SECRETARY, DEPT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS and PFNF (Ms X)

[2009] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL

No: N 2006/572

General Administrative Division

Re: Secretary to the Department of Employment and Workplace Relations, Secretary; Dept of Families, Housing, Community Services and Indigenous Affairs
Applicants

And: PFNF
Respondent

DIRECTION

TRIBUNAL:             Dr J D Campbell, Member

DATE:                      3 February 2009

PLACE:                   Sydney

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the Tribunal directs the Registrar to alter the text of the decision in this application as follows:

1. Replace the reference to “Counsel for the Applicant” on the last page of the decision with “Counsel for the Respondent”.

2. Replace the reference to “Solicitor for the Applicant” on the last page of the decision with “Solicitor for the Respondent”.

3. Replace the reference to “Counsel for the Respondent” on the last page of the decision with “Counsel for the Applicants”.

4.Replace the reference to “Solicitor for the Respondent” on the last page of the decision with “Solicitor for the Applicants”.

….....[sgd]............

Dr J D Campbell
  Member

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2006/572

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Applicant

Re:SECRETARY, DEPT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And PFNF (Ms X)

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date30 January 2009

PlaceSydney

Decision

The decision under review is set aside and in substitution thereof the Tribunal decides that:

(a)   The Respondent was a member of a couple for the period 19 August 1998 to 17 August 2005; and

(b)   The Respondent accrued the following debts, which are due and payable:

     (i)      Newstart Allowance debt of $33,264.07 for the period 19 August 1998 to 30 April 2002; and

    (ii)      Disability Support Pension debt of $39,325.83 for the period 1 May 2002 to 17 August 2005.

...................[sgd]....................

Dr J D Campbell

Member

CATCHWORDS     

SOCIAL SECURITY – Newstart allowance – disability support pension – member of a couple – marriage-like relationship – Debt – respondent found to be in a marriage-like relationship – respondent accrued debts – special circumstances – debts not waived – decision under review set aside

Social Security Act 1991 – Section 4

REASONS FOR DECISION

30 January 2009   Dr J D Campbell, Member

Background

1.     In this matter the Respondent will be identified as Ms X.  The other significant individual in this matter will be identified as Mr Y.

2.     Ms X married her first husband in September 1965.  They were divorced in 1981 with the husband said to suffer from alcoholism, leading to violent behaviour towards Ms X.

3.     Ms X and Mr Y commenced living together in 1984 and over time lived in several country towns.  In 1995 or 1996 Ms X and Mr Y moved to the country town where both now reside.

4.     In 1997 Mr Y suffered head injuries in a motor bike accident with Mr Y requiring an extended period of rehabilitation before returning to work as a truck driver.

5.     Ms X stated that Mr Y became violent towards her after the accident.  As a consequence Ms X decided to separate from Mr Y, with Mr Y vacating the house previously shared.

6.     On 17 August 1998 Ms X advised Centrelink that she and Mr Y had separated.  As a consequence Ms X was advised on 20 August 1998 that she would no longer be paid a partner allowance (T5).  On 20 August 1998 Ms X lodged a claim for Newstart Allowance in which she noted that she was unfit for work for more than two years because of mental and physical injuries.  Ms X nominated her ex-partner as Mr Y and her address as the one she previously shared with Mr Y for five months and for which she paid $60 a week rent to the Department of Housing.  Ms X requested any payments be made to a particular branch of a credit union in which she had an account.  Further, Ms X described her medical conditions as panic attacks, agoraphobia, heart murmur, spur on left shoulder osteoarthritis – arthritis.  A further document attached to the Newstart Allowance claim notes Ms X as having signed a residential tenancy agreement with the NSW Land and Housing Corporation, with tenancy commencing on 4 May 1998 at the property (“property one”) at which she continued to reside after her notice of separation from Mr Y, and for which she was to pay $140 a week rent (T6).

7.     Payment of Newstart Allowance to Ms X was approved on 28 August 1998, with payment at the single rate commencing from 19 August 1998 (T8).  Payment of Newstart Allowance ceased on 30 April 2002.

8.     Ms X was granted a Disability Support Pension (DSP) on 1 May 2002.  This payment has been made at the single rate since that time.

9.     On 2 August 2005 Centrelink suspended the payment of Ms X’s DSP at the single rate as it was considered that she was in a marriage-like relationship.  Payment was continued at the partnered rate.

10.   On 30 August 2005 Centrelink determined to raise and recover from Ms X:

(a)A Newstart Allowance debt of $33,264.07 for the period from 19 August 1998 to 30 April 2002; and

(b)A DSP debt of $39,325.83 for the period from 1 May 2002 to 17 August 2005.

11.   On 2 September 2005 an Authorised Review Officer affirmed the decision that Ms X and Mr Y were members of a marriage-like relationship for the period in question (T51).

12.   On 6 September 2005 Mr Y lodged a Partner Details document with Centrelink in which he notes that he has started living together with Ms X from 4 September 2005 in a new address (“property two”) in the same country town (T52).

