Teresa Monaghan and Secretary, Department of Education, Employment and Workplace Relations Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 908
[2012] AATA 908
Division GENERAL ADMINISTRATIVE DIVISION File Numbers
2011/4409, 2011/4410, 2011/5441 and 2011/5442
Re
Teresa Monaghan
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENTS
DECISION
Tribunal Mr S. Webb, Member
Date 20 December 2012 Place Canberra The decision under review is set aside and in place thereof it is decided that Ms Monaghan was not a member of a couple from 31 December 1993 to 5 May 2010.
...........................[sgd]......................................
Mr S. Webb, Member
SOCIAL SECURITY – Sole Parent Pension – Parenting Payment (Single) – Disability Support Pension – Newstart Allowance – Family Tax Benefit – member of a couple test – marriage – characteristics of relationship variable over time – indigenous kinship and cultural obligations – inconclusive evidence – not established that Ms Monaghan was not living separately and apart from her husband – decision set aside
Social Security Act 1991 (Cth), s 4
Social Security (Administration) Act 1999 (Cth), ss 36, 37, 47, 78, 79, 80, 126, 142, 179A New Tax System (Family Assistance) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Lambe v Director General of Social Services (1981) 57 FLR 262
Re Lynwood and Secretary, Department of Education, Employment and Workplace Relations and Anor [2011] AATA 213
MacDonald v Director-General of Social Security (1984) 1 FCR 354
Main v Main (1949) 78 CLR 636
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
Mr S. Webb, Member
20 December 2012
Teresa Monaghan is married to Frederick Monaghan. In January 1994, she notified Centrelink that they had separated the previous month. Subsequently, for periods of varying duration, she was paid social security pensions, benefits and allowances, and Family Tax Benefit at the single rate. Centrelink conducted investigations and determined that Ms Monaghan was living as a member of a couple with her husband and that she had been paid amounts to which she was not entitled. The overpayment amounts were raised as debts for which she was liable. Ms Monaghan pursued her rights of review.
The central issue is whether Ms Monaghan was a member of a couple with her husband from 30 December 1993 to 5 May 2010. During the hearing the Respondents conceded that she was not living as a member of a couple in the period from 1 December 2005 to 30 November 2007. The concession is consistent with some of the evidence before me and, on balance, I accept it.
Thus, it is necessary to determine:
(a)whether Ms Monaghan was a member of a couple from 30 December 1993 to 30 November 2005 and from 1 December 2007 to 5 May 2010; and, if so,
(b)whether she was paid any amount in excess of her entitlements during these periods; and, if so,
(c)the amounts of any overpayment debts; and
(d)whether there are sufficient grounds to write off or waive the debts, in whole or in part.
During the hearing, it was agreed that the hearing would proceed in two stages. First, I would hear evidence and submissions from the parties addressing the central issue of whether Ms Monaghan was a member of a couple at relevant times, and I would provide a decision on this point. Secondly, if it is necessary to proceed to address remaining aspects of the case, a further hearing is to be listed. Thus, in this decision, I am only addressing the issue of whether Ms Monaghan was a member of a couple during the periods from 30 December 1993 to 30 November 2005 and from 1 December 2007 to 5 May 2010.
Contextual Facts
Ms Monaghan married her husband on 12 May 1984. The marriage did not produce children, although both parties have children from former relationships. The marriage continues – there has been no divorce.
On 24 December 1993, Ms Monaghan ceased work at the Beryl’s Women’s Refuge[1].
[1] ST4 folio 2178.
On 18 January 1994, she notified Centrelink that she had separated from her husband on 30 December 1993 and claimed sole parent pension[2].
[2] ST4 folio 2169.
Subsequently, Ms Monaghan notified Centrelink that she returned to work in the period from 13 January to 10 August 1995.
On 11 August 1995, sole parent pension was resumed.
Subsequently, up to 5 May 2010, Ms Monaghan claimed and was paid pensions, benefits and allowances at the single rate.
Centrelink conducted investigations into Ms Monaghan’s circumstances[3].
[3] See T40, for example.
On 16 February 2010 Centrelink received a tip-off that Ms Monaghan was living with her husband as a member of a couple[4].
[4] T73 folio 1570 refers.
A search of Ms Monaghan’s residence was conducted by the Australian Federal Police on 19 February 2010[5].
[5] T41, T74, T75, T76 and T77.
The Respondents say that on 19 February 2010 Ms Monaghan’s disability support pension was suspended but it was restored on 22 February 2010, pending review[6].
[6] Respondents’ Statement of Facts, Issues and Contentions at [3.9] and [3.10].
Subsequently, Ms Monaghan provided Centrelink with documents and statements addressing her circumstances[7].
[7] See ST44, for example.
On 13 May 2010 Centrelink notified Ms Monaghan that she and Mr Monaghan were members of a couple and that her entitlements had been “suspended until we have been advised of your partner’s income”[8]. Ms Monaghan’s disability support pension rate was cut from $701.10 per fortnight to $23.10 per fortnight on the basis of Mr Monaghan’s income.
[8] T57 folio 1460.
On 11 and 14 May 2010, Centrelink raised overpayment debts against Ms Monaghan[9].
