Triplett and Anor and Secretary, Department of Family and Community Services

[2004] AATA 772

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 772

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/229, Q2003/245

GENERAL ADMINISTRATIVE DIVISION		)
Re		ROELOFJE TRIPLETT and CHRISTOPHER DEMOSTHENOUS

Applicants

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr EK Christie, Member

Date23 July 2004  

PlaceBrisbane

Decision The decision under review is set aside and in substitution therefor the Tribunal decides that Roelofje Triplett and Christopher Demosthenous were not in a marriage-like relationship over the period June 1993 to August 2002.  This means that the application for review by Miss Triplett and Mr Demosthenous is successful.

...................[Sgd]......................

EK Christie
  Member

CATCHWORDS

SOCIAL SECURITY – benefits and entitlements – rate of payment - whether in a marriage-like relationship – specified criteria for forming an opinion about relationship – Secretary to have regard to circumstances of the relationship – meaning of “to have regard to” – after having regard to the specified criteria, Tribunal not satisfied that applicants were living in a marriage like relationship – decision set aside

Social Security Act 1991 ss 4(2), 4(3)

Re Berghofer and Secretary, Department of Family and Community Services [2003] AATA 1198

Boughey v R (1986) 161 CLR 10
Department of Defence v Fox (1997) 24 AAR 171
Queensland Medical Laboratories v Blewett (1988) 84 ALR 615
R v Toohey; Ex Parte Meneling Station (1982) 158 CLR 327
Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7
Waugh v Kippen (1986) 64 ALR 195
Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 26  
Briginshaw v Briginshaw (1938) 60 CLR 336
Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497

REASONS FOR DECISION

23 July 2004 Dr EK Christie, Member     

1.      This is an application by Roelofje Triplett and Christopher Demosthenous to review a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 20 February 2003 in which the SSAT decided that they were in a marriage-like relationship and had been so since at least 28 August 1993.  As a consequence, the SSAT decided that Centrelink could raise and recover an overpayment of disability support pension and newstart allowance in the total sum of $12,916.61 [Christopher Demosthenous] for the period 26 June 1993 to 22 August 2002. In addition, Centrelink could raise and recover an overpayment of disability support pension in the sum of $14,838.31 [Roelofje Triplett] for the period 26 June 1993 to 13 August 2002.

2.      At the hearing, the applicants represented themselves.  The respondent was represented by Mr T Ffrench, a Departmental Advocate.

3. At the hearing the Tribunal had in evidence before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the “T” Documents) (Exhibit 1) and the various documents lodged by the parties.

4.      At the hearing, the applicants gave evidence on their own behalf.  The applicants also called Lynette Leonardi, the next door neighbour of the applicants.  The respondent called Edward Core and his wife Robyn Core; Mr Demosthenous is the uncle of Edward Core.  The respondent also called Christian Elmer, who lived next door to the applicants for about 2½ years up to February 2000 and Graham Roberts, Authorised Review Officer, Centrelink, Kippa-Ring.

5.      During the hearing, when comments were made about Mr Demosthenous’ head injuries sustained in an accident, many years earlier, the Tribunal decided to exert its inquisitorial powers to seek a response from his treating general practitioner as to (i) the nature of the conditions Mr Demosthenous suffers, (ii) the medical treatment he receives and (iii) the effect of his medical conditions on his capacity to manage his daily affairs.

6.      On 26 November 2003, the Tribunal received the following response from Dr Ashley Noud, Redcliffe Peninsula 7 Day Medical Centre:

“1.       I have treated him [Christopher Demosthenous] for over ten years.

2.        He is being treated for

(a)       Major depression.  He is on Cipramil for this.

(b)Discogenic Cervical Spine pain. He is on regular paracetamol and Celebrex for this.

(c)Lumbar spondylosis. He is on regular Paracetamol and Celebrex for this.

(d)Right shoulder subsscapularis calcific tendonitis.  He has occasional Celestone intra-articular injections, Celebrex and paracetamol.

(e)He is also illiterate.  He cannot read or write.  He can write his own name only.

(f)Hypercholestrolaemia for which he is on Lipex.

(g)Reflux Oesaphigits for which he is on Somac and Motilium.

3.        See above.

4.(a)       The illiteracy does limit his ability to manage his financial affairs.  The       major depression also impacts on this, because it lessens his      concentration as does the pain from his neck, back and shoulder.

(b)The lower back pain, neck pain and shoulder pain each limit this patient's ability to utilise these areas of the body.  Bending, lifting, prolonged sitting and standing, neck movements and the use of the right upper limb are all restricted significantly by pain.  The major depression and associated poor concentration markedly effect his ability to manage day to day living.

(c)His capacity to make rational decisions in relation to social and emotional behaviour with others, is restricted by his major depression and associated poor concentration.”

7.      Mr Demosthenous stated, during the hearing, that a witness of the respondent, Robyn Core, had threatened him before subsequently assaulting him on the roadway adjacent to the local shopping centre.  He had filed a complaint with the Redcliffe Police Station and provided a “Statement of Witness” (Exhibit 7, 30 October 2002) concerning the alleged assault.

8.      At the conclusion of the hearing the Tribunal exerted its inquisitorial powers and sought a response from the Redcliffe Police Station concerning the status of their investigations.

9.      The Tribunal received a response from the Officer-in-Charge, Redcliffe Police Station on 28 November 2003.

Issues Before the Tribunal

10.     The only issue for the Tribunal to decide was whether Ms Triplett and Mr Demosthenous were in a marriage-like relationship and therefore a member of a couple for the purpose of the Social Security Act 1991 (“the Act”).  If this were the case, whether the overpayments of social security entitlements could be waived, in part, or in full, under the “administrative error” or “special circumstances” provisions of the Act.