13.   On 13 March 2006 the Social Security Appeals Tribunal (SSAT) set aside the decisions under review and substituted the following decision, namely that:

(i)The disability support pension is payable at the single rate; and

(ii)No debts exists for the period 19 August 1998 to 17 August 2005.

Issues

14.   The relevant issues in this matter are:

(a)Were Ms X and Mr Y in a marriage-like relationship during the period 19 August 1998 to 17 August 2005?

(b)If so, do debts exist in the sums of:

1.Newstart Allowance debt of $33,264.07 for the period 19 August 1998 to 30 April 2002; and

2.DSP debt of $39,325.83 for the period 1 May 2002 to 17 August 2005? And

(c)Are there any special circumstances which would allow the debt to be waived?

Evidence of Ms X

15.   In evidence given to the SSAT (T2) Ms X is recorded as stating that:

(a)Mr Y had a serious motor bike accident in 1997 in which he received serious head injuries and he was on life support for four days.  After the accident Mr Y changed and became violent, with the hospital staff having to call the police when he became violent towards her.

(b)Because of the violence, there having been violence in her first marriage, Ms X decided to separate from Mr Y, Mr Y moving out and staying in his truck or staying overnight at the trucking yard.

(c)Ms X and Mr Y first moved in together in 1981, moving around a lot in various country towns.  Initially they had separate bank accounts and then shared a joint bank account, which they closed after they separated.

(d)Mr Y is a truck driver.  Since separation they have not given each other money, they have no joint loans and have not made any joint purchases.  On occasions, Ms X said, Mr Y would give her some money to pay a bill or buy some provisions because of his inability to shop in the main street.

(e)Since their separation Mr Y has not lived at her home, but he would come and do some work in the garden, as on account of her disabilities she was unable to do such work.  On one occasion, at night, she called him to come over because there was an intruder and she was nervous.  Ms X said she asked permission from Centrelink for him to stay overnight during which Mr Y slept on the lounge.  Ms X stated that Centrelink said it was okay.

(f)Ms X said that Mr Y kept his car at her home and she was allowed to use it in return for doing his laundry.  Ms X stated that she looked after Mr Y’s dog, a German Shepherd, because it was protection for her and too big to sleep in the truck.  Mr Y purchased the dog food.  Ms X stated that she did the laundry because there was no washing machine at the truck yard.  Sometimes Ms X  would give Mr Y a cup of coffee or lunch after he had worked in the garden, but did not do other cooking for him.  Ms X stated that she did not go on any social outings with Mr Y since separating.

(g)Mr Y used her address for mail as he did not have a home address, and there was no post office box at the yard and he needed help with reading his mail as he was not a good reader.

(h)She has never told her family that she and Mr Y have separated as she does not speak to them very much and it is none of their business.

(i)Mr Y has driven her to a doctor when she was having a panic attack and also given her a lift to a heart specialist.

(j)Ms X and Mr Y had an active sex life prior to the accident, but none since their separation.

(k)Ms X and Mr Y remain friends and do things for one another.  Further, Ms X stated that she had seen another man since her separation, but not often, as he lived some 300 to 400 miles away.

(l)She is now living with Mr Y as she cannot afford to support herself.  She is unhappy with this, but she sees no alternative.

16.   In a written statement dated 7 March 2007 (Exh R2) Ms X stated that she met Mr Y in 1984 and commenced co-habitation in 1985.  Further, Ms X confirmed the motor bike accident in 1997 and the reasons for separating from Mr Y in 1998.  Ms X stated that after the separation:

·She did not tell anyone of their separation (except Centrelink).

·Mr Y occasionally stayed at her house on the lounge or in his truck.

·Their German Shepherd stayed in her house.

·She continued to do Mr Y’s laundry and some shopping, as well as giving Mr Y an occasional meal.

·They did not share social outings apart for an occasional soccer match for her grandson.

·As Mr Y did not have a fixed address and had difficulty with reading and writing his mail was directed to her address.

·In 2005, after loss of Centrelink benefits, she experienced financial difficulties and moved into a home Mr Y was renting, where she has her own room, pays $50 a week, with Mr Y only being present on the weekend and with each doing their own washing and cooking.

·During their relationship she shared a joint bank account with Mr Y.  After separating she returned the card to Mr Y, but Mr Y gave it back to her to do shopping for him which he used for himself.

17.   In oral evidence Ms X confirmed that:

·In relation to the card for the joint account, during the period of separation she would use the card with Mr Y’s permission to purchase some plants and food and would repay Mr Y in cash.  Ms X stated that the reason for her failing to disclose the return and use of the card that permitted access to the joint account during the period of separation was that she was frightened that she would get into a lot more trouble.  Ms X stated that she continued to do a little shopping for Mr Y.

·Ms X has three children from an earlier marriage – she has contact with the eldest daughter four or five times a year, regular contact with her son, and no contact with her youngest daughter over the past four years.  Ms X stated that she told none of her children of her separation from Mr Y.  Ms X also detailed that her youngest daughter had taken an apprehended violence order against Mr Y for alleged molestation of her daughter.  Ms X also stated that she believed her younger daughter was responsible for informing Centrelink that Ms X and Mr Y were still living together after their separation.

