Thomson and Secretary, Department of Social Services (Social services second review)

[2017] AATA 255

Thomson and Secretary, Department of Social Services (Social services second review) [2017] AATA 255 (1 March 2017)

Division:GENERAL DIVISION

File Number:           2016/2700

Re:Mr Patrick Thomson

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mr Conrad Ermert, Member

Date:1 March 2017  

Place:Melbourne

The Tribunal sets aside the decision under review and substitute the decision that:

•          Mr Thomson was not a member of a couple in the relevant period;

•          He was not overpaid pension benefits during the relevant period;

•          He does not owe a debt to the Commonwealth in relation to the debt period; and

The matter be remitted to the Respondent to recalculate Mr Thomson’s benefits and make the appropriate payments.

..........................[sgd]..............................................
Mr Conrad Ermert, Member

SOCIAL SERVICES - Disability Support Pension and Age Pension payments - whether member of a couple - whether a de facto relationship - financial aspects - nature of the household - social aspects - sexual relationship - nature of commitment to each other - assessment of overall relationship - failure to call witnesses - whether open to conclude evidence not favourable - decision set aside - relationship not de facto - no overpayment - no debt - remit for recalculation of benefits and payments

LEGISLATION

Social Security Act 1991

CASES

Jones v Dunkel (1959) 101 CLR 298

Secondary Materials

The Macquarie Dictionary, sixth edition

REASONS FOR DECISION

Mr Conrad Ermert

1 March 2017

INTRODUCTION

1. Mr Patrick Thomson, the Applicant, has received a Disability Support Pension (DSP) from 6 November 2009 and an Age Pension since 2 January 2015.  Records held by Centrelink indicate that he shared his home with Ms Yeshi Dolma from 20 December 2013.  Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent. 

2. On 3 December 2015 an officer of Centrelink decided that Mr Thomson should be treated for social security purposes as a member of a couple with Ms Dolma.  The rate of Age Pension for a member of a couple is less than that for a single person and the decision had the effect of reducing the rate of Mr Thomson’s Age Pension.  On 3 December 2015 Centrelink decided to raise a debt on Mr Thomson for overpayment of the Age Pension for the period 8 November 2013 to 6 October 2015. 

3. Mr Thomson disagreed with these decisions and sought a review.  On 27 January 2016 an Authorised Review Officer (ARO) of Centrelink affirmed the decisions.  Mr Thomson then sought review of the ARO’s decision.  On 29 April 2016 the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) decided to set aside the decisions and sent the matter back to the Respondent with the directions:

   ·That Mr Thomson’s entitlement to Age Pension is to be assessed on the basis that he was a member of a couple with Ms Dolma from 20 February 2014; and

   ·The overpayment must be recalculated and the resulting debt is recoverable from Mr Thomson.

4. This matter is a review of the AAT1 decision.

   HEARING

5. Mr Thomson represented himself at the hearing. He appeared in person and gave evidence under oath.  Mr Tim de Uray, a solicitor employed by the Department of Human Services, represented the Respondent. 

6. I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-Documents).  For Mr Thomson I took in as evidence:

   ·Exhibit A1 – Statutory Declaration of Yeshi Dolma dated 16 August 2017;

   ·Exhibit A2 – Centrelink letter dated 20 September 2016;

   ·Exhibit A3 – Statutory Declaration of Patrick Thomson dated 16 September 2016;

   ·Exhibit A4 – Statutory Declaration of Len Thomson dated 14 September 2016;

   ·Exhibit A5 – Statutory Declaration of Mariam Baker dated 19 September 2016; and

   ·Exhibit A6 – Centrelink debt notice dated 19 September 2016.

7. For the Respondent I took in for consideration the Secretary’s Statement of Facts and Contentions dated 20 December 2016.

   LEGISLATION

8. The relevant legislation is contained in:

   ·the Social Security Act 1991 (the Act); and

   ·the Social Security (Administration) Act 1999 (the Administration Act).

