Sherene Ashby and Secretary, Department of Social Services
[2014] AATA 913
•5 December 2014
[2014] AATA 913
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2014/1817
Re
Sherene Ashby
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 5 December 2014 Place Perth The Tribunal sets aside the decision under review and substitutes that decision with the decision that the Applicant and Mr Ashby were not “members of a couple” for social security and family assistance law purposes in the period from 16 December 2005 to 16 July 2013 such that the Applicant does not have social security and family assistant debts to the Commonwealth in respect of that period.
…(Sgd) CR Walsh...............................
Senior Member CR Walsh
CATCHWORDS
SOCIAL SECURITY – FAMILY ASSISTANCE – whether applicant “member of a couple” with her husband during the relevant period – whether applicant and husband were “living separately and apart” from one another “on a permanent or indefinite basis” during the relevant period – whether applicant has debts due to the Commonwealth – whether debts should be written off or waived - decision under review set aside
LEGISLATION
A New Tax System (Family Assistance) Act 1999 – s 3
Social Security Act 1991 – s 4(2)(a) – s 4(3)
CASES
Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470
Holmes and Secretary, Department of Social Security [1987] AATA 896
O’Brien and Anor and Secretary, Department of Employment and Workplace Relations and Anor [2007] AATA 1439
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Ford & Secretary, Department of Families and Community Services (2003) 72 ALD 718
Re “H” and Secretary, Department of Social Security [1989] AATA 127
Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497
Secretary, Department of Employment, Education and Workplace Relations and Stronach [2007] AATA 1398
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164VBH and Secretary, Department of Family and Community Services [2006] AATA 1
REASONS FOR DECISION
Senior Member CR Walsh
5 December 2014
INTRODUCTION
Ms Ashby seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 28 March 2014, which affirmed an earlier decision made by Centrelink that Ms Ashby was a “member of a couple” with Mr Jason Ashby (Mr Ashby) within the meaning of s 4(2)(a) of the Social Security Act 1991 (SSA) in the period from 16 December 2005 to 16 July 2013 (Relevant Period) with the result that Ms Ashby has social security and family assistance debts in respect of social security and family assistance payments received by her in the Relevant Period (totalling $164,602.70).
FACTUAL & PROCEDURAL BACKGROUND
Ms Ashby met Mr Ashby in late 1996 through her then partner, Mr Tamihana Jason Cotter (Mr Cotter), who died in about October 1998. Mr Ashby was Mr Cotter’s best friend.
When Ms Ashby commenced her relationship with Mr Cotter she already had a daughter, Ms Jayde Morris (born in 1990) (Ms Morris), from a previous relationship.
In February 1998, Ms Ashby and Mr Cotter had a son named Tamihana Jah Cotter (Tamihana).
In early 1999, Ms Ashby and Mr Ashby started dating, Ms Ashby fell pregnant and Ms Ashby and Mr Ashby decided to marry as soon as possible.
On 21 August 1999, Ms Ashby married Mr Ashby in Granville, New South Wales.
On 1 September 1999, Ms Ashby lodged a “Parenting Payment – Change of marital status becoming partnered” form with Centrelink. In that form, Ms Ashby stated that her partner was Mr Ashby.
Ms Ashby and Mr Ashby have three children together, namely, Kiaanu William Ashby (15 years old), Isaiah Robert Alfred Ashby (13 years old) and Levi Tripoli Ashby (11 years old).
On 3 January 2001, Ms Ashby lodged a “Claim for Parenting Payment” form at Centrelink, indicating that she had separated from Mr Ashby on 8 November 2000 (PP Claim Form). In the PP Claim Form, Ms Ashby stated that she lived at 1930 The Northern Road, Luddenham, New South Wales and that Mr Ashby lived in New Zealand.
During the Relevant Period, Ms Ashby received the following “social security” payments:
· Parenting Payment Single (PPS) between 16 December 2005 and 31 December 2012;
· Newstart Allowance (NA) between 1 January 2013 and 16 July 2013;
· Pensioner Education Supplement (PES) between 30 July 2010 and 16 July 2013; and
· Employment Entry Payments (EEP) from 24 August 2010 to 3 January 2013;
During the Relevant Period, Ms Ashby received the following “family assistance” payments:
· family tax benefit (FTB) throughout the Relevant Period;
· child care benefit (CCB) from 3 July 2006 to 6 July 2008; and
· child care tax rebate (CCTR) from 3 July 2006 to 6 July 2008.
On 25 July 2013, Ms Ashby completed a Centrelink form to provide information to enable Centrelink to assess whether she was a “member of a couple” with Mr Ashby.
On or about 26 July 2013, Centrelink decided to suspend Ms Ashby’s NA on the basis that she was a “member of a couple” with Mr Ashby.
On or about 9 September 2013, a Centrelink officer decided that Ms Ashby had been a “member of a couple” for social security and family assistance purposes with Mr Ashby since 16 December 2005 and raised debts against Ms Ashby in respect of overpayments of PPS, NA, PES, EEP, FTB, CCB and CCTR, totalling $164,602.70 (Original Decision).
On 7 October 2013, Ms Ashby, through her legal representative, requested an internal review of the Original Decision.
On 14 October 2013, a Centrelink investigator conducted an enhanced internal review of the Original Decision and decided that the weight of the evidence indicated that Ms Ashby was living with Mr Ashby during the Relevant Period. The case was then referred to a Centrelink Authorised Review Officer (ARO).
On 7 November 2013, an ARO affirmed the Original Decision insofar as it related to the family assistance payments (First ARO Decision).
On 8 November 2013, an ARO affirmed the Original Decision insofar as it related to the social security payments (Second ARO Decision).
On 4 December 2013, Ms Ashby applied to the SSAT for a review of the First ARO Decision and the Second ARO Decision.
On 28 March 2014, the SSAT affirmed the First ARO Decision and the Second ARO Decision (SSAT Decision).
On 10 April 2014, Ms Ashby applied to this Tribunal for a review of the SSAT Decision.
ISSUES
The issues to be decided by the Tribunal are:
(i)whether Ms Ashby was a “member of a couple” with Mr Ashby during all or part of the Relevant Period;
(ii)if so, whether Ms Ashby has debts to the Commonwealth arising from overpayments of PPS, NA, PES, EEP, FTB, CCB and CCTR; and
(iii) if so, whether all or part of those debts should be written off or waived.
