Stimpson and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1644

Stimpson and Secretary, Department of Social Services (Social services second review) [2020] AATA 1644 (5 June 2020)
ReviewNumber: 2018/7702
Division:GENERAL DIVISION
File Number: 2018/7702-7703
Re:Robbie Stimpson
Cheral Stimpson

APPLICANTS

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:05 June 2020
Place:Brisbane

The Reviewable Decisions, as varied by the Department on 09 January 2019, are affirmed.
Senior Member P J Clauson
Catchwords
SOCIAL SECURITY – disability support pension – carers’ pension – whether recipients were members of a couple – whether debt is recoverable – decision affirmed.
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Groth v Secretary, Department of Social Security [1999] FCA 1708
Lambe v Director General of Social Services (1981) 4 ALD 362; (1981) 38 ALR 405; (1981) 57 FLR 262
Lynam v the Direction General of Social Security (1983) 1 AAR 197
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
RFZX and Secretary, Department of Education, Employment and Workplace Relations and another [2010] AATA 35
Secretary, Department of Social Security v Hales [1998] FCA 219
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Stauton-Smith v Department of Social Security (1991) 32 FCR 164
VBH and Secretary, Department of Family and Community Services [2006] AATA 1
REASONS FOR DECISION
Senior Member P J Clauson
05 June 2020
BACKGROUND

On 4 December 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AATI) set aside the Department of Human Services (the Department) decision of 4 May 2018 to raise a debt against Mr Robbie Stimpson (the Applicant) in Matter 2018/7702 for recovery of the sum of $105,920.11, being overpayment of DSP for the period from 13 September 2011 to 16 April 2018. The Tribunal notes that the end date of this period differs between documents filed with the Tribunal. The difference in these dates is one day, being 16 April 2018 and 17 April 2018,[1] and consequently, the Tribunal does not consider this discrepancy significant enough to have any bearing on the considerations before it and so for the purposes of these reasons, the relevant period is dated as 13 September 2011 to 16 April 2018.
[1] Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions, dated 19 July 2019, 1; Exhibit 1, T1 at 2; Exhibit 1, T35, at 1265.
This action had been instituted consequent upon an investigation by the Department of Mr Stimpson’s qualification to receive benefits which resulted on 30 April 2018 in the Department’s deciding that he had been a member of a couple with Ms Cheral Stimpson effectively from 13 September 2011 until 16 April 2018 and thus had been overpaid his benefits. Mr Stimpson had been in receipt of DSP since 10 December 1998.
The AATI, in reviewing this decision, directed that the matter be remitted to the Department for reconsideration in accordance with its Directions that:
(a)the Applicant is a member of a couple with Ms Cheral Stimpson; and
(b)there are no unexplained deposits that need to be taken into account in the calculation of the Applicant’s rate of payment.
On 9 January 2019, the AATI decision was implemented and the Department decided that in relation to Mr Robbie Stimpson that:
(a)the Applicant had been overpaid Disability Support Pension (DSP) in the amount of $77,414.13 during the period 13 September 2011 and 16 April 2018 (the relevant period);[2]
(b)the overpaid amount was a debt due to the Commonwealth; and
(c)the debt was to be repaid in full.
[2] ST7, ST9, Exhibit 2.d
In relation to the Applicant Ms Cheral Stimpson (Matter 2018/7703), on
4 December 2018, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AATI) set aside a decision which found she was a member of a couple with Mr Robbie Stimpson and that she had been overpaid carer payments in the sum of $48,605.68 during the relevant period, namely 18 June 2015 to 16 April 2018[3] of the Department of Human Services (the Respondent) and remitted the matter back to the Department for reconsideration in accordance with Directions that:
(a)the Applicant was a member of a couple with Mr Robbie Stimpson; and
(b)there are no unexplained deposits that need to be taken into account in calculation of the Applicant’s rate of payment.
[3] Exhibit 1, T42 at 1259.
On 9 January 2019, the AATI decision was implemented and the Department decided that:
(a)the Applicant had been overpaid carer payments (CP) in the amount of $27,682.45 during the period 18 June 2015 to 16 April 2018 (the relevant period);
(b)the overpaid amount is a debt due to the Commonwealth; and
(c)the debt is to be recovered in full.
Both the decision in relation to the Applicant, Mr Stimpson, and that in relation to the Applicant, Ms Stimpson, are the decisions under review as varied by the Department on 9 January 2019.
For the purposes of the current review and in the interests of convenience, the Applicant, Mr Robbie Stimpson, is referred to herein as “Applicant 1” and the Applicant, Ms Cheral Stimpson, is referred to in this document as “Applicant 2”.
ISSUES
The issues to be decided in this matter are:
(a)In relation to Applicant 1:
(i)whether Applicant 1 was a member of a couple with Applicant 2 during the relevant period;
(ii)whether Applicant 1 was overpaid DSP in the amount of $77,414.13 during the relevant period;
(iii)whether the overpaid amount is a debt to the Commonwealth; and
(iv)whether the debt is to be recovered.
(b)In relation to Applicant 2:
(v)whether Applicant 2 was a member of a couple with Mr Stimpson during the relevant period;
(vi)whether Applicant 2 was overpaid carer payment in the amount of $27,682.45 during the relevant period;
(vii)whether the overpaid amount is a debt due to the Commonwealth; and
(viii)whether the debt is to be repaid.
The Applicants were married in September 1983.[4]
[4] Exhibit 1, T16 at 154.
Applicant 1 was granted DSP on 10 December 1998.[5]
[5] Exhibit 1, T1 at 2.
The Applicants moved to their current address in, Kingscliff, in or about mid-1997. This property was originally purchased on 20 December 2006 via a Trust with which the Applicants were in some form connected.
On 20 February 2007, the Applicants, it would appear, purchased the subject property from the Trustee, Film Task Pty Ltd, of the Lawrence Discretionary Trust for the sum of $610,000.00.
The Applicants, it is agreed by both parties, hold the property as tenants in common in equal shares. It is also agreed by the parties to this review that the subject property is mortgaged to Westpac Banking Corporation under a Registered Instrument XXXXX X76.[6]
[6] Exhibit 1, T10.
Westpac provided a line of credit to the Applicants in the amount of $455,000.00 for the purchase of the property. The loan was via Westpac’s fixed options home loan product with the account number XXX XXX XXXX60 (the home loan).[7]
[7] Exhibit 1, T6.
The Applicants were also provided with what is commonly referred to as a redraw facility and an offset account, the principle of this type of arrangement being that interest garnered on the offset savings account is offset against the interest accrued on the home loan account. The redraw facility allows the mortgagor to withdraw funds from time to time as desired against a standing equity in the mortgaged property.
It is noted that the settlement date for the sale of the property in the transaction from Film Task Pty Ltd to the Applicants is 20 February 2007 and that the mortgage arrangement with Westpac Bank was effected in the case of account XXX XXX XXX 473 on
[8] Exhibit 1, T24 at 1058.
13 September 2011, and in the case of account XXX XXX XXX 360 on 20 December 2011.[8]
The evidence provided by the Applicants to the Tribunal is that the original financing arrangements were with the National Australia Bank (NAB) and that these continued up until the arrangement for finance for the property was put in place through the Westpac Banking Corporation when they purchased the property.
Applicant 2, on 18 June 2015, made a claim for carer allowance and carer payment in respect of Applicant 1.
On 5 July 2017, the Department started an evaluation of Applicant 1’s past or current eligibility to receive Social Security payments.[9]
[9] Exhibit 1, T46 at 1687.
The valuation concluded that Applicant 1 was a member of a couple with Ms Stimpson[10] and the Department, on 30 April, found this to be so. Consequent of this, it was necessary to take into account Applicant 2’s income and assets to determine the correct rate of payment for Applicant 1. Likewise, it became necessary that Applicant 1’s income and assets were required to be taken into account to determine Applicant 2’s correct rate of payment.
[10] Exhibit 1, T4 at 312 and T46 at 1704.
The Department, on 4 May 2018, determined that Applicant 2 had been overpaid CP in the amount of $48,605.68 in respect of the relevant period and the overpaid amount was to be recovered.[11]
[11] Exhibit 1, T42 at 1259.
Both Applicants sought a review of the decision of the Department. On
14 August 2018, an Authorised Review Officer (ARO) reviewed and affirmed the decision.
Both Applicants sought a further review of the ARO’s decision and on
4 December 2018 the AATI set aside the decisions relating to both Applicants. The AATI remitted the matters back to the Department for reconsideration in accordance with the instructions that:
(a)both Applicants were together members of a couple; and
(b)there are no unexplained deposits that need to be taken into account in the calculation of the Applicants’ rate of payment.
Applicant 1 and Applicant 2 lodged, on 4 January 2019, an Application for a Second Review by this Tribunal.
On 9 January 2019, the Department implemented a decision of the AATI in relation to both Applicants and decided that:[12]:
(a)Applicant 1 had been overpaid DSP in the amount of $77,414.13 during the relevant period;
(b)Applicant 2 had been overpaid CP in the amount of $27,682.45 during the relevant period;
And that in both Applicants’ cases:
(a)the overpaid amount was a debt due to the Commonwealth; and
(b)the debt was to be repaid in full.
[12] Exhibit 1, ST7 at 7 and ST9 at 60, 61 and Exhibit 1, ST10 at 16 and ST12 at 44, 45.
LEGISLATIVE FRAMEWORK
The legislation governing this matter reposes in:
(a)the Social Security Act1991 (Cth) (the Act); and
(b)the Social Security (Administration) Act1999 (Cth) (the Administration Act).
In determining whether a person is a member of a couple, sections 4(2)(a) and 4(3) of the Act are the relevant provisions of the Act. In particular, section 4(2)(a) of the Act provides:
2Subject to sub-section (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 sub-section (3)), living separately and apart from the other person on a permanent or indefinite basis and section 4(3) establishes the criteria for forming an opinion as to whether a person is a member of a couple and provides: member of a couple - Criteria for forming opinion about relationship.
3In forming an opinion about the relationship between two people for the purposes of paragraph 2(a), sub-paragraph (2)(aa)(ii) or sub-paragraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)The financial aspects of the relationship;
(i)     Any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)    Any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)   Any legal obligations owed by one person in respect of the other person; and
(iv)   The basis of any sharing of day-to-day household expenses;
(b)The nature of the household, including:
(i)     Any joint responsibility for providing care or support of children; and
(ii)    The living arrangements of the people; and
(iii)   The basis on which responsibility for housework is distributed;
(c)The social aspects of the relationship, including:
(i)     Whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii)    The assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)   The basis on which the people make plans for, or engage in, joint social activities;
(d)Any sexual relationship between the people;
(e)The nature of the people’s commitment to each other, including:
(i)     The length of the relationship; and
(ii)    The nature of any companionship and emotional support that the people provide to each other; and
(iii)   Whether the people consider that the relationship is likely to continue indefinitely; and
(iv)   Whether the people see their relationship as a marriage-like relationship or a de facto relationship.
In addition to the considerations outlined in the statutory form, the jurisprudence around these sections is also of assistance when the Tribunal has to apply section 4(3) in a proper manner.
The Secretary, in their Statement of Facts and Contentions, alluded to the case of VBH and Secretary, Department of Family and Community Services [2006] AATA 1 where at page 94 the Tribunal observed:
The section 4(3) criteria does have some subjective components but it is overwhelming objective in the nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.
The Secretary alluded also to the matter of Staunton-Smith v Secretary of Social Security (1991) 32 FCR at 164 where O’Loughlin J. observed:
It is not suggested that this list is exhaustive nor will each of these subjects be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the factfinding Tribunal is to have regard to all the material facts of each case treating the matters above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
Further, the Secretary drew the attention of the Tribunal to the matter of Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 where at paragraph [70] the Tribunal stated:
… being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be a member of a couple. All of the circumstances need to be considered. Each matter is different.
The credibility of the claimant party is also a vital consideration frequently when determining whether a party is a member of a couple. Authority for this proposition is contained in the matter of RFZX v. The Secretary, Department of Education, Employment Workplace Relations & Anor. [2010] AATA 35.
In addition to these decisions, the Tribunal also finds the observations of Fitzgerald J. in the matter of Lynam v. The Director-General of Social Security (1983) 1 AAR 197 (Lynam) of guidance. In that matter, His Honour was making observations on the factual construction of the domestic arrangements whereby Mr L shared a residence with Mrs C and which had been jointly purchased with another party. The expenses of the household were shared equally. Mr L had his unemployment benefit cancelled. This in turn led to hardship as he wasn’t able to leave Mrs C to buy him out of the house and they remained friendly but denied a sexual or social relationship. The Department formed a view that they were a de facto partnership because of Mr L’s total financial dependence on Mrs C and the fact that their residence was jointly owned.
His Honour was considering these circumstances based on comments of the Full Court of the Federal Court of Australia in Lambe’s case[13] wherein that Court expressly rejected the proposition that the absence of adequate financial support was of determinative significance in deciding whether an Applicant for a Supporting Mother’s Benefit under Part IV AAA of the Act was a ‘supporting mother’. The Full Court decided that in determining whether a woman was ‘living with a man as his wife on a bona fide domestic basis’, all facets of the interpersonal relationship should be taken into account. Financial support would be an important, although not necessarily crucial, consideration. It would be only one of a number of relevant matters which the AAT should take into account.
[13] Lambe v. Director-General of Social Services (1981) 4 ALD 362; (1981) 38 ALR 405; (1981) 57 FLR at 262
In Lynam, Fitzgerald J. felt that the approach in Lambe was correct in this regard and did not warrant change. He went on to say:
In Lambe’s case, the Full Court said that all facets of their interpersonal relationship need to be taken into account and that their financial relationship, although important, is only one of a number of relevant matters. I am unable to perceive how any difference of approach is warranted in the context in which it arises in this case ….
The Tribunal has also considered the decision of French J. (as he then was) in the matter of Pelka v. Secretary, Department of Family and Community Services [2006] FCA 735 (Pelka). His Honour made some helpful observations and provided guidance regarding the matters to be considered by a decision-maker when attempting to determine the nature of the relationship between two parties in circumstances where the correct approach required to resolve questions posed by section 4(3) of the Act.
For context, a short overview of the facts in Pelka is appropriate. Ms P had been in receipt of care payments from July 2000 until March 2003 at the single rate, at which time the Department of Family and Community Services determined that during this period, she had been in a marriage-like relationship with Mr K, a person with whom she shared her apartment. Ms P had been separated from her husband since 1986 and they divorced in 2003. It is to be noted that Ms P was of Chinese ethnicity and when she and Mr K shared her apartment they became, by way of custom, godbrother and god-sister. Ms P met Mr K in 1985 and purchased her apartment in 1988. It was a two-bedroom apartment and when she went for an overseas trip for an extended holiday, Mr K house-sat the apartment for her. He then stayed on after her return as he had nowhere to go and resided in the spare room until 2004.
They agreed an arrangement whereby Mr K would pay no rent however, in lieu of that concession, he would pay for Ms P’s airfares and accommodation when she travelled overseas. During this time, Ms P paid off her mortgage and Mr K paid the electricity, gas and telephone bill.
Ms P stated that she had no sexual relationship with Mr K, that they travelled overseas about once a year and to save money booked on a twin share basis hotel apartment to save money. Ms P paid for her own shopping excursions.
The parties did not keep joint bank accounts and would go to the movies together on occasion. If Ms P cooked food in excess of her needs, she would share that with Mr K. She told none of her friends that she was in a relationship with Mr K and they generally lived separate existences and not see each other often for days. She took no interest in Mr K’s private life, nor he in hers. And, it was a matter of convenience that they were able to live in the same accommodation.