9. Section 1064-A2 of the Act provides that where two people are members of a couple they will be treated as pooling and sharing their income, assets and expenses on an equal basis.

10. Section 1064-B1 sets out the basic rates for persons who are not members of a couple and lesser rates for persons who are partnered.

11. Section 4(2) of the Act relevantly defines a member of a couple in the following terms:

    Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

    (a)... or

    (b)all of the following conditions are met:

    (i)     the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);

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

    (iii)    the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (2) and (3A)), a de facto relationship;

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

    (v)    the person and the partner are not within a prohibited relationship.

12. Subsections 4(3) and 4(3A) set out the criteria to be considered when forming an opinion about whether two people are members of a couple in a de facto 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 major financial commitments; and

    (iii)any legal obligation 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 de-facto relationship.

    (3A)    The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

    EVIDENCE

13. In his evidence Mr Thomson said that his brother had sought a place for a friend, Ms Dolma, to stay.  When Ms Dolma arrived there was no bed available for her so she initially slept on the floor.  Mr Thomson said he put paper on the floor for her as it was cold.  Later he agreed to her sharing his bed as it was more comfortable for her.

14. Mr Thomson said that Ms Dolma told Centrelink that she was in a relationship with him in the belief that doing so would entitle her to receive more money.  He said he told her to sleep on the floor again but later he felt sorry for her and gave in, allowing her back into his bed.

15. In answer to questions Mr Thomson said:

    ·he has lived at the house for about 10 years;

    ·Ms Dolma moved in about 2013;

    ·about two weeks prior to the hearing Ms Dolma was taken to a mental institution in Maroondah;

    ·he has been to see her once to see how she is getting on;

    ·he took her a pair of her knickers because the nurse asked him to;

    ·some of Ms Dolma’s clothes are in her backpack in the lounge room, some in the dining room and some in a chest of drawers in his bedroom;

    ·there was a television set in his bedroom but Ms Dolma watches the set in the lounge room; and

    ·the house has three bedrooms and a study:

    ohis son, Len Thomson, has a bungalow at the back of the house; and

    oMs Leanne Pacey, a housemate, has a bedroom to herself.

16. Asked why he had not called Len Thomson to give evidence in person to the tribunal Mr Thomson said “he may give answers against me”.  Mr Thomson said he relied on his son’s Statutory Declaration.  He said people do not lie when making Statutory Declarations because of the punishments they may incur.  Mr Thomson said that Len completed the declaration while at home but he did not help Len write it or tell him what to say. 

17. Mr Thomson could not remember whether he had asked Ms Pacey to complete a Statutory Declaration.  He said she was at home at the time of the hearing and did not come to the Tribunal because she was not dressed in time.

18. Mr Thomson described Ms Mariam Bakeer as a friend.  He said she stayed in his house for about two months in November to December 2016 while she was in the process of selling her house.  He said he did not ask her to give evidence in this case as she had not known him or Ms Dolma for long. Mr de Uray asked whether Ms Bakeer was one of the friends referred to by Ms Dolma in her evidence to the AAT1 when she said “She does not come with him to visit family or friends.  If she does she stays in the car”.  Mr Thomson said that Ms Dolma did not come with him when he visited Ms Bakeer, only when he visited his brother.

19. In answer to further questions Mr Thomson said:

    ·the house is a Ministry of Housing property’

    ·the gas, electricity and telephone accounts were in his name;

    ·he paid for all the general running costs, the utilities and the rent;

    ·Ms Dolma did not pay rent, paying to him only $75 per fortnight as her share of the costs of the utilities;

    ·Len paid $150 per fortnight rent; and

    ·Ms Baker does not pay rent, paying only $75 per fortnight as her share of the costs of the utilities and telephone.