ANALYSIS
Whether Ms Ashby was a “member of a couple” with Mr Ashby during the Relevant Period
The phrase “member of a couple” is defined in s 4 of the SSA. Specifically, s 4(2) of the SSA states:
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
……[Emphasis added]
Section 3 of the A New Tax System (Family Assistance) Act 1999 (FAA) provides that the phrase “member of a couple” has the same meaning in the FAA (i.e. for family assistance law purposes) as it has in the SSA (i.e. for social security law purposes).
Since Ms Ashby and Mr Ashby were legally married throughout the Relevant Period, they will be “members of a couple” for the purposes of social security and family assistance law unless the Tribunal forms the view that Ms Ashby and Mr Ashby were “living separately and apart” from one another “on a permanent and indefinite basis” during all or a part of the Relevant Period, having regard to the five factors in s 4(3) of the SA.[1]
[1] The five factors in s 4(3) of the SSA criteria are essentially objective and not subjective factors: see VBH and Secretary, Department of Family and Community Services [2006] AATA 1 at [94]; Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470 at [40], [41].
Section 4(3) of the SSA provides:
(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:[2]
[2] Whilst consideration of the factors listed in s 4(3) of the SSA is mandatory, a finding of fact about each factor is not required: see Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92 at [24].
(a) the financial aspects of the relationship,[3] including:
[3] In Pelka [ibid] French J observed (at [53]) that consideration should be given to the reasons behind the people’s financial arrangements.
(i)any joint ownership of real estate or other major assets and 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,[4] including:
[4] It has been held that consideration should be given of the reasons behind the peoples’ decision to live together (or remain living together) and the reasons behind the various other aspects of the nature of the household: Holmes and Secretary, Department of Social Security [1987] AATA 896 at [17] and Secretary, Department of Employment, Education and Workplace Relations and Stronach [2007] AATA 1398 at [31].
(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 household work is distributed;
(c) the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;[5] and
(e) the nature of the people’s commitment to each other,[6] including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship or a de facto relationship. [Emphasis added]
[5] The reasons behind the commencement, continuation or cessation of the sexual relationship should be considered, but a sexual relationship is not, of itself, a determining factor and is only one factor for consideration: see Re Ford & Secretary, Department of Families and Community Services (2003) 72 ALD 718. An affair outside the relationship will not necessarily indicate a relationship breakdown: see Re “H” and Secretary, Department of Social Security [1989] AATA 127 at [37].
[6] Consideration must be given to the nature and reasons behind the peoples’ commitment to each other: see O’Brien and Anor and Secretary, Department of Employment and Workplace Relations and Anor [2007] AATA 1439 at [40] to [41]. The commitment that the people have to one another should be different from the commitment that each of them has to any other person: see Pelka supra at [30].
The approach to be taken in assessing whether a person is a “member of couple” for the purposes of s 4(2) of the SSA, and in applying the five factors in s 4(3) of the SSA, has been considered by the Tribunal and the Federal Court on a number of occasions.
In Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, O’Loughlin J, in considering the meaning of the phrase “living separately and apart”, said (at 175):
The subject of living separately and apart is covered by s 49(2) of the Family Law Act. It provides:
The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.
Addressing the subject of “separation” Watson J said in In Marriage of Todd (No 2) (1976) 25 FLR 260 at 262-263:
In my view ‘separation’ means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not resume the marital relationship and act on that intention, or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple may vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.
When it is arrested that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case. [Emphasis added]
In ReSpencer and Secretary, Department of Social Security (1987) 13 ALD 497, the Tribunal correctly stated (at 500) that the factors in s 4(3) of the SSA are not to be treated as a “tick-off list, with a particular points tally in mind” but rather, they are:
signposts to a goal for which the decision-maker is searching. That goal is the isolation of some exquisite quality in a relationship between two people which distinguishes it from the others built up in the course of their lives.
Living arrangements of Ms Ashby and Mr Ashby during the Relevant Period
Ms Ashby and Mr Ashby each gave evidence (in the form of witness statements and oral testimony) that they did not live together, under the same roof, at any time during the Relevant Period (being from 16 December 2005 to 16 July 2013). The evidence of Ms Ashby and Mr Ashby was corroborated for the most part by the evidence of a number of other witnesses, including family members and friends of Ms Ashby and Mr Ashby, including Ms Morris (Ms Ashby’s daughter), Ms Karen Pollard (Ms Ashby’s sister), Ms Karen Booth (Ms Ashby’s aunt), Mr William Ashby (Mr Ashby’s cousin) (William), Ms Tammy Gilchrist (Ms Ashby’s friend of 14 years) (Ms Gilchrist) and Mr Mitchell Hogarth (Ms Ashby’s friend and the son of Ms Gilchrist) (Mr Hogarth). Based on that evidence, the Tribunal accepts that Ms Ashby and Mr Ashby were not living together, under the same roof, at any time during the Relevant Period.
The following table sets out where Ms Ashby and Mr Ashby each lived during the Relevant Period. Following the table is a brief background description of some of the properties listed in the table.
Period of residence
Ms Ashby
Mr Ashby
8 March 2003 to 1 April 2006
13 Bulah Way, Seven Hills, NSW (Seven Hills Property), then 6 Westward Avenue, Shalvey, NSW (Shalvey Property) (for a short period)
25 Hillside Circuit, Cranebrook, NSW (Cranebrook Property)
1 April 2006 to 15 August 2007
53 Kiber Drive, Glenmore Park, NSW (Glenmore Park Property)
Cranebrook Property
August 2007 to October 2007
Cranebrook Property
11 Denver Road, St Clair, NSW (St Clair Property)
October 2007 to June 2010
Glenmore Park Property
St Clair Property, then 3 Harness Place, Werrington Downs, NSW (Werrington Downs Property)
10 June 2010 to 21 June 2010
46 Trailwood Drive, Woodvale, WA (Woodvale Property)
Driving from NSW to WA then 6 Versailles Gardens, Port Kennedy, WA (Port Kennedy Property)
21 June 2010 to 21 June 2011
29 Halls Head Parade, Halls Head, WA (Halls Head Property)
Port Kennedy Property
16 June 2011 to 30 November 2012
14 Carnarvon Way, Erskine, WA (Erskine Property)
Port Kennedy Property, then 20 Mandalay Gardens, Secret Harbour, WA (Secret Harbour Property)
27 November 2012 to July 2014
15 Corinna Street, Falcon, WA (Falcon Property)
Secret Harbour Property, then Falcon Property from July 2013
(i) Shalvey Property
Ms Ashby’s mother, Ms Verna Pollard, resides at the Shalvey Property. Ms Ashby stayed at the Shalvey Property with her mother for a short time during the Relevant Period.