Ms P stated that she didn’t pool resources with Mr K other than when they took joint holidays and she was unaware of his testamentary arrangements in her favour. Mr K said that the relationship was ‘separate and apart’ and that he had not had sex with Ms P, had lady friends with whom he would stay and didn’t advise Ms P of his movements. He also stated that he did his own cleaning.
Since 2000, Ms Pelka had been a carer for a Mr W and had accompanied him on a number of business trips, one of which was a three month trip around Australia.
In 2004, Ms P moved into Mr W’s Warwick residence to care for him and received carer payments. In between the years 2000 and 2003, she had received carer payments for her care of Mr W at the single person rate. In 2003, the Department reviewed her situation and then decided that she had, in fact, been living in a marriage-like relationship with Mr K since at least 2000 and that, on that basis, had been overpaid carer’s payment in the amount of $29,411.14 during the period 11 July 2000 to 24 March 2003.
This decision led to the review process and then finally to the Federal Court.
The main significant consideration in the matter was what is set out in section 4(3)(2)(a)(ii), the pooling of financial resources.
French J. set out general guidance on the correct approach to resolving the questions posed by section 4(3) of the Act:
… It plainly involves something more than financial cooperation or separate contributions to different elements of household expense. The so-called ‘barter system’ did not constitute a pooling of financial resources in that sense. If Mr Kuhl paid for or contributed to overseas travel for Ms Pelka instead of paying rent, that is not a ”pooling of financial resources” any more than his payment of rent would be so described.
HEARING
The hearing was convened at Brisbane on 27 September 2019. Both parties appeared in person and were self-represented and Mr Bishop of Mills Oakley represented the Secretary. Applicant 1 gave evidence and was cross-examined by Mr Bishop and Applicant 2 was cross-examined by Mr Bishop.
Both parties provided closing summaries and Applicant 1 summarised on behalf of both him and Applicant 2.
CONSIDERATION
The Tribunal is required to have regard to the interpersonal relationship between Applicant 1 and Applicant 2 as a whole and is not constrained to consideration of those factors embodied in section 4(3) of the Act.
The Tribunal must, of course, to apply the law correctly, have regard to each of the factors contained in section 4(3).
It is necessary for the Tribunal to engage in an exercise to carefully weigh those factors which point towards a relationship which may indicate a partnered arrangement between the parties and those which do not. To come to a conclusion, it is necessary for the Tribunal to consider the complete picture as painted by the evidence and in so doing make appropriate evaluations of objective and subjective considerations.
Section 4(3) of the Act requires the Tribunal to consider five broad areas:
(a)the financial aspects of the relationship;
(b)the nature of the household;
(c)the social aspects of the relationship;
(d)any sexual relationship between the parties; and
(e)the nature of the people’s commitment to each other.
In addition to these factors, the Tribunal could consider any other relevant factors to assisting it in reaching a conclusion after assessing and weighing the evidence presented before it:
The Financial Aspects of the Relationship
Joint Ownership and Joint Liabilities
The Applicants own a property at in Kingscliff, in New South Wales, as tenants in common. The property was purchased by them and, according to property records, settled on 20 February 2007[14] and was owned by them during the relevant period.
[14] Exhibit 1, T9 354 and T10 356.
The property purchase was financed by way of a mortgage to the Westpac Banking Corporation (Westpac) Registered Number XXXXX X76.[15] This security is held by both of the Applicants and notwithstanding that the Applicants told the Tribunal they each paid 50% each of the repayments, the account is a jointly held liability.
[15] Exhibit 1, T10 356.
Applicant 1 asserted during the hearing that the account was really reflective of the way in which he and Applicant 2 held the tenure of the property as tenants in common notwithstanding that the account was held in joint names. The Applicants’ evidence was that the loan was constituted in joint names because the bank required security over another property owned by the company Film Task Pty Ltd as Trustee for the Lawrence Family Trust which also owned the property at Kingscliff. The Applicants told the Tribunal that they had to take the joint mortgage to personally purchase the Kingscliff property as they were Directors of Film Task Pty Ltd, the Trustee.
Applicant 1 stated to the Tribunal:
She purchased her half; I purchased my half, but we are holding it on behalf of - and it’s in there – [Mr A] [sic], Robbie Stimpson, in accordance with the Trust documents, “which have been supplied to Centrelink over many years.[16]
[16] Transcript of Proceedings, page 37, paragraph 35.
Applicant 1’s contention was that the property was held by Film Task Pty Ltd and had been continuously lived in by the Applicants from 1997 and then had been sold to them as tenants in common in 2007 and that a mortgage had been taken out by them to support this purchase. In his evidence under cross-examination, Applicant 1 indicated when asked why he didn’t seek to obtain a loan on his own account to purchase his share of the Kingscliff property, he responded that the bank required security on the property that they relocated from. He, however, denied that his and Applicant 2’s financial situation were intertwined as a consequence of this arrangement and it was made necessary as a result of the other property being required for collateral and they were Directors of the Trustee company that held the property.[17]
[17] Transcript of Proceedings, pages 42 and 32.
Applicant 1 asserted that the mortgage was established on the basis that it reflected the holding of tenure as tenants in common. It seemed very difficult for him to agree to the situation that the mortgage was in fact a joint responsibility for which both parties in the event of default would be individually liable if one part was unable to meet their obligations for the entire balance. Further, that it would be the responsibility for the party who paid out that debt to pursue their co-borrower for their half of the liability so extinguished. The transcript reveals Applicant 1’s assertion in this regard:
Mr Stimpson: That’s right. We both lose - that’s what I just said. Of course, but she’s responsible for - because you’ve got - in your home loan, you’ve got to pay to your account, to the home loan. I’ve got my account to the loan. They’re two different entities. Because we purchased the property as tenants in common.
Mr Bishop: But you’re jointly responsible for the mortgage?
Mr Stimpson: No, I’m only responsible for my part of my 100% of what debt I have.
Applicant 1 continued to the effect that the mortgage, notwithstanding its joint and several construction, was reflective of the tenancy in common tenure over the property. This was reflected in the Transcript of Proceedings where an exchange took place between the Senior Member and Mr Stimpson:
Senior Member: Well you may do, but the bank won’t take any notice of that. All it will do is come after both of you.
Mr Stimpson: Of course.
Senior Member: And depending who has got the most, it will take from them, and then the other one, it can have a go at trying to get it from the other party.
Mr Stimpson: Well they would just - look, at the end of the day, Westpac holds the Title Deeds to the property.
Senior Member: So in reality in short answer, and I think this is what Mr Bishop is getting at, it’s a joint mortgage - it’s a joint mortgage. You’re both responsible for it equally for 100% of it.
Mr Stimpson: Cheral is responsible for 100% of half of the debt, I am responsible for 50% of the other part of that.
Senior Member: Right, we’ll leave it at that. Mr Bishop, please continue.
Mr Stimpson: All right, but what I’m saying is, when the property was purchased from the Lawrence Discretionary Trust, it was put into our names, it was done so I’m holding that on behalf of the Beneficiary, so whatever I’m holding is really on behalf of the Beneficiary.[18]
[18] Transcript of Proceedings at page 45.
Earlier in his evidence when being asked about the creation of the mortgage both by Mr Bishop and the Senior Member, Applicant 1 began to introduce the assertion that the property was subject to a Trust for other parties as Beneficiaries, namely, Mr A, their son.[19] Applicant 1 stated in response to the following question from the Senior Member:
We want to know what the mortgage is. The mortgage is in joint names, so [sic] a commonly held property, correct?
That:
Mr Stimpson: No. When we purchased that property, we had a Solicitor - sorry - yes, we spoke to a Solicitor, and I said look, we’re separated, we want to - the Trust wants to wind-up on the property and we want to wind that up to the Beneficiaries, and that’s what we did. So the Beneficiaries - - -.
[19] Transcript, page 37.
Further to the above exchange when the Senior Member asked:
But now you bought the property as tenants in common?
Applicant 1 replied:
Yes, but we’re holding it on behalf of - - -.
Although the questions were directed to the creation, structure and liability under the mortgage, Applicant 1’ responses tended to regard the existence of some not yet relevant Trust. Applicant 1 appeared to imply that there was some form of liability to a third party or parties, owed by both Applicants through their tenure over the property. Applicant 1 continued to expand this concept in his evidence to the Tribunal where he stated:
So what actually happened was when that property was purchased - the one in question where we live - we had to sell that property back to ourselves so that it sold from the company, being the Trustee Film Task, we had an independent valuation done and the property was - the Beneficiary of the property we had to sell that property back to ourselves. So it sold from the company, being the Trustee, Film Task; we had an independent valuation done, and the property was - the Beneficiary of the property was received by [Mr A] [sic] Stimpson. When [Mr A] [sic] Stimpson received that property he did so when the property went into Cheral and my - our names, which we are - we hold the property - - -.