·From 1985 to 1995 Ms X confirmed that her relationship with Mr Y was wonderful.  During that period Ms X stated that she went to dinner and shows with Mr Y, and accompanied Mr Y on his truck to various places including Brisbane, Melbourne and Adelaide.  Ms X stated that from 1995 they started to have their ups and downs.  Ms X described events following Mr Y’s motorcycle crash in 1997 and Mr Y’s tendency to violent behaviour.  Ms X described the relationship with Mr Y deteriorating as a consequence of Mr Y’s behaviour, with Ms X stating that Mr Y would have to move out when he got better.  Ms X described Mr Y as packing his little bag and leaving. He left a bag with his tools in his car.

·After the departure of Mr Y, Ms X stated that he would return approximately one night a week and sleep on the lounge or in the truck if it was outside.  Ms X confirmed that Mr Y was permitted to use her address for his mail as he had difficulty with reading and writing.  Further, she stated that the car was left for her use in return for her doing the shopping and washing and looking after the dog.

·Ms X stated that she and Mr Y did attend occasional soccer matches to watch her grandson play.  Ms X considered that most people would consider her and Mr Y still a couple as they had told no one of their separation.

·Ms X stated that she stopped accompanying Mr Y on trips in the truck after his accident in 1997; that they stopped exchanging Christmas and birthday presents approximately two years after Mr Y’s accident.  Ms X described the difference in their relationship post separation as involving the absence of love, sex and close companionship.

·During the period of separation, use of the card was for her purpose and also for Mr Y, with Ms X reimbursing Mr Y for anything purchased for herself.  Since the move to property two in 2005 Mr Y advises Ms X by phone as to what he requires, including the need for use of the car, and Ms X makes the necessary purchases for Mr Y using money Mr Y has given her.  Ms X stated that she no longer uses the card for her purchases as she has no access to the card.  Ms X also confirmed that from 1998 she would give money to Mr Y if he was going down to the shops to purchase some items for her.

·Mr Y never gave her any money on the basis that it was related to annual tax returns submitted on his behalf.

·When Ms X and Mr Y were together the money coming into the house was Mr Y’s salary which was spent on shopping and rent.  When Ms X was at property one she paid for all the bills of the house, while since moving to property two in late 2005 she gives Mr Y $50 a week plus a small amount for electricity and telephone.  Further, Ms X states that she purchases her own groceries and personal items, including washing powder, with each of them doing their own cooking and washing.

·Ms X stated that she knew Mr Y secured a loan to purchase his current car but that she was not a party to that loan.

·Ms X considered that her current arrangements with Mr Y at property two would continue unchanged, as she described the current situation to be a more friendly situation in which they chat about what each other has done during the week.  Ms X considers that there has been no change in their relationship since separation in 1998, with the nature of the relationship being friendship, with this improving over time.

18.   In answers to questions in cross-examination Ms X stated that:

·Since 1998 she cares for Mr Y in a friendly way as she does believe he does care for her.

·She did not tell the SSAT that Mr Y gave the joint account card back to her as she thought she would get into more trouble or that the Respondent will probably come down on her harder – she would probably go to jail or anything.

·She did not know that it was still a joint account in 1998 when she told Centrelink – she accessed the account with Mr Y’s permission to use the card.

·Mr Y has been a truck driver for a long time and that both before the separation and after, Mr Y was only in the hometown a couple of nights a week.

·She has been away with Mr Y once since 1998 and that is when they went to Eden for a couple of days in the car in March 2003, visiting Penrith on the way back.

·She was unable to remember any other trips taken with Mr Y post 1998.

19.   Ms X’s cross-examination was suspended on 1 May 2007 because of Ms X’s complaint of chest pain associated with previous treatment for a heart murmur.  Ms X was transferred to St Vincent’s Hospital by ambulance on 1 May 2007.  Ms X’s chest pain was assessed and she was discharged some seven hours after admission.  It is noted that the clinical notes of St Vincent’s Hospital variably describe Mr Y as the husband or a friend (Exh R8).

20.   A hearing was scheduled to continue the cross-examination of Ms X on 5 November 2007 following a report dated 3 October 2007 from Dr Levendel, a treating specialist cardiologist, which concluded that Ms X should be able to participate in such proceedings (Exh R6).

21.   At the commencement of the hearing on 5 November 2007 a medical certificate provided by Dr Islam was presented, indicating that Ms X was unable to attend Centrelink hearing appointments on 5 and 6 November 2007 due to acute anxiety (Exh R5).

22.   Dr Islam, the medical practitioner who provided the medical certificate, detailed that he was not Ms X’s normal general practitioner, and that Ms X had come to see him on 2 November 2007 complaining of a painful lump in the left breast and that she was awaiting a needle biopsy.  Dr Islam considered Ms X to be in an anxious and distressed state.  Dr Islam stated he was very busy on the day in question and considered it best that Ms X not attend the hearing.