[9] T51, T52, T53, T54, T55, T56, T58, T59 and T60.
Ms Monaghan sought review of these decisions. The rate of her disability support pension was restored, pending completion of the review.
On 9 September 2010, an authorised review officer affirmed the primary decisions[10], and the rate of her pension was, again, reduced.
[10] T61 and T62.
On 4 January 2011 Ms Monaghan applied for review by the SSAT. On 31 August 2011 the SSAT decided that, but for the period from 1 December 2005 to 30 November 2007, Ms Monaghan was a member of a couple from 31 December 1993 to 5 May 2010, and remitted the calculation of overpayment debts to Centrelink[11].
[11] T2.
On 12 October 2011, Ms Monaghan applied for review of the SSAT decision.
Member of a couple
Ms Monaghan staunchly maintains that the marriage between herself and her husband broke down over a period of years from 1990 to 1993, resulting in a final separation in December 1993. Thereafter, even though they did not divorce and they continued to look out for each other as family, they were not members of a couple. By her account, their intimate relationship as members of a couple has not resumed from then to now.
The Respondent Secretaries point to a substantial body of evidence that suggests this may not be correct. While accepting that cultural factors may be relevant matters to consider, the Secretaries say that when the circumstances and the indicia of the relationship between Ms Monaghan and her husband during the periods in issue are considered, the preferable view is that they were members of a couple who were not living separately and apart on a permanent or indefinite basis.
These are difficult matters to determine. Where the evidence of witnesses is affected by lapses of memory in relation to details or events now long past, or it is coloured by interests, family ties or cultural factors that are not entirely clear, the difficulty increases. Discerning where truth divides from fiction is not always easy or possible. Ms Monaghan relies heavily on the oral testimony of family members. The Secretaries rely heavily on circumstantial evidence in a large body of documents. No single piece of the evidentiary matrix is determinative, however.
It is important to note, immediately, that the conception of a relationship between two people as members of a couple is not determined by any one factor alone, such as the two people being legally married or cohabiting under one roof, for example. It is necessary to consider the express terms of the legislative test under s 4(2) of the Social Security Act 1991 (Cth) (the Social Security Act) and all the various characteristics and circumstances of the relationship at all relevant points in time, having regard to the matters set out in s 4(3), as follows –
4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis;
[…]
Member of a couple - criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b)the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c)the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, 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.
Thus, as Ms Monaghan has been legally married to her husband at all relevant times, it is necessary to form an opinion about whether she has not been living separately and apart from him on a permanent or indefinite basis during the periods that are in issue. In this context, the phrase “separately and apart” refers to a state of affairs in which the conjugal relationship, the consortium or association between two people that embraces love, companionship, care, support, mutual services and sexual intimacy, is no longer subsisting and the parties to it are living apart, albeit perhaps under one roof.
Before considering the particular circumstances and relevant factors, it is necessary to briefly comment upon the nature of the decision under review and, then, the state of the evidence.
The decision under review
Both parties made written submissions about the nature of the decision under review addressing what should be done if the evidence does not permit a positive finding to be made on the crucial point of fact.
The Secretaries contend that the decision is correctly characterised as one addressing original qualification or entitlement, from time to time, and whether Ms Monaghan “should ever, and particularly from 31 December 1993, have been granted benefits at the single rate”[12]. Applying MacDonald v Director-General of Social Security[13], the Secretaries say that if a positive finding cannot be made, then the previously existing state of affairs, in which Ms Monaghan was a member of a couple with her husband, should be restored.
[12]Respondent’s submissions, 14 December 2012 at [4].
[13] (1984) 1 FCR 354.
Ms Monaghan does not agree. In her submission the SSAT decision under review originates from a series of decisions by Centrelink delegates in 2010, overturning the state of affairs then prevailing, whereby she was paid pensions, benefits and allowances at the single rate. This, she says, is the state of affairs that should be restored if a positive finding cannot be made.
It is necessary to carefully analyse the decision under review[14].
[14] MacDonald v Director-General of Social Security (1984) 1 FCR 354, per Woodward J at 358.
The SSAT decision proceeded on the basis of fresh evidence that Ms Monaghan was a member of a couple at various times and, in effect, denied her payment of pensions, benefits and allowances at the single rate, or at all, under the Social Security Act and the A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act) or the related A New Tax System (Family Assistance) (Administration) Act 1999 (the FAA Act). It also provided for overpayment debts to be raised, and determined that there are no sufficient grounds to write-off or waive the right to recover the debts. The SSAT decided that Ms Monaghan was not a member of a couple in the period from 1 December 2005 to 30 November 2007 and remitted the calculation of overpayments debts to Centrelink.
Performing its functions, the SSAT reviewed decisions by authorised review officers in respect of initial decisions by Centrelink. Those decisions were that Ms Monaghan was a member of a couple from 31 December 1993 to 5 May 2010 and, as a result, she was not qualified for sole parent pension, or for payment of parenting payment, newstart allowance, disability support pension and family tax benefit at the single rate. In consequence of this, overpayment debts in varying amounts were raised against her.
It appears, but it is not entirely clear, that the decision to suspend or cancel Ms Monaghan’s social security payments may have been made under s 80 of the Social Security (Administration) Act 1999 (the SSA Act).