Facts

11.     The general facts were not in dispute and may be stated briefly.  The applicants circumstances were brought to the attention of Centrelink from a government initiative seeking information from the public about alleged fraud associated with social security entitlements (“dob in a dole cheat”).  The Tribunal notes that in 2001/2002, “Centrelink conducted 72,152 reviews of tip-offs resulting in 17,509 payment cancellations or reductions [a 24.3% reduction/cancellation] and debts of $30.6 million being raised”[1].

[1] Centrelink’s Compliance Activity for Family and Community Services.  Report for the 2001-2002 Financial Year.

12.     On the basis of the evidence before it, the SSAT made the following findings of fact:

“(i)Mr Demosthenous was, at all material times, in receipt of disability support pension and then newstart allowance at the single rate.

(ii)Ms Triplett was, at all material times, in receipt of disability support pension at the single rate.

(iii)They purchased residential property at 81 Albert Street Margate on 20 August 1993 with a combination of the proceeds of sale of Ms Triplett’s unit plus a joint loan of $33,000 from Suncorp secured by a joint mortgage over the property.

(iv)They have continually resided at that address since the purchase and plan no changes for the future.

(v)They share household duties but Ms Triplett does all the cooking and cleaning and Mr Demosthenous does the outdoor duties.

(vi)Ms Triplett controls all the finances and transfers funds from Mr Demosthenous’ account to another account to pay all bills.”  (Exhibit 1, T2 Folio 7)

13.     At the hearing Miss Triplett gave the following responses to the findings of fact made by the SSAT:

(ii)       Agreed with the finding;

(iii)That she was a single person on a pension and so not entitled to a loan.  She purchased a unit with the intention of caring for her aged mother, as her mother was paralysed from the waist down.  Mr Demosthenous offered to help. However, she approached Centrelink before doing so and was advised by “Carol”, a Centrelink staff person at the Redcliffe office that this would be okay as long as he did not collect rent assistance;

(iv)That Mr Demosthenous could go whenever he wished.  He chose to stay away from his family because of the constant feuding and harassment he received from them;

(v)That Mr Demosthenous did very little in the yard and merely pottered about.  The yard is now almost all cement as it had been cemented in stages by Mr Demosthenous; and

(vi)That she acknowledged controlling finances and to transfer funds from Mr Demosthenous’ bank accounts in the past.  Since the SSAT hearing this was no longer the case.

14.     At the hearing, Mr Demosthenous gave the following responses to the findings of fact made by the SSAT:

(i)        Agreed with the finding;

(iii)      That he paid rent of $100 per fortnight;

(iv)That he would continue to live at this address as he had done in the past – as a boarder;

(v)That he cleaned his own room, had his own TV/video and shared the cooking.  That he cleaned outside and did some gardening; and

(vi)That he contributed in part to the electricity and paid for his use of the telephone.  That he had used an ATM by himself once only.

The Law:  The Social Security Act and Relevant Case Law

(a)      Marriage-like Relationship

15. A person is a member of a couple for the purposes of the Act if that person meets the requirements of subsection 4(2) of the Social Security Act 1991 (“the Act”). In the applicants’ circumstances, subsection 4(2)(b) is relevant:

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

…

(b)       all of the following conditions are met:

(i)the person has a relationship with a person of the opposite 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 (3) and (3A)), a marriage-like relationship; [Tribunal emphasis]

(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 for the purposes of section 23B of the Marriage Act 1961.”

16. Subsection 4(3) of the Act sets out the matters to be considered when forming an opinion as to whether a person is in a marriage-like relationship. It provides:

“(3)     In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) 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 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.

(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.”

17. Under subsection 4(3) of the Act, in forming an opinion about the relationship between two people for the purposes of sub-paragraph 4(2)(b)(iii) of the Act, the Secretary is required to “have regard to all of the circumstances of the relationship”.  The Act then particularises specific matters.  The phrase “have regard to” has been considered judicially on many occasions:

§It requires [the Commissioner] to take those matters into account and give weight to them as a fundamental element in making his recommendation:  per Gibbs CJ in R v Toohey; Ex Parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333;

§The mere assertion that [the Committee] had acted would not be conclusive if it were demonstrated that regard had not been had to those matters in any real sense:  per Gummow J in Qld Medical Laboratory v Blewett (1988) 84 ALR 615; and

§There would be a failure [by the Authority] to have regard to matters nominated in the statute if the regard was not adequate or not sufficient:  per O’Loughlin J in Department of Defence v Fox (1997) 23 AAR 171.

18.     The Tribunal is mindful of the leading case of Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 26, which dealt with the issue of “living separately and apart”.  His Honour Justice O’Loughlin stated in this case (at page 35):

“I am of the opinion that it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other;  it is necessary to delve deeper to find the reasons for those arrangements.  Those reasons will be better indicators in determining the correct nature of their relationship.”

(b)      Legal Standard of Proof

19. The legal standard of proof that must be satisfied in determining the questions of law prescribed by section 4 of the Act is the civil standard of proof. The civil standard of proof has been described by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361-362):

“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality…it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.  But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” (Emphasis added)

Credibility of Evidence Given by Witnesses at the Hearing

20.     From the outset of the hearing, the Tribunal advised the parties that the credibility of witnesses would be a critical issue in the Tribunal’s fact-finding process into the nature of the marriage-like relationship between Christopher Demosthenous and Roelofje Triplett.  At the end of the first day of the hearing, the Tribunal extended the hearing to a further date to enable both parties to lead further oral evidence in support of their case. At the end of the first hearing day, only the applicants and Edward Core had given evidence.