23.   As a consequence of Ms X not being able to attend because of an anxiety disorder, and her earlier difficulty in continuing with cross-examination in May 2007, both parties agreed to refer Ms X for psychiatric assessment as to diagnosis and her ability to continue with cross-examination.

24.   In an initial report dated 17 December 2007 (Exh R10) Dr Mason, a consultant psychiatrist, considered, as a result of the history described to him by Ms X, that Ms X suffered from Chronic Post Traumatic Stress Disorder, Generalised Anxiety Disorder with Panic Attacks and Major Depressive Disorder, Recurrent Chronic.  Dr Mason considered there were elements of both dependent and borderline personality disorders evident.  Dr Mason considered that Ms X would never be fit to participate in Tribunal proceedings if she is to be cross-examined by the same barrister in the same way.

25.   Dr Mason provided a supplementary report dated 12 March 2008 (Exh R11) after being provided with copies of transcripts for Administrative Appeals Tribunal hearings dated 1 May 2007, 5 November 2007 and 6 November 2007.  Dr Mason noted that he had been misled by Ms X in relation to what questions she was being asked by Counsel at the time she developed chest pain on 1 May 2007.  Dr Mason considered that Ms X was quite actively deceptive in the way which she dealt with him in his interview, and this deceptiveness worked to her own advantage in that he recommended protecting her from further direct cross-examination by that Counsel.  Dr Mason withdrew any such recommendation.

26.   Dr Mason also refers to the reasons provided to him by Ms X as to why she was unable to proceed with cross-examination on 6 November 2007 (“he is such a big bloke I couldn’t give any evidence” – reference to Counsel) at the time of his initial assessment and the reason given to Dr Islam on 2 November 2007 (issue of a breast lump or a fear of having breast cancer, which she did not mention to Dr Mason. She also did not mention Dr Islam’s medical certificate).

27.   Dr Mason concluded that his diagnostic evaluation in his original report still stands, with the implication being that Ms X finds it extremely difficult to manage states of emotional arousal while under stress.  Dr Mason believed Ms X to be much more deceptive and misleading than he appreciated at the time of his original evaluation.  This misleading behaviour was, in Dr Mason’s opinion, designed to help her avoid appearing at the hearing.  Dr Mason concluded that Ms X could be further cross-examined in the knowledge that she does experience severe anxiety which is exacerbated by her fear of being penalised by the Tribunal.

28.   Dr Prior, a consultant psychiatrist, saw Ms X at the request of the Applicants.  In a report dated 18 March 2008 (Exh A3) Dr Prior details the clinical history of Ms X and concludes that Ms X has Panic/Agoraphobic Disorder and Chronic Depressive Disorder in part remission.  Dr Prior considered it very likely that Ms X would experience a panic attack if she were to participate in future Tribunal hearings and be examined by the same Counsel.

29.   In a supplementary report dated 28 April 2008 (Exh A4) Dr Prior noted:

I would agree with Dr Mason that the severe anxiety she does experience would indeed be exacerbated by her fear of being penalised by the Tribunal.  I believe that if she has indeed done something inappropriate then her apprehension would be greater and her likelihood of experiencing panic attacks associated with being questioned concerning these matters is also likely to be greatly elevated.

…

Therefore although the questions put by the Barrister were appropriate and necessary and not presented in an aggressive manner, to the person on the receiving end who is aroused to the level of experiencing a panic attack these questions and the demeanour of the questioner would in their subjective perception at that time seem extremely threatening and malevolent.

30.   In the light of the psychiatric opinion and other evidence received, Counsel for the Applicants did not seek to further cross-examine Ms X.  Further, the Tribunal observed that Counsel for Ms X did not seek to re-examine.  In acknowledging the position agreed to and adopted by both parties, I accept that the evidence from Ms X stands insofar as what has been said in examination in chief and cross-examination insofar as it went.  I would also conclude, in the light of the psychiatric evidence before me, that further attempts to cross-examine Ms X would be protracted, and if continued for any length would fail because of the probability of panic attacks.  In the circumstances outlined I conclude that Ms X has had fair and adequate opportunity to have her evidence heard, and that her legal representatives were of the opinion that further benefit would not be derived in continuing with her evidentiary journey.

Evidence of Mr Y

31.   In evidence to the SSAT in March 2006 Mr Y stated:

·That he and Ms X split after the accident in 1998 with him moving out, taking his clothes and personal items with him.  Mr Y stated that he generally stayed in his truck and sometimes spent one night in the yard – an activity his employer was never aware of.

·That he rented a house (property two) about seven and a half months before the SSAT hearing (August - September 2005) and has only lived in it for about two and half weeks because he is always on the road.

·That prior to this he had his mail directed to Ms X’s address as she understands the letters and he has some difficulty in reading.

·That he had not informed his family of his separation from Ms X in 1998 as he and his family were not close.