The administration of social security payments proceeds by claims and determinations, whereby under s 36 of the SSA Act the Secretary must determine a claim by a person and, if granted under s 37, payment may be made by instalments under s 43. Any determination to increase or reduce the rate of the payment is to be subject of notice under s 78 or s 79. Under s 80 the Secretary is required to suspend or cancel a social security payment to a person if the person is not qualified for the payment or the payment is not payable to the person. Decisions concerning the determination of a claim, or the adjustment of the rate of payment, may be subject to review by the Secretary under s 126. A decision so made may be subject to review by the SSAT under s 142, and a decision of that tribunal may be subject to review by this Tribunal under s 179.
It is not clear whether the index determination to grant Ms Monaghan sole parent pension in January 1994 has been subject of review s 126 of the SSA Act. It is that positive determination, and those following, that resulted in her being paid pensions, benefits and allowances at the single rate. Those determinations gave rise to a state of affairs that subsisted until it was overturned by fresh determinations in 2010, in all likelihood under s 80 or s 126 of the SSA Act, and relevant provisions of the Social Security Act, the Family Assistance Act or the FAA Act.
The Tribunal in Re Lynwood and Secretary, Department of Education, Employment and Workplace Relations and Anor[15], appears to have accepted that a decision of this kind made by the SSAT is correctly a ‘cancellation decision’. Even though there is doubt in this case about the nature of the decisions being made and the powers and provisions that were applied, it appears to me that the decision to suspend or to cancel Ms Monaghan’s social security payments has that character. It is true that the reassessment of her qualification and entitlements was made on the basis of fresh evidence, but there is no clear basis on which to conclude that the primary decisions (that were reviewed by authorised review officers and subsequently the SSAT) were decisions made under s 126 of the SSA Act on review of earlier determinations granting social security payments to Ms Monaghan. It appears that those earlier determinations have not been set aside, but rather determinations have been made to cancel Ms Monaghan’s social security payments and to raise and recover overpayment debts.
[15] [2011] AATA 213.
The state of the evidence
Even though there are many hundreds of pages of documents in evidence and a number of witnesses gave oral evidence over the course of two days, the probative value of the evidence is poor. This presents a very significant difficulty.
Ms Monaghan’s evidence was imprecise and vague in respect of important events and the circumstances of her relations with her husband from time to time. She had difficulty recalling when he had moved out of her house, or when he had moved back in. She told me that she could not recall or could not explain certain events, such as when she had moved house or who was residing at her house at various times, and how her husband came to be at her house when memorable incidents occurred. She struggled to explain documents in which she and her husband were identified as spouses or next of kin, or in which they were addressed as a couple or were apparently residing at the same address. Ms Monaghan changed her evidence a number of times on key points. No direct challenge was made to the truthfulness of Ms Monaghan’s evidence. Nonetheless, it is quite clear to me that she had difficulty placing events in time and there was much that she did not recall. Where her memory served, there are real questions about the location in time of events she recalled.
The evidence given by Mr Monaghan was vague or cast in generalities. It was unfortunately riddled with inconsistencies and stark contradictions. One only has to consider the evidence Mr Monaghan gave about where he resided from time to time to comprehend the difficulty. There were numerous lapses of memory and, where memory served, cogent or consistent explanations for actions taken were often not forthcoming. For example, his explanation that he lived apart from Ms Monaghan, but he used her residences over time as his mailing address for reasons of security must be evaluated against unequivocal evidence that he changed his address at the Commonwealth Bank to a house at MacQueen Place, Charnwood where he was living in 2005, and then changed it back to Ms Monaghan’s address in 2007 for no apparent reason (if his account can be believed).
In such circumstances, one might look to the evidence of other lay witnesses to corroborate key events or circumstances, or to provide probative clarity or sense in respect of testimony that is so convoluted, contradictory or imprecise that, alone, little sense can be made of it.
Ernie Johnson gave evidence and at the outset he informed me that his memory is not good. Mr Johnson is a childhood friend of Mr Monaghan’s from Griffith, who Mr Monaghan says he resided with for many years following his purported separation from Ms Monaghan in 1993. Mr Johnson’s evidence was so vague and imprecise that it did not clarify any points of detail, in respect of relevant dates for example. Nevertheless, he was resolute that Mr Monaghan resided with him for a number of years at the residence in Morton Street, Queanbeyan and then at his mother’s residence in MacQueen Place, Charnwood, and during these periods Mr Monaghan was not living as a married couple with Ms Monaghan.
Dezi Connors, Ms Monaghan’s niece gave evidence. While her recollection of events was less opaque and less vague that evidence given by other lay witnesses, her recollections were those of a child for substantial parts of the periods in issue and, inevitably perhaps, her evidence is only of limited relevance and probative value in respect of the indicia of the relationship between Ms Monaghan and her husband. One would not expect a child to have knowledge of the financial aspects of the relationship between her adult relatives, for example. Furthermore, Ms Connors did not reside with Ms Monaghan continuously and she was absent from Canberra from time to time. In consequence, her direct knowledge of the household is somewhat limited.