20. Mr de Uray referred to the following conversation between an officer of Centrelink, Ms Dolma and Mr Thomson as recorded on page 140 of the T-Documents:

    “I asked why she shared a bed if they were not in a relationship and she stated to keep warm.  Mr Thomson stated they have sex periodically when they both have the need.”

21. Mr Thomson said he recalled the conversation.  He was emphatic that he used the word occasionally in relation to having sex with Ms Dolma, not periodically.  He said that in the same conversation Ms Dolma also said that she was not paying him much money because she was saving to move out. 

22. When referred to the Centrelink Rent Certificate dated 22 January 2014 Mr Thomson said the information was not correct.  He said that Len paid rent of $150 per fortnight and Ms Pacey paid $75 per fortnight for her share of the utilities and telephone costs.  He said further that the total amount of rent paid for the property at that time was about $190 per fortnight. 

23. Mr de Uray referred to the AAT1 Reasons for Decision which records at paragraph 13

    
    “Ms Dolma said … at the start she paid Mr Thomson $110 per week and that is what she is still paying as rent.  She does not contribute to the water, electricity, gas, internet or telephone as this is covered by the rent”

    .  Paragraph 14 records “In a Relationship Details form lodged on December 2015 Ms Dolma also advised that she paid rent of $110 per week.  The Accommodation History screen for Ms Dolma records net rate weekly rent paid of $100 per week from 20 December 2013, $170 per week from 4 August 2015 and $130 per week from 5 September 2015”.  Mr Thomson said he told the Tribunal that Ms Dolma’s evidence was incorrect. 

24. Mr de Uray referred Mr Thomson to the Partner Details form relating to Mr Thomson dated 12 October 2015.  Mr Thomson agreed that he completed Item 35 and wrote on page 65 of the form but denied completing the remainder of the form.  He stated that the signature on page 66 was not his.  When asked about the Partner Details form relating to Ms Dolma also dated 12 October 2015 Mr Thomson said that both forms were completed in the lounge room with Ms Dolma in the same room.  He said “We both filled out our own forms”. 

25. In answer to questions about the nature of the household Mr Thomson said:

    ·There were no areas of the house for Ms Dolma’s own use;

    ·Ms Dolma did not clean the house, only occasionally vacuuming the lounge floor;

    ·Ms Dolma washed her own dishes and occasionally washed some of his;

    ·Ms Dolma did not do any of his washing;

    ·Contrary to her evidence to the tribunal Ms Dolma never contributed to car repairs;

    ·By not charging rental costs he was “helping her out”;

    ·He and Ms Dolma shared the same bed;

    ·They watched television together in the lounge room; and

    ·They did not watch television together in the bedroom.

26. In answer to questions about the social aspects of the relationship Mr Thomson said:

    ·They both did their own shopping, on most occasions going together in his car but not walking around together;

    ·Ms Dolma did not go shopping by herself and sometimes he did some of her shopping for her.

27. In regard to sexual relations Mr Thomson said that they had sexual encounters a few times but not a sexual relationship.  He agreed that the situation was unusual for a landlord/tenant relationship.

28. In regard to any commitment to each other Mr Thomson said:

    ·He helped Ms Dolma by not insisting on rent and by sharing his bed with her;

    ·He occasionally gives Ms Dolma a massage when she asks for it;

    ·He drives Ms Dolma when she has to attend appointments with the doctor and when she is looking for work; and

    ·Although he visited Ms Dolma in the clinic and took some of her clothes to her, the main reason for the visit was because she owes him some money.

29. When asked if there were any special reasons why he should not have to repay a debt to the Commonwealth Mr Thomson said “Yes.  Centrelink is corrupt”.

    TRIBUNAL CONSIDERATIONS

30. Subsection 4(2) of the Act requires me to form an opinion as to whether the relationship between Mr Thomson and Ms Dolma is a de facto relationship.  Subsection 4(3) requires me to consider certain criteria when forming that opinion.  I will consider each in turn.