·That Ms X had to move into his house (property two) after Centrelink cut back her payments, and that she was financially unable to afford independent living.  Mr Y said that Ms X has her own bedroom and he puts food in the fridge with Ms X welcome to help herself if she needs to.

·That the difference between how they lived when they were a couple and now is that since they ceased being a couple they each had separate lives, with each doing what they want to do.  Mr Y considered that there is nothing more to the relationship with Ms X than friendship.

32.   In a written statement dated 7 March 2007 (Exh R3) Mr Y described his educational history and employment as a truck driver, together with brief details of his relationship with his four children from his earlier marriage.  Mr Y stated that he commenced co-habitation with Ms X shortly after they met some 23 to 24 years ago.  Mr Y detailed a history of a brain injury in 1997 and his separation from Ms X in 1998.  Mr Y stated that he has not told his children of this separation.

33.   In his statement of 7 March 2007 Mr Y detailed the following issues consequent  to the separation in 1998:

·That he moved out of the house with his car being left for Ms X to use.  In return Ms X did his washing and purchased items he needed.

·That as he was on the road most of the time he occasionally stayed at Ms X’s house where he slept on the lounge.

·That he and Ms X had a joint bank account which was closed in 2005.  He stated that Ms X never used this account after their separation in 1998 as she had given her card back to him when they separated, and that he had not bothered to close the account.

·That he leased a house in 2005 (property two) as he was experiencing problems with not having a permanent fixed address.

·That Ms X moved in, pays $50 a week board, has her own separate bedroom, with shopping the only outing they do together.

·That he became aware that he was claiming spouse rebate in his tax returns in 2005 during the course of the various hearings.  Mr Y stated that he had just sent his papers to the accountant who completed the tax return.

34.   In oral evidence to the Tribunal Mr Y confirmed what he had written in his statement and in explanation added:

·That he and Ms X had separated after a disagreement because he has a tendency to “go too wild in the mouth”.

·That he took his clothes (which were not many) and his mechanical tools with him.

·That he considered that the split was good in a way and in a way it would not be good.  In relation to the former he could do what he wanted to do, while in relation to the latter there are times when “you wish you were with somebody”.

·That initially he gave Ms X $200 to hold for him from which she could purchase items for him that he requested, with him refurbishing the holding amount after such a purchase.  He was unable to remember when such an arrangement ceased albeit some years ago.

·That there is no such current arrangement, with the present arrangement being that he reimburses Ms X for anything she may buy for him – such requests being made verbally by him when he is at home or by phone when he is away.

·That Ms X continued to do his washing until recently. 

·That occasionally he would spend one or two nights a week at Ms X’s house after the separation, with his normal work routine being seven days a week.  Mr Y stated that he would occasionally stay at his employer’s yard in his truck.

·That Ms X never had access to a card to the joint ANZ account after they separated which she could use for herself.  On occasions Mr Y stated that he left the card with Ms X in order that she could purchase items he required.

·That he permitted Ms X to move in with him in September 2005 because of her limited income and financial difficulties.  He noted that Ms X pays $50 board per week as well as for any phone calls she makes, with the account being in his son’s name.

·That he currently owns a Ford Falcon XD R6 valued at about $30,000, and a Holden Rodeo ute 1999 model, the purchase and finance arrangements never having been discussed with Ms X.  Further, Mr Y stated that he never jointly purchased furniture with Ms X and that when living at property one, occasionally on the couch, he did not consider himself responsible for any expenses relating to the house.  Mr Y stated that he helped with the gardening at property one because he did not mind gardening and Ms X was unable to do such.

·That the only event he would attend with Ms X was her grandson’s soccer, whereas prior to separating they were not outgoers, preferring to stay at home and work in the garden.

·When asked, Mr Y considered that most people would be of the opinion that he and Ms X were still a couple.

·That after the separation he and Ms X travelled to Eden and on a few other occasions, he has taken her because she got real nervy and panicky in the last couple of years.

·That he would not worry if Ms X moved out of the house as long as she has got some support and some money to buy food and everything else.

·That Ms X has high blood pressure, arthritis, sees many doctors and takes much medication.  That he may drive her to such appointments on occasions but really she prefers to attend alone.

35.   In response to questions asked in cross-examination Mr Y stated:

·That he had used Ms X’s address (property one) as his residential address after their separation for motor registration with the RTA, his tax returns, the electoral roll and his employer.

·That he had been a long distance truck driver for many years and that he would only spend one or two nights a week in the town in which he was located, both before and after his accident.

·That Ms X had been recorded on his employer’s records as the person to contact in the event of an emergency and to take care of his things.

·That he had signed the tax return forms in which a claim for spouse rebate had been included in tax returns 2002 through 2004.  Further, as such had been the case prior to the separation, he supposed he never told the accountant to cease such rebate claims.

·That he had never told his children that his relationship with Ms X had ceased.  Further, Mr Y confirmed he was not a drinker.