Nevertheless, Ms Connors’ recollection of the members of Ms Monaghan’s household from time to time was reasonably clear. She informed me that she resided with Ms Monaghan from 1994 (when she was 12-years old) to 2000 in premises in Narrabundah and then at Leakey Place, Richardson, and that during this period Mr Monaghan would visit once or twice each week for short periods, visiting N – he did not reside with Ms Monaghan. On Ms Connors’ evidence, she returned to reside with Ms Monaghan for about a year in 2002-2003 for the birth of her first child, before moving to Adelaide, and Mr Monaghan was not residing at the premises in Richardson at that time. She returned, again, to reside with Ms Monaghan in 2005-2006, for the birth of her second child, before moving into residential premises nearby in Theodore. Even though she was absent from the premises for a period of several weeks in or about September and October 2005, her evidence is that Mr Monaghan was not residing with Ms Monaghan during this period and “I cannot recall Uncle Fred visiting the house during this period”[16]. In 2009, Ms Connors moved from Theodore to nearby residential premises in Oxley, where she currently resides, although it appears that from the beginning of the school year in 2011 she has lived with Ms Monaghan during the week. Her evidence is that Mr Monaghan is living in Ms Monaghan’s house “but living in his own room, and only so that Aunty Teresa can look after him while he is so sick with his kidney problem”[17].
[16] Exhibit A2 at [7].
[17] Exhibit A2 at [8].
The difficulty of assessing the evidence of these witnesses increases when the numerous inconsistencies in their accounts are considered. Ms Monaghan informed me that it was she who decided to end her relationship with Mr Monaghan in December 1993, following a period from 1990 in which their relationship deteriorated. Mr Monaghan told me that he was the one who decided to leave the relationship as he was increasingly stressed by Ms Monaghan caring for her newly-born granddaughter, N, who was unwell, and for N’s two older half-brothers.
Mr Monaghan told me that he used Ms Monaghan’s residence as a safe address and he would go there often, every few days or each week, to collect his mail. Ms Monaghan gave evidence that Mr Monaghan would come to read his mail, or she would deliver it to him, and he would leave it with her for safe-keeping. Ms Connors informed me that she did not see Mr Monaghan do this when she was residing at Ms Monaghan’s residence in 2000, 2002, 2003 or 2005.
Ms Monaghan told me that she and Mr Monaghan were recorded with the same address in medical and other documents because she did not know her husband’s address or because he would use her address. Mr Monaghan’s evidence is that he used Ms Monaghan’s address because it was secure and stable, and because it was the address on his driver’s licence, which he used for identification purposes. He did not provide a cogent explanation of why he continued to use Ms Monaghan’s address for some, but not all of his records, when he claimed to have been living at MacQueen Place for several years. Mr Monaghan could not explain why he changed his address with the Commonwealth Bank in 2005 from Ms Monaghan’s address to his address at MacQueen Place, Charnwood, and then changed it back again in 2007. He staunchly maintained that he was not residing at Ms Monaghan’s address in Richardson up to 2009, when he moved back in so that Ms Monaghan could care for him while he was not well. Ms Monaghan changed her evidence a number of times on this point, conceding that she could not recall precisely when he moved back in with her, at one point in cross-examination she accepted that he may have moved back to her house in 2003.
The inconsistencies are too numerous to list here, and it is not necessary to do so. To my mind the oral evidence of these witnesses is not reliable and it would be remiss to accept it on controversial points without reliable corroboration.
There is extensive documentary evidence that points to Mr Monaghan residing at Ms Monaghan’s addresses over time. There are numerous documents concerning Mr Monaghan, in the form of hospital, medical and pharmacy records, motor vehicle and driver’s licence records, bank and finance records, tax and employment records, and commercial, education and membership records, which record him having the same address as Ms Monaghan over time, following her movements from Lumeah Street to Captain Cook Crescent, both in Narrabundah, and from there to Leakey Place, Richardson.
While much of this material points in one direction, other documents point in the opposite direction. Unfortunately, there is very little direct or incontrovertible evidence. Some of the documentary evidence on which the Secretaries rely raises perplexing inconsistencies.
For example, Mr Monaghan’s tax records from 1991 to 1999 reveal that he nominated Ms Monaghan as his spouse in his annual tax returns for 1994-95[18], 1995-96[19] and 1996-97[20]. He recorded her address at Lumeah Street in 1994-95 and 1995-96 as his postal address and as his residential address. His explanation is that records held by his tax agent were simply carried forward. This may be plausible in respect of 1995-96 and 1996-97, but Ms Monaghan’s inclusion as his spouse in 1994-95 cannot be carried forward from previous years for the simple reason that she was not nominated as his spouse in the returns lodged in 1991-92[21], 1992-93[22] and 1993-94[23].
[18] T19 folio196.
[19] T19 folio 199.
[20] T19 folio 203.
[21] T19 folio 186.
[22] T19 folio 189.
[23] T19 folio 192.
In his 1996-97 return, even though Mr Monaghan nominated Ms Monaghan as his spouse, he recorded his postal and residential address as Morton Street, Queanbeyan. This stands against his evidence that he used Ms Monaghan’s address for reasons of security. But it suggests that he was residing at Morton Street and not with Ms Monaghan at the time, even though she is recorded as his spouse. In 1998-99[24], he did not nominate Ms Monaghan as his spouse, but he recorded her address at Leakey Place, Richardson as his postal and residential address. Why he did so has not been adequately explained.
