnight;

·     since his wife passed away in November 2005 he and the respondent have become closer as friends and he continued to visit her and he presently visits her about once a week when he comes to Perth for medical treatment;

·     the Cohuna Drive house is small, and he has noticed two bedrooms, one occupied by Sharnie, the other occupied by the respondent, although he is not sure of the total number of bedrooms in the house;

·     he has noticed that the bathroom is “very girlie” and has not noticed any “male belongings” there, nor has he ever noticed any belongings in the house “that would clearly belong to a male”;

·     he noticed a silver-grey Holden Monaro car in the backyard of the Cohuna Drive house prior to March 2006, and the respondent told him that she was “keeping an eye on it for a friend who worked away and had nowhere else safe to store it”;

·     he presently drives a red 1991-92 model Commodore and, when he has previously visited the respondent, he has driven a blue 1992 model Statesman, a Falcon station wagon and a champagne-coloured Falcon sedan;

·     on the occasions when he has visited the respondent at Heppell Gardens and Cohuna Drive he has only ever seen two males there, namely, Errol Marshall and “another man”, whose name he could not recall, who was there with his wife.

Errol Marshall

11.     Mr Marshall’s evidence was as follows:

·     he is the respondent’s brother-in-law, having married her sister, Angela, in February 1998;

·     he first met the respondent in May 2000 when he moved to Perth from New Zealand;

·     when he and his wife arrived in Perth in May 2000, they stayed with the respondent at the Heppell Gardens house for 2-3 months before moving to Armadale;

·     about 3-4 years ago the respondent and Sharnie stayed with him and his wife in Armadale for about 13 months after she moved out of the Heppell Gardens house and before she moved in to the Cohuna Drive house;

·     as far as he is aware, the respondent has lived only with her daughter, Sharnie, and  has not lived in a de facto relationship with a male person since he has known her;

·     he has never met David Markham and had never heard of him until 2005 when the respondent’s current problem with Centrelink arose;

·     he has never queried with the respondent the inclusion of the name, Markham, in Sharnie’s full name;

·     although he recalled seeing a silver Holden Monaro at the Cohuna Drive property once or twice, and the respondent telling him that she was storing it for someone, he did not enquire further because “it was nothing to do with him”.

Tina Fraser

12.     Ms Fraser’s evidence was as follows:

·     she has lived in Cohuna Drive, Armadale since 2002, and became friends with the respondent who lived nearby;

·     the respondent used to babysit her two children about once every 1-2 weeks, usually in the evening, up until the end of 2005;

·     she has visited the respondent at her house about once every 1-2 weeks;

·     she has never seen a male person, other than the respondent’s brother-in-law, at her house, nor has she noticed any belongings other than the respondent’s belongings at the house;

·     she has never seen the respondent with a male partner;

·     she once noticed a red Holden Monaro at the respondent’s house and the respondent said that she was looking after it for a friend, but she had never met or seen that person;

·     the respondent had previously told her that she was receiving harassing telephone calls from a man called Dave.

Bruce Macauley

13.     Mr Macauley gave evidence as follows:

·     he has been the Principal of Tom Price Primary School since July 2006, and he was formerly the Principal of Gwynne Park Primary School, Armadale from October 2003 to July 2006;

·     the respondent’s daughter, Sharnie, was enrolled at Gwynne Park Primary School from 2003;

·     in February 2004 the respondent advised him that she was the only responsible adult to pick Sharnie up from school, and that arrangement was noted on Sharnie’s enrolment card;

·     from October 2003 he sometimes saw the respondent drop Sharnie off at school, and he never saw any person other than the respondent either drop Sharnie off at school or pick her up from school;

·     during his time at Gwynne Park Primary School the respondent undertook voluntary work at the School which included assisting the class room teacher and the physical education teacher in their teaching duties;

·     he generally had daily contact with the respondent in her capacity as a voluntary helper at the School, but his contact and conversations with her were of a general nature and did not relate to personal matters.

Dr Jonathon Bell

14.     Dr Bell’s evidence was as follows:

·     he has been a general practitioner since 1997 and he was the respondent’s treating general practitioner from 27 January 1999 to the end of 2004 during which he saw her on approximately 45 occasions;

·     during that period he treated the respondent primarily for chronic pain syndrome, and he also treated her daughter, Sharnie;

·     his progress notes confirm his recollection that, during the period 1999-2004, the respondent did not mention a “partner” or “de facto” to him and she did not attend any appointments with him accompanied by a male person;

·     as regards the reference to an “abusive relationship” in his notes of 5 February 2001, his recollection is that the respondent told him that it was a short-term relationship;

·     the respondent told him in April 2003 that she had ended a casual relationship after being hit;

·     to the best of his recollection, the respondent did not, during the period in which he was her general practitioner, mention a David Markham;

·     the respondent gave him the impression that during the period 1999-2004 she was a single mother and that she cared for Sharnie on her own;

·     to the best of his recollection and knowledge, and having referred to his progress notes, the respondent did not, during 1999 and 2000, discuss with him any desire to conceive;

·     he did not recall, and there was no reference in his notes to, the respondent having had a pregnancy test at St John of God Pathology on 29 November 1999, but such a pregnancy test is standard procedure for patients, like the respondent, who report irregular periods;

·     on 27 October 2000 he referred the respondent to Dr Vince Chapple, Obstetrician and Gynaecologist, because of menstrual problems.