    Financial Aspects of the Relationship (section 4(3)(a) of the Act)

31. There is no evidence of any joint ownership of real estate or other major assets and no evidence of any joint liabilities between Mr Thomson and Ms Dolma.  There is evidence that occasionally Mr Thomson does some minor shopping for Ms Dolma.  I do not consider this to be evidence of any significant pooling of financial resources in relation to major financial commitments.  There is no evidence of any legal obligations owed by one to the other.

32. In regard to the sharing of day-to-day household expenses the Respondent submits:

    ·Ms Dolma might help with the cost of car repairs;

    ·Mr Thomson subsidises Ms Dolma by not charging her rent even though other people in the house pay rent; and

    ·The evidence given to the Tribunal by Ms Dolma shows that she paid $110 per week in rent or lodgings.

33. In regard to the cost of car repairs I note Mr Thomson’s evidence that Ms Dolma has never contributed to the cost of car repairs. 

34. In regard to the question of subsidising Ms Dolma even though other people in the house pay rent I note Mr Thomson’s evidence that Ms Pacey also pays only $75 per fortnight for her share of the utilities and telephone costs.  The record of discussion with the ARO dated 27 January 2016 records that Ms Pacey pays $100 per fortnight.  I do not consider the discrepancy between $75 and $100 per fortnight in regard to Ms Pacey to be significant.

35. There is conflicting evidence regarding the amount paid by Ms Dolma.  In a document presented to Centrelink dated 25 November 2015 Ms Dolma states that she pays $110 per week in board and lodgings.  This is in accordance with the evidence given by Ms Dolma to the AAT1 hearing:

    14. In a Relationship Details form lodged on December 2015 Ms Dolma also advised that she paid rent of $110 per week.  The Accommodation History screen for Ms Dolma records net rate weekly rent paid of $100 per week from 20 December 2013, $170 per week from 4 August 2015 and $130 per week from 5 September 2015.

36. I note, however, that in the Rent Certificates dated 24 December 2013 and 17 January 2014 Ms Dolma has entered a figure of $100 per week for her share of the rent/lodgings. 

37. The amount entered in the Rent Certificate dated 17 January 2014 for the total rent for the property is $300 per fortnight.  Mr Thomson said the entry is not in his handwriting and is not correct. Mr Thomson stated that, at that time, his total rent for the property amounted to about $190 per fortnight.  Even accepting an amount of $300 per fortnight, I consider a contribution of $200 or $220 per fortnight from Ms Dolma alone would be disproportionate and unlikely compared with payments of $75 or $100 per fortnight by Ms Pacey and $150 per fortnight by Len Thomson.  I accept as being more likely that Ms Dolma has been paying an amount between $75 and $110 per fortnight, which is commensurate with that paid by Ms Pacey and Len Thomson.

38. I am not satisfied that the financial aspects of the relationship, of themselves, represent any more of a relationship than, for example, the relationship between Ms Pacey and Mr Thomson.

    Nature of the Household (section 4(3)(b) of the Act)

39. There is no evidence of Ms Dolma having any responsibility for providing care or support of Mr Thomson’s children.

40. In regard to the living arrangements, the evidence is consistent that when Ms Dolma initially moved into the house she slept on the floor as there was no bed available.  As sleeping on the floor proved to be uncomfortable and cold for her Mr Thomson invited Ms Dolma to share his bed.  Mr Thomson accepts that this arrangement is unusual for a landlord/tenant relationship. 

41. I note that Ms Dolma states in her Statutory Declaration of 16 August 2016 that she shared Mr Thomson’s bed until he acquired another bed and has since moved into his spare room.  This statement is supported by the Statutory Declarations of Ms Bakeer and Len Thomson.

42. The evidence indicates that Mr Thomson and Ms Dolma were motivated by a degree of practical convenience in the sharing of the bed which ceased when another bed was acquired.