[24] T19 folio 208.
The preponderant bulk of the documentary evidence is circumstantial. For the Secretaries’ submissions to be accepted, it is necessary to draw inferences from the documents on which they rely that are contrary to explanations given by Ms Monaghan and her husband in their oral evidence, and contrary to other documents and evidence that suggests Mr Monaghan was not residing with Ms Monaghan at various points in time.
For example, the inference to be drawn from the documents to which I was taken in T77, that Ms Monaghan was not living separately and apart from Mr Monaghan, must be weighed against documents that point to a different conclusion. Mr Monaghan’s 1996-97 tax return records him residing at Morton Street, Queanbeyan. A rental termination notice on 7 January 1998 in respect of premises at Morton Street, Queanbeyan[25] records Mr Monaghan and Mr Johnson as joint tenants. The termination notice was raised in respect of non-payment of rent for 14 days. The clear implication is that Mr Johnson and Mr Monaghan resided at this address up to the end of 1997. Mr Monaghan’s evidence is that he moved from Morton Street to join Mr Johnson at Mr Johnson’s mother’s residence in MacQueen Place, Charnwood (although he could not recall when this occurred). An undated letter by Isabelle Collins, Mr Johnson’s sister, who lived next door to her mother, suggests that Mr Monaghan lived at the MacQueen Place residence on and off for approximately five years[26]. On 10 March 2010, Kim Davison, Executive Director of Gugan Gulwan Youth Aboriginal Corporation, Mr Monaghan’s long-term employer, wrote “During his employment, Mr Monaghan has approached me on several occasions in relation to his living arrangements, that [sic] has seen him residing with family members on the Northside of Canberra”[27]. Ms Monaghan’s addresses in Narrabundah and in Richardson are on the south-side of Canberra, whereas the MacQueen Place, Charnwood is on the north-side. Ms Collins and Mr Davison were not called to give evidence.
[25] ST41 folio 2396.
[26] ST42 folio 2397.
[27] ST43 folio 2398.
During the hearing, much was said about a Foxtel account Mr Monaghan registered and paid for at Ms Monaghan’s address in Richardson. This, he said, he set up in order to support N, of whom he was particularly fond. On the evidence of Professor Diane Bell, a consultant anthropologist, this was one component of Mr Monaghan’s cultural responsibility to look after young indigenous people, especially children within his kinship group such as N. Ms Monaghan and Ms Connors supported this explanation in their evidence. And yet, Mr Monaghan cited stress relating to Ms Monaghan’s caring role for N and her two half-brothers as a significant factor that caused him to separate from Ms Monaghan in 1993. Furthermore, he transferred the Foxtel account to his address in Charnwood in 2005, around the time when he changed his address with the Commonwealth Bank, stating the he did so when Mr Johnson’s Foxtel account was cut-off, so that he and Mr Johnson could watch it.
The documents reveal a number of vehicles were purchased by Mr Monaghan for Ms Monahan’s benefit. One of these vehicles appears to have been subject to a joint loan[28]. The explanation that Ms Monaghan was not working and her Centrelink income was not sufficient to meet the requirements for credit, so she relied upon Mr Monaghan, is plausible. The registration for a number of vehicles was transferred from Mr Monaghan to Ms Monaghan, or from Ms Monaghan to Mr Monaghan. The number of these transactions is a little surprising and some of the explanations given by Mr Monaghan and by Ms Monaghan border on implausibility. But the explanations are not so implausible that they can be ruled out as untrue. Mr Monaghan admitted to purchasing vehicles for Ms Monaghan, using Esanda Finance credit facilities for example. His explanation was that he wanted to ensure that Ms Monaghan had a reliable vehicle to enable her to transport children for medical treatment, when required, citing N’s asthma and another child, J, who required medical treatment for burns in Sydney. This is a plausible explanation, but it does not explain the multiple transfers of motor vehicle registrations between Ms Monaghan and her husband during the period in issue.
[28] T77 folio 1655.
The Secretaries rely on documents in which Ms Monaghan and Mr Monaghan are referred to as a couple, by name. It is plausible that on 22 July 2002 Mr Monaghan may have assisted Ms Monaghan to write a letter of complaint to Ted Quinlan, a member of the ACT Legislative Assembly, about a police raid on her home, but their letter is not in evidence. This may explain the letter in reply addressed to ‘Mr and Mrs Monaghan’ referring to “your home”[29]. The explanation provided in respect of the note from the Children’s Hospital at Westmead addressed to “Teresa and Fred”[30] is plausible, as both were involved in the transportation and attendance on J, following his burn injury. No plausible explanation has been given for the 1997 joint NRMA membership renewal letter in respect of vehicle YKN17O[31] or for the 19 October 2009 letter from Tuggeranong Car Care addressed to “Mrs [sic] John and Teresa Monaghan” in respect of membership and national roadside assistance for vehicle YER94H[32]. The explanation given in respect of the 11 December 1995 Esanda Finance approval letter and related loan applications, addressed to “Mr FJ & Mrs TE Monaghan”[33], that Mr Monaghan assisted Ms Monaghan to obtain finance approval as he was working and earning a good wage, whereas she was not, is plausible. I note that in his loan application to the Commonwealth Bank of Australia, Mr Monaghan recorded that he been residing at Leakey Place, Richardson from October 2000[34]. In another loan application to the APS Benevolent Fund dated October 2006 he recorded that he had been living at Leakey Place, Richardson for six years[35]. Mr Monaghan denied that he had been residing at Leakey Place, Richardson from 2000, even though these applications point to that conclusion.