21.     The Tribunal had the advantage of observing all witnesses in the presentation of their evidence as well as the opportunity to consider the documentary evidence before it.  The parties were invited to present submissions on the issue of credibility in their final addresses.  Accordingly, the Tribunal considers the question of credibility of evidence as a preliminary issue.

22.     The credibility of Christopher Demosthenous as a witness was considered by the SSAT.  The SSAT stated that:

“[It] was not taken by Mr Demosthenous’ apparent lack of frankness at the hearing giving the distinct impression of an eagerness to provide exaggerated evidence in an attempt to advance his own case.” (T2, Folio 14)

23.     In relation to Christopher Demosthenous’ evidence, the Tribunal had great difficulty identifying the weight that could be attached to it, in terms of assisting the Tribunal’s objective for better-informed decision-making. Dr Noud’s report is relevant, in this regard, in understanding the Tribunal’s difficulty. It was Dr Noud’s professional opinion that Mr Demosthenous had problems with literacy as well as in relation to social and emotional behaviour because of his medical conditions:

“(c)His capacity to make rational decisions in relation to social and emotional behaviour with others, is restricted by his major depression and associated poor concentration.” (Report of Dr A Noud, 26 November 2003)

24.     A further example of the weight that could be attached to Mr Demosthenous’ evidence was identified by the Redcliffe Police in investigating conflicting evidence in relation to the criminal complaint made by Mr Demosthenous against Robyn Core:

“Inquiries into your [the Tribunal’s] matter indicate that the complaint of Christopher Demosthenous was investigated by police. The outcome of the matter as to date reveals that there were conflicting versions from witnesses. Inquiries are still continuing however it is envisage[d] that the complaint will not be solved.”  (Report of Senior Sergeant DR Keys, Officer-in-Charge, Redcliffe Police, 28 November 2003)

25.     The Tribunal notes that Mr Demosthenous’ presentation at the hearing was consistent with Dr Noud’s opinion (26 November 2003).  Dr Noud’s opinion evidence also helps explain the evidentiary problem identified by the SSAT.  On consideration of Dr Noud’s opinion, the Redcliffe Police report and the SSAT conclusion, the Tribunal has no option other than to assign no weight to the evidence of Christopher Demosthenous.

26.     The Tribunal had difficulty with the evidence of Edward Core and his wife Robyn Core.  Specifically, in terms of identifying the boundary where their evidence could be separated between reliable and unreliable.

27.     Mr Core was the nephew of Mr Demosthenous.  From the evidence before the Tribunal, it could be adduced that Mr and Mrs Core lived in the Margate house of Miss Triplett for a five week period at the start of 2002.  They had been blacklisted by a rental agency in Gympie (see Robyn Core’s evidence at Transcript page 178).  They had then moved to Beachmere and lived in a tent.  From there they moved to Miss Triplett’s home at Margate. Together with their children, they lived in a tent in the backyard; they had their meals, upstairs, in Miss Triplett’s home.

28.     The Tribunal finds that the evidence given by Mr Core was driven by animosity towards the applicants.  It was clear that the volatility in their ethnic family association was deep-seated and was reflected in his evidence;  claims and counter-claims of untruthfulness were directed at each party.  At best, the Tribunal concludes that Mr Core’s evidence was “indefinite testimony” (see Briginshaw’s case).  Accordingly, the Tribunal does not attach any weight to the evidence of Edward Core.

29.     A similar conclusion can also be made with respect to the evidence of Robyn Core.  Accordingly, the Tribunal does not attach any evidentiary weight to her evidence for the following reasons.

30.     Further evidence of the volatility of the association, and the animosity between the Cores and the applicants, could be adduced from the evidence of Robyn Core.  She acknowledged that they had been thrown out of the Margate home by Miss Triplett following arguments with Mr Demosthenous.  In addition, she said that claims of stealing and uncontrollable children had been made by Miss Triplett (see Transcript at page 172).

31.     The response of Robyn Core to the alleged criminal complaint lodged by Mr Demosthenous against her was that he had gesticulated at her, in the car in which she was a passenger at the time.  Mr Demosthenous was crossing the road at the time.  She acknowledged that she had called him a rude name in response to his actions.  Later, her friend in the car “got really peeved off with it and went after him” and “I’d sort of got caught up in the bindiis…it was too late she [her friend] whacked him [Mr Demosthenous] one” (Transcript page 166).

32.     Mrs Core further acknowledged that she had gone over to the Margate home at night and made abusive calls to Miss Triplett and Mr Demosthenous.  She stated that she “went over there and we just blasted them”.  She stated that she had done so, claiming that Miss Triplett had rung her parents and, using a false name, had made untruthful claims about her.

33.     Mr Ffrench clearly recognised the volatile relationship between the Cores and the applicants stating:

“It’s been clearly established that there is a level of animosity between the parties.”

34.     On consideration of the above characteristics of Robyn Core’s evidence and past association with the applicants, the Tribunal concludes that she is not an impartial witness and that her evidence only contains indirect inferences (see Briginshaw’s case).  Accordingly, the Tribunal attaches no weight to her evidence.

35.     For all of the above reasons, the Tribunal will not consider the evidence of Christopher Demosthenous, Edward Core and Robyn Core in this application for review.