Dr Raji Krishnan

15.     Dr Krishnan gave the following evidence:

·     she has been the respondent’s treating general practitioner from 2005;

·     she prepared three reports in 2007,at the request of the respondent’s legal representative, regarding the respondent’s medical condition and, in particular, her fitness to give evidence at the hearing in this matter (Exhibit R6);

·     in her most recent report, dated 10 October 2007, Dr Krishnan set out the respondent’s mental and physical conditions and her medications, and opined that giving evidence would be extremely stressful and present significant difficulty for the respondent and would be likely to have an adverse impact on her physical and mental health.

Lisa Irving

16.     Ms Irving gave evidence as follows:

·     she is a clinical psychologist and has been treating the respondent since February 2007;

·     at the request of the respondent’s legal representative, she prepared a report, dated 28 February 2007 (Exhibit R1), and a further report, dated 7 May 2007 (Exhibit R2), regarding the respondent’s mental state and her fitness to give evidence at the hearing in this matter;

·     in her reports she referred to the respondent’s severe depressive and anxiety symptoms and her inability to cope, and she opined that the respondent “would experience extraordinary stress as a witness” and “would not respond well” to that experience.

Senior Constable James Little

17.     Senior Constable Little gave evidence as follows:

·     he has been a member of the Western Australia Police Service for 30 years and has been stationed at Armadale Police Station since 2005;

·     he and another officer responded to a call to attend premises in Cohuna Drive, Armadale on 22 January 2006;

·     on arrival at the premises he was verbally abused by a man named David Markham who he thought was high on amphetamines;

·     the respondent was inside the house and appeared to be scared;

·     he and his fellow officer were able to restrain David Markham, and he issued a Police Order to David Markham for the protection of the respondent for a period of 24 hours;

·     David Markham ran away from the premises but returned shortly afterwards whereupon he and his fellow officer also returned to the premises where they arrested David Markham and removed him to the Police Station where he was charged with breaching a Police Order and resisting arrest;

·     during the incident the respondent told him that David Markham and she were just friends, that he was not living there and that she was “storing gear” for him;

·     he recalled seeing a room in the house that contained “boxes of gear”.

The evidence of the witnesses called by the applicant

“Confidential witness 1”

18.     This witness gave the following evidence:

·     this witness lives in Cohuna drive, Armadale;

·     this witness believes, on the basis of this witness’ observations, that the respondent is living in Cohuna Drive with a man who is her spouse;

·     this witness cannot remember the name of that man;

·     this witness’ observations were that there were periods of time when that man was away from the house – this witness thought he was away working on mine sites – followed by periods when he was at the house;

·     this witness normally noticed that man in the evenings and did not normally see the respondent and that man together in the front yard or outside the house or coming and going from the house together;

·     this witness saw that man parking a green-coloured car in the backyard of the house and on one subsequent occasion this witness saw him driving a burgundy/red-coloured car.

“Confidential witness 2”

19.     This witness (who is the spouse of “confidential witness 1”) gave the following evidence:

·     this witness’ observation is that a man, a woman and a young girl are living in the Cohuna Drive house occupied by the respondent, but this witness does not have any real contact with those people;

·     on one occasion this witness spoke to that man and the man referred to his “wife’s car”;

·     this witness does not see that man very often – he seems only to come out at night to put out the rubbish.

Paul Maishman

20.     Mr Maishman, a Centrelink officer, gave the following evidence:

·     he took a statement from “confidential witness 2” at that witness’ home, and, on the same occasion, another Centrelink officer took a statement from “confidential witness 1”;

·     although “confidential witness 1” and “confidential witness 2” were in the same room and within hearing distance of each other when they made their statements, they made their statements separately and not collaboratively.