[29] T77 folio 1760.
[30] T77 folio 1642.
[31] T77 folio 1692.
[32] T77 folio 1639.
[33] T77 folios 1694-1699.
[34] T33 folio 1282.
[35] T77 folio 1679.
These documents, and the inferences pressed by the Secretaries, are difficult to reconcile with a letter addressed to Mr Monaghan at his Morton Street address from the ACT Department of Justice and Community Safety on 31 May 1999[36], an Allianz Australia Insurance policy renewal letter dated 2 May 2006 addressed to Mr Monaghan at MacQueen Place[37], and an undated membership application for the Tuggeranong Valley Rugby Union and Amateur Sports Club recording his residence at the MacQueen Place address. Nonetheless, it is possible that Mr Monaghan was residing at Leakey Place, Richardson with Ms Monaghan from 2000 to 2006, even though the evidence of Mr Monaghan, Ms Monaghan and Ms Connors is that he was not. Having carefully assessed all of the voluminous evidence, it is necessary to consider the relevant circumstances of the relationship between Ms Monaghan and her husband at all relevant times, having regard to the indicia set out in s 4(3) of the Social Security Act.
[36] T77 folio 1753.
[37] T77 folio 1747.
Financial aspects of the relationship
Ms Monaghan does not jointly own any real estate or major assets with Mr Monaghan, although there is some evidence that she may have entered into joint loan and warranty arrangements with him in respect of the purchase of one or more vehicles. There are no joint bank accounts.
Mr Monaghan recorded Ms Monaghan as his spouse for tax purposes in his tax returns for 1994-95, 1995-96 and 1996-97.
The evidence clearly establishes that Mr Monaghan paid for various items, services and consumables to Ms Monaghan’s benefit over an extended period. This includes the purchase or provision of vehicles, rented equipment and services such as Foxtel. The evidence concerning any significant pooling of resources in respect of major commitments and legal obligations is not strong. On balance, it is probable that Mr Monaghan paid for loans that were jointly obtained to fund the purchase of vehicles for Ms Monaghan and, otherwise, provided financial support to Ms Monaghan in her role caring for children within the extended family.
I am reasonably satisfied that Mr Monaghan has contributed to household costs and consumables at Ms Monaghan’s residence in Leakey Place from 2009. It is probable that the level of his contribution increased in 2010, when Ms Monaghan’s disability support pension was cut off in 2010. I note that the level of his contribution did not extend to paying for Ms Monaghan’s funeral policy, which she could no longer afford when her Centrelink pension was ceased. I accept that this cover was a matter Ms Monaghan considered to be very important, for familial and cultural reasons relating to country. That Mr Monaghan refused to pay for the cover when Ms Monaghan was in straitened financial circumstances indicates the limit of the financial aspects of their relationship.
The nature of the household
The nature of Ms Monaghan’s household appears to be somewhat fluid, as relatives and others visit and stay with her for varying periods of time. The role Ms Monaghan has played in caring for her grand-children and for young people within the extended family, including her niece, Ms Connors, including welcoming them into her home for extended periods, is a significant factor that indicates the nature of the household.
On the evidence of Professor Bell, obligations and loyalty to tribal kin is likely to be a cultural factor of significance for Ms Monaghan and for Mr Monaghan. This should be viewed in relation to the broader cultural values that may result from direct experience of the stolen generations and being raised on a mission, as occurred to Ms Monaghan and to Mr Monaghan. Professor Bell drew particular attention to the broad values or obligations to ‘look after’ people from younger and older generations within the indigenous community and to ‘look out for’ people of the same generation. In her opinion, these values are closely reflected in the conduct of Ms Monaghan and Mr Monaghan, looking after younger people, even though they may not be immediate family members, and looking out for each other and people of the same generation.
I note that Ms Monaghan’s family is from the Canberra-Yass region. She has children and grand-children residing in Canberra. But Mr Monaghan’s family is from the Griffith region. His children and grand-children do not reside in Canberra.
It appears that Mr Monaghan removed himself from Ms Monaghan’s household for periods of time from 1993 and took up residence with Mr Johnson, his childhood friend from Griffith, and members of Mr Johnson’s family who, by inference at least, on Professor Bell’s evidence, are members of the same tribal or kinship group.
I accept that Mr Monaghan’s role in ‘looking after’ Ms Monaghan’s grand-child, N, for example, is to be assessed in this light. Of the evidence concerning crises with children in Ms Monaghan’s household, it appears that Mr Monaghan was always present to assist. It is not clear how this came about: whether because he was residing at the house at the time, or because he happened to be visiting, or because somebody called him to attend, I am unable to determine.