Ms Stimpson then said ‘tenants in common’. Mr Stimpson then continued:
- - - Tenants in common, because we’re not a married couple. When the property was purchased, it was purchased on behalf of [Mr A] [sic] Stimpson. When the Trust wound up, the person who actually ended up with the property, of which we are holding - [Mr A] [sic] holds an equity in that property of $273,962.52. That has been put in the file. That property at [Redacted] Street, Kingscliff, is held for the Beneficiary of [Mr A] [sic] Stimpson, and [Mr A] [sic] Stimpson paid $41,000.00 in tax as a result of the distribution. The Directors made notes on that and it was signed off back in 2007.[20]
[20] Transcript of Proceedings, pages 23 and 24.
Further in evidence, Applicant 1 also stated that Mr M, the party’s other son, also has a security against the property. The Transcript of Proceedings, at page 27, states:
Mr Stimson: I’d like to put on notice too that my other son, [Mr M], also has a security against the property in the amount of - is that the one? Anyhow, so there are two - - -.
It is noted that nowhere in the evidence before the Tribunal is it evident that a Trust has been created for either Mr A nor his brother, Mr M. It would appear, however, that in relation to the property, both sons may have provided some degree of financial support to their parents by way of moneys received from the winding-up of the Lawrence Discretionary Trust in order to purchase the Kingscliff property. It would appear that the sons have unregistered loans against the property which would rate second in priority to the Registered Mortgagee, namely Westpac Banking Corporation.
Applicant 2 also confirmed the evidence of Applicant 1 that the property was bought in a joint holding as tenants in common and that the loan to complete the purchase from the Trust was raised jointly with the Westpac Bank.[21]
[21] See Transcript of Proceedings, page 48.
Both Applicants acknowledged that they held two joint accounts with the Westpac Bank relating to the loan and the repayment arrangements for the loan. There is a Mortgage Account Number XXX XXX XXX X60 and a Westpac Choice Account Number XXX XXX XXX X73. The former is the account from which the loan moneys were advanced, and the latter is the joint account into which the Applicants deposit their mortgage repayment from their own personal accounts. It is from this account that the repayment is automatically withdrawn by the bank and credited to the home loan in reduction of that loan.[22]
[22] Exhibit 1, T24.
The Applicants, when asked if the loan was structured as a joint loan, were reluctant to acknowledge that it was, in fact so, that there was a financial advantage to both of them in structuring it in that manner. Applicant 1 and Applicant 2 ultimately agreed that it was a joint loan account after a prolonged exchange with Mr Bishop and the Tribunal.[23] Further, both Applicants stated there was a financial advantage for them in the way in which the loan was structured and the property purchased and the following passage in the Transcript is elucidatory of this factor:
Mr Bishop: So, there was a financial advantage for you and Mr Stimpson to purchase the property together.
Ms Stimpson: We weren’t able to buy the property unless we bought it together.
Mr Bishop: So, there was a financial advantage to you?
Ms Stimpson: Of course, because if you sold the property, well, then, of course, you would split the profit that you have made on the property. So, because things are that way, there’s - you have to always look at it like that.
Mr Bishop: So, there was a yes, financial advantage to you?
Ms Stimpson: Yes.[24]
[23] Transcript of Proceedings, page 48 to 53.
[24] Transcript of Proceedings at page 53.
Further evidence in this regard was evinced by Mr Bishop in an exchange with Ms Stimpson later during the hearing:
Mr Bishop: A few times today, you have talked about the financial impact and that if you were to financially separate from Robbie, you consider that would be of detriment to you? That you would be financial [sic] worse off?
Ms Stimpson: Yes and no. Yes, because it is very hard to live out there at the moment with rents and so on and so forth and our mortgage at the moment is very low. So, if things had to go down that road where we had to financially separate, well then, if he wanted to move on, well, so be it, I would have to accept that. But at the moment, because of other circumstances, we have to just stay the way we are the moment.
Mr Bishop: But I guess my question was about being financially worse off?
Ms Stimpson: Okay, I would be - - -.
Mr Bishop: So, you said that - - -
Ms Stimpson: I would be, yes, because of rents and so on and so forth.
The Applicants also have the Kingscliff property insured with Westpac Home Insurance. The premium for this policy is also paid monthly by an automatic debit arrangement from the jointly held Westpac Choice Account to Westpac General Insurance (WGI).
The insurance policy on the property is jointly held and claims have been paid to both the Applicants jointly. Applicant 1 asserted that he was unaware that it was a jointly held policy over jointly held property until that was pointed out to him at the hearing of this review. This is in conflict with his statements filed with the Tribunal, where he stated:
As a direct result we were unable to separate our position. Therefore, it was easier to keep the home loan account in joint names as tenants in common, Robbie and Cheral’s funds went into whatever [sic] accounts held at the time and we were 50% each responsible towards the necessary bills, food, home loan, insurances etc.
It is clear that the insurance policy was viewed as a joint responsibility at this time and that the general expenses were also viewed as joint responsibilities. It is difficult therefore to accept that Applicant 1 did not know that the insurance policy was a jointly held insurance policy over the jointly owned property.
It is also clear from the evidence provided by both Applicants to the Tribunal that their financial affairs were arranged with a view to minimising expenses and was thus to their combined financial advantage. The Transcript reveals this fact that after extensive questioning by Mr Bishop, eventually elicited this admission from both Applicants:
Mr Bishop: And so there was - my question was, there was a financial advantage to you in proceeding in that way.
Ms Stimpson: What - which way, I’m not sure what way you mean?
Mr Bishop: Well, you just said it would have cost you more money to do it differently.
Ms Stimpson: Well, the bank manager more or less you can just - because your names are on the Trust, you can just transfer that straight over to your home loan.
Mr Bishop: That wasn’t my question.
Ms Stimpson: Well, possibly, yes. Possibly, because at the time it was like seven years ago, so I’m not sure but - yes, they always want - - -
Mr Bishop: So, for you and Mr Stimpson to proceed separately, it would have cost you more money, yes or no?
Ms Stimpson: We’ve been able to buy the property separately.
Mr Bishop: Sorry Ms Stimpson, yes or no please.
Ms Stimpson: No.
Mr Bishop: No, it wasn’t more - it wouldn’t be more expensive.
Mr Stimpson: No.
Mr Bishop: So, your evidence previously was incorrect.
Ms Stimpson: Well, it’s just a form of exaggeration, I guess, that I said that because that’s how the system runs.
Mr Bishop: And it hasn’t been your evidence previously that such things would cost you more money?
Ms Stimpson: No.
Mr Stimpson: Some things would cost more money, of course, it would.
Ms Stimpson: Yes, of course.
The exchange continued at page 53 of the Transcript of Proceedings and that exchange has already been discussed earlier here. However, for clarity, Ms Stimpson stated as follows:
Of course, because if you sold the property, well, then, of course, you would split the profit that you have made on the property. So, because things are that way, there’s - you have to always look at it like that.
Mr Bishop: So, that was a yes, financial advantage to you?
Ms Stimpson: Yes.
Significant Pooling of Financial Resources
In addition to the joint and several responsibilities both parties have in relation to the mortgage repayments over the jointly owned property and the policy of insurance for the property, the parties also entered into an arrangement for the purchase and installation of a solar electrical system to each of the habitations at in Kingscliff.
This project was facilitated by a jointly secured loan from Lombard Finance. The responsibility for this loan was also jointly and severally held.[25] There are meters separately attached to each individual unit and each of Applicant 1 and Applicant 2 receive the electricity account relevant to their unit. The Applicants told the Tribunal that Mr Stimpson paid off the loan out of his own funds from a superannuation payment that he had access to.[26] The local authority bills the Applicants jointly for the rates and the water bills associated with the property to which they say both contribute equally to pay. This is a mutual obligation upon both Applicants.
[25] T17 at page 527.
[26] Transcript of Proceedings, page 79.
The Applicants were holders of joint banking accounts with the NAB during the relevant period namely, Account BSB XXX XX9, Account Number XXX XX XX55 which was opened on 21 December 2016 which at the date of the hearing was still operational and Account Number BSB Number XXX XX9, Account Number XX XXX XX20. The latter was opened on 26 March 2013 and closed on 9 May 2014. There were four authorised signatories on this account namely, both Applicants and two of their children. This confirmation was provided in the NAB Reply to Request for Information Section 196 Notice.[27] There is also shown on that document a bank account solely in the name of Applicant 1 as the authorising party open on 15 June 2006 and still operational as at the date of the hearing.
[27] Exhibit 1, T14 at 378.