43. There is no evidence of any specific arrangements for the use of the kitchen, laundry and bathroom. 

44. The evidence regarding the housework is inconsistent.  In her Partner Details form dated 4 November 2015 Ms Dolma records “I do cleaning”.  In her Partner Details form dated 25 November 2015 Ms Dolma records that she usually does cleaning, sometimes does washing and sometimes does general maintenance.  Mr Thomson’s evidence is that Ms Dolma vacuums only the lounge room floor; she does no cleaning or tidying, she washes her own dishes and occasionally some of his but she has never done any of his washing. 

1. In regard to the distribution of the housework I am not convinced by the evidence that Ms Dolma contributes significantly to the housework. 

2. I accept that Ms Dolma and Mr Thomson sleeping together for a period of time is indicative of a relationship that is more than just a landlord/tenant relationship.  However I will consider this further in the context of all the other factors to be taken into account.

   Social Aspects (section 4(3)(c) of the Act)

3. In considering whether Mr Thomson and Ms Dolma hold themselves out as married to, or in a de facto relationship with, each other I note in its reasons for decision the AAT1 wrote “There is little evidence of a shared social relationship.  There is also scant evidence that Mr Thomson and Ms Dolma represent themselves as a couple, except that Ms Dolma has told Centrelink on more than one occasion that she was partnered to Mr Thomson.  Again no particularly satisfactory explanation was provided to the tribunal as to why she would make these statements to Centrelink”.

4. Mr Thomson’s explanation was that Ms Dolma had followed advice from a friend that by telling Centrelink that she and Mr Thomson were partnered she would receive a higher rate of benefits. 

5. The Respondent records that they “have consistently indicated to DHS that they do not go out as a couple or share leisure activities together”. 

6. In her Statutory Declaration Ms Bakeer declares “I stayed at Pat’s house on the couch for a short time, and in all that time got no hint that Pat and Yeshi were in a relationship, they both had separate rooms where they slept alone”. 

7. The only evidence that Ms Dolma held herself out as being in a relationship with Mr Thomson is the Partner Information form completed by Ms Dolma on 7 October 2015.  In answer to Questions 1 and 3 Ms Dolma has entered Mr Thomson’s information as Your partner.  After taking into account the evidence of Mr Thomson and Ms Bakeer I discount the weight of the entry in Ms Dolma’s form.  I reach the same conclusion as the AAT1, as accepted by the Respondent, that there is scant evidence that Ms Dolma and Mr Thomson represented themselves as a couple. 

8. The only evidence I have regarding assessments by friends and regular associates about the nature of the relationship between Ms Dolma and Mr Thomson is that contained in Ms Bakeer’s Statutory Declaration.  Ms Bakeer declares that Ms Dolma never came to her house with Mr Thomson and when staying at Mr Thomson’s house she saw no indication that they were in a relationship. I have no evidence from friends or associates that there was any relationship between Ms Dolma and Mr Thomson other than that of housemate. 

9. In regard to the question of whether Ms Dolma and Mr Thomson made plans for, or engaged in joint social activities I consider the following evidence:

   ·on occasions when Ms Dolma accompanied Mr Thomson on trips to  visit a friend or his brother Ms Dolma stayed in the car;

   ·Ms Dolma never went with Mr Thomson in his regular visits to Ms Bakeer;

   ·Ms Dolma would go to the shops with Mr Thomson however they both did their own shopping; occasionally Mr Thomson might  buy some items for Ms Dolma, for which she reimbursed him later; and

   ·in their evidence to the AAT1 hearing:

   oMr Thomson said Ms Dolma does not come with him to visit family or friends, or else stays in the car, they do not share any celebrations, and they have not been on holidays together; and

   oMs Dolma said she does not go out much, she has friends which she sees sometimes, her family is overseas and she has not told anyone that they are a couple.