Mr Monaghan was diagnosed with renal nephritis in or about 1984. The condition progressed and, by his own account, it became overwhelming in or about 2009 and he returned to live in Ms Monaghan’s house so that she could care for him. It appears that he has required renal dialysis from 2011, while awaiting a transplant, and Ms Monaghan cleans and cooks for him. Ms Monaghan gave evidence that she does not change Mr Monaghan’s fluid bags, as he does this himself. But Mr Monaghan gave contrary evidence, asserting that she did this for him. There is no evidence that they share a bedroom – to the contrary the evidence is that Mr Monaghan has his own bedroom, in which he keeps his various personal items.
The evidence establishes that at all relevant times Ms Monaghan has run the household and done the bulk of the household chores. It is probable that family members and others who stay at the house from time to time contributed, although there is no evidence that Mr Monaghan undertook any household chores at any relevant time. I note that he has been in employment at all relevant times, whereas Ms Monaghan has not.
Social aspects of the relationship
There is only scant evidence concerning the social aspects of the relationship between Ms Monaghan and her husband since 1993. They deny that they hold themselves out as married to each other, although their marriage remains a legal fact. Ms Monaghan gave evidence that it is widely known among members of her family, in her social group and in the broader community in which she circulates that she and Mr Monaghan are separated and not a couple. Mr Monaghan informed me that some people in the indigenous community in Canberra might know that he was separated from Ms Monaghan, but others would know that they are married – knowledge of their separation, albeit of long-standing, is a private matter that is not widely discussed.
It appears that Ms Monaghan does not wear a wedding ring, even though her marriage to Mr Monaghan remains a legal fact. Mr Monaghan’s evidence is that he gave his wedding ring to Mr Johnson, who lost it. I note that a wedding photograph of Mr and Mrs Monaghan was recorded in the lounge room at Leakey Place when the search was conducted in February 2010[38].
[38] T41 folio 1347.
There are a number of documents that prove, in certain instances, they have represented themselves as a married couple, such as in respect of Esanda Finance, the Motor Traders Association warranty, their letter to Mr Ted Quinlan MLA, and their joint NRMA and Tuggeranong Car Care memberships, for example.
The only evidence from friends and regular associates of Ms Monaghan and Mr Monaghan is very scant. The evidence of Ms Connors and Mr Johnson indicates that their relationship from 1994 is not one of a married couple.
People who one might expect to be in a position to offer relevant evidence on this point were not called to give evidence, such as neighbours, treating doctors, employers, school teachers, real estate agents, or members of the indigenous community in Canberra, for example. I note that Mr Monaghan is a high profile member of that community who, by his account, would be known to many. Without direct evidence, there is nothing to be gained by speculation about how the relationship between Ms Monaghan and her erstwhile husband may be perceived by absent others.
There is no evidence that Ms Monaghan plans for or engages in social activities with her husband. It appears that she attended a ceremony in which he was given an award as Aboriginal Person of the Year. By her account, she was encouraged to attend by her friends, and did so with them.
Sexual relationship
There is no evidence of any sexual relationship between Ms Monaghan and her husband during the periods in issue.
The nature of the commitment to each other
Ms Monaghan’s relationship with her husband is of long-standing, at least from 1984 when they married. Neither of Ms Monaghan or her husband have re-partnered in the period from December 1993. Ms Monaghan put this down to her caring responsibilities and a lack of interest, whereas Mr Monaghan cited a lack of opportunity and issues relating to his health.
Their evidence, which is not controverted, is that they look out for each other. Professor Bell thought that this was an apt description of cultural values and behaviours that bind them within their extended family, as well as in their respective kinship groups and in the broader indigenous community. I accept that the concept of ‘looking out for’ is one in which care and support of various kinds, including in respect of resources, health and law for example, find ready accommodation.
Whether the commitment between Ms Monaghan and her husband during the period I must examine extends beyond this conception into something that is ‘marriage-like’ is difficult to determine on the present evidence. The continuing nature of Ms Monaghan’s support for Mr Monaghan is quite evident in her acceptance of him using her address over the period of many years since 1993 and in the care she presently provides him. Mr Monaghan’s actions providing support to Ms Monaghan, in the form of purchasing various items from time to time, and supporting her when dealing with crises involving children, indicate a level of enduring commitment.
Even though Ms Monaghan and Mr Monaghan gave evidence that the present conformation of their relationship is not one that either expects to last, once Mr Monaghan obtains a kidney transplant, it appears to me that the nature of their familial and cultural commitment to each other is likely to continue indefinitely – each regards the other as an important person to whom either may turn in times of need.
But, to my mind, that is a different conception of a relationship than one that is marriage-like. I am not able to determine the extent to which Ms Monaghan enjoyed companionship or emotional support from Mr Monaghan, or him from her, during the periods in issue. Whether her caring duties in respect of Mr Monaghan from 2009 permit or embrace any degree of comfort or intimacy, however enduring or fleeting from time to time, I am unable to determine. There is simply no probative evidence on this point.
On the present evidence, Ms Monaghan and her husband do not appear to see their relationship as marriage-like – albeit that the boundaries of what may be considered to be ‘marriage-like’ are wide and without clear definition.