There had been several names for the business of what was originally designated Neuro Function Specialist Pty Ltd. It later became Rejuv Laser Clinic and then it changed again to Quantum Health Clinic according to Applicant 1.[28] Both Applicants told the Tribunal that each time there was a name change, the relevant bank accounts were closed and presumably, new accounts were opened.[29]
[28] Transcript of Proceedings, at page 63.
[29] Transcript of Proceedings, page 63.
The NAB also recorded in its response to Centrelink the relationship between Applicant 1 and Applicant 2 as ’married’.[30]
[30] T14, 378, ibid.
Any Legal Obligations Owed by One Person in Respect of the Other Person
The parties have a jointly held obligation to each other in respect of the mortgage over the premises in, Kingscliff. They have also had financial obligations one to the other in respect of the financial arrangement with Lombard Finance, now extinguished, for the purchase of a solar electricity system for the premises. They are also jointly responsible for the payment of the rates and water charges for the property. Although the Applicants own the premises as tenants in common, the above are and were joint and several responsibilities, thus, each is obliged to the other should that other party fail to meet their individual obligations in regard to these matters.
Sharing of Day-to-Day Household Expenses
Both Applicants share the responsibilities as described in the foregoing section. Applicant 1 has stated to the ARO that he and Applicant 2 sometimes share a meal together and sometimes dine out together or dine perhaps a couple of times a week.[31]
[31] Exhibit 1, T35 at 1280.
Applicant 1 also stated to the ARO that Applicant 2 does the shopping for both of them and the cooking and cleaning for the household. He advised that she does this for him as his carer because of his medical condition.[32] He also confirmed this arrangement to this Tribunal at the hearing.[33] He told the Tribunal that:
No. I would say to Cheral, “If you’re going to go shopping, I would like you to get me this, this and this, if you wouldn’t mind,” and so I would make sure that I paid my way, and as tenants in common, we are responsible for the liabilities we have incurred.
[32] Exhibit 1, T35, at 1280.
[33] Transcript of Proceedings at page 86.
Both Applicants, when asked how their liabilities were resolved between them, indicated that they ’would just sit down and work it out and talk, communicate.’
Applicant 2 indicated this was conducted ‘as friends’.[34]
[34] Transcript of Proceedings, page 86, Ibid.
Applicant 1 stated further:
Mr Stimpson: As amicable - you know, this is my carer since, you know, 2015. I have been very lucky to have Cheral around, and some days I can’t get out of bed, and so some days I would say to Chez, “Chez, you know, I - can you grab me this or that and whatever,” and I would give her the money, and she would come home, do the shopping if she had to get stuff and she would give me my change. Sometimes she would be down in my kitchen cooking. And so - yes, in my kitchen, in my house. She’s living in her house. I’m living in my house, which I have to reiterate.[35]
[35] Transcript of Proceedings, page 86.
Applicant 1 agreed further that Applicant 2 did most of the cooking and cleaning for both of them. In relation to him, the following exchange is telling of this arrangement:
Mr Bishop: All right. So in relation to the operation of the household itself, you have said previously that Cheral does most of the cooking and the cleaning (indistinct).
Mr Stimpson: Yes, she will come down to my house and help me get up in the mornings. I shower. She will help prepare breakfast. If she hoovers - one of my worst things is [indistinct] lie down. She goes back up into [indistinct].
Mr Bishop: [Indistinct].
Mr Stimpson: Very much so since she became my carer, yes, and - - -.
Mr Bishop: And prior to that?
Mr Stimpson: Prior to that, we were still sort of pretty amicable, I guess, in the circumstances.
Ms Stimpson: [Indistinct] for a part of the time, so we didn’t want them in - you know, seeing a lot of things going on. We needed to protect them, so yes, we wanted to keep it amicable. Otherwise you could turn the other way and be very nasty and mean to each other, and yes, that doesn’t go down real well at times either with what’s happening in this day and age with partners and ex-partners and things like that.
Senior Member: Is this during the relevant period?
Ms Stimpson: Well, as you can see, like, he needs help, so I’m not a cold person, I’m going to help him, as - as his carer.
Senior Member: But the evidence I have just heard, is this - was it relative to the relevant period?
Ms Stimpson: Relevant? I’m not sure. What was the question?
Mr Stimpson: I don’t know.
Ms Stimpson: M’mm.
Mr Bishop: Well, my question was prior to 2015 when Cheral became your carer, was that always the case? You have said the [indistinct] that Cheral does the cooking and the cleaning, both [indistinct].
Mr Stimpson: While she has been my carer, yes.
Mr Bishop: And that was my question. Prior to 2015, was that always the case?
Mr Stimpson: Well, prior to that, Cheral was sort of more or less - you ran your life and I more or less ran my own life.
Ms Stimpson: M’mm.
Mr Stimpson: But after I had done these - ripped right down through there, which has all got to be redone [indistinct].
Ms Stimpson: If we had family meals, then we would have a family meal together [indistinct] the children [indistinct].[36]
[36] Transcript of Proceedings, page 88.
Both Applicants agreed that these arrangements were broadly adhered to prior to the relevant period and that, notwithstanding these circumstances, they continued to assert that they were not members of a couple.[37]
[37] Transcript of Proceedings, page 89.
The Nature of the Household
The living arrangements of the Applicants are such that Applicant 1 resides in one of the units designated 6C and Applicant 2 lives in another of the unit above Applicant 1 in 6A. Each space is self-contained with its own bedrooms, bathrooms, kitchen and living areas. As part of the household arrangements the Applicant’s son, Mr A, lives at the property in Unit 6B. He was confirmed as living at 6B at least some of the time during the relevant period of 2011 to 2018. In addition, other family members stayed in that unit from time to time during the relevant period. Applicant 1 told the Tribunal in relation to the upkeep and maintenance of the property:
My son, [Mr A] [sic], might go around and do stuff. Chez might do stuff. If I’m - if I’m [indistinct] if I can do it, I might do stuff. Something I can’t do, I just yell out to my son and, thank goodness, he’s helpful”.[38]
[38] Transcript of Proceedings, page 90.
The Tribunal notes that Applicant 1 told the ARO at interview the maintenance for the property was outsourced as at 14 August 2018.[39]
[39] Exhibit 1, T35 at 1280.
The Applicants are both resident at the property on a permanent basis and have been so since the property was first purchased by Film Task Pty Ltd as Trustee of the Lawrence Discretionary Trust in 1997.
Applicant 1 advised the Tribunal that since Applicant 2 became his carer, she generally looks after his requirements during the day. He stated:
Well, Cheral comes down and helps me shower, get up and wash and have a shower, and if I have need, you know, help with toileting or - you know, sometimes you - you’re doing breakfast.[40]
[40] Transcript of Proceedings, page 93.
Applicant 2 confirmed that she did these tasks in assisting Applicant 1 and they both confirmed that his cleaning, cooking and washing and general household was attended to by Applicant 2.[41]
[41] Transcript of Proceedings, page 87.
Applicants 1 and 2, in an exchange during the hearing with Mr Bishop, confirmed that prior to the relevant period, they had a generally amicable arrangement and that they maintained that style of relationship to protect the children from witnessing what could possibly be interpreted as an animosity between them which could lead to what the Tribunal would assume was a corrosive household atmosphere.[42]
[42] Transcript of Proceedings, page 87.
Applicant 1 did, however, make the response to Mr Bishop’s question regarding whether Ms Stimpson carried out caring duties prior to the relevant period as follows:
Mr Stimpson: Well, prior to that, Cheral was sort of more or less - you ran your own life and I more or less ran my own life.[43]
[43] Transcript of Proceedings, page 88.
Applicant 1, under cross-examination by Mr Bishop, agreed that on a daily basis:
We do spend a lot of time together than anyone else.
And Applicant 2 confirmed she made meals for Applicant 1. Applicant 1 told the Tribunal that his cleaning and washing was carried out by Applicant 2.[44]
[44] Transcript of Proceedings, page 93.
The Applicants still enjoy family meals together from time to time and for special occasions such as a birthday.[45] Mr Stimpson, in his statement to the ARO, also stated that he and Ms Stimpson sometimes go out for dinner and share a meal at home together approximately once or twice a week when the children come to visit.[46]
[45] Transcript of Proceedings, page 88.
[46] Exhibit 1, T35 at 1280.
Both Applicants in this matter contend that they were not members of a couple during the relevant period. They rely upon their stated long period of separation since 1997.[47] The fact that the property in which they reside was purchased in, and is still held as, tenants in common.
[47] Transcript of Proceedings, page 29.
the Social Aspects of the Relationship
Both Applicants in this matter contended they were not members of a couple during the relevant period. They rely upon their stated long-term separation since 1997 and the fact that the property in which they reside was purchased in, and is still held as, tenants in common and that they live separately in that property in the case of Applicant 1 in Unit 6C and in the case of Applicant 2 in Unit 6A.[48] Although these circumstances relate more to the nature of the household, it is significant that the parties have remained living in the same property in Kingscliff, since the date of separation shown as 28 October 1997[49] and together raised their three children, all of whom are now adults, at the residence from the respective ages of 13, 8 and 7 years.[50]
[48] Exhibit 1, T13 at 143.
[49] Exhibit 1, T48 at 1914.
[50] Transcript of Proceedings, page 29.
The Applicants had not divorced during this period and did eventually apply for a divorce on 10 January 2019[51] and a Decree was granted on 28 February 2019[52], the Order becoming effective from 1 April 2019. Both Applicants gave reasons in broad terms for not obtaining a divorce up until that point that there were religious beliefs that in their minds prevented them from so doing and that during that period up to applying for a divorce, they had also considered it was unnecessary so to do.
[51] Exhibit 1, T55 at 1340.
[52] Exhibit 13.
Both Applicants were described as married on several documents before the Tribunal. These documents were:
(a)
Applicant 2’s income tax return for the financial year ending