10. I have no evidence that Ms Dolma and Mr Thomson engage in any joint social activities.

11. Summarizing the social aspects of the relationship:

    ·I have no evidence before me that indicates that Ms Dolma and Mr Thomson hold themselves out as married to, or in a de facto relationship with each other;

    ·there is no evidence from friends or regular associates that indicate a relationship other than that of housemates; and

    ·Ms Dolma and Mr Thomson do not engage in joint social activities.

    Sexual Relationship (section 4(3)(d) of the Act)

12. The Respondent submits that there is contradictory evidence on this issue.  Although both Ms Dolma and Mr Thomson admit to sharing the same bed during the debt period Ms  Dolma denies a sexual relationship while Mr Thomson admitted to the AAT1 to having a sexual relationship every so often.  Mr Thomson’s evidence at the hearing was that he and Ms Dolma had sexual encounters a few times but that it was not a sexual relationship. 

13. I accept a distinction between what Mr Thomson described as sexual encounters and a sexual relationship.  The Macquarie Dictionary relevantly defines relationship as “3. An emotional connection between people, sometimes involving sexual relations”.  As part of the definition of relation the Macquarie Dictionary relevantly includes “have relations, to have sexual intercourse”.

14. The evidence of both Mr Thomson and Ms Dolma is that occasionally they have sexual intercourse when they feel a need to do so.  However neither party gives evidence of an emotional connection in relation to their episodes of sexual intercourse.  I am satisfied that the evidence of both Ms Dolma and Mr Thomson is of occasional sexual intercourse but not of a sexual relationship between them.  I accept Mr Thomson’s description of sexual encounters best describes their situation. 

    Nature of Commitment to Each Other (section 4(3)(e) of the Act)

15. Ms Dolma has lived in the house since December 2013 when she first moved in.  Both parties gave evidence to the AAT1 hearing that Mr Thomson has asked Ms Dolma to leave the house and that she is looking for other places to live.  There is no evidence of any relationship that would continue beyond her moving out of the house. 

16. In considering the nature of companionship and emotional support between Ms Dolma and Mr Thomson I note that Mr Thomson has visited Ms Dolma at the clinic where she is currently receiving care.  However Mr Thomson’s evidence is that he went to the clinic to take Ms Dolma some of her underwear at the request of the nursing staff, and also to see her about money he says she owes him.   I have no evidence of emotional support between them. 

17. I have no evidence that Ms Dolma and Mr Thomson intend to continue any relationship after she moves to other accommodation. 

18. The Respondent submits that the following items indicate a measure of mutual commitment suggestive of a couple relationship:

    ·Mr Thomson does not insist on rent;

    ·during the debt period Mr Thomson and Ms Dolma shared the same bed and had a sexual relationship;

    ·Ms Dolma assisted Mr Thomson by paying for car repairs;

    ·Mr Thomson occasionally gave Ms Dolma a massage;

    ·Mr Thomson would drive Ms Dolma to her appointments and collect her; and

    ·they would go shopping together.

19. The evidence before me is that:

    ·Ms Dolma’s board and lodging payment arrangements are commensurate with those of the others occupying the house;

    ·Sharing the bed was a matter of practicality until another bed was acquired;

    ·Ms Dolma and Mr Thomson engaged in occasional sexual encounters but did not have a sexual relationship;

    ·Mr Thomason denied receiving payments from Ms Dolma for car repairs;

    ·Mr Thomson agreed that he occasionally gave massages to Ms Dolma and that this would be unusual in a landlord/tenant relationship;

    ·Mr Thomson agreed that he would drive Ms Dolma to and from her appointments; and

    ·Although they drove together to the shops they essentially did their own shopping.

20. The evidence does not indicate any degree of commitment to each other.  Rather, the evidence indicates a relationship of mutual convenience and, to a limited degree, of friendship rather than a marriage-like or de facto relationship. 