“Confidential witness 3”

21.     This witness gave the following evidence:

·     the respondent, David Markham, and “their daughter, Sharnie” resided in Heppell Gardens, Clarkson until 2003;

·     this witness also resided in Heppell gardens and knew the respondent and David Markham as neighbours;

·     this witness visited the respondent in her house on approximately 10 occasions;

·     this witness observed that there were three bedrooms in that house – one was Sharnie’s, another was a storage room, and another was David Markham’s and the respondent’s room;

·     the respondent told this witness that David Markham was Sharnie’s father, and Sharnie referred to David Markham as “dad”;

·     this witness believed that David Markham worked away in the mines because he seemed to be away from home sometimes;

·     this witness regularly saw David Markham around the house but mostly at night, and has seen him out the front of the house drinking a coffee at 2.00 am;

·     the respondent told this witness that David Markham abused her, but this witness never saw David Markham abuse the respondent;

·     this witness believed that David Markham and the respondent were living together as a family with their daughter, Sharnie, when they resided in Heppell Gardens.

Patricia Jury

22.     Mrs Jury gave evidence as follows:

·     she and her husband lived next door to the respondent in Cohuna Drive, Armadale from February 2005 to May 2006;

·     she first met the respondent and David Markham in February 2005 and, during the period when they were next-door neighbours, she became close to the respondent and they often talked;

·     the respondent lived there with her daughter, Sharnie (who was then about 10 years old) and David Markham;

·     Mr Markham was working away at the mines but from May 2005 to May 2006 he was unemployed and lived full time at the Cohuna Drive house;

·     the respondent had told her that David Markham hid his car in the backyard of the house to prevent its being repossessed;

·     she was able to look over the fence by standing on a chair and she saw a green-coloured car with “DAVY” on the number plates at the back of the house;

·     she rarely saw David Markham because he stayed indoors most of the time but she knew he was at home because he and the respondent often had violent and heated arguments and she could hear him swearing and shouting;

·     the respondent told her several times that she was not in a relationship with David Markham and that he merely left his car at her house while he was away, but she did not believe this because David Markham “obviously lived with” the respondent at Cohuna Drive and the respondent and David Markham “interacted as a couple”;

·     she believed that, during the time she lived next door to the respondent, David Markham and the respondent were “living like a married couple”.

Dr Vince Chapple

23.     Dr Chapple, Obstetrician and Gynaecologist, confirmed that he saw the respondent on 4 December 2000 following a referral from her general practitioner, Dr Bell.  He added that he had expected her to return for a follow-up consultation, but she did not.

24.     Dr Chapple confirmed that, in his clinical notes and his report of 4 December 2000 (Exhibit A2), he had recorded that, inter alia:

·     the respondent’s “partner David”, 31 years of age, worked away for 12 days and was at home for 4 days;

·     she stopped taking the contraceptive pill in December 1999 and had been “actively trying to conceive”.

He added that the respondent had “volunteered” the information about “David”.

25.     Dr Chapple also confirmed that it was very likely that the respondent had provided the information recorded in the patient details form completed at his surgery on 4 December 2000.  The Tribunal notes that that information included the following:

·     as regards the respondent’s “status”, the box marked “Single” is ticked (the other boxes being marked “Married”, “De facto”, “Divorced”, and “Widowed”;

·     under the heading “Emergency Details”, the “contact name” is “Mrs Bev Milbourne”, and the “next of kin (person to contact in an emergency)” is “Mr D Markham” (part of Exhibit A2).

Karen Mennell and Steven Watson

26.     Ms Mennell and Mr Watson are Centrelink officers.  In 1998 Mr Watson was the Team Leader of the Mobile Review Team at the Centrelink Innaloo office and Ms Mennell was a member of that Team.  Ms Mennell and Mr Watson created a Centrelink record of 9 July 1998, which related to an investigation of the respondent’s living arrangements at that time, which concluded:

“There appears to be no evidence to support any thought that client does not live as a single person.” (T 49)

Documentary material relied on by the applicant

27.     Documentary material claimed by the applicant to support the proposition that the respondent and David Markham were in a marriage-like relationship, for the purposes of s 4(2)(b)(iii) of the SS Act, during the relevant period includes the following:

Financial aspects

·receipts, dated 10 April 1994 and 1 May 1994, signed by the respondent for money received from David Markham for rent in the amount of $100.00 per week (T234, p 689);

·information provided by ANZ Banking Group that David Markham was a “third party signatory” in respect of an account in the name of “Petra Schatz as trustee for Sharnie Louise Schatz” which was opened on 16 December 1994 (T139, p 359);

·information provided by Bankwest that the respondent and David Markham were authorised signatories in respect of an account in the name of “Petra Schatz” which was opened on 22 September 2000 (T136, p 342);

·Bankwest account statements which record that, in the period from October 2000 to December 2005, funds were transferred periodically from the respondent’s account to David Markham’s account (totalling approximately $1,724.00) and funds were transferred periodically from David Markham’s account to the respondent’s account (totalling approximately $5,027.00) (T293 – T297);