30 June 2014;[53]
(b)NAB documentation;[54]
(c)Westpac General Insurance;[55]
(d)a Loan Application Form to Lombard Finance where both Applicants’ status is shown as ’married’; and
(e)
the Private Company Form MOD-PC completed by Applicant 1 dated

3 April 2018 declaring that Ms Stimpson was his partner.[56]
[53] Exhibit 33 at 1227.
[54] Exhibit 1, T14 at 378.
[55] Exhibit 1, T20 at 620.
[56] Exhibit 1, T25 at 1072.
Applicant 1 told the Tribunal that he had no friends as he did not trust anyone. He gave evidence that the referees whose names appeared on the application for the solar panels were his own sister and his brother-in-law. He went on to state, however:
Well, you know, like that’s my brother-in-law, I wouldn’t call him my friend.
Two paragraphs later he again stated:
Most certainly, I wouldn’t call him my friend - - -.[57]
[57] Transcript of Proceedings at page 97.
Applicant 1 also told the Tribunal that:
I socialise with a few blokes I know.
and when asked by Mr Bishop about them not being his friends, he replied:
No, I’m very weary [sic] of people, I don’t trust anyone anymore.
He also went on to state:
What I’ve been put through in my life. Just because I meet people out there, doesn’t mean to say I have to make everyone my friend or anyone, in fact, my friend.[58]
[58] Transcript of Proceedings, page 98.
Applicant 1 also told the Tribunal that on social occasions, such as Christmas, Easter and birthdays, that sometimes he spent them together with children and grandchildren and sometimes not.[59]
[59] Transcript of Proceedings, pages 98 and 99.
Applicant 1 also told the Tribunal that he and Applicant 2 had travelled overseas together during the relevant period on 10 occasions and that they bought joint travel insurance policies arranged by Ms Stimpson. The following exchange between Mr Bishop and Applicant 1 took place[60]:
Mr Bishop: And that when you travelled overseas with Cheral, you had joint travel insurance policies?
Mr Stimpson: Well, if it’s going to save a few dollars, why not?
[60] Transcript of Proceedings, page 100.
The following three-way exchange between Mr Bishop and both Applicants expanded further upon the travel insurance arrangements:
Mr Stimpson: I said if.
Mr Bishop: - - - If it was going to save a few dollars.
Mr Stimpson: Well, I don’t know, because I never take care of all that. Cheral, you take care of all this.
Ms Stimpson: Yes, I deal with it and it’s usually in my name.
Mr Bishop: So, it’s in your name?
Ms Stimpson: But he’s on the policy of course.
Mr Bishop: So, again it’s a joint policy, isn’t it?
Ms Stimpson: Well he’s with me, I’m his carer, even back in the time that we went together before I became his carer, we would still travel for his therapy and then I would just be with him to help him with his therapy.
Mr Stimpson: Or whatever, plus you were learning some courses over there, at the time.
Ms Stimpson: Yes, and I was also being taught things with my course. I did some courses over there, yoga and certain courses like that.
Applicant 2 also confirms she did the paperwork for Applicant 1 in relation to arranging their overseas trips and that he paid his share of the costs associated with this aspect of their travel together.[61]
[61] Transcript, pages 100 and 101.
Applicant 2, during the course of her evidence to the Tribunal, made the following statement:
I don’t have no family and because of the problem that we were relocated, we had to change our name, we lost friends, we lost family, so I don’t have anyone. So, I more or less live close by because otherwise, I would have no one, except my children and grandchildren.[62]
[62] Transcript of Proceedings, page 104.
This is indicative to the Tribunal that Ms Stimpson has maintained her relationship with Mr Stimpson in order to preserve the social fabric of the family and to provide her with continuity and security
Ms Stimpson also confirmed that she had put her husband down as next-of-kin with her then-employer, Northern Rivers Family Day Care Centre, as witnessed in the response to the Centrelink Inquiry dated 10 October 2017 and signed by Applicant 2’s former employer.[63] When cross-examined by Mr Bishop in relation to this document’s contents and asked why she would have provided that information to her employer, who then relayed that on in her answers to Centrelink, she replied:
Ms Stimpson: Well, as I recall, when I had filled in the initial form to become a family day carer, the options were ‘married’, ‘divorced’, so I wasn’t single and I wasn’t divorced, so I ticked ‘married’, so that is where that would have come from. And with Robbie being living where he was living, he was the closest contact, emergency contact, so that is how I have viewed it. If anything happened to me while I have children in my care, he is - I would refer to him to [sic] as the next-of-kin to help myself with the children if anything happened to me.[64]
[63] Exhibit 1, T29 at 678.
[64] Transcript of Proceedings at page 124.
Applicant 2 also stated she was happy for Applicant 1 to make medical decisions in this role and stated:
Ms Stimpson: Yes. Because he had done his first aid certificate. He was also my emergency contact. He was given clearance to be in the area of the family day care area, so he could come in and say “Hi”, you know, and then, leave and so, because he lived close, he was just my closest - well, if anything ever happened in an emergency, which I felt very strongly about because of other people’s children in my care, is very high on my agenda. So, that is why I looked at it like that.[65]
[65] Transcript of Proceedings at page 125.
Further, Applicant 2 confirmed that she was comfortable with Mr Stimpson making decisions as her next-of-kin. The following exchanged evidence of a trust in Applicant 1:
Mr Bishop: Say, for example, would be able to make decisions on your behalf?
Ms Stimpson: Well, yes, because there is nothing wrong with that. If he is a friend of mine and we have, you know, discussed certain things together, you know, yes, there is nothing wrong with that in my eyes. As I said, I have no family or friends.
Mr Bishop: But it goes to the trust that you have between each other, doesn’t it?
Ms Stimpson: Of course. You must have trust if you, you know, you have had children together and you have got grandchildren, you know, you have to have some form of a relationship, otherwise, you can either have it that way or have it the other way. And I choose to have it this way, because, as I say, I don’t have anyone.[66]
[66] Transcript of Proceedings at page 126.
Applicant 2 provided a description of the household arrangements that have been in place for her care of Mr Stimpson since 2015. The following exchange outlined the level of involvement Applicant 2 has in Mr Stimpson’s care:
Mr Bishop: And the care you provide, that you have provided since 2015, how much time of the day do you spend with Robbie providing that care?
Ms Stimpson: Probably an hour, an hour and a half in the morning and then, I get him up ready for the day and then, lunch and if he needs me, he has the phone. He can contact me if he needs any help with anything. And if I am preparing dinner upstairs, I will just take some down for him if he wants that, or - and then, you know, I will do his washing if it needs washing, he will do his washing a few times a week and his housework. So, throughout the day, it is certain times of the day is different to other days, so it just depends on how he slept that night. If he had a bad night, he would sleep in.
Applicant 2 also described the arrangement the parties had made between themselves for any needs Applicant 1 may require to be addressed throughout the night. She described how Mr Stimpson could either call her by telephone or send an SMS to her for assistance or, alternatively, if unable to use the phone, he had a chain of bells hanging in proximity to his front door to ring to attract her attention.[67]
[67] Transcript of Proceedings at page 126 and 127.
Applicant 1 gave evidence to the Tribunal that the banks and insurance company and the agent for Lombard Finance all assumed that he and Applicant 2 were married. Applicant 2 agreed with him in this regard and stated that her Accountant had assumed they were husband and wife when the Accountant prepared Applicant 2’s 2014 income tax return and stated, ’She just ticked it and…’.[68]
[68] See Transcript Proceedings page 122.
However, in an exchange with Mr Bishop she decided that she didn’t recall how that event had come to pass:
Mr Bishop: You have to declare your spouse within your income tax return because their income is declared in your income tax return.
Ms Stimpson: Okay. Well, I am not - I don’t recall.
Ms Stimpson also gave evidence relative to the assumption by the institutions with whom they dealt that they were married during the course of such dealings. The following exchange between Mr Bishop and Ms Stimpson is reflective of this topic:
Mr Bishop: There is a number of times when Robbie gave evidence today about people assuming that you were married; you talked about Westpac, your Accountant, the Westpac insurance, the NAB. Do you agree that they were assumptions that were made by these individuals?
Ms Stimpson: Wholeheartedly, yes, because they were never asked the question (sic); I was never asked any of those questions by the Bank Manager, by Lombard’s, the Mark Group, who the gentleman was who came to our home. And the banks, they just all assume it. Because you are seen together and because you live on 6A, B and C property, well then, unfortunately, it just looks that way.