Examination of the Evidence

Evidence of Roelofje Triplett

36.     Miss Triplett said that she received disability support pension for injuries received when her ex-husband threw her down a set of steps and broke her back.  The injuries received left her in constant pain and difficulties with walking and sitting for long periods of time.

37.     She said that she had known Mr Demosthenous’ parents since 1978.  She was aware of his ethnic background and the constant feuding between the family members.  She had later met Mr Demosthenous, purely by chance, in 1992 at a time when he had no money, no family to help, nowhere to go and was threatening to kill himself.  She told him that he could stay in her Kippa-Ring unit with her, on the proviso that he contributed to the food.  He moved into the unit in 1992.

38.     Miss Triplett stated that she had purchased the Kippa-Ring unit in 1989.  In 1993 she purchased a house at Margate using the proceeds of the sale of the unit together with a joint loan of $33,000 taken out with Mr Demosthenous.  The loan was secured by a mortgage over the property but in her name only.  She said that she had purchased the Margate home solely for the purpose of caring for her aged mother, in order to avoid the need to put her mother into a nursing home.  However, her mother, subsequently, had a fall and became paralysed.

39.     Miss Triplett said that she felt she had been “betrayed” by Centrelink because prior to purchasing the Margate house she sought advice from a person called “Carol” at Centrelink, Redcliffe as to whether Mr Demosthenous could pay half of the mortgage repayments. The Centrelink advice she received was that this would be okay provided he was not receiving rental assistance.

40.     Miss Triplett acknowledged that she had taken out a joint loan of $33,000 with Mr Demosthenous from Suncorp to purchase the Margate home and moved in around August 1993.  The joint loan was made on the basis that Mr Demosthenous would contribute to paying half of the loan repayments in the form of fortnightly rent payments.  However, the mortgage was in her name only.

41.     Miss Triplett said that the reason she accompanied Mr Demosthenous to Centrelink was because he was dyslexic, could not read or write and had no other family or friends to help him.

42.     With respect to a Living Arrangements Form completed by her (T10, Folio 52, 24 November 1992), Miss Triplett acknowledged accommodation arrangements with Mr Demosthenous would only be temporary. However, she stated that “things [circumstances] just changed”.

43.     With respect to the $33,000 joint loan, Miss Triplett stated that the bank would not loan the money to her, as her sole income was the disability support pension.  She was told that it would be better if she “could get somebody to go with you on the loan”.  She acknowledged that she had added a car loan ($6,000), in 1998, to the home loan, on the basis that she and Mr Demosthenous “both pooled their income together”.

44.     Miss Triplett gave the following responses in cross-examination, in relation to a series of questions concerning their living arrangements:

(a)She and Mr Demosthenous both held personal and joint bank accounts and each had equal access to the other’s accounts. However, Mr Demosthenous’ dyslexia and literacy problems meant that he could only use some ATM machines, that is, ones he was familiar with.  Furthermore, she was adamant that it was impossible for Mr Demosthenous to use telephone banking and that the conclusion made by the SSAT, in this regard, was incorrect;

(b)She acknowledged that when she completed the Assessment of Living Arrangements Form (T25, Folio 107, 14 November 1996) she had stated that both she and Mr Demosthenous held joint bank accounts;  she had identified the accounts – but had answered a follow-up question specifying that they did not have access to each other’s account.  Miss Triplett said that this answer “was probably just a slip”;

(c)She stated that she had a will and that she would be giving the proceeds of her estate to charity;

(d)She said that the SSAT summary of her evidence (paragraph 11, T2, Folio 11) stating that “she does most things inside the house” and that “she does most of the clothes washing” was “flatly incorrect”.  She said that Mr Demosthenous “looks after himself”.  She agreed with the proposition that she had the responsibility for most of the cleaning and household duties. However, whilst she had the responsibility, her injuries restricted her doing this work.  As a result, the “whole house is like a pigsty”;

(e)Miss Triplett stated that she and Mr Demosthenous did not sleep together in the same room or have a sexual relationship.  Evidence in this regard by Edward Core, when his family stayed at her home for five weeks in 2002, was described by her as “lies”;

(f)She acknowledged the evidence she gave to the SSAT of being in a relationship with another man.  However, she said that the reason she later retracted to describe this person to be only a “friend” was because of his past criminal history. At this point she did not wish the relationship to go further;

(g)After paying for the mortgage and necessities of life, there was no cash for entertainment, leisure or social outings;

(h)She acknowledged that, in the past (T9, Folio 51, 30 September 1992), she had written to Centrelink stating that she and Mr Demosthenous “were looking at getting married”.  She said that the only reason for this was for safety and security reasons to protect Mr Demosthenous from his family and their constant feuding.  However, she later accepted that marriage would not alter, in any way, the harassment and hostility confronting Mr Demosthenous and she saw no reason to get married because the problem would always remain.  In a later file record on this point (T21, Folio 88, 4 April 1997), Miss Triplett said that this “was correct at the time” but Mr Demosthenous’ violent temper had also caused her to change her mind;

(i)Miss Triplett was referred to the application she had made with Mr Demosthenous to AVCO Financial Services for a loan (T44, Folio 240, 4 July 1997: $6,057 for Funeral/Medical Bills and Loan Consolidation) in which the form had identified their marital relationship as “de facto” .  Miss Triplett said that this was an error made by AVCO;

(j)Miss Triplett was then referred to the following discussion of evidence made by the SSAT:

“The Tribunal was not impressed with Ms Triplett in whiting out his surname [Mr Demosthenous] on the email from St George bank, providing a photocopy of it, and then saying not anything about [it] until the Tribunal had picked up on it.”  (T2, Folio 14).