·correspondence from the respondent to Centrelink, dated 10 April 1996, in which she stated that her “friend David Markham ha(d) joined [her and her daughter] to a HBF fund” because she could not afford it (T16, p 41);

·information provided by HBF that, from 6 June 2000 to 22 March 2001, the respondent held a “family policy which covered Petra Schatz (owner), David Markham (partner) and Sharnie Louise Markham-Schatz (dependant)” (T155, p 395);

·The Industry Superannuation Fund Membership Application Form signed by David Markham, dated 9 November 2004, in which the nominated dependent beneficiaries are as follows:

“Sharnie Louise Schatz – daughter of fiancée – 50%

Petra Schatz – fiancée – 50%” (T274, pp 877-878);

Nature of the household

·correspondence from the respondent, dated 5 May 1994, in which she stated that David Markham had “started to rent a room” (in the unit in Pearl Parade, Scarborough in which she was residing) on 10 April 1994 for $100.00 per week “rent plus expenses” (T234, p 690);

·Centrelink form signed by David Markham, dated 31 May 1994, in which it is stated that David Markham had changed his home address to Heppell Gardens, Clarkson on 25 May 1994 and had “move(d) in” on 29  May 1994 (T235, p 692);

·Centrelink form signed by David Markham, dated 26 June 1995, in which it is stated that David Markham’s home address is Heppell Gardens, Clarkson and that he pays rent of $100.00 per week to “Mr R Colman” of the same address (T238);

·correspondence from “R Colman”, dated 6 July 1995, in which it is stated that David Markham is living at Heppell Gardens, Clarkson and pays “$105.00 per week for rent only plus expenses” (T242);

·information provided by Homeswest on 12 December 1995 that the respondent has been residing at Heppell Gardens, Clarkson from 17 May 1994 to date (T15, p 35);

·correspondence from the respondent to Centrelink, dated 10 April 1996, in which she gave her address as Heppell Gardens, Clarkson and stated that she allowed David Markham’s mail to “come to [her] place” and allowed him to “crash some night (sic) when he comes back to Perth” (T16, p 41);

·information provided to Centrelink by the school at which Sharnie Louise Schatz was enrolled in 2000-2001 indicates that the respondent and David Markham were recorded as having the same landline telephone number (T120);

·documentation provided by a financial institution to Centrelink in November 2004 records that David Markham’s address, as at 23 May 2003, 14 July 2003 and 14 August 2003, was Heppell Gardens, Clarkson (T254);

·documentation provided by David Markham’s employer to Centrelink in January 2005 records that David Markham’s address, as at 1 November 2004 was Cohuna Drive, Armadale (T263);

Social aspects

·documentation provided by Joondalup Health Campus (formerly Wanneroo Hospital) to Centrelink in October 2005 includes a record of an antenatal appointment for the respondent on 4 October 1994 in which her marital status is referred to as “De Facto” and her next of kin is referred to as “David Markham” whose relationship to her is “D/F” (T226, p 628);

·documentation provided by Joondalup Health Campus regarding the respondent’s confinement from 8 March 1995 to 10 March 1995 records David Markham as the “local contact” and as an “emergency contact” and refers to the respondent’s “partner” as being extremely concerned regarding her care, “very angry about having to wait …”, and “very aggressive in the manner in which he spoke regarding what he wants” in relation to “his de facto” (T226, pp 612, 615, 616, 618);

·documentation provided by Joondalup Health Campus regarding the respondent’s admission on 14 December 1997 refer to the respondent as “Petra Markham Schatz” and to her next of kin as “Mr Markham Schatz” (T226, p 606);

·documentation provided by Joondalup Health Campus regarding the respondent’s admission on 9 November 2001 refer to the respondent’s next of kin as “David Markham” and his relation to her as “partner” (T226, p 597);

·employment application form signed by David Markham, dated 19 January 1999, in which his next of kin is named as “Petra Schatz” (T266, p 799);

·information provided to Centrelink by the school at which Sharnie Louise Schatz was enrolled in 2000-2001 indicates that “Dave Markham” was recorded as the respondent’s “spouse/partner” (T120);

·employment commencement form signed by David Markham, dated 9 October 2000, in which his next of kin is named as “Petra Markham” whose relationship to him is referred to as “fiancée” (T260, p 788);

·information provided to Centrelink by David Markham’s employer from August 2003 to July 2004 indicates that David Markham’s nominated next of kin and emergency contact was “Petra Schatz” whose relationship to him was referred to as “partner” (T253, p 722);

·report by Baycorp Advantage Business Information Services, dated 19 November 2004, which indicates that the respondent used the name “Petra Markham” for employment purposes on 18 October 1999 (T118, p 275);

·The Industry Superannuation Fund Membership Application Form signed by David Markham, dated 9 November 2004, in which the respondent is nominated as a beneficiary and her relationship to David Markham is referred to as “fiancée” (T274, p 878);