(ii) Cranebrook Property
The Cranebrook Property is a property that was jointly owned by Ms Ashby and Mr Ashby and was Mr Ashby’s address from the time that he and Ms Ashby moved into the property after their marriage (on 21 August 1999) until about August 2007.
(iii) Seven Hills Property
Ms Ashby’s friend of 14 years, Ms Gilchrist, and her children rented the Seven Hills Property (a four bedroom house) from Housing NSW.
Ms Ashby and her children resided at the Seven Hills Property with Ms Gilchrist from 8 March 2003 to 31 March 2006, although Housing NSW did not include Ms Ashby in the list of people residing at the Seven Hills Property (from 8 March 2003 to 31 March 2006) in its response to a questionnaire, dated 30 January 2013, and Ms Ashby is not listed in the Residential Tenancy Agreement that was attached to that response. During the period that Ms Ashby lived with Ms Gilchrist at the Seven Hills Property, Ms Ashby and Ms Gilchrist helped each other take care of each other’s children.
Ms Ashby was on a waiting list on the New South Wales Housing Commission register from 28 July 2008 for a housing commission property for herself and her children.
(iv) Glenmore Park Property
Ms Ashby’s sister, Ms Pollard, and Ms Pollard’s partner, own the Glenmore Park Property. Ms Ashby and her children lived with Ms Pollard and her family for more than three years.
The Glenmore Park Property had five bedrooms and two bathrooms. Ms Ashby did not pay Ms Pollard and her partner rent when she and her children lived at the Glenmore Park Property. However, in return for accommodation for herself and her children at the Glenmore Park Property, Ms Ashby paid some of the bills relating to the Glenmore Park Property, paid for most of the groceries and looked after Ms Pollard’s children from time to time.
(v) Woodvale Property
The Woodvale Property was previously owned by Ms Ashby’s aunt and uncle, Ms Booth and Mr Rick Booth. Ms Ashby and her children stayed with Ms Booth and Mr Booth when Ms Ashby and her children arrived in Perth, Western Australia in about June 2010.
(vi) Halls Head Property
Ms Ashby and her children moved into the Halls Head Property on 21 June 2010. Ms Ashby leased the Halls Head Property from through real estate agents, H & N Perry.
In December 2010, Mr Hogarth moved from New South Wales to Western Australian and moved into the Halls Head Property with Ms Ashby and her children. In about April 2011, Ms Ashby’s daughter, Ms Morris, and Ms Morris’ partner, Mr Shane Parson, also moved into the Halls Head Property and stayed there for a few months.
(vii) Erskine Property
Ms Ashby and her children moved to the Erskine Property on 21 June 2011. Ms Ashby leased the Erskine Property through the Seachange Realty Rent Shop.
(viii) Falcon Property
On about 27 November 2012, Ms Ashby and her children moved into the Falcon Property, which was owned by Mr Ashby. At that time, Mr Hogarth was renting the Falcon Property from Mr Ashby. When Ms Ashby and her children moved into the Falcon Property, she became a sub-lessee of the Falcon Property.
(ix) Addresses provided by Ms Ashby to third parties
Much was made by the Secretary of the fact that various documents provided by Ms Ashby to third parties during the Relevant Period recorded an address for Ms Ashby which was different from the address at which she was actually living at the relevant time. The Tribunal considers that nothing in this application turns on this since none of these documents are documents which were provided by Ms Ashby to Centrelink in relation to her social security and family assistance payments in the Relevant Period. This issue is addressed in further detail below.
Section 4(3)(a) - Financial aspects of the relationship
(i) Joint ownership of real estate or other major assets and any joint liabilities
Cranebrook Property
Ms Ashby and Mr Ashby purchased the Cranebrook Property as joint tenants on 14 December 1999.
Ms Ashby paid the initial deposit on the purchase of the Cranebrook Property (of about $20,000) from money she received after her former partner, Mr Cotter, died in 1998. Ms Ashby and Mr Ashby had joint liability in respect of the Cranebrook Property with the St George Bank: see paragraph 60 below.
Ms Ashby and Mr Ashby moved into the Cranebrook Property after they married (on 21 August 1999) and Ms Ashby moved out of the Cranebrook Property in about November/December 2000 and resided at the various addresses set out in the table in paragraph 32 above. After Ms Ashby moved out of the Cranebrook Property in November/December 2000, Ms Ashby continued to reside at the Cranebrook Property and pay the mortgage on the Cranebrook Property.
After Ms Ashby moved out of the Cranebrook Property, neither Ms Ashby nor Mr Ashby could afford to buy out the other’s interest in the Cranebrook Property and so Ms Ashby and Mr Ashby agreed to keep the Cranebrook Property until such time as either its value increased or one of them could afford to buy the other out.
In 2005, Ms Ashby and Mr Ashby discussed selling the Cranebrook Property, but eventually decided to refinance their loan on the Cranebrook Property with St George Bank to pay off some of Mr Ashby’s outstanding debts. Mr Ashby decided that by consolidating his debts he would only have to pay one amount each fortnight. On 16 December 2005, Ms Ashby and Mr Ashby applied for and were granted a variation of their loan with St George Bank.
At the time of the refinancing in December 2005, Ms Ashby was living at the Seven Hills Property with her friend, Ms Gilchrist, and Mr Ashby was living at the Cranebrook Property. However, the address of Ms Ashby on the variation of loan document with St George Bank was stated as the Cranebrook Property, not the Seven Hills Property. Ms Ashby explained that her reason for doing this was so that she and Mr Ashby had the same address and did not appear to the bank that they were separated. She said she acted in reliance of a bank officer’s advice that the loan variation was less likely to be approved if she and Mr Ashby declared that they were separated. Ms Ashby said that she agreed to sign the loan variation document because Mr Ashby had agreed to continue making the mortgage repayments and so she would still be able to retain her interest in the Cranebrook Property until it was sold. Mr Ashby also told Ms Ashby that the refinancing of the loan would assist him to pay Ms Ashby child support regularly.