    Overall Relationship

21. From the evidence available to me I have concluded:

    ·There is no financial relationship between Ms Dolma and Mr Thomson;

    ·Their sleeping arrangement may indicate a relationship, the form of which needs to be considered in the context of all factors;

    ·Ms Dolma and Mr Thomson share no social activities, nor do they hold themselves out to be married or in a de facto relationship;

    ·Their sexual relations do not appear to have the emotional connection required of a sexual relationship; and

    ·There is no degree of commitment to one another other than what may be expected within a mutually convenient and reasonably friendly arrangement. 

22. After considering all the evidence I am not satisfied that the relationship between Ms Dolma and Mr Thomson is a de facto relationship in the terms of subsections 4(2) and 4(3) of the Act.

    Witnesses not called to give Evidence

23. In the Secretary’s Statement of Facts and Contentions the Respondent submits that, should Mr Thomson not call relevant witnesses to give evidence, it would be open to the Tribunal to conclude that the witnesses would not have assisted his case.  In support of this contention the Respondent cites the decision of the High Court in Jones v Dunkel (1959) 101 CLR 298 (Jones).  At the hearing Mr de Uray re-iterated this submission.

24. In Jones His Honour Justice Kitto found:

    … any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff's evidence.

25. Mr Thomson’s explanations for not calling the relevant witnesses were:

    ·Ms Dolma has recently been taken to a psychiatric clinic;

    ·his son, Len, may give wrong answers to questions, and Len provided a Statutory Declaration which he considered would suffice;

    ·Ms Pacey was not dressed in time to attend; and

    ·Ms Bakeer stayed at the house only in November/December 2016 and did not see Ms Dolma and himself together for long; she provided a Statutory Declaration which he considered would suffice.

26. I accept the explanation for Ms Dolma’s absence.  However Ms Dolma gave evidence to the AAT1 hearing which I take to apply equally to this hearing.

27. Ms Bakeer’s first-hand knowledge of the household arrangements would be limited to the period of time she stayed in the house by which time Mr Thomson and Ms Dolma were sleeping in separate rooms.  Ms Bakeer would not have been in a position to observe them during the debt period.  I accept the explanation for Ms Bakeer’s non-attendance.

28. I do not accept these explanations as sufficient to explain the non-attendance of Len Thomson and Ms Pacey. 

29. However it is not clear what grounds are relied on by the Respondent on which to draw the inference from the absence of these witnesses that Ms Dolma and Mr Thomson have a commitment to each other akin to a marriage-like or de facto relationship. 

30. In regard to the financial aspects the Respondent relies on the possibility of Ms Dolma contributing to the cost of car repairs, and that Ms Dolma was not required to pay rent.  Ms Dolma is the only person able to give direct evidence on these issues.  The explanation for her non-attendance is sufficient.  In the terms of the Jones decision I am not in a position to conclude that her evidence would not have assisted Mr Thomson.

31. In the absence of any substantive evidence to the contrary I accept the evidence given to the AAT1 hearing that “They both denied providing financial support to the other”.

32. In regard to the nature of the household the Respondent relies on the grounds that Ms Dolma and Mr Thomson shared the same bed during the debt period, and that there was conflicting evidence on the amount of housework done by Ms Dolma.

33. The fact that Ms Dolma and Mr Thomson shared a bed during the debt period is not in dispute.  Neither is there disagreement that they had occasional sexual intercourse.  The Respondent draws the inference that this is evidence of a sexual relationship however I have already accepted that a sexual relationship requires an emotional connection and this was not apparent on the evidence.  I consider neither Len Thomson nor Ms Pacey could give evidence on that issue.  Accordingly I am not satisfied that inferences from the agreed evidence unfavourable to Mr Thomson can be drawn from the absences of Len Thomson and Ms Pacey.

34. In regard to the amount of housework performed the accepted evidence is that Ms Dolma did little more than some general cleaning and occasionally cleaned up in the kitchen.  They both agree that they did their own cooking and washing, and only travelled together to do their own shopping.  Following the reasoning in Jones I could draw the inference that Ms Dolma contributed a more equal share of the housework than the evidence indicates.  Even if I accepted such an inference I would not be satisfied that the whole of the evidence points towards a marriage-like or de facto relationship.