Applicant 1 also told the Tribunal when giving his evidence relating to the joint bank accounts and how they came to be established with him as a signatory, that although he was shown as such, he hadn’t been into the banks in question to set the accounts up and had not used his authorisation to operate them. He further stated that the NAB had opened those accounts and placed him on them as an authorising signatory without his consent or knowledge.
Applicant 1, it is noted in the ARO’s report, told the ARO at that interview when asked about the loan application in 2012[69] with Lombard Finance that Ms Stimpson must have made a mistake ’when she filled out the account’ as both Applicant 1 and Applicant 2 are shown as the joint Applicants/borrowers.[70]
[69] Exhibit 1, T17, pages 52 and 53.
[70] Exhibit 1, T35, page 1265 to 1281 at 1280.
The ARO also noted that they had asked Mr Stimpson about the relationship status with the financial institutions and it is noted that he told her this had been updated and that perhaps it had never been changed.[71]
[71] Ibid at 1280.
Applicant 1 gave evidence to the Tribunal regarding the establishment of the bank accounts, one of which was held by Mr and Ms Stimpson and their two sons and which had been closed and, secondly, the joint bank account between Robbie and Cheral Stimpson which had been open from 21 December 2016. The transcript reveals this evidence of Applicant 1 in the following exchanges:
Mr Bishop: And then the other bank account, which is open from 21 December 2016, which is a joint account between Robbie and Cheral.
Senior Member: Right.
Mr Stimpson: Where is that one? Yes, yes.
Senior Member: Okay. How did these accounts get set up because normally if you go to set up an account the people who are the signatories go in and set it up and the bank will require that and a hundred points, and all that sort of stuff.
Mr Stimpson: Correct. Well, the banks already hold a lot of information from our personal account that we had with them years ago and the woman just took it upon herself and assumed that, ah, didn’t you want all of them on it?
Senior Member: But who went in and - - -
Mr Stimpson: Cheral went - Cheral went into the bank - sorry, yes, Cheral went into the bank to open up the accounts and I believe [Mr M] went in with you?
Ms Stimpson: Yes.
Mr Stimpson: And, for whatever reasons, because - I can’t explain why they’ve put my name and [Mr A’s] name on there and I said to them, why have you done that? And they’ve gone, well, we thought you - you and [Mr A] were going to be - all of you wanted to be signatories and we said no and I said I’ve been - I’ve received this - - -
Senior Member: When did you go in and have this discussion?
Mr Stimpson: Well, I had a discussion with them after we received a lot of this and I’ve had discussions with them prior to this and I said I’ve never - I’ve never ever used a Quantum Health Clinic card. It would be unlawfully for me to do so. I’m not a Director, I’m not a shareholder and I don’t know why I’m on there. So, we got rid of them, we closed it all down and if you want to check to see if it was activated or not, be my guest, I’ve spoken to the bank and the card that had my name on it had never ever been used. I refused that.
Senior Member: The question was about opening the account and the fact that you’re a joint holder of that account.
Mr Stimpson: Yes.
Senior Member: And that the usual process for opening account requires people to have 100 points of identification and to actively do something in order to open an account.
Mr Stimpson: Correct, yes.
Senior Member: And what you’re saying is that did not occur and the bank did it of its own volition.
Mr Stimpson: From the best of my recollection, yes.
Mr Bishop then drew Applicant 1’s attention to Exhibit 1:
Mr Bishop: Just where we were, down the bottom of that page, to page 378, in response to question 8, answer 8, ‘Relationship Status’, NAB record that your relationship status is married.
Mr Stimpson: Correct. They recorded that, not me and Cheral.
Mr Bishop: That wasn’t my question.
Mr Stimpson: No.
Mr Bishop: So, what you’re saying is that the bank again recorded that of their volition.
Mr Stimpson: Yes.
Mr Bishop: Yes?
Mr Stimpson: Yes.
Mr Bishop: Without any information provided by yourself?
Mr Stimpson: Without any information - exactly, because people who we know who works in the banks, that we’ve got to know over 20 years, just assumed we’re living in a - in a - yes, people sometimes make assumptions, which aren’t always correct.[72]
[72] Transcript of Proceedings, pages 61, 62, 63, 64, 65.
The Tribunal does not have before it any direct evidence as to how the Applicant’s status is viewed in the community by parties external to the Applicants’ life arrangements. It has, however, evidence adduced at the hearing from the Applicants and the historical documentary evidence provided in the course of this and previous reviews. The ARO, who interviewed Applicant 1, recorded that he had told her:
Neighbours may see him as a member of a couple as this is not something he discusses with them.[73]
[73] T35 at 1280.
Joint Social Activities
Both Applicants have told the Tribunal that they enjoy family meals together with their children and grandchildren on birthdays and other occasions.
Both Applicants agreed that they had travelled to Bali together on 10 occasions during the relevant period and that on their last trip Belinda Sanders, Mr Stimpson’s girlfriend, also accompanied them.[74] In addition to this direct evidence from both Applicants, and the documentary evidence in the form of a summary prepared by Qantas in response to an information request pursuant to section 196 of the Administration Act confirmed that both Applicants travelled together from Coolangatta to Cairns, Launceston and to Sydney on two occasions.[75]
[74] Transcript of Proceedings, page 103.
[75] Exhibit 1, T18 at 594.
Applicant 1 also appears to advise the ARO during the course of that particular interview that when he and Ms Stimpson travel on the overseas trips that they will often stay in the same room with separate sleeping arrangements. They do so in order to reduce financial costs of the trip.[76]
[76] Exhibit 1, T1 at page 6.
Both Applicants confirmed in their evidence to this Tribunal that they don’t have close friends in their social circle, that they will sometimes have a meal together away from their residence and will dine together at home. Applicant 1 stated that he sometimes socialises with a group of men that he knows but would not call his friends.[77]
[77] Transcript of Proceedings, page 98.
Sexual Relationships between the Applicants
Both Applicants contend that they have had no sexual relationship together since their separation in 1997. Both Mr and Ms Stimpson told the Tribunal that they had had relationships outside of their marital arrangement. In the case of Applicant 1, he advised that he had a relationship with a lady from overseas which had ended because she did not enjoy the Australian climate. He now has been in a relationship with Belinda Sanders for some six years.[78] He stated that he had been in that relationship with Ms Sanders since 2013 and he confirmed that she had travelled amicably overseas with both Applicants to Bali. This was confirmed by Ms Stimpson at the hearing.[79]
[78] Transcript of Proceedings, page 103.
[79] Transcript of Proceedings, page 103.
It is to be noted that Belinda Sanders had provided a letter to the AAT1 hearing that referred to her intimate relationship with Applicant 1 and to the fact that she had spent three weeks in Bali with both Applicants in March of what is to be believed the year 2018. This letter had not been dated, sworn or witnessed at the AAT1 hearing.[80] It had, however, been dated, resigned and witnessed on 3 January 2019 by the author. Belinda Sanders was not called by either of the Applicants to give evidence or subject herself to cross-examination at the hearing. However, the Tribunal has considered this correspondence and has given the document appropriate weight in those areas relevant to the substantive issues under consideration in this review.
[80] Folio A27 of AAT1 documents.
Applicant 2 confirmed to the Tribunal that she too had entered into several short-term relationships between 2011 and 2018 but none of which was of a permanent nature. Ms Stimpson also agreed that sexual relationships outside of marriage were not uncommon.[81]
The Nature of the Applicants’ Commitment to Each Other
[81] Transcript of Proceedings, page 127.
Length of Relationship
The parties were married in September 1983 and had remained married throughout the relevant period, notwithstanding their assertion to have been separated since 1997. An Application for Divorce was completed by both Applicants and filed on
[82] Exhibit 1, T40, 1301 to 1304.
[83] Exhibit 13.
10 January 2019.[82] A Divorce Order was made on 28 February 2019 to terminate the marriage on 1 April 2019.[83] It is noted by the Tribunal that the parties took this step to divorce following the Department’s review of their circumstances and when they were determined to be members of a couple and that a debt to the Commonwealth had thus been created. Since the Divorce Order became effective on 1 April 2019, neither of the Applicants have sought to bring an Application for Property Settlement under the Family Law Act1975 (Cth).
Do the Parties see the Relationship Continuing Indefinitely?
The Applicants have indicated that the living arrangements that they have had since at least 1997 will continue as they are for an indefinite period. Several reasons have been advanced by both Applicants as to why this will be so namely, on the part of Ms Stimpson, physical care and support for Mr Stimpson by way of assisting him with cooking, cleaning, washing and ablutions and personal hygiene and physical support. There is a financial imperative for Ms Stimpson also to remain in continuance of the long-term living arrangements and as she stated to this Tribunal in her evidence:
Yes, because it is very hard to live out there at the moment with rents and so on and so forth and our mortgage at the moment is very low. So, if things had to go down that road where we had to financially separate, well then, if he wanted to move on, well, so be it, I would have to accept that. But at the moment, because of other circumstances, we have to just stay the way we are at the moment.
Applicant 2 then agreed with a question from Mr Bishop that she would be financially worse off if she and Applicant 1 financially had to separate.
Applicant 1 confirmed that he relied upon Ms Stimpson for physical support and that they were dependent upon each other’s financial input to meet the requirements to run the household. He also told the Tribunal that he was part of an action running against the banks and that until that had been resolved he would not be in a position to make a decision to separate his and Ms Stimpson’s arrangements regarding finances and residency.[84]
[84] Transcript of Proceedings, pages 107 and 108.
The Nature of Companionship and Emotional Support Provided by the Parties to Each Other
Notwithstanding the Applicants’ stated position regarding their separation, it is clear to the Tribunal that they still maintain a close, caring and respectful relationship.
The parties have stayed together and reared their children together, caring for them and meeting the parental responsibilities for that role jointly.
Both Applicants told the Tribunal that neither has any close friends and that they have holidays together and live on the same property as it is mutually beneficial for both parties in a financial and supportive sense. They enjoy the company of their children and grandchildren at the Kingscliff property from time to time and on special occasions.
There is a high level of trust between the parties, as evidenced by their purchase of and long-term holding of their property, their financial intertwining and their reliance and trust of each other to help meet their living commitments. They both clearly cling to a residual care and respect for each other from when they were married.
Applicant 2 stated to the Tribunal that although no longer married, she was looking after Applicant 1 as a friend, as witnessed in the following exchange:
Mr Bishop: And the vows that you had made to Robbie, as his - when you became his wife?
Ms Stimpson: Yes.
Mr Bishop: And in terms of those vows, obviously, one of those is in sickness and in health?
Ms Stimpson: Yes.
Mr Bishop: Is that one of the reasons why you are looking after him in his sickness?
Mr Stimpson: No. I am doing that as a friend now, but back then, he has just got worse as he has got older, so - and certain things haven’t worked properly for him. Like, he has three surgeries and he has got to have more surgery, so I am there just to help as are our children.
Ms Stimpson told the Tribunal when asked by Mr Bishop about placing Robbie as her next-of-kin on her employment details with Northern Rivers Family Day Care that:
It is just human nature to have the person closest to you who can help you if you need emergency or something in an accident.[85]
[85] Transcript of Proceedings 125.
Applicant 2 further indicated this mutual trust when asked by Mr Bishop about Robbie making decisions on her behalf during the following exchange:
Mr Stimpson: Well, yes, because there is nothing wrong with that. If he is a friend of mine and we have, you know, discussed certain things together, you know, yes, there is nothing wrong with that in my eyes. As I said I have no family or friends.
The exchange continued:
Mr Bishop: But it goes to the trust that you have between each other, doesn’t it?
Ms Stimpson: Of course. You must have trust if you are, you know, if you have children together and you have got grandchildren, you know, you have to have some form of relationship, otherwise, you can either have it that way or have it the other way. And I choose to have it this way, because, as they say, I don’t have anyone.[86]