Sexual relationship

·clinical note of the respondent’s general practitioner, dated 22 March 1994, which states (inter alia):

“planning pregnancy, has met Mr Right, not planning marriage …” (part of Exhibit A8);

·Joondalup Health Campus records regarding the respondent’s confinement on 8-10 March 1995 (T226, pp 611-619);

·Clinical note of the respondent’s general practitioner, dated 6 July 1998, which states (inter alia):

“trying to get preg” (part of Exhibit A7);

·St John of God Pathology pregnancy test report regarding the respondent dated 29 November 1999 (part of Exhibit A7);

·report of Dr Vince Chapple, Obstetrician and Gynaecologist, dated 4 December 2000, regarding the respondent which states (inter alia):

“With regards to sub-fertility, she came off the pill Norimin 1 about a year ago and since then has been actively trying to conceive.  Her partner David, is a 31 year old who works away 12 days out of every 16 which, of course, may be part of the problem …” (part of Exhibit A2).

Analysis

28.     In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 French J, after considering various authorities relating to former statutory provisions corresponding to s 4(2) and s 4(3) of the SS Act, said (at 555-556):

“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; and

(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; or

(e)mutual commitment.”

29.     The matter for the Tribunal’s consideration is whether, in its opinion, the respondent was in a “marriage-like relationship”, for the purposes of s 4(2)(b)(iii) of the SS Act, with a male person during the relevant period.  The applicant submits that the respondent was in a “marriage-like relationship” with David Markham for the whole of the relevant period.

30. For the purpose of forming an opinion about the nature of the relationship (if any) between the respondent and David Markham – in particular, whether they were in a “marriage-like relationship”, for the purposes of s 4(2)(b)(iii) of the SS Act, during the relevant period – the Tribunal will, in considering the whole of the evidence before it, have regard to the matters and associated factors specified in s 4(3) of the SS Act and to any other relevant circumstances.

Financial aspects

31.     There is no evidence before the Tribunal that, in the relevant period, the respondent and David Markham jointly owned any real estate or other substantial assets, held any joint accounts at banks or other financial institutions, or had any joint liabilities; nor is there any evidence that, in the relevant period, either of them owed any legal obligation in respect of the other.  There is, furthermore, no direct evidence of any significant pooling of financial resources or of any sharing of day-to-day household expenses by the respondent and David Markham.  As regards the lastmentioned factors, the applicant submitted that the fact that, during the entirety of the relevant period, the respondent and David Markham “reported their residential addresses as being the same … supports the inference of financial pooling in the context of household expenses”.  The Tribunal, however, is not prepared to draw such an inference on the basis submitted by the applicant.  The Tribunal will consider the evidence regarding the living arrangements of the respondent and Mr Markham under the heading “Nature of the household” below (see paragraphs 35-38).

32.     There is some objective evidence before the Tribunal which is indicative of a degree of financial cooperation between the respondent and David Markham during the relevant period.  That evidence includes the following:

·     David Markham was an authorised signatory in respect of two bank accounts (one opened on 16 December 1994, the other opened on 22 September 2000) held by the respondent;

·     funds totalling approximately $5,027.00 were transferred periodically from a bank account held by David Markham to a bank account held by the respondent, and funds totalling approximately $1,724.00 were transferred periodically from a bank account held by the respondent to a bank account held by David Markham, in the period from October 2000 to December 2005.

There is, however, no evidence before the Tribunal which explains the abovementioned banking arrangements and funds transfers other than the evidence of the respondent to the effect that she and David Markham had an arrangement whereby each of them would assist the other in paying the other’s bills.

33.     There is some evidence before the Tribunal which is indicative of David Markham’s having provided financial support to the respondent in the relevant period, namely, the respondent’s evidence that David Markham paid for private health insurance covering her and her daughter in 1996 and 2000.  There is also some evidence of David Markham’s having made future financial provision for the respondent and her daughter by nominating them as the beneficiaries of his superannuation in November 2004.

34.     In the Tribunal’s opinion the totality of the evidence in respect of the financial aspects of the relationship between the respondent and David Markham does not weigh significantly in favour of a marriage-like relationship between them in the relevant period.

Nature of the household

35.     There is much documentary material before the Tribunal which evidences that, during the relevant period, David Markham gave, as his address, the same address as that where the respondent was then residing, namely, Pearl Parade, Scarborough (in April 1994), Heppell Gardens, Clarkson (in the period May 1994 – December 2002), and Cohuna Drive, Armadale (from October 2003).  The respondent’s evidence was, however, that David Markham never resided in, or had keys to, any of her residences but that she allowed him to use each of her addresses as a mailing address because he worked away from Perth and that when he came to collect his mail from time to time he would stay overnight and then leave in his car.  The respondent’s evidence that David Markham did not reside with her at Heppell Gardens or Cohuna Drive was corroborated by Andrew Price, and by Errol Marshall (from May 2000) and Tina Fraser (in respect of Cohuna Drive from October 2003).