Not living separately and apart
In order to properly address this issue, the overall picture and all facets of the relationship must be considered[39]. Each of the factors to which I have referred must be considered in the context of the evidence as a whole in order to determine the true character of the relationship thus revealed. These are difficult matters about which reasonable minds may differ on the same evidence. Nevertheless, the issue must be decided applying the reasonable satisfaction standard of proof, on the balance of probabilities. One cannot simply choose between possibilities or guesses or unsupported assumptions, even though one possibility may appear to be more likely or stronger than another.
[39] Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22 at [24]; Lambe v Director‑General of Social Services (1981) 57 FLR 262 at 271.
The concept of “separately and apart” was discussed by the High Court in Main v Main[40] and by the Federal Court in Staunton-Smith v Secretary, Department of Social Security[41]. What must be considered is not only whether the parties live apart, in physical terms (albeit under one roof perhaps), but also whether they live separately to the extent that the relationship is no longer marriage-like. The two limbs of the test are conjunctive and the test is cast in the negative – a member of a couple relationship will exist between two people who are married if they are not living separately and apart from each other. These are matters of fact and degree.
[40] (1949) 78 CLR 636 at 639-641.
[41] (1991) 32 FCR 164, at 175, for example.
Weighing the evidence and having regard to the various factors and all the relevant circumstances of the relationship between Ms Monaghan and her husband from 31 December 1993 to 5 May 2010, on balance, it is not positively established on the balance of probabilities that Ms Monaghan and her husband were not living separately and apart at any time from 31 December 1993 to 5 May 2010. The test in the legislation is not satisfied, therefore, and the decision under review must be set aside.
There is such a degree of inconsistency, unreliability and imprecision in the evidence as a whole that it is difficult to draw any firm conclusion from it, one way or the other. Certainly, there is documentary evidence that suggests that Ms Monaghan was not living separately and apart from her husband at various times. But, even though the volume of this material is large, it is circumstantial and much of it has been countered by explanations given by Ms Monaghan or Mr Monaghan that are plausible to varying degrees. Furthermore, there are other documents that support aspects of their evidence, concerning Mr Monaghan residing at Morton Street and at MacQueen Place at various times for example. Other aspects of their evidence, concerning the nature of Ms Monaghan’s household for example, are corroborated by evidence given by Ms Connors.
For the matter to be concluded in the manner for which the Secretaries contend, the sworn evidence given by Ms Monaghan, Mr Monaghan, Mr Johnson and Ms Connors would need to be dismissed as untrue or given less weight than contrary evidence. Even though there are substantial difficulties of detail and inconsistency in their evidence, and there are serious questions about its reliability, it is not out-weighed by contrary evidence in at least one important regard - it appears to me that there is a kernel of consistent truth running through their evidence, being that the conjugal relationship Ms Monaghan had with Mr Monaghan came to an end in the 1990s. And this is the explanation for Mr Monaghan’s residential dislocation from 1993. It was not squarely put to any of these witnesses that they were not telling the truth and no serious attack was made on their credit. With the benefit of cross-examination, on this key point at least, it appears to me that they were truthful, albeit struggling with matters of detail and, perhaps, being less than frank.
In any event, logical reasoning based on probative evidence does not permit the drawing of inferences without proper support, and much less sheer assumptions, guesses or conjecture, which have no place. Considering the evidence as a whole, no sooner is one inference or possibility raised for or against Ms Monaghan’s case, than it is cut down or undermined by other pieces of the evidentiary matrix – by contradiction or contra-indication, or because the supporting evidence is insufficient to establish a conclusive finding on the balance of probabilities. Unreliable evidence, unsupported inferences and mere possibilities are not enough.
On balance, the evidence does not establish to my reasonable satisfaction that Ms Monaghan and her husband were not living separately and apart at any time from 31 December 1993 to 5 May 2010, although it is possible that they were at various times, between 8 January 1998 and 30 November 2005 and from 1 December 2007 to 5 May 2010 for example, but this is not presently established on the balance of probabilities. As I have said, possibilities that arise from the evidence, even strong possibilities, are not sufficient to make a positive finding on this point.
It is not established that Ms Monaghan was a member of a couple from 31 December 1993 to 5 May 2010 for the purposes of s 4(2) of the Social Security Act. That being so the decision under review will be set aside and in place thereof it is decided that Ms Monaghan was not a member of a couple from 31 December 1993 to 5 May 2010.
I note that I am not able to make positive findings that Ms Monaghan was living separately and apart from her husband at all relevant times. But that is not the test that I must apply – for the Secretaries’ case to be made out, I must be satisfied that they were not living in that state at the relevant times. And, although there is significant doubt about the nature of their relationship, that is not presently established.
I certify that the preceding 91 (ninety -one) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ............................[sgd]......................................
Associate
Dated 20 December 2012
Dates of hearing 11 and 12 December 2012 Date final submissions received 17 December 2012 Solicitors for the Applicant Mr D. Emerson-Elliott, Welfare Rights and Legal Centre
Solicitors for the Respondent Mr A. Dillon, Australian Government Solicitor
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security Payments
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Overpayment Recovery
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Entitlements
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Review of Administrative Decisions
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