·That Ms X had never given him any money; that she used to use the joint account before they separated to buy things, but since separation she has used the card to buy things for him.  Mr Y stated that if Ms X wished to purchase an item for herself she would pay cash.  Further, he stated that he only ever gave her the card after separation to buy things for him, although on some occasions she would purchase things for herself and pay him back in cash, which over the past 12 months has amounted to $50 or $60.

·That in 2005 Ms X never had the card, nor did she in 2004 or 2003, as she never bought anything for herself, and that she never gave him any money back for the period 2000 through 2005.

·That if Ms X gave evidence that she bought things for herself on the card it would not be wrong.  Further, in his reference to her paying him back this was only recently, with recently referring to some weeks or months ago.

·That where purchases made at Rockmans in relation to ladies wear are shown on the joint account between 2001 and 2005, such transactions were probably made by Ms X and not him, and he is unable to remember a single occasion on which Ms X repaid money to him.

·That he was unaware of Millers Fashion Club and Jensen’s Shoes, and while he would shop at Fosseys approximately twice a year he was unable to remember whether he would have shopped there 40 times in the period between 2001 and 2005.

·That since his accident Ms X has been able to use the joint account and pay the money back to him; that on the issue of paying the money back that “it is easy come easy go sometimes”, with Ms X having what she wants and needs.

·That sometimes they go separately to Ms X’s grandson’s soccer games.

·That Ms X has access to the use of his car, the Falcon, which she uses as she sees fit and uses for most of the time, with Ms X doing more mileage than he.

·That he never mentioned to the SSAT about giving the card back to Ms X after the separation, nor about Ms X using the card to buy things for herself, nor did he mention such matters in his statement (Exh R3).  He admitted that where it says in his statement that Ms X had never used the account since their separation was a lie, as was his statement that Ms X had never had the card between 1998 and 2005.

·That he cared for Ms X as he would for others.

·That between 1998 and 2005 Ms X did accompany him on short trips in the truck on some occasions for the same reasons he nominated in relation to trips undertaken between 2005 and 2007.  This, he believed, occurred once or twice a year, which included a trip to Boorowa in 2003 to attend the funeral of Ms X’s step grandson, Armidale in 2004, Parkes in 2004 to see Ms X’s grandchildren singing at the festival but travelling separately as he was travelling further, Dubbo in 2004 when Ms X was in hospital and he had to collect the car from Lightning Ridge prior to visiting her in hospital and eventually taking Ms X back to property one.

·That he has not had sex with Ms X for years.  That he does what he pleases as she does, with both over the years having done their own thing because of his employment as a long distance truck driver.

·That he does admit to having a relationship with another person and does admit to masturbating.

·That the phone at the present residence is in his son’s name as he has problems with Telstra for non-payment of a bill.

·That Ms X would have collected the bank statements addressed to both of them between 1998 and 2005, and that both would have known that the account was in joint names at the time they gave evidence to the SSAT.

·That the furniture at property one was accumulated prior to 1997 and it re-vested to Ms X on separation because he had no place to put any furniture.

·That they both moved into property two on the same day, with Ms X’s furniture being moved from property one, with further furniture being purchased by him over time.

·That he removed his claim for spouse rebate in his tax return for 2005 as he was advised by Centrelink that he should not be making such claims.

Considerations and Findings

36.   In this matter I have been particular to detail the evidence of Ms X and Mr Y, given in various ways over time, and the circumstances which have evolved in the taking of such evidence.  While the evidence of Ms X was truncated, I am mindful of the circumstances which led to such truncation.

37.   I accept that Ms X does suffer with a long standing anxiety condition associated with panic attacks and an associated chronic depressive condition.  This is the opinion of both psychiatrists, who also seem to agree that she has traits of a dependent and borderline personality.

38.   A careful evaluation of Dr Mason’s reports clearly indicate that he considers Ms X to have actively engaged in deceptive and misleading conduct, with such deceptiveness being to her own advantage by way of helping to avoid further involvement in the hearing.  Dr Prior is somewhat more circumspect in his reports when he refers to the situation in which Ms X has done something inappropriate, then her level of apprehension would be greater.  Both psychiatrists, I note, agree that there was a high likelihood of Ms X experiencing panic attacks associated with being questioned concerning matters in which she may have acted or done something inappropriately.

39.   I would also observe that it was Ms X’s decision to seek through her legal representatives an outcome at hearing which would not involve her in further examination during the hearing.

40.   It is with such understandings that I move to address the reliability of Ms X’s evidence.  While some factual matters leading up to and prior to the notice of separation sent to Centrelink in 1998 do not appear to be in question, I would observe that such factual matters have not been subject to such detailed scrutiny as have the circumstances between August 1998 and August 2005.

41.   I consider the evidence given by Ms X as less than reliable and in the main self-serving.  In particular, I consider that her responses to questions asked of her over time on particular factual issues have demonstrated a clear intention by Ms X to either mislead or deceive at best, or be untruthful at worst.  In this regard I refer to the answers she has given over time in relation to the issue of the joint bank account involving both closure and the nature of her use of a card associated with that joint account between 1998 and 2005 and, further, the issue of cash reimbursement for any purchases she may have made of her own behalf to Mr Y.