[86] Transcript of Proceedings at page 126.
The evidence in its aggregation as provided to the Tribunal would suggest that:
(a)Both Applicant 1 and Applicant 2 do care for each other’s welfare and Applicant 2 has been prepared to be carer for Applicant 1 during the relevant period and attend to his requirements in times of need;
(b)The Applicants retain a closeness of friendship and respect between them and maintain effective family ties with their children and grandchildren in what could be described as a family unit;
(c)Notwithstanding Applicant 1’s relationship with Ms Sanders and Applicant 2’s admitted extramarital relationships from time to time, the parties have maintained a steadfast bond each to the other;
(d)The nature of their commitment and involvement in each other’s lives appear to have remained stable and operational for a long period of time namely, since 1997.
WEIGHING OF THE EVIDENCE
In this type of matter, the decision-maker, in order to conclude that two individuals are living as a couple, has to consider the criteria outlined in section 4(3) of the Act as discussed earlier in this decision. However, although these indicia need to be considered as part of the whole, the decision-maker must also take into account the subjective conditions that exist in reality around any particular relationship between the parties. The empathy and understanding between the people and how they deal together with property, goods and actions is also vital to assessing the type of relationship they enjoy each with the other.
Whether or not a sexual relationship exists between two people is not necessarily the critical, determining factor as to whether a marriage or marriage-like partnership exists or not. What also must be taken into consideration by the decision-maker is how the parties view themselves and each other. The decision-maker in the weighing up exercise has to confront the uneasy task of trying to distil the actual style and nature of the affecting relationship between the parties and how in day-to-day life this is manifested between the people themselves and the general and wider community.
This review process was instigated by the Department’s finding that the Applicants were found to be living as a couple and had been overpaid their respective benefits as a result.
The Applicants have asserted that this is not the case and have sought review of the previous decision of the AAT1.
Both Applicants provided evidence to this Tribunal at the hearing. It is important in matters such as this that the decision-maker before whom the persons giving evidence have appeared and had their evidence heard, state what view they have been able to form of the credibility and veracity of those persons in their evidence.
Turning first to Applicant 1, Mr Robbie Stimpson, he gave evidence which was, at times, difficult to assess for rather than providing straightforward answers to relatively simple questions, he tended to conflate his answers with what were irrelevant issues to the topic of the question. Ms Stimpson was, in relative terms, more straightforward in her answers to questions and provided generally unadorned candid responses notwithstanding that she told the Tribunal she agreed with all the evidence Mr. Stimpson had provided to the hearing.
Both Applicants asserted that they were living separately since 1997, that they were now recently divorced, that they shared the cost of the mortgage repayments and property outgoings equally and paid for their own living expenses. Both agreed that Ms Stimpson provided support and care for Mr Stimpson by way of doing his housework, washing, cleaning and assisting with his ablutions and mobility from time to time as required. The Applicants had shared the residence in which they reside since 1997 when it was bought through a Trust. They purchased the property from the Trust in 2007 as tenants in common and each of the Applicants told the Tribunal that they live in separate self-contained units on the property. The Tribunal accepts that these are the living arrangements adopted by the Applicants.
The Applicants have been resident in the Kingscliff community for at least
20 years at the relevant time and have raised their family in the community and Ms Stimpson had been involved in various business enterprises with her sons, Mr A and Mr M, and Mr Stimpson told the Tribunal he had worked in the businesses from time to time. All four parties had at different times been signatories on bank accounts relating to these businesses. The Applicants asserted that the bank had put Mr Stimpson’s name on these as an authorising party without their or his authority. Mr Stimpson asserted that he went to the bank and asked for them to be removed and that occurred when the nature of the review became apparent. Both Applicants gave evidence indicating that the bank did this because of familiarity with the Applicants over many years. The Applicants stated that the banks simply assumed this would be how the parties would want the arrangements to be. The Applicants both adopted a similar explanation in relation to the contract for the purchase and financing of solar panels for their premises namely, that the persons with whom they dealt on the transaction assumed that they were, in that case, husband and wife.
Ms Stimpson told the Tribunal that she had put Mr Stimpson down as her next-of-kin with her employers at the Northern Rivers Family Day Care and that she had put Mr Stimpson on the 2014 income tax return as her spouse. Mr Stimpson had also placed Ms Stimpson as his ‘partner’ on the Centrelink Private Company Information Return Form.
The Tribunal is of the view that the Applicants have, over a relatively long period, continued to project themselves as a married couple when it has been to their advantage to do so. For example, when they purchased a property in which they both reside, they did so as tenants in common and to finance this purchase they raised a mortgage with the Westpac Banking Corporation, the obligations of which are clearly joint and several. It is clear to the Tribunal that it was constructed in this way as the bank wanted the strength of security by having recourse to both borrowers. This was so, notwithstanding Mr Stimpson’s continuing assertions that both he and Ms Stimpson were only liable for half of the loan each in the case of default because they were tenants in common as owners. The Tribunal considers that this was somewhat artful as Mr Stimpson eventually agreed under cross-examination that each could be held liable for the entirety of the loan, before he reverted later in evidence to his original position in this regard that each was only responsible for 50% of the mortgage. The Tribunal finds it difficult to accept that given the life experience demonstrated by Applicant 1, that he did not fully comprehend the arrangements for the financial aspects of the property purchase and the potential ramifications which could, in certain circumstances, flow therefrom following a default on the mortgage.