36.     Other witnesses, however, gave evidence which was inconsistent with the respondent’s evidence that David Markham did not reside with her at Heppell Gardens or Cohuna Drive, namely:

·     “confidential witness 3”, in respect of Heppell Gardens from 1999 to 2003;

·     “confidential witness 1” and “confidential witness 2”, in respect of Cohuna Drive from 2004; and

·     Patricia Jury, in respect of Cohuna Drive from February 2005.

The Tribunal notes, however, that the evidence of “confidential witness 3” and of Patricia Jury was based on an assumption by them that the respondent and David Markham were living in a de facto relationship.  As regards “confidential witness 1” and “confidential witness 2”, their evidence, in the Tribunal’s opinion, was vague and inconclusive.  Furthermore, none of the abovementioned witnesses had first-hand knowledge of the actual living arrangements of the respondent and of David Markham.

37.     The Tribunal notes the respondent’s evidence that a named person other than David Markham is the father of her daughter, Sharnie (see paras 16 and 18 of her witness statement set out in paragraph 9 above), and that David Markham has not assisted her in looking after Sharnie or assumed any responsibility in respect of her upbringing.  There is no evidence before the Tribunal to the contrary.

38.     In the Tribunal’s opinion the evidence before it regarding the nature of the household is somewhat inconclusive.  The abovementioned documentary material indicating that David Markham had, during the relevant period, given, as his addresses, the same addresses as those in which the respondent was residing does not, of course, establish that he was in fact residing, let alone living in a marriage-like relationship, with the respondent at any of those addresses.  As regards the evidence of the abovementioned witnesses, the Tribunal regards the evidence of the witnesses called by the applicant as somewhat speculative and not based on first-hand knowledge of the relevant circumstances, while it regards the witnesses called by the respondent as not disinterested.  As regards the respondent herself, she (as previously mentioned) did not give oral evidence by reason of medical unfitness and was accordingly not subjected to cross-examination.  The Tribunal regards her witness statement as self-serving and, having regard to the whole of the evidence, it has substantial reservations about her credibility generally.  The Tribunal, therefore, derives little assistance from the evidence regarding the nature of the household in forming an opinion as to whether the respondent and David Markham were living in a marriage-like relationship during the relevant period.

Social aspects

39.     There is no evidence before the Tribunal which indicates that the respondent and David Markham ever engaged in joint social activities or holidayed together or generally socialised together during the relevant period.

40.     There is, on the other hand, substantial independent documentary material before the Tribunal in which it is recorded at various times during the relevant period that David Markham is the respondent’s “de facto”, “partner”, “next of kin”, and that the respondent is David Markham’s “next of kin”, “fiancée”, “partner” (see paragraph 27 above under the heading “Social aspects”).

41.     As regards the witnesses who gave oral evidence, Andrew Price, Errol Marshall and Tina Fraser (who were called by the respondent) testified that they had never met David Markham, whereas “confidential witness 3” and Patricia Jury (who were called by the applicant) testified that they had met David Markham and believed that he and the respondent were living together in a de facto relationship.  “Confidential witness 1” and “confidential witness 2” (who were also called by the applicant) testified that they had seen or spoken to a man (whose name they did not know or recall) at Cohuna Drive who they believed was the respondent’s spouse and was living  there with the respondent.  The Tribunal notes, on the other hand, that Dr Jonathon Bell, the respondent’s treating general practitioner from January 1999 to December 2004, testified that he did not record or recall the respondent’s ever having attended a consultation accompanied by a male person or her ever referring to David Markham or a “partner” or “de facto”, and that for the entire period of about 6 years in which he treated her it was his impression that she was a single mother caring for her daughter (whom he also treated) on her own.

42.     The Tribunal also notes that there are in evidence reports from various medical practitioners who saw the respondent in connection with a claim for compensation made by her following a motor vehicle accident on 2 October 1998.  Those reports and their references to the respondent are as follows:

·     report of Dr Graeme Carroll, Consultant Physician in Rheumatology, dated 20 July 1999:

“She has a four year old daughter for whom she cares entirely on her own” (T281, p 940);

·     report of Dr John Rosenthal, Physician in Rehabilitation Medicine, dated 14 July 1999:

“Ms Schatz is a single parent with a four year old daughter” (T281, p 942);

·     report of Dr Michael Kent, Consultant in Pain Medicine, dated 2 March 2000:

“She is a 36 year old single mother of 1 child” (T281, p 918).