Between December 2005 and November 2007, Ms Ashby and Mr Ashby discussed selling the Cranebrook Property from time to time. On 5 November 2007, the Cranebrook Property was sold and the St George loan was paid out. Ms Ashby and Mr Ashby agreed, prior to the sale of the Cranebrook Property, that Ms Ashby would receive the sum of $20,000 from the proceeds of sale of the Cranebrook Property (i.e. in repayment of the deposit she paid at the time of the Cranebrook Property was purchased). However, at the time of settlement Mr Ashby told Ms Ashby that he did not know how much money would be left out of the proceeds of sale once all expenses were paid and asked Ms Ashby if he could use part of the sale proceeds as a deposit on his purchase of the Werrington Downs Property. Ms Ashby agreed to Mr Ashby’s request. Ultimately, Ms Ashby only received $3,000 from the $20,000 Mr Ashby had agreed to pay her. Mr Ashby explained to the Tribunal that he not been very truthful to Ms Ashby around that time as he had a gambling problem.
On 8 November 2007, Mr Ashby purchased the Werrington Downs Property, using some of the sale proceeds from the sale of the Cranebrook Property, and it was registered solely in his name. Mr Ashby updated his address with the St George Bank to the Werrington Downs Property. Mr Ashby subsequently purchased the Falcon Property solely in his name. Ms Ashby does not have a legal or beneficial interest in either the Werrington Downs Property or the Falcon Property.
Since Ms Ashby moved out of the Cranebrook Property in about November/December 2000, Ms Ashby and Mr Ashby did not purchase any other joint assets.
Since the Cranebrook Property was sold on 5 November 2007 (being the one asset Ms Ashby and Mr Ashby jointly owned), Ms Ashby and Mr Ashby did not jointly own any other real estate or major assets and did not have any joint liabilities.
The fact that Ms Ashby and Mr Ashby did not acquire any joint real estate or other major assets together during the Relevant Period, and that they disposed of the only jointly owned asset they had during the Relevant Period (i.e. the Cranbrook Property), indicates that Ms Ashby was not a “member of a couple” with Mr Ashby during the Relevant Period.
Cars and car insurance
When Ms Ashby moved to Western Australia from New South Wales in June 2010, she asked Mr Ashby whether she could purchase his Holden Captive from him for $7,500. Mr Ashby agreed to the sale and to transfer the Holden Captiva into Ms Ashby’s name.
Ms Ashby paid the amount of $7,500 to Mr Ashby by depositing amounts into a joint account she held with Mr Ashby with the Bendigo Bank as follows - $4,000 (on 30 August 2012), $2,000 (on 31 August 2012) and $1,500 (on 5 September 2012). The fact that Ms Ashby would purchase a car from Mr Ashby during the Relevant Period points away from Ms Ashby being a “member of a couple” with Mr Ashby during the Relevant Period.
The Holden Captiva was insured with AAMI. Before Ms Ashby purchased the Holden Captiva from Mr Ashby, the car insurance policy was in Mr Ashby’s name only. Mr Ashby subsequently included Ms Ashby’s name on the car insurance policy as he knew Ms Ashby was going to purchase the car.
Mr Ashby continued to pay the AAMI insurance policy and Ms Ashby continued to be covered by Mr Ashby’s insurance policy. This fact points towards Ms Ashby being a “member of a couple” with Mr Ashby during the Relevant Period.
(ii) Any significant pooling of financial resources
St George Bank Account
Ms Ashby and Mr Ashby established a joint loan account with St George Bank when they purchased the Cranebrook Property in December 1999 (St George Bank Account). After Ms Ashby moved out of the Cranebrook Property in about November/December 2000, the St George Bank Account remained open and Mr Ashby continued to pay the mortgage on the Cranebrook Property. Ms Ashby did not make any mortgage payments on the Cranebrook Property during the Relevant Period.
After Ms Ashby moved out of the Cranebrook Property in about November/ December 2000, Ms Ashby and Mr Ashby operated separate bank accounts and did not have access to each other’s bank accounts. Ms Ashby maintained two Commonwealth bank Accounts, namely: a “Complete Access” account and a “Netbank Saver” account. Ms Ashby has had the “Complete Access” account since 5 December 1988 (i.e. well before she married Mr Ashby) and has had the “Netbank Saver” account since 1 September 2008. This account was opened by Ms Ashby to enable Mr Ashby to pay child support to Ms Ashby. These banking arrangements point away from Ms Ashby being a “member of a couple” with Mr Ashby during the Relevant Period.
After Ms Ashby moved out the Cranebrook Property in about November/December 2000, Ms Ashby and Mr Ashby did not pool their income to pay for any household bills and daily expenses. This fact points away from Ms Ashby being a “member of a couple” with Mr Ashby during the Relevant Period.
Bendigo Bank Account
On 26 July 2012, Mr Ashby and Mrs Ashby opened a joint bank account with Bendigo Bank (Bendigo Bank Account). Ms Ashby and Mr Ashby opened the Bendigo Bank Account for a specific purpose, namely for Mr Ashby to deposit child support that he was required to pay Ms Ashby. Ms Ashby chose the Bendigo Bank for this purpose as Mr Ashby would not have any key card or internet access to the Bendigo Bank Account when he was working away. The initial agreement between Ms Ashby and Mr Ashby was that Mr Ashby would deposit child support into this account and Ms Ashby would withdraw it. However, Ms Ashby and Mr Ashby later agreed that Ms Ashby would deposit the amount she owed Mr Ashby for the Holden Captiva car she purchased from him (refer to paragraphs 56 and 57 above) into the Bendigo Bank Account and Mr Ashby could withdraw the amount he was owed for the car from that account. However, theis agreement broke down and Ms Ashby subsequently stopped using the Bendigo Bank Account altogether.
At the time the Bendigo Bank Account was opened (i.e. on 26 July 2012), Ms Ashby was living at the Erskine Property and Mr Ashby was living at the Secret Harbour Property. These are the addresses which were provided by Ms Ashby and Mr Ashby respectively to the Bendigo Bank on their joint application form. Further, at the time of opening the Bendigo Bank Account, Ms Ashby provided her driver’s licence (which was valid from 15 July 2010 to 29 August 2013) as proof of identity. Mr Ashby’s driver’s licence at that time recorded Ms Ashby’s address as the Erskine Property.