35. In regard to the social aspects I note that the Respondent accepts that Ms Dolma and Mr Thomson have consistently indicated to DHS that they do not go out as a couple or share leisure activities together.  This is common ground with all parties and is not in contention.

36. The Respondent notes that they admit to doing the shopping together however any inference to be drawn depends on the understanding of the phrase “doing the shopping together”.  Mr Thomson states that they travel together to the shops but they buy or pay for their own goods and will often be separated when doing so.  Ms Dolma gave similar evidence to the AAT1 hearing.  I do not accept that travelling to the shops together has the same connotation as doing the shopping together.  I accept the evidence as indicating that they travel together as a matter of convenience but do their own shopping once in the shops. 

37. The Respondent also notes that if Ms Dolma goes with Mr Thomson to visit friends or family she stays in the car.  I do not accept that by staying in the car Ms Dolma is visiting Mr Thomson's family or friends in the sense of engaging in joint social activities.

38. In regard to social aspects I do not accept that there are grounds upon which inferences unfavourable to Mr Thomson can be drawn on the basis of his not calling Len Thomson and Ms Pacey to give evidence in person. 

39. In regard to the aspect of a sexual relationship I have already accepted that the issue for determination is one of an emotional connection.  I do not consider that evidence from Len Thomson or Ms Pacey will assist in that determination.  I am satisfied that their evidence would not be relevant to the issue and the reasoning in Jones does not apply to this aspect.

40. I have already considered the grounds for in question related to the nature of the commitment to each other, with the exception of the occasional massages given to Ms Dolma by Mr Thomson.  I would expect that Len Thomson and Ms Pacey could give evidence in regard to the frequency of such occurrences, which could be relevant to the degree of relationship between them.  Following the reasoning in Jones I could draw the inference that the fact and frequency of the massages point towards a marriage-like or de facto relationship.

41. However, as with all the other aspects of a relationship, the final determination must be made on the whole of the evidence.  I accept that giving massages is unusual in a landlord/tenant relationship, however it may not be so unusual in a relationship based on mutual convenience with a degree of friendship.  I am not satisfied that the fact of the massages is sufficient, by itself, to cause the totality of the relationship to be regarded as marriage-like or de facto. 

    CONCLUSION

42. After considering the available evidence on the totality of the relationship, taking into account where applicable the reasoning in Jones, I find:

    ·There is no financial relationship between Ms Dolma and Mr Thomson;

    ·Their sleeping arrangement may indicate a relationship, the form of which needs to be considered in the context of all factors;

    ·Ms Dolma and Mr Thomson share no social activities, nor do they hold themselves out to be married or in a de facto relationship;

    ·Their sexual relations do not appear to have the emotional connection required of a sexual relationship; and

    ·There is no degree of commitment to one another other than that of mutually convenient and reasonably friendly arrangement. 

43. I am not satisfied that the relationship between Ms Dolma and Mr Thomson is a de facto relationship in the terms of subsections 4(2) and 4(3) of the Act.

44. This means that:

    ·Ms Dolma and Mr Thomson were not members of a couple in the debt period;

    ·Mr Thomson was not overpaid DSP and Age Pension during the debt period; and

    ·Mr Thomson does not owe a debt to the Commonwealth.

    DECISION

45. I set aside the decision under review and substitute the decision that:

    ·Mr Thomson was not a member of a couple in the relevant period;

    ·He was not overpaid pension benefits during the relevant period;

    ·He does not owe a debt to the Commonwealth in relation to the debt period; and

    The matter be remitted to the Respondent to recalculate Mr Thomson’s benefits and make the appropriate payments.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr Conrad Ermert

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

Associate

Dated: 1 March 2017

Date(s) of hearing:	30 January 2017
Applicant:	In person
Advocate for the Respondent:	Mr Tim de Uray