On the other hand, a report of Dr Vince Chapple, Obstetrician and Gynaecologist (to whom the respondent was referred by Dr Bell), dated 4 December 2000, states that she has been “actively trying to conceive” and refers to “(h)er partner David … a 31 year old who works away 12 days out of every 16 …” (part of Exhibit A2).

43.     In relation to the abovementioned motor vehicle accident in which the respondent was involved on 2 October 1998, the Tribunal notes the following documentary material which is in evidence:

·     Western Australia Police Service report, dated 3 August 1999, which states that the accident occurred at 5.20 am when the respondent’s vehicle was travelling west on the Great Eastern Highway 20 kilometres west of Southern Cross (T284, p 1059);

·     Southern Cross Hospital Emergency Department Notes, dated 2 October 1998, relating to the respondent’s admission after the motor vehicle accident which state that the person to notify is “David Markham” of Spicer Road, Southern Cross, and describe his relationship to the respondent as “boyfriend” (T284, p 1188);

·     Accident Report Form, dated 26 October 1989 completed and signed by the respondent, and signed by David Markham as witness (T284, p1096);

·     a signed Record of Interview between Tony Napier, an investigator, and the respondent, dated 18 December 1998, in which the respondent is recorded as having said that she had “dropped a friend off at work” in Southern Cross and had “stayed the night” and was driving back to Perth the next morning when the accident occurred (T284, pp 1070-1072).

44. Although there is substantial documentary material in evidence before the Tribunal which indicates that, on various occasions in the relevant period, David Markham and the respondent each represented himself or herself as the “de facto”, “partner”, “fiancée”, “boyfriend” (as the case may be) of the other person, the Tribunal is not satisfied that that documentary material evidences that the respondent and David Markham have held themselves out as married to each other, within the meaning of s 4(3)(c)(i) of the SS Act.

45.     As regards the evidence of the witnesses who may fall into the category of “friends and regular associates” (within the meaning of s 4(3)(c)(ii) of the SS Act) of the respondent and David Markham, the Tribunal finds it difficult to accept that Andrew Price and Errol Marshall were not aware of David Markham during the relevant period, given their close relationship to the respondent and given that David Markham had been in the respondent’s life since 1994.  On the other hand, “confidential witness 3” and Patricia Jury, former neighbours of the respondent, were aware of David Markham and believed that he and the respondent were living together in a de facto relationship but, in the Tribunal’s opinion, that belief was based on an assumption by them rather than on any representation by the respondent or David Markham that they were living in a de facto relationship.  “Confidential witness 1” and “confidential witness 2” had met or spoken to a man at Cohuna Drive who they believed was the respondent’s spouse but they did not know or recall his name.

46.     Having considered the evidence before it regarding the social aspects of the relationship between the respondent and David Markham, the Tribunal accepts that some of that evidence is indicative of a close relationship between them but the Tribunal is not satisfied that that evidence weighs significantly in favour of a marriage-like relationship between them in the relevant period.

Sexual relationship

47.     The Tribunal notes that the respondent’s witness statement (Exhibit R11) does not expressly refer to the existence or non-existence of a sexual relationship between her and David Markham.

48.     There is, however, documentary material in evidence before the Tribunal on the basis of which, in the Tribunal’s opinion, it may reasonably be inferred that the respondent had a sexual relationship with David Markham during the relevant period – in particular, the report of Dr Vince Chapple, Obstetrician and Gynaecologist, dated 4 December 2000 (referred to in paragraph 27 above under the heading “Sexual relationship).  In that report Dr Chapple recites (by necessary implication) that the respondent had, in the year 2000, been “actively trying to conceive” with a man named “David” who was then 31 years of age.  The Tribunal notes that David Markham was born in 1969 (see T233, p 678).

49.     There is also documentary material in evidence on the basis of which, in the Tribunal’s opinion, it may reasonably be inferred that the respondent had a sexual relationship with a male person or male persons during the relevant period (see the other documents referred to in paragraph 27 above under the heading “Sexual relationship”).  There is, however, no reference to the identity of the relevant male person or persons in that documentation and the Tribunal is not prepared to infer that the male person implicitly referred to in any of those documents was David Markham.  The Tribunal notes, in this connection, the respondent’s evidence that she had relationships with men other than David Markham during the relevant period (see paras 16, 38 and 51-53 of her witness statement set out in paragraph 9 above).

50.     The Tribunal is satisfied, on the whole of the evidence before it, that the respondent had a sexual relationship with David Markham at least in the year 2000, if not at other times, during the relevant period.  The Tribunal is, furthermore, satisfied  that she also had a sexual relationship with a male person or male persons, whose identity is uncertain, at times during the relevant period.