Whilst in some circumstances the existence of a joint bank account, like the Bendigo Bank Account, could point towards a finding that the account holders were “members of a couple”, in this case the circumstances surrounding the establishment of the Bendigo Bank Account points away from Ms Ashby being a “member of a couple” with Mr Ashby. Ms Ashby and Mr Ashby were residing at different addresses at the time the Bendigo Bank Account was opened. Ms Ashby and Mr Ashby did not present themselves as a couple in their application to the Bendigo Bank, and the primary purpose of opening the Bendigo Bank Account was for Mr Ashby to pay child support to Ms Ashby which he would not have been obliged to do if Ms Ashby and Mr Ashby were “members of a couple”.
Bankwest accounts
On 28 September 2007, Mr Ashby applied to Bankwest for a “Bankwest Lite Home Loan” account when he purchased the Werrington Downs Property (Bankwest Lite Home Loan). The Bankwest Lite Home Loan was in Mr Ashby’s name only. Ms Ashby was not a party to, nor at any time did she have access to, the Bankwest Lite Home Loan account.
Ms Ashby never lived at the Werrington Downs Property and all mortgage repayments on the Bankwest Lite Home Loan were made by Mr Ashby.
None of the addresses to which Mr Ashby’s Bankwest Lite Home Loan statements were sent, match any of Ms Ashby’s addresses during the Relevant Period. The Bankwest Lite Home Loan account was closed by Mr Ashby on 12 November 2012.
Mr Ashby had other bank accounts with Bankwest. Mr Ashby’s account statements show that his employment income was paid into one of his Bankwest account and that he used his Bankwest accounts to make mortgage repayments and to pay utilities and other bills and expenses. Mr Ashby’s addresses on his Bankwest accounts for the following statement periods are:
· Zero Transaction Account (Statement Period from about August 2009 to May 2010) – the Werrington Downs Property
· Zero Transaction Account (Statement Period from about May 2010 to November 2011) – the Port Kennedy Property;
· Zero Transaction Account (Statement Period from about February 2012 to February 2013) – the Secret Harbour Property;
· Lite Direct Account (Statement Period from about November 2011 to November 2012) – the Secret Harbour Property;
· Instant Saver Account (Statement Period from about August 2010 to August 2011); and
· Instant Saver Statement (Statement Period from about August 2011 to February 2012).
When considered overall, the banking arrangements of Ms Ashby and Mr Ashby during the Relevant Period point away from Ms Ashby being a “member of a couple” with Mr Ashby during the Relevant Period.
Superannuation
Mr Ashby is the beneficiary of Ms Ashby’s superannuation policy with AMP, effective 27 April 2007 (which date is within the Relevant Period). Ms Ashby explained that the reason she nominated Mr Ashby as a beneficiary of her superannuation policy was because if something happened to her she expected Mr Ashby to take responsibility for all her children.
Ms Ashby used the Cranebrook Property as her address for her superannuation account. Ms Ashby explained her reason for doing this was because she received advice (in particular from bank officers) during the Relevant Period that she should continue to use the Cranebrook Property address for, among other things, her superannuation account in order to demonstrate that she had a continuing connection with the Cranebrook Property so that she would not lose her interest in in it prior to it being sold.
Ms Ashby is also the beneficiary of Mr Ashby’s superannuation policy, effective 5 March 2009 (which date is within the Relevant Period). Mr Ashby explained that the reason he nominated Ms Ashby a beneficiary of his superannuation policy was because if something happened to him he wanted to ensure that Ms Ashby would be able to continue to financially support the children.
Mr Ashby stated that if he did not take such measures, his Maori culture dictated that his parents, and not his children, would be entitled to all of his property (including his superannuation) when he died because he is the eldest child. Due to this strict cultural tradition, Mr Ashby believed that his parents would not financially support his children. Consequently, he updated his superannuation account details to nominate Ms Ashby as his beneficiary.
Ms Ashby and Mr Ashby each stated that it was their intention when nominating each other as one another’s beneficiaries of their superannuation funds that their children would be the ultimate beneficiaries if anything happened to either of them. Ms Ashby and Mr Ashby’s superannuation arrangements during the Relevant Period tend to point towards Ms Ashby and Mr Ashby being “members of a couple” during the Relevant Period.
(iii) Legal obligations owed by one person in respect of the other person
Loan and credit applications
After Ms Ashby moved out of the Cranebrook Property in November/December 2000, on two occasions Ms Ashby applied for credit and used Mr Ashby’s name on the application. The two “Application Sheets” include information provided by Ms Ashby to test her eligibility for a loan online. Ms Ashby said that she believed that if she included Mr Ashby’s details on the “Application Sheets” she would be successful in obtaining finance. Ms Ashby completed an online loan application with International Acceptance on 6 January 2009 and again on 27 May 2010. Ms Ashby used the online loan calculator available on International Acceptance’s website. She did not contact International Acceptance directly to ask for a personalised quote from them.
The first ‘”Application Sheet’, dated 6 January 2009, was a loan application to purchase a Kirby vacuum cleaner (First Application Sheet). Ms Ashby said that she had previously applied for a loan in her own name, to purchase the vacuum cleaner, and was rejected and that she wanted to purchase that particular brand of vacuum cleaner because of her son’s asthma. Ms Ashby said that she asked Mr Ashby whether he would assist her to obtain finance to buy the vacuum cleaner and that he agreed. The First Application Sheet shows Ms Ashby’s address as the Cranebrook Property and Mr Ashby’s address as the Werrington Downs Property.
The second “Application Sheet”, undated, was a loan application to finance Ms Ashby’s proposed cosmetic surgery (Second Application Sheet). In the Second Application Sheet, Ms Ashby again tested her eligibility to obtain finance by changing the number of dependants from 4 (in her First Application Sheet) to 1 (in her Second Application Sheet), stating that Mr Ashby owned the Glenmore Park Property and not including any mortgage repayments for the Glenmore Park Property. The Glenmore Park Property was, as stated, Ms Pollard’s (Ms Ashby’s sister’s) home and not Mr Ashby’s home. Ms Ashby said that she included different details in the Second Application Sheet than she had in the First Application Sheet in order to test her eligibility to obtain finance from International Acceptance.
Ms Ashby and Mr Ashby did not sign any formal documents in relation to the First Application Sheet and the Second Application Sheet. Mr Ashby was unaware of the Second Application Sheet. The circumstances surrounding the First Application Sheet and the Second Application Sheet do not point towards Ms Ashby and Mr Ashby being “members of a couple” during the Relevant Period.
Ultimately, International Finance rejected the First Application Sheet and the Second Application Sheet. The circumstances surrounding the First Application Sheet and the Second Application Sheet, do not point towards Ms Ashby and Mr Ashby being “members of a couple” during the Relevant Period.