Miss Triplett responded that such a statement was completely wrong.  She had whitened out the name of her ex-husband Christopher Terence Triplett as his name – not Christopher James Demosthenous - had been written on the form. Miss Triplett produced the original document at the hearing.  It was examined by Mr Ffrench who then acknowledged:

“I think it probably points to the fact that it was probably ‘Triplett’.” (Transcript page 52)

Evidence of Lynette Leonardi

45.     Ms Leonardi was a neighbour of the applicants and had lived next door to them for about the past two years.  She said that she would see them both “a couple of times a week”.

46.     Ms Leonardi’s evidence related primarily to the “social aspects of the relationship”.  Her evidence in this regard could be summarised as follows:

(a)When she first moved in she did not “truthfully” think that the applicants lived together;

(b)She said that she thought the applicants were brother and sister.  Ms Leonardi expressed the firm view that she thought they applicants were just friends living under the same roof;

(c)When asked whether she was certain that there was no partnership between the applicants, she replied:  “From the bottom of my heart, honestly, I have never seen anything in that sense or form”;

(d)Under cross-examination, when asked whether she had seen the applicants “hold hands or anything like that”, she responded:

“Well it surprises me because honestly in the time I’ve known both of them I can really honest to God, I can swear that I have not ever seen them be affectionate in any way like that.”

and

“I can honestly say, I’ve never seen them as a couple, and speaking with Roelofje [Triplett] … I couldn’t picture that to happen.”; and

(e)She stated that she had discussed with Miss Triplett the problems she was having with Centrelink and said that Miss Triplett had thought about having Mr Demosthenous move out. However, she said Miss Triplett had told her that, because of her age, she would not take this step because she did not want anyone new coming in “going through her things”. In addition, because she had known Mr Demosthenous for years “and he’s never bothered me and we’re just comfortable and so be it”. 

47.     Ms Leonardi’s evidence also focused on the personal relationships that the applicants had with other people.

48.     She said that she was aware that Miss Triplett had been in an “extremely close” relationship with another person and that they had been “openly affectionate” to one another.  She stated that Miss Triplett had ended this relationship when she became more aware of the past criminal history of this person.

49.     Under cross-examination, she stated that she disagreed with the proposition of the SSAT that Miss Triplett’s relationship with this person was simply a friend.  She commented that the nature of the relationship changed over time from “being happy and comfortable together” to a situation where Miss Triplett “was starting to panic”, became “frightened and a little bit fearful” when her knowledge of her companion’s past criminal history emerged.

50.     With respect to Mr Demosthenous, she stated that she was aware he had been dating or seeing other women.  Furthermore, that she could “honestly say” that she had never heard a claim by Mr Demosthenous that Miss Triplett was his girlfriend.

51.     Ms Leonardi’s evidence also provided the Tribunal with insights into the ethnic feud existing within the Demosthenous family.  Her evidence recounted situations where family members, including two women, would yell, scream and argue at the front gate of Miss Triplett’s home – at any time during the day and night.

Evidence of Christian Elmer  

52.     Mr Elmer lived next door to the applicants for about 2½ years, ending in February 2000.  He said that when he lived next door he had interacted socially with the applicants.  However, he stated that he had not met their friends – or the family of Mr Demosthenous, with the possible exception of Mr Demosthenous’ brother.  When asked whether there were good relationships within the Demosthenous family, he replied: “I am not sure. I do not know”.

53.     Mr Elmer said that when he first moved in, Mr Demosthenous had referred to Miss Triplett as his wife “on many occasions”. Later, he had been told by Mr Demosthenous that they were not married.

54.     Mr Elmer described the situation of living near the applicants as one where “all the neighbours in the street had been suffering verbal abuse or various other abuse from Chris [Demosthenous]” and that the “Redcliffe CIB has a file that thick on Demosthenous  of various complaints that have been held against him from all…the neighbours [in Albert Street]”.

55.     Mr Elmer was asked a question as to how representative was his statement that “all the neighbours in Albert Street” had complained to the Police about the applicants given that at least one person, Mrs M Forbes of 94A Albert Street, Margate, had stated (Exhibit 4, Folio Ι, 13 November 2003):

“[The applicants] have lived opposite me [for approximately 10 years] and have always been very kind, thoughtful people, always anxious to give a helping hand when necessary…I have found them to be good neighbours in all respects.”

Mr Elmer responded by stating that he did not know Mrs Forbes and had never met her.

56.     In response to a question relating to his oral evidence that he, and a deputation of neighbours, had reported the applicants to the Federal Member for social security fraud (“basically all the neighbours had seen both of them working”), Mr Elmer conceded that this complaint was not about aspects of the personal life of the applicants but the issue was one that they were working whilst social security recipients.

Evidence of Grahame Roberts

57.     Mr Roberts was an Investigator with Compliance and currently an Authorised Review Officer with Centrelink.  Mr Roberts had reviewed the status of the applicants marriage-like relationship on two occasions as part of Centrelink’s internal review process.

58.     Mr Roberts acknowledged that a decision he had made on 18 December 1996 that the applicants were in a marriage-like relationship had been overturned by an Authorised Review Officer in January 1997.  He stated that following a denunciation  (“dob in a dole cheat”), further investigations were carried out leading to a subsequent decision, made on 22 August 2002, that the applicants had been in a marriage-like relationship since 26 August 1993.