Both Applicants’ evidence to the Tribunal indicates very clearly that neither is a stranger to the conduct of affairs with financial institutions, either both privately or in business financing arrangements. In fact, Applicant 1, in outlining how the NAB had he and Applicant 2 in their records as being married, indicated that they had been dealing with that bank for some 20 years during their time in Kingscliff. This indicates the depth of association the parties enjoyed with their bank. Their evidence also substantiated the fact that they were not naïve participants in matters of finance as they outlined the changes they imparted to set-up payment arrangements post-settlement with a joint redraw facility with the Westpac Banking Corporation for the payment of their mortgage instalments.
Evidence was also provided to the Tribunal that they had opened and closed several bank accounts in relation to the operation of the businesses that they had control of from time to time.
The Tribunal finds it untenable that both parties were asserting that aspects of their banking arrangements were set-up without their consent. Mr Stimpson’s evidence is somewhat contradictory in this regard for he is regarded as telling the ARO in that particular interview that Ms Stimpson must have made a mistake in placing him as a signatory to an account. However, that explanation changed in his evidence to the Tribunal to the assertion that the banks had done this of their own volition. The Tribunal finds this inconsistency in his evidence of concern. The Tribunal considers that it would be perfectly logical that, in a family enterprise, a number of family members may be given a significant responsibility of being able to operate a bank account for a business should it be necessary if, for example, there was no other signatory available to meet a pressing transaction obligation. Whether the particular signatory held an administrative or governance role in the organisation is irrelevant. It would be an appointment of trust made regarding that person. Whether that party exercised the privilege to operate the account is irrelevant. The Tribunal places no weight upon the evidence of Applicant 1 in this regard. Given that the Applicants have both individual bank accounts, a joint bank account and a joint mortgage over the Kingscliff property and that the rates and utilities are billed to them jointly, it is the Tribunal’s view that these are shared responsibilities. The electricity is paid on an individual basis as each living space on the residential property has its own meter and each Applicant pays the amount relating to their premises.
The evidence adduced from both Applicants before the Tribunal is such as to lead to the conclusion that their financial affairs are inextricably combined. They have effectively only been able to purchase, continue to pay off the mortgage and maintain and improve their residence as a joint venture. Their fortunes have been totally dependent on maintaining a pooled arrangement which has not altered for the entire duration of the relevant period.
Moreover, the property is insured jointly in the names of both Applicants and the policy premiums are paid by automatic deduction from a joint account. Applicant 1 attempted to tell the Tribunal that he didn’t know it was a joint policy of insurance notwithstanding both he and Applicant 2 had received payouts for claims on the policy. The Tribunal finds his assertions in this regard lack credibility.
Applicant 1 had also indicated in documentation before the Tribunal that the joint mortgage was for the purpose of purchasing the property and assisting the family with general living. This is also persuasive, in the view of the Tribunal, that the financial affairs of both Applicants were intrinsically interrelated for a mutual benefit. It is also indicative, so far as the Tribunal is concerned, of a broader mutually dependent relationship of trust and dependency upon each other.
Applicant 1 gave evidence that if he required anything to be purchased for his needs, he would ask Applicant 2 to get the items for him and he would pay her for them. Applicant 2 agreed that she would cook meals for them both on a regular basis and indicated that they would dine at home on a regular basis and both parties indicated that they shared the expenses for household arrangements on a 50/50 percentage basis. There is no documentary proof adduced to the Tribunal as to the veracity of this assertion or as to how the arrangements were met between the parties.
Both Applicants told the Tribunal that the purchasing of the property as tenants in common was indicative of their state of separation and evidence they are not living as a couple. However, the Tribunal notes that they both agreed that the financial arrangements were cheaper and of advantage to them both financially. The Applicants also assert that each lives separately in their own self-contained dwelling because they are separated. However, when the arrangement is considered as a whole, it is longstanding of some 20 years. They have raised their family there under these arrangements and conducted their lives from this family structure. It has been a stable and successful arrangement, giving out the impression of family solidarity and safety. In fact, one of the adult children is still residing in the balance of the property not occupied by the Applicant. There is still a degree of continuing family unity in the arrangement, of which the Applicants are key participants. They still enjoy family events together with the children and grandchildren for birthdays and other celebrations.
Both Applicants told the Tribunal that notwithstanding their relatively recent divorce, they did not intend to disrupt their continuing interpersonal relationships or enter into a formal property settlement for a once and for all basis for completion of their joint personal affairs. Applicant 1 said nothing would occur until he and Ms Stimpson had resolved some actions they were involved with regarding the banks and both Applicants told the Tribunal of the disadvantages to them financially of so doing. The Tribunal finds that they intend to remain so committed to the status quo indefinitely. This view is further strengthened by the evidence of Applicant 2 which confirmed her loyalty and dedication to caring for Applicant 1 during his apparently worsening indispositions.
The Tribunal finds that the Applicants have travelled together on numerous occasions, both overseas and interstate, and have taken out joint travel insurance and claim that they paid equally for this, their tickets and their accommodation. There is no evidence, other than the Applicants’ own assertions, that they divide the costs equally. The Tribunal considers this not to be an unusual arrangement between partners or husband and wife in any event. The Applicants have both engaged in extramarital affairs and the Applicants both acknowledge that Applicant 1 is engaged in a relatively long-term relationship of this type. The Tribunal was told by both Applicants that the person concerned did accompany them both on their last trip to Bali. The Tribunal considers that extramarital affairs are not uncommon. The relationship that Applicant 1 is engaged in may be unusual, however, every marriage or partnership is as unique as the individuals who form it and as such where the parties remain committed to each other may be seen to be not an impediment to the partnership remaining on foot to the general satisfaction of both partners and, in fact, it may well suit them.
The Applicants contend that sexual relations between them ended with their separation in 1997. However, the lack of a sexual relationship in a marriage or marriage-like partnership is not necessarily the sole determinant as to whether the parties are still members of a couple. The Tribunal considers that the Applicants have made a conscious decision around this aspect of their relationship so that it has evolved into an open and permissive arrangement which allows them sexual freedom to be with other partners for sexual purposes and some other form of social companionship while, at the same time, allowing other aspects of their relationship to exist without interference.
It is clear from the evidence of both Applicants that they still care for each other and have continued to trust and rely upon each other for mutual safety, financial security, family relationships, care and succour, notwithstanding the alteration to the sexual aspects of the marriage and their recent divorce.
It is the case that in these matters the Tribunal has formed the view that both Applicants are members of a couple. They have an ongoing and particular relationship which allows them to mingle their financial affairs and pool assets in a climate of mutual trust and benefit. They continue to enjoy social interaction between themselves and their family and they speak of shared goals for the benefit of their children in the long-term from their endeavours with the property. They have enjoyed travelling together on numerous occasions and have indicated their intention, notwithstanding their recent divorce, to consider a formalised property settlement unnecessary and that they intend to remain together on the same ongoing basis that they have adopted since 1997 and up to and throughout the relevant period.
In concluding that Mr Stimpson and Ms Stimpson are members of a couple, the Tribunal has had regard to the following matters:
(a)Mr Stimpson and Ms Stimpson have co-mingled their financial resources;
(b)there is evidence of pooling of financial resources over a period of time;
(c)there is evidence of mutual legal obligations flowing from the relationship and the financial arrangements with the mortgage over the residential property;
(d)the basis of day-to-day household expenses is one that is based on sharing and mutual obligation;
(e)the parties live in separate units and have separate bathrooms and facilities;
(f)they generally dine together, other than when they have family around for meals on occasions when they all dine as a family;
(g)there is general documentary evidence to suggest their general behaviour and business dealings led others to believe they were married;
(h)there is no evidence to suggest the Applicants did take any steps to disabuse other parties of the assumption that they were married until such time as the circumstances around the review prompted them so to do;
(i)there has not been a sexual relationship between the parties since 1997;
(j)the parties have had romantic liaisons with others on an ex-marital basis during the relevant period whilst continuing all other aspects of their relationship; and
(k)there is clear evidence of a longstanding multifaceted, mutually beneficial relationship that they intend to maintain indefinitely.
As outlined in the foregoing, there is a continuing and intentional longstanding relationship between the Applicants. The majority of the elements of this relationship fit the indicia of a partnered or coupled relationship and outweigh those that would suggest a single arrangement under the prevailing circumstances. The Applicants may well consider in their minds that their arrangement is one of two single parties sharing to their benefit. However, the longstanding continuity, the genuine care and respect and degree of interdependence, both financially and in many other respects, weighs strongly towards the Applicants living in a coupled relationship.
Having regard to the above, the Tribunal has formed the view that Mr Stimpson and Ms Stimpson are in fact living as a couple.
WERE THE APPLICANTS OVERPAID DSP AND CARER PAYMENT RESPECTIVELY?
Both Applicants received entitlements calculated on the basis that they were separated during the relevant period. In the case of Applicant 1, the debt as calculated as at 8 January 2019 indicates that he was overpaid DSP in the amount of $77,414.13.[87] In the case of Applicant 2, she perceived overpayments of carer payment in the sum of $27,682.45.[88]
[87] ST9 at 10 to 16.
[88] ST12 at 19 to 45.
Are the Overpaid Amounts a Debt to the Commonwealth?
The Act, in section 1223, provides that if a Social Security payment is made to a person and that person was not entitled for any reason to that payment, the amount overpaid is a debt to the Commonwealth. In each case, the Secretary contends that Applicant 1 was overpaid the amount of $77,414.13, Applicant 2 was overpaid the amount of $27,682.45 and that both debts constitute a debt due to the Commonwealth.
Is the Debt to be Recovered?
A debt owed to the Commonwealth may be written-off for a stated period if the debt is irrecoverable at law and the person has no capacity to repay the debt, the whereabouts of the person are unknown, or alternatively, it is not cost-effective to recover the debt.[89]
[89] Section 1236 of the Act.
There is no evidence before this Tribunal which could support a finding in respect of any one of the grounds set out and, in the opinion of the Tribunal, those debts cannot be written-off.
A debt owed to the Commonwealth may also be waived in the circumstances where it is a result of the Department’s sole administrative error.[90]
[90] Section 1237A of the Act.
In this matter, the Tribunal has no evidence before it to indicate that there has been administrative error in either of the Applicants’ cases, let alone a sole administrative error. It is the opinion of this Tribunal that neither of the debts can be waived on that basis.
Alternatively, a debt may be waived if there are special circumstances and the debt did not result wholly or partly from the debtor or another person knowingly failing to omitting to comply with a provision of the Act.[91]
[91] Section 1237AAD of the Act.
The Act does not define the term ‘special circumstances’, however, it has frequently been given judicial consideration. The jurisprudence surrounding the question of special circumstances indicates that special circumstances are those that take a case out of the usual or ordinary run of cases.[92]
[92] Groth v. Secretary, Department of Social Security [1999] FCA 1708.
The test for special circumstances is a very difficult one to pass and it is clear that the test has been formulated with a view to ensure that any discretion is not applied to any circumstance without careful consideration as the liberal exercise of the discretion could easily operate to defeat the intended operation of the debt recovery provisions.

In the matter of Secretary, Department of Social Security -ats- Hales [1998] FCA 219, His Honour French J. stated:
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered …
The Tribunal in this matter does not have sufficient evidence of such a standard that would support the finding of special circumstances such that it would be appropriate to waive part or all of the debt owed to the Commonwealth by either Applicant.
The Tribunal is supported in this view by the following circumstances noted in relation to the Applicants:
(a)the Applicants are the joint owners of the real property at in Kingscliff, which they have valued at approximately $600,000.00[93] and is encumbered by a mortgage to the Westpac Banking organisation of roughly $400,000.[94] It is the opinion, therefore, that the Applicants hold equity in the property of approximately $90,000.00;
(b)between March 2012 and August 2016, the Applicants received jointly insurance payouts totalling $58,273.00;[95] and
(c)the Westpac and NAB statements show not insignificant transfers of funds between the Applicants’ accounts which are held both individually and jointly. Further, the AAT1 found that:[96]
Compared with many of the persons who come before the Tribunal, Mr Stimpson (and Mrs Stimpson) cannot be considered to be in financial hardship.
[93] T41 at 1318.
[94] T24 at 903.
[95] T1 at 10.
[96] T1, page 14 and T1, page 16.
The Tribunal has not perceived any evidence from the Applicants that would entitle it to make a contrary finding or any other evidence of special circumstances that would make it appropriate to waive the debts attaching to each of the Applicants. The Tribunal agrees that the debt must be recovered.
DECISION
The decision of the Tribunal is that the decision as varied by the Department on
9 January 2019 be affirmed.

I certify that the preceding 186 (one hundred and eighty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

..................[SGD]......................
Associate
Dated: 05 June 2020

Date of hearing: 27 September 2019

Date final submissions received: 19 July 2019

Applicants: In person

Solicitors for the Respondent: Mills Oakley Lawyers

Date of hearing:	27 September 2019
Date final submissions received:	19 July 2019
Applicants:	In person
Solicitors for the Respondent:	Mills Oakley Lawyers