Ms Ashby and Mr Ashby do not have any joint credit cards and do not share any joint liabilities. This fact points away from Ms Ashby and Mr Ashby being “members of a couple” during the Relevant Period.
(iv) Basis of sharing of day-to-day household expenses
Health and car insurance
On about 24 August 2012 Mr Ashby took out a health insurance policy with Medibank Private (Medibank Policy). The “Certificate of Cover” for the Medibank Policy shows Mr Ashby’s address as the Secret Harbour Property, his membership type as “single parent” and that the other people covered by the Medibank Policy were Tamihana and Mr Ashby’s three children with Ms Ashby.
Ms Ashby was added as a member on the Medibank Policy on about 31 December 2012 (which date is within the Relevant Period).
Ms Ashby was required to have private health insurance when she went on her nursing practical placements. She contacted a private health insurer to get a policy in her own name and could not afford the cost of the policy. She was also told that she would have to serve a ’12 month’ waiting period before she could claim under the policy. Ms Ashby discussed this situation with Mr Ashby who offered to contact Medibank to see whether Ms Ashby could be added to his policy and, if so, the cost of doing so. Mr Ashby then told her that he had spoken to the insurer and because they were still legally married, although separated, Ms Ashby could be added to the policy for a minimal amount and she would not have serve out the full waiting period should she need to claim under the policy.
The fact that Mr Ashby did not take out a family policy and represented himself to Medibank Private as a single father when he took out the Medibank Policy in August 2012 points towards Ms Ashby and Mr Ashby not being “ members of a couple” in the Relevant Period. However, the fact that Mr Ashby added Ms Ashby to the Medibank Policy as a member during the Relevant Period point towards Ms Ashby and Mr Ashby being “members of a couple” during the Relevant Period.
Other utilities/accounts
Mr Ashby held a Foxtel account in relation to the Werrington Downs Property from about November 2007 to 14 May 2010 (which period is within the Relevant Period). This was not a joint account with Ms Ashby and Ms Ashby did not live at the Werrington Downs Property at any time during the Relevant Period. However, Mr Ashby authorised Ms Ashby to order movies on his Foxtel account at the Werrington Downs Property one evening when Ms Ashby was visiting a cousin who was staying at Werrington Downs Property with Mr Ashby. However, Mr Ashby was working away, and was not at the Werrington Downs Property, on that particular occasion.
The Synergy and Alinta Energy accounts for Halls Head Property and the Erskine Property during the Relevant Period were in Ms Ashby’s name only. Ms Ashby represented herself to the various utilities and institutions as a single person. Ms Ashby paid these utilities herself and Mr Ashby did not contribute to any payment of the household bills or utilities at either the Halls Head Property or the Erskine Property.
The utilities accounts for the Werrington Downs Property during the Relevant Period were in Mr Ashby’s name only.
The fact that Ms Ashby and Mr Ashby did not share household expenses or have joint responsibility for payment of utilities during the Relevant Period indicates that Ms Ashby and Mr Ashby were not “members of a couple” during the Relevant Period.
Falcon Property
Following Mr Ashby’s purchase of the Falcon Property, Mr Hogarth signed a 6-month lease on the Falcon Property (on 10 November 2012). In about November 2012, Ms Ashby moved into the Falcon Property with the children at Mr Hogarth’s request, as he was having trouble affording the rent by himself. Prior to Ms Ashby and her children moving into the Falcon Property, Mr Hogarth obtained permission from his landlord, Mr Ashby. Ms Ashby agreed to sublet the property from Mr Hogarth.
Ms Ashby and Mr Hogarth paid rent to Mr Ashby until about July 2013, when Mr Ashby moved into the Falcon Property and Ms Ashby’s Centrelink payments were suspended and then cancelled.
The account with the Water Corporation for the Falcon Property was under Mr Ashby’s name because he is the registered proprietor of the Falcon Property.
The Synergy account for the Falcon Property commenced on 30 November 2012 and was in Ms Ashby’s name as she had moved into the Falcon Property by then. This arrangement is common in a typical landlord/tenant relationship.
Ms Ashby and Mr Ashby’s arrangements with respect to the Falcon Property during the Relevant Period point away from Ms Ashby being a “member of a couple” with Mr Ashby during that part of the Relevant Period.
Section 4(3)(b) - Nature of the household
(i) Any joint responsibility for providing care or support of children
Ms Ashby and Mr Ashby have three biological children together and Mr Ashby has always been a father figure to Ms Ashby’s son with Mr Cotter, Tamihana. However, after Ms Ashby moved out of the Cranebrook Property in November/December 2000, she was solely responsible for daily care of the four children. Ms Ashby has always lived with the children and Mr Ashby did not live with the children on a daily basis during the Relevant Period.
During the Relevant Period, Ms Ashby attended to all daily household chores for herself and the children, such as cooking, cleaning and washing. Throughout the Relevant Period, Ms Ashby performed the daily child-rearing responsibilities solely. Mr Ashby was not involved in the daily child-rearing responsibilities as he was not living with Ms Ashby and the children. During his days off work, Mr Ashby would often visit the children and take them to football practices and games. During the Relevant Period, the children would stay overnight with Mr Ashby from time to time. Such arrangements are common for separated couples with children.
Mr Ashby has been responsible for paying child support since Ms Ashby moved out of the Cranbrook Property in November/December 2000 but, by his own admission, he has not been reliable in making these payments due to his gambling problem. This has led to arguments between Ms Ashby and Mr Ashby and from time to time during the Relevant Period and Ms Ashby consequently tried to put in place different arrangements to increase the likelihood that Mr Ashby would meet his obligations to pay child support in a consistent and reliable manner.
(ii) living arrangements of the people
(iii) basis on which responsibility for housework is distributed
As stated, after Ms Ashby moved out of the Cranebrook Property in November/ December 2000, Ms Ashby and Mr Ashby did not share accommodation at all until July 2013 when Mr Ashby moved into the Falcon Property where Ms Ashby was living with the children.
The evidence of the living arrangements of Ms Ashby and Mr Ashby during the Relevant Period strongly indicates that they were not “members of a couple” during the Relevant Period.