59.     Mr Roberts stated that the information relied on to reach this conclusion was that:

(a)loans had been taken out by the applicants with AVCO Finance in 1997 in which their relationship was described as “de facto”;

(b)a denunciation made which described them as a de facto couple;

(c)information volunteered by Edward Core and Robyn Core and the joint statement prepared by them that described features of the applicants’ personal life which indicated a marriage-like relationship;

(d)on one occasion, he had seen the applicants holding hands in public; and

(e)he had seen Mr Demosthenous on “at least two occasions” during 2002 driving a white utility which he believed belonged to Miss Triplett.

Contentions and Submissions of the Parties

Financial Aspects of the Relationship

60.     Mr Ffrench submitted that the financial affairs of the applicants were intertwined.  For much of the time they had shared a bank account, as well as having separate accounts. The fact of separate accounts “didn’t really matter” because Miss Triplett had been given his PIN number by Mr Demosthenous and operated his account.  Moreover, the most powerful indicator of the strength of their financial relationship was the applicant’s decision to “enter into a mortgage together” to purchase the house at Margate.  Mr Ffrench submitted that the purchase of the property exhibited a degree of trust and commitment between the applicants.  Mr Ffrench then acknowledged that they had jointly borrowed the moneys and that Miss Triplett alone had legal title.  This aspect, he contended, exhibited a degree of trust between the parties.

61.     Mr Ffrench referred to the fact that the applicants had taken out loans with AVCO Financial Services Limited and later re-financed these loans as “a joint effort”.  He stated that, on some of these documents, their marital relationship was completed as “de facto”, and the document signed by the applicants. He then contended “the finance company, at least, seems to have thought they were a de facto”.  Mr Ffrench then referred to Miss Triplett’s evidence in which she accepted the case that finance had been “extended to the applicants on the basis that they did, in fact, pool their income”.  Centrelink did not become aware of these joint loans for a number of years after the applicants had received their entitlements.

Nature of the Household

62.     Mr Ffrench submitted that there was inconsistency in the evidence on this issue between the applicants.  He contended that the following summation by the SSAT of evidence given by Miss Triplett was indicative of the true nature of the household:

“There is one television in the house. They sit in separate chairs and she classes him like a brother.  He ‘provides security for the house’.  She does most things inside the house and he looks after the outside.  She does most of the clothes washing.  He has chickens in the backyard, a ‘vege garden’, and does the mowing.  He has a few tools. He goes shopping with her sometimes.  At Christmas time and for their birthdays, they just sit around the house.”  (T2, Folio 11)

Social Aspects of the Relationship

63.     Mr Ffrench then submitted that although the applicants’ evidence was that they had separate sleeping areas, there was “at least some doubt as to that”.  Mr Ffrench then relied on the evidence of Edward and Robyn Core, together with the observations of Mr Roberts [who had seen the applicants in the market place on a number of occasions] and Mr Elmer [to whom Mr Demosthenous had stated Miss Triplett was his wife].  That is, to support his submissions that, on balance, the nature of the applicants’ household was one which was supportive of a marriage-like relationship.

64.     Mr Ffrench also referred to a statement by a witness whose evidence was not tested (Margaret Lohi).  Ms Lohi had stated it was her impression that:  “This couple [the applicants] is an excellent example in words and deeds”.  However, Mr Ffrench conceded that as Ms Lohi did not appear at the hearing, the statement “should be given little weight”.

Sexual Relationship

65.     Mr Ffrench relied on the evidence of the Cores in this regard.  He stated “that I freely admit that on the face of it this doesn’t support the decision” and “I think leaving aside the innuendo that may be present in that [the Core] statement, it’s hard to say that there is a sexual relationship”.

66.     However, Mr Ffrench submitted that even if the existence of a sexual relationship could not be established, this fact, in itself was not determinative of any conclusion on the presence of a marriage-like relationship.  That is, there may well be other aspects indicative of the relationship.

Nature of Commitment

67.     Mr Ffrench contended that the applicants had freely admitted that they had a deep commitment to each other; Miss Triplett had made a “solemn promise” to the father of Mr Demosthenous before he passed away that she would care for his son.  Furthermore, the applicants had stated they had contemplated marriage at some stage.  However, it was his contention that their responses, when questioned at length, at best, as to why they changed their mind, were “unclear” – “no explanation for this has been given”.  Mr Ffrench then referred to Mr Demosthenous’ evidence in which he said that “Ms Triplett cares for him”.  He contended that this was a “powerful indicator of the depth of the relationship”.

68.     Mr Ffrench submitted that the relationship between the applicants was enduring, had not changed over time and remained as strong as ever, as there was no intention on their part to end it.  Mr Ffrench stated:

“The parties have moved together. They lived in a unit and they have moved to another – a house that, as we mentioned earlier, was purchased with the proceeds out of a joint mortgage.  And they have lived together for more than 10 years at two different addresses.”

69.     Mr Ffrench referred to the past romantic relationship Miss Triplett had with another person – but one she chose not to continue.  It was his contention that this action, on her part, was an illustration of the “strength and depth of the commitment” that existed between the applicants.

70.     Mr Ffrench made the following submissions on the credibility of Miss Triplett as a witness:

(a)That the SSAT “was not impressed with Ms Triplett in whiting-out his surname on the email from St George Bank, providing a photocopy of it, and then not saying anything about it until the Tribunal had picked up on it”  (T2, Folio 14, 20 February 2003).

However, Mr Ffrench conceded that, “I freely admit that we have examined that document and it did appear that what Ms Triplett said was true; that it was factually incorrect.  But that doesn’t get us around the fact that Ms Triplett was prepared to alter a document in evidence, and I think that is something that we need to consider”.