42.   Further, and on the same theme, I observe the varying accounts over time provided by Ms X in relation to the movement out of Mr Y from property one, the varied stories of Mr Y’s further use of such facilities at property one over the time frame 1998-2005.  Further, I observe the discrepancies in evidence given by Ms X and Mr Y as to the travel activities undertaken together between 1998 and 2005.

43.   The issues nominated are important factual issues.  I conclude that in relation to such issues Ms X has actively engaged in misleading and deceptive conduct concerning the time frame 1998-2005.  In such circumstances, I have great difficulty in accepting any evidence that she has given concerning the issues in question, unless there is independent material before me which is corroborative of what she has stated.

44.   In addressing the reliability of Mr Y’s evidence I come to a similar conclusion, with any evidence of important factual issues given by Mr Y requiring corroboration by independent material.  My finding is occasioned by Mr Y’s admission that he lied in relation to issues of material fact relevant to this matter, namely the issue of whether a joint account existed between 1998 and 2005, Ms X’s use of the card attached to the joint account over the same period, that Ms X never used the card over the period 1998-2005, as well as Ms X’s use of the card during the period solely in relation to purchases for him or on his behalf.  Further, I observed that Mr Y’s responses to questions were on occasions non-responsive, more in the form of a commentary, and at times difficult to follow.  Nevertheless, I did form a view that he attempted to answer questions in a manner which sought to portray support for Ms X’s difficulties.

45. In summary, the evidence of both Ms X and Mr Y is less than reliable on important issues which I must canvas in deciding whether Ms X and Mr Y were members of a couple between August 1998 and August 2005. With such finding, while difficulty does arise as to how to fairly address the issues that are nominated in s 4(3) of the Social SecurityAct 1991 (“the Act”), clearly there are consequences which must flow and be considered in the overall assessment and forming an opinion about the nature of Ms X and Mr Y’s relationship between 1998 and 2005.

46.   During the period in question it is evident that Ms X and Mr Y continued to have a joint account, with Ms X having the use of a card for purchases on behalf of Mr Y and also for herself.  While Ms X speaks of reimbursing Mr Y for such purchases made on her behalf, and Mr Y is vague and variable as to whether he received money for such purchases from Ms X, I place little reliance on either Ms X or Mr Y in relation to the reimbursement issue.

47.   In relation to property one, lease of the property commenced prior to August 1998 and was in Ms X’s name.  Furniture had been accumulated during the previous years of their relationship and remained throughout the period 1998-2005.

48.   While Ms X stated she paid the rent and shopped and catered for herself, there is no documented corroborative material which would allow me to accept such an assertion.  Further, acceptance is made difficult by the fact that Mr Y spent one to two nights per week at the property during the period in question, and the material I have alluded to in relation to the use of the card.

49.   As regards legal obligations, it is evident that Ms X remained the nominated person for the employer to contact in an emergency situation in relation to Mr Y.  I would also note that Mr Y continued to claim a dependent rebate for Ms X up to and until his 2004 tax year return, and only ceased on advice from Centrelink.

50.   In addressing the issue of motor vehicles, it is evident that Mr Y purchased the new Ford car during the period, with him being solely responsible for the loan and repayments.  However, I note that the car remained registered and garaged at property one during the period, and that Ms X was the predominant user of the car, with sole use of the car in Mr Y’s absence.

51.   As both are mature aged people, the issue of care of children was not an issue, with both Ms X and Mr Y reporting difficulties in communication with some of the children of previous marriages for either geographic or personal reasons.

52.   While living arrangements were said to have changed, Mr Y continued throughout the period to be home at most two nights a week, this being his practice for many years prior to August 1998.  Evidence was led which suggested that Mr Y stayed and slept on a lounge at property one, or slept in the truck at property one or his employer’s yard, of which the employer was unaware.  Again, for want of independent material to corroborate such evidence, I have difficulty in accepting Ms X and Mr Y’s version.

53.   In relation to other household arrangements, I observe that property one was the address which Mr Y detailed as the address for his correspondence.  Mr Y stated this was necessary as he had no other postal address and Ms X was able to open, read and help him with his correspondence as he has difficulty with reading and writing.  In such circumstances, Ms X’s denial of a joint account over a seven year period is highlighted.

54.   In addressing the issues of shopping, cleaning, cooking and washing, these were clearly undertaken by Ms X, as was care and feeding of the dog.  There is no evidence before me that the undertaking of such activities was any different to what occurred prior to August 1998.  Further, I note that as regards gardening, both enjoyed such activities, with Ms X having increasing difficulties over time because of a back disability.  While both Ms X and Mr Y stated that between 1998 and 2005 Ms X’s use of the car was recompense for such activities, I again note any independent material which would suggest that such arrangements were any different to what happened pre 1998, particularly in the light of the fact that Mr Y also maintained a utility vehicle.