Section 4(3)(c) - Social aspects of the relationship
(i) Whether the people hold themselves out as married to each other
(ii)Assessment of friends and regular associates of the people about the nature of their relationship and basis on which the people make plans for, or engage in, joint social activities
Apart from on a few occasions during the Relevant Period (for example, when lodging the First Application Sheet and the Second Application Sheet), Ms Ashby has not held herself out to any third parties as being a “member of a couple” with Mr Ashby.
Although Mr Ashby stated that Ms Ashby was his “wife” in his employment contract with BHP Billiton, dated 11 March 2011 (BHP Billiton Employment Contract), this was an accurate statement as they were still legally married at that time. However, it could also be said that Mr Ashby did notify his employer that he and Ms Ashby were separated by providing different addresses for himself and Ms Ashby in the BHP Billiton Employment Contract. That is, in the BHP Billiton Employment Contact, Mr Ashby listed his residential address as the Port Kennedy Property and Ms Ashby’s address as the Halls Head Property. Further, Mr Ashby listed his cousin, William, as his secondary emergency contact, and William’s residential address as the Port Kennedy Property. This is because Mr Ashby was living with his cousin William at the Port Kennedy Property at that time. The fact that Mr Ashby provided BHP Billiton with different addresses for himself and Ms Ashby in the BHP Billiton Employment Contract indicates that Ms Ashby and Mr Ashby were living separately and apart and were not “members of a couple” during the Relevant Period.
Further, evidence was given by a number of Ms Ashby’s family and friends to the effect that they did not consider Ms Ashby to be a “member of a couple” with Mr Ashby during the Relevant Period.
Ms Ashby’s move to Perth, Western Australia in June 2010
Ms Ashby and her daughter, Ms Morris, previously lived in Perth, Western Australia, and she has family members here. Ms Ashby had always wanted to move back to Western Australia with the children. Prior to June 2010, Ms Ashby and the children could not move to Western Australia because Mr Ashby would not agree to this move as it would prevent him from seeing the children.
In June 2010, Mr Ashby had the opportunity to move to Western Australia for employment reasons. When he told Ms Ashby he could take a job in Western Australia, she encouraged him to so that she and the children could move to Western Australia and the children would still be able to have regular contact with their father when he was not working away.
Ms Ashby and Mr Ashby did not plan to live together in Western Australia, and each had their own plans about where they would live and who they would live with.
These circumstances do not point towards Ms Ashby being a “member of a couple” with Mr Ashby during the Relevant Period.
Leases
(i)Halls Head Property
Ms Ashby included Mr Ashby's name on the lease application for the Halls Head Property and indicated that the Werrington Downs Property was her previous address to show that she had the same address as Mr Ashby. Ms Ashby explained that her reason for doing this was because she believed, as a single mother without any employment, she would be unsuccessful in obtaining a rental property for her and the children on her own. Mr Ashby agreed to put his name on the lease to assist Ms Ashby to secure rental accommodation for herself and the children, in order to “put a roof over the children’s head”.
Mr Ashby was not in Perth when Ms Ashby found the Halls Head Property and lodged an application to lease it. Mr Ashby had no input in choosing the Halls Head Property. The real estate agents, H & N Perry, only met Mr Ashby once when he went to their offices to sign the lease.
Ms Ashby put her mother as her next of kin on the lease application for the Halls Head Property. Mr Ashby’s next of kin on the lease application for the Halls Head Property were “William Ashby and Gina Ashby” (i.e. Mr Ashby’s cousin and his wife), each having the Glenmore Park Property as their stated address.
During the period in which Ms Ashby rented the Halls Head Property, Mr Ashby did not make any payments towards the property. Ms Ashby paid all rental payments to the real estate agent.
Mr Ashby never lived at the Halls Head Property. During the period of the lease of the Halls Head Property, Mr Ashby lived at the Port Kennedy Property, with his cousin William.
Mr Ashby was not present when any of the house inspections were carried out at Halls Head Property.
These circumstances point away from Ms Ashby being a “member of a couple” with Mr Ashby during this part of the Relevant Period.
(ii)Erskine Property
Ms Ashby included Mr Ashby's name on the lease application for the Erskine Property because she wanted to obtain accommodation for her and the children, and as a single mother without any employment, she believed that she would be unsuccessful in leasing a property on her own.
Mr Ashby was not involved in finding the Erskine Property, nor did he provide any input when Ms Ashby chose the Erskine Property. Ms Ashby leased the Erskine Property through the Seachange Realty Rent Shop. To assist Ms Ashby to obtain the lease of the Erskine Property, Mr Ashby faxed copies of his proof of identity documents and payslips to the Seachange Realty Rent Shop. The only direct dealings that Mr Ashby had with the Seachange Realty Rent Shop, was when he attended their offices to sign the lease agreement for the Erskine Property. Ms Ashby and Mr Ashby signed the lease agreement for the Erskine Property at different times. Ms Ashby signed the lease on 16 June 2011 and Mr Ashby signed the lease on 17 June 2011.
In the lease application for the Erskine Property, Ms Ashby included Mr Ashby as her next of kin but she also included a secondary person has her next of kin, being her daughter, Ms Morris. Ms Ashby explained that she included Mr Ashby as her next of kin on the lease application for the Erskine property as she believed that she needed to show that she was not a single mother in order to obtain the lease.
Ms Ashby was the only one who signed the property condition report, dated 28 June 2011, and was present for rental inspections for the Erskine Property. Ms Ashby paid all the rent for the Erskine Property. Mr Ashby did not make any payments in relation to the Erskine Property. During the period in which Ms Ashby lived at the Erskine Property, Mr Ashby lived at the Port Kennedy Property with his cousin, William, and then moved to the Secret Harbour Property.
When the security bond for the Erskine Property was released, the amount of $891.40 was released to Ms Ashby’s Commonwealth Bank “Complete Access” account.
Overall, these circumstances point away from Ms Ashby being a “member of a couple” with Mr Ashby during this part of the Relevant Period.
Representation to family and friends
During the Relevant Period, Ms Ashby and Mr Ashby did not represent themselves as “members of a couple” to their respective families or friends. Ms Ashby and Mr Ashby both claim to have been separated since late 2000 and are clearly seen by family and friends as separated. After Ms Ashby moved out of the Cranebrook Property in November/December 2000, Ms Ashby did not introduce Mr Ashby as her husband or partner to anyone.
During the Relevant Period, Ms Ashby and Mr Ashby led separate lives.
When Ms Ashby attended family celebrations in New South Wales, Mr Ashby was not present.