(b)That in an earlier SSAT case involving Mr Demosthenous’ entitlement to disability support pension (T62, 19 October 2000), the SSAT had expressed reservations about Miss Triplett as a witness of truth:  “For a landlady she demonstrated an overly keen willingness to explain and defend her lodger” (Folio 286).

71.     Mr Ffrench submitted that Mr Demosthenous was not a credible witness and made reference to the following conclusions made by the SSAT in the past:

(a)“In addition, the Tribunal was not taken by Mr Demosthenous’s apparent lack of frankness at the hearing, giving the distinct impression of an eagerness to provide exaggerated evidence in an attempt to advance his own case” (T2, Folio 14, 20 February 2003).

(b)That on 19 October 2000 (T62, Folio 268) the SSAT had concluded:

“As stated earlier, the Tribunal considers Mr Demosthenous’s evidence to have been a practised and calculated attempt to overstate his medical problems and to deceive in order to obtain payment of the disability support pension.”

(c)That in an unpublished SSAT decision, the Departmental advocate’s record refers to Mr Demosthenous as giving inconsistent and sometimes contradictory evidence (T69, Folio 317).

72.     Mr Ffrench concluded with the submissions that there was no basis for the overpayments to be waived, in part or in full, under the “administrative error” or “special circumstances” provisions of the Act.

73.     Miss Triplett stated that she had made Centrelink aware from the outset of the situation that Mr Demosthenous lived with her. She said Centrelink were aware that he would be paying rent to her and that they had advised her there would be no problem with this arrangement provided no rental assistance was sought.  In fact, Mr Demosthenous had never sought rental assistance over time. She had also informed Centrelink when she (and Mr Demosthenous) moved to the Margate address.

74.     Miss Triplett said that the only reason she sold her small unit and purchased the home at Margate [and the need to take out a mortgage] was to care for her aged mother and so offset the need to place her mother in a nursing home.  However, this plan was upset because her mother broke her hip soon after the Margate home was purchased and had to be placed in a nursing home.

75.     Miss Triplett was adamant that she had always told Centrelink staff, including Grahame Roberts, the truth and that the only reason Mr Demosthenous lived with her was because of a promise she had given to Mr Demosthenous’ father that she would “look after him the best way [she] could”.  She said that “she would not go back on her word no matter what it costs”.

76.     Miss Triplett described her relationship with another person [the person with a criminal history] – the association the subject of Mr Ffrench’s submissions - as a “big mistake”.  At the time the person was just out of prison and she had just provided moral support.  However, when she became aware of the nature of his crime she no longer wanted to remain involved and did not wish to get caught up in a relationship.

77.     In relation to the “Financial Aspects of their Relationship”, Miss Triplett stated:

“…because of the joint account, I was with Suncorp, and when my mum couldn’t go to my house, I already put down the deposit on my house where I am now, and I wanted to get out of it but I couldn’t unless I lost my deposit and I couldn’t afford to lose the deposit, but, in the meantime, my unit was sold as well, so I just went ahead with moving into Albert Street but the only thing that I had a problem with was I couldn’t get a loan on a single pension and Chris was living with me at the unit at the time and I think we have said this before.  Chris said he was willing to help out to buy the house and that was the only reason and Centrelink was aware of that situation.”

78.     With respect to the “Nature of their Household”, Miss Triplett said:

“We do go shopping but it was only because Chris can’t read and sometimes he comes home with things and it might be dog food instead of being, say baked beans or something.  Because he can’t read, he picks up the wrong tins…

I sort of just go with him mainly because we go together, we put everything into the one basket and we sort it out at the end, but he’s got his fridge, I’ve got my fridge…

Yes, there’s four fridges going at the moment because he’s got drinks and stuff in one and then food in the other one.  Yes, we do go out shopping together but not socially at all.”

79.     Miss Triplett concluded by stating:

“It is just that it is so hard to make me come out with – and make you believe me.  I would do anything that I keep my dignity safe.  I have been honest.  I’ve never lied and I will never ever go back on my word.  That’s all I’ve got to say.”

Consideration of the Issues

80.     The Tribunal agrees with the observations made by Mr Ffrench, that it was clear in this case, there was animosity between some of the witnesses and the applicants.  Moreover, that it was “abundantly clear” that “we’re in the middle of a neighbourhood dispute”.

81.     The Tribunal has applied the legal principles set out under the heading “The Law” (commencing at page 6 above) to its assessment of facts in this application for review, subject to the qualification as to the findings made on the weight that is to be attached to the evidence of Christopher Demosthenous, Edward Core and Robyn Core.  The Tribunal makes the observation that the SSAT did not have any expert medical opinion before it on the nature of Mr Demosthenous’ medical conditions and their effects upon him (see Dr Noud’s report 26 November 2003).

82. The Tribunal has taken the matters specified in subsection 4(3)(a), (b) and (e) into account, but the Tribunal has also had regard to all of the other matters specified in subsection 4(3). The Tribunal has done so on the basis of all the material before it.

83.     Given the length of time that the issue of the marriage-like relationship has been in dispute, from 1993 to 2000 (almost 10 years), the Tribunal has summarised the history of the internal reviews:

(a)21 January 1993:  Member of a Couple Assessment (T16).The delegate decided, on the information available, that the applicants were not in a marriage-like relationship (T77, Folio 18).  However, the Centrelink assessor had recommended, because of “the lack of evidence”, that the application should be reviewed in three months (T16, Folio 80).  This was not done.