55.   Ms X and Mr Y admit to being in a defacto relationship up to August 1998.  After August 1998 and through to August 2005 they state that they neither told family, friends, acquaintances or Mr Y’s employer that the nature of their relationship had changed.  Mr Y is of the opinion that people who know them would still consider them a couple.  The reason expressed as to why they have told no one was simply that it was none of their business.  I remain sceptical as to such a reason in the light of the unreliability of their evidence.

56.   I note that the material suggests that Ms X and Mr Y were not great socialisers prior to 1998 (evidence of Mr Y), preferring to stay at home and work in the garden, with social outings much earlier in their relationship involving meals out, shows and other activities.  Both Ms X and Mr Y state that the only social outings they attend are Ms X’s grandson’s soccer matches.  However, other evidence from Mr Y nominates attendance together at activities at Boorowa in 2003, Armidale in 2004 and Parkes in 2004, while both admit holidaying together in Eden in 2003.

57.   Both Ms X and Mr Y state that there has been no sexual relationship with each other since 1998 and that they have slept in separate beds and do not share a bedroom.  Both led evidence in vague terms (Ms X) and in unnecessarily and extravagantly detailed terms (Mr Y) of liaisons/practices post 1998.  Such evidence in my view lacked substance and carries the matter no further, as no identifiable other was nominated in evidence to offset their unreliability as witnesses of credit.

58.   In addressing the issue of their relationship in the period in question, there is a history of a long period of a happy relationship as a couple.  While Ms X stated that she has separated from Mr Y and that both state they have continued as friends, I see little evidence of any material upon which I can safely rely that the relationship they previously shared has been displaced, other than by the passage of time and arrangements made to maintain a lifestyle in the face of age, disability and financial circumstances.

59.   Indeed, I would note that each still cares for each other, the measure of which being what each does for the other in all the circumstances.  In this regard I note Mr Y’s continuing concern for Ms X if she were to leave their current place of residence, and, more importantly, during the period in question his attendance and sleeping in the car for two days when awaiting Ms X’s discharge from hospital in Dubbo in 2004.  More importantly, I observe Mr Y’s care and concern for Ms X when, during the period in question, he would take Ms X for a trip in his truck a couple of times a year when she was depressed.

60. In summary assessment based on the material before me which I consider reliable, Ms X and Mr Y were a couple for a long period up to August 1998. Ms X then advised Centrelink that she had separated from Mr Y and that they were no longer a couple. A careful examination of all the material demonstrated that the evidence of Ms X and Mr Y was less than reliable and independent material was required to corroborate assertions on significant issues before acceptance. Nevertheless, in the light of such a careful examination of the material in relation to the statutory circumstances I had to consider, I conclude that Ms X and Mr Y, in all the circumstances of this matter, were members of a couple between 19 August 1998 and 17 August 2005, as they were in a marriage-like relationship and all criteria of s 4(2)(b) of the Act were satisfied.

61.   In such circumstances, I conclude that Ms X and Mr Y were in a marriage-like relationship during the period 19 August 1998 and 17 August 2005, and that Ms X has accrued debts in the form of:

(a)Newstart Allowance debt of $33,264.07 for the period 19 August 1998 to 30 April 2002; and

(b)DSP debt of $39,325.83 for the period 1 May 2002 to 17 August 2005.

62.   In considering whether the debts could be waived for either sole administrative error and/or special circumstances, I observe that there is no evidence to support a finding of sole administrative error, albeit and in hindsight I find an acceptance by Centrelink of an advice of separation by one party to a long-standing marriage-like relationship without detailed supporting documentation or investigation surprising.

63.   In relation to special circumstances, I note that none were canvassed by the Respondent.  I have given consideration to Ms X’s mental health problems and, while longstanding, they do not appear causative of her endeavours, but appeared aggravated when questioned about such endeavours.  Nevertheless, I do not consider that her mental health issues constitute special circumstances in relation to this matter.

64.   Initially by way of comment, I do express concern that Ms X has continued to be paid DSP at the single rate post 17 August 2005.  This is a matter for the responsible department to consider and adjudicate upon in the light of the findings made in this decision.

65.   I determine that the decision under review be set aside and that in substitution thereof I find that:

(a)Ms X was a member of a couple for the period 19 August 1998 to 17 August 2005; and

(b)   Ms X accrued the following debts which are due and payable:

(i)Newstart Allowance debt of $33,264.07 for the period 19 August 1998 to 30 April 2002; and

(ii)DSP debt of $39,325.83 for the period 1 May 2002 to 17 August 2005.

I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member.

Signed:         .................[sgd]...............................................................
  Associate

Dates of Hearing  1 May 2007, 5 and 6 November 2007,

19 and 20 November 2008

Date of Decision  30 January 2009
Counsel for the Applicant         Mr M Vincent
Solicitor for the Applicant          Mr A Rolfe, Jones Rolfe Rudd Solicitors
Counsel for the Respondent     Mr G Johnson
Solicitor for the Respondent     Ms B Griffin, AGS