The only time that Mr Ashby was present at family events during the Relevant Period was when he attended his children's birthday parties. This was not because he and Ms Ashby were “members of a couple” but because Mr Ashby is the children’s father. When Mr Ashby took the children out for sports and other activities, Ms Ashby did not accompany them.
Since November/December 2000, Ms Ashby and Mr Ashby have each gone on separate holidays and have travelled overseas and interstate separately.
Since November/December 2000, Mr Ashby has travelled to New Zealand on approximately 14 occasions. Since November/December 2000, Ms Ashby and Mr Ashby have travelled together with the children to New Zealand on 3 occasions.
The first trip was on 22 May 2002, which was prior to the Relevant Period.
The second trip was on 29 December 2005, for 12 days. Ms Ashby accompanied her son with Mr Cotter, Tamihana, to New Zealand as he was required to attend Mr Cotter's home for a ceremony and Ms Ashby was concerned that if she did not travel with Tamihana, Tamihana's grandparents would try to force Tamihana to remain with them in New Zealand. Mr Ashby also wanted to take his children to see his family. Ms Ashby did not want Mr Ashby to take the children to New Zealand without her being present, as she thought Mr Ashby may never return with the children to Australia. Consequently, Ms Ashby, Mr Ashby and the children decided to travel to New Zealand together on this occasion.
The third trip was on 10 March 2006, for 9 days. Ms Ashby and Mr Ashby were invited to a wedding which involved family friends of both Mr Ashby and Mr Cotter and Ms Ashby’s son, Isaiah, was part of the wedding party. Ms Ashby’s daughter, Ms Morris, also went with them as she was friends with the bride's nieces. Although Ms Ashby, Mr Ashby and the children travelled together to New Zealand on this occasion, Ms Ashby and the children stayed with Ms Ashby’s friends and Mr Cotter's family and Mr Ashby stayed separately with his family.
Ms Ashby listed the Cranebrook Property as her address on the Department of Immigration (incoming and outgoing passenger) cards when she went on these trips as she was the joint owner of the property and believed that she needed to use the address for some official purposes, such as this, to maintain her claim to an interest in the Cranebrook Property.
Ms Ashby and Mr Ashby have not travelled together since 2006.
Overall, the social aspects of the relationship between Ms Ashby and Mr Ashby during the Relevant Period indicate that Ms Ashby and Mr Ashby were not “members of a couple” during the Relevant Period.
Section 4(3)(d) - Sexual relationship
Since Levi was born in 2003 (which was after Ms Ashby moved out of the Cranebrook Property in November/December 2000), Ms Ashby and Mr Ashby have not had a sexual relationship with each other. They have had sexual relationships with others. This fact points away from Ms Ashby being a “member of a couple” with Mr Ashby during the Relevant Period.
Section 4(3)(e) - Nature of commitment to each other
(i) Length of the relationship
(ii)Nature of companionship and emotional support that the people provide to each other
(iii) Whether the people consider that the relationship is likely to continue indefinitely
(iv) Whether the people see their relationship as a marriage-like relationship
Ms Ashby and Mr Ashby’s relationship as a couple appears to have lasted for little more than a year. Since November/December 2000 (when Ms Ashby moved out of the Cranebrook Property), they have not sought companionship or emotional support from each other. Since November/December 2000, Ms Ashby has instead relied on her friends and family for companionship and emotional support.
Ms Ashby and Mr Ashby have had a child arrangement in place since Ms Ashby moved out of the Cranebrook Property in November/December 2000. Mr Ashby’s financial support, in this regard, was only for the benefit of his children, not Ms Ashby.
When Mr Ashby was involved in a serious work accident in February 2012, his employer, BHP Billiton, contacted his cousin William, and not Ms Ashby, to advise him of the accident. Following the accident, Ms Ashby visited Mr Ashby in hospital but she did not take Mr Ashby to any of his medical appointments. After the accident and his discharge from hospital, Mr Ashby went back to live with his cousin William at the Port Kennedy Property. Mr Ashby then decided to go to Sydney for about 3 to 4 weeks. When Mr Ashby returned to Perth he moved into the Secret Harbour Property with Ms Morris, Mr Parson and another housemate Ms Kailah Matthew. Mr Ashby did not move in with Ms Ashby and Ms Ashby did not provide Mr Ashby with any care following Mr Ashby’s work accident.
During the Relevant Period, Ms Ashby and Mr Ashby did not have any commitment to each other but only to their children. Their families and friends consider that their relationship had ended and knew that there would be no reconciliation between Ms Ashby and Mr Ashby. Ms Ashby and Mr Ashby have not made any joint plans for the future and Ms Ashby’s plans for the future do not involve Mr Ashby.
These circumstances point away from Ms Ashby and Mr Ashby being “members of a couple” during the Relevant Period.
Conclusion on “members of a couple”
On balance, the Tribunal finds that Ms Ashby was not a “member of a couple” as defined in s 4(2)(a) of the SSA (having considered the five factors in s 4(3) of the SSA) with Mr Ashby during the Relevant Period. The weight of the documentary and oral evidence points to the fact that, although legally married, Ms Ashby and Mr Ashby were living separately and apart from one another on a permanent or indefinite basis during the Relevant Period and that Ms Ashby and Mr Ashby’s relationship during the Relevant Period was centred on co-parenting their children and not on one another.
(ii)Whether Ms Ashby has social security and family assistance debts to the Commonwealth
(iii)Whether Ms Ashby’s debts should be written off or waived
Since the Tribunal has found that Ms Ashby was not a “member of a couple”, as defined in s 4(2)(a) of the SSA, with Mr Ashby during the Relevant Period it is unnecessary for it to consider whether Ms Ashby has social security and family assistance debts to the Commonwealth in respect of social security and family assistance payments made to her during the Relevant Period and, if so, whether those debts should written off or waived.
DECISION
For the above reasons, the Tribunal sets aside the SSAT Decision and substitutes that decision with the decision that Ms Ashby and Mr Ashby were not “members of a couple” for social security and family assistance law purposes during the Relevant Period such that Ms Ashby does not have social security and family assistant debts to Centrelink in respect of that period.
I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh …(Sgd) T Freeman........
Associate
Dated 5 December 2014
Dates of hearing 17, 18 & 19 November 2014 Representative for the Applicant
Solicitors for the Applicant
Ms L Yu
Welfare Rights & Advocacy Service
Representative for the Respondent Ms A Ladhams Solicitors for the Respondent
Australian Government Solicitor
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