51.     The existence of a sexual relationship between the respondent and David Markham during the relevant period does not, of course, necessarily establish that there was a marriage-like relationship between them during that period, but it is consistent with the existence of such a relationship during that period.  The evidence regarding the existence of a sexual relationship between the respondent and David Markham during the relevant period does not, however, significantly assist the Tribunal in forming an opinion as to whether there was a marriage-like relationship between them during that period.

Nature of mutual commitment

52.     According to the evidence before the Tribunal the respondent first met David Markham in early 1994 and has had an ongoing association with him from then including the whole of the relevant period.  As regards the nature of that association, the respondent’s evidence was that her relationship with David Markham during the relevant period was merely that of good friends who helped each other out from time to time, for example, by his occasionally providing financial assistance to her to pay her bills, and by her allowing him to use her address as a mailing address, paying his bills (with his money) for him, and storing his car and other possessions at her residential premises.  The Tribunal unfortunately did not have the benefit of receiving evidence from David Markham.

53.     The Tribunal notes the evidence that, in addition to providing the abovementioned financial assistance to the respondent, David Markham provided physical support to her in certain times of need, including during her pregnancy resulting in the birth of her daughter, Sharnie, in March 1995.  The Tribunal also notes the evidence that in November 2004 David Markham nominated the respondent and her daughter as the beneficiaries of his superannuation.

54.     There is, on the other hand, no clear evidence before the Tribunal to the effect that the respondent or David Markham has provided ongoing companionship or emotional support to the other during the term of their friendship (including the whole of the relevant period).  There is, furthermore, no evidence that David Markham has provided any assistance to the respondent in raising and caring for her daughter, Sharnie, and thereby demonstrated a real commitment to the respondent and to her daughter.  It seems to the Tribunal that the evidence before it indicates no more than that the respondent and David Markham from time to time provided assistance of a financial, material or physical nature to each other consistently with their close friendship.  It also seems to the Tribunal that the evidence suggests that the respondent and David Markham, throughout the relevant period, were of the view that their ongoing arrangement, involving mutual assistance as between two close friends, would continue indefinitely.

55.     Having regard to the whole of the evidence before it, the Tribunal is of the opinion that that evidence is indicative of the existence of a relationship between the respondent and David Markham throughout the relevant period which involved a close friendship and the provision of mutual assistance, but which lacked the characteristics of ongoing companionship and mutual emotional and moral commitment and support that point to the existence of a marriage-like relationship.

Was there, in the Tribunal’s opinion, a marriage-like relationship between the respondent and David Markham in the relevant period?

56. Having considered the whole of the evidence relating to all the circumstances of the relationship between the respondent and David Markham, including the matters and factors referred to in s 4(3) of the SS Act, in the relevant period, it seems to the Tribunal that, on balance, those circumstances do not weigh in favour of a marriage-like relationship. Although some parts of the evidence regarding the financial and social aspects of the relationship and the nature of the household might reasonably be regarded as indicative of a marriage-like relationship, a consideration of the totality of the evidence in relation to those matters has left the Tribunal in a state of uncertainty as to whether the true nature of the relationship between the respondent and David Markham in the relevant period was that of a marriage-like relationship. The evidence relating to the matter of a sexual relationship between them did not assist in resolving that uncertainty. In the Tribunal’s opinion, however, a consideration of the evidence relating to the matter of the nature of any commitment between the respondent and David Markham in the relevant period tipped the balance against the existence of a marriage-like relationship. As mentioned in paragraph 55 above, that evidence suggests that the true nature of the relationship between the respondent and David Markham during the relevant period was that of a close and mutually supportive friendship of longstanding duration rather than a marriage-like relationship.

57.     The Tribunal is of the opinion, therefore, that the relationship between the respondent and David Markham, which existed for the whole of the relevant period, was not a marriage-like relationship for the purposes of s 4(2)(b)(iii) of the SS Act.

Conclusion

58.     Because the relationship between the respondent and David Markham, which existed for the whole of the relevant period, was not, in the Tribunal’s opinion, a marriage-like relationship for the purposes of s 4(2)(b)(iii) of the SS Act, it necessarily follows, in accordance with s 4(2) of the SS Act, that the respondent was not a “member of a couple”, for the purposes of the SS Act, at any time in the relevant period.

Decision

59.     For the above reasons the Tribunal affirms the decision under review.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed:   E Jordan           .....................................................................................

Associate

Dates of Hearing  16-18 October 2007,
  15 February 2008
Date of Last Written Submissions     20 May 2008
Date of Decision  26 August 2008
Counsel for the Applicant                  Mr B Dubé
Solicitor for the Applicant                   Sparke Helmore
Counsel for the Respondent             Mr S Walker
Solicitor for the Respondent              Ms P Robbins
  Sussex Street Community Law Service Inc