(b)18 December 1996 (T29). The delegate (Grahame Roberts) determined that a marriage-like relationship existed from 20 August 1993, the “date of the joint bank loan for house” (T29, Folio 167).

(c)24 January 1997 (T39).  Review of this decision was made by an Authorised Review Officer (“ARO”) who decided that the applicants were not in a marriage-like relationship. In arriving at this decision the ARO made the following statements:

“I rang Dr Noud [the applicants’ GP].  He confirmed both parties are regular patients of his.  He advised that they have always appeared as friends who agree to share a house.  He has never had the impression that there is more to the relationship than being just good friends.  Chris has poor English skills and Ruly helps him out in that area.  He has not delved deeply into the issue but certainly had no indications that they are ‘a couple’.” (T38, Folio 225);

and

“The joint loan was suggested by the bank after the bank became aware of Chris [Demosthenous] paying her [Miss Triplett] board.  The bank would not approve a loan to a single pensioner and suggested they jointly take out the loan and enable approval.”  (T38, Folio 224);

and

“Having regard to all the evidence in this case … I am of the opinion that the relationship is not marriage-like.  This is an unusual case where a decision either way is feasible.  However, my reading of the file evidence and my discussions with Ms Triplett and Dr Noud have led me to the conclusion that the relationship is more like good friends or brother/sister than like that of a married couple.  The financial arrangements are unusual for friends.  However the other aspects of the case are not.  I note that, despite the joint loan, the house is in Ruly’s name only – not what would normally happen with a couple.  After much consideration I have formed the opinion that the relationship is not marriage-like.”  (ARO emphasis – T38, Folio 225)

(d)26 August 2002 (T77, T78).  Mr Roberts concluded that a marriage-like relationship existed.  In reaching this decision he concluded:

“At the time the ARO overturned his decision on 240197, he commented that ‘this is an unusual case where a decision either way is feasible’.  He decided, after discussions with Triplett and Dr Noud, that the relationship was more like good friends or brother/sister than like that of a married couple (see his notes)…

…since [Mr Demosthenous] has remained, loans have been renegotiated and continue to be repaid jointly.  This is a significant pooling of resources.  It is surprising that Triplett has the home in her name but is quite happy to have a joint loan with Demosthenous.  Triplett has said that should Demosthenous leave ‘he would not claim a percentage of the sale as he has known right from the start he is a boarder’.  On this point there is more to the relationship than that normally expected between a ‘landlord’ and a ‘boarder’.  Firstly, a boarder is usually confined to a separate bedroom, however, evidence shows that they share the same bedroom.  In addition, there is anecdotal evidence that even whilst unlicenced, Demosthenous drives Triplett wherever she wants to go, be it out shopping, to the markets, or to Demosthenous’ mowing jobs where she waits in the car, or out on business.  The vehicle is in her name and owned by her but she allows him to drive the car albeit illegally.  Although Triplett has said on many occasions that she made a promise to look after Demosthenous, both are mature adults and are living their lives together.  They share everything;  go out together, run a market stall together, drive places together, go to the doctors together, attend Centrelink together, are seen shopping together, are seen holding hands together, attend legal hearings together and are regarded as a couple within the immediate family.  Clearly this has gone beyond the range of activities normally seen between a landlord and a boarder.”  (T77, Folio 359)

Financial Aspects of the Relationship

84.     The Tribunal makes the following findings in relation to the financial aspects of the relationship by applying the “test” in Staunton-Smith, that is, “to delve deeper to find the reasons for the arrangements”:

(a)That it accepts Miss Triplett’s reasons for selling her unit and then purchasing the house at Margate, that is, to care for her aged mother;

(b)That Miss Triplett had informed Centrelink, from the outset, that Mr Demosthenous would move into the Margate house, and pay half of the mortgage repayments as rent.  She had then acted on, and relied upon, the Centrelink advice received, that is, this arrangement would be satisfactory provided Mr Demosthenous received no rental assistance.  This was the case as Mr Demosthenous had not applied for any rental assistance;

(c)That the purchase of the Margate house was made with a joint loan with Mr Demosthenous and the loan secured by a mortgage over the property;

(d)That only Miss Triplett held legal title to the Margate house;

(e)That the reason Miss Triplett had taken out the joint loan with Mr Demosthenous was because she could not get the loan on a single pension.  In addition to the oral evidence of Miss Triplett, reference to this fact is also made by an ARO (T38, Folio 224, 24 January 1997):

“The joint loan was suggested by the bank after the bank became aware of Chris [Demosthenous] paying her board.  The bank would not approve a loan to a single pensioner and suggested they jointly take out the loan to enable approval.”

(f)The Tribunal has considered the factual situation of the applicants, that is the purchase of the Margate house with a joint loan secured by a mortgage over the property, but where Miss Triplett, alone, held the legal title, with that in Re Berghofer and Secretary, Department of Family and Community Services [2003] AATA 1198. The facts in Berghofer’s case were (at pages 6-7):

§Ms Norman was looking for a house for her father who was elderly and lived in Queensland.  She wished to care for him.  She found a house but her father did not want to move;

§Ms Norman asked the applicant if she were able to buy the house would he consider moving into the house as a boarder.  The applicant accepted if Ms Norman could buy the house;

§The bank would not give Ms Norman any finance on her own;

§The bank came up with the idea for a loan by setting up an account in both names (the applicant and Ms Norman) so that the mortgage payments could come straight out of it;

§When Ms Norman bought the house, $80 per week of his social security pension would go into the account or later, he just gave Ms Norman the $80;

§The applicant’s understanding at the time was that he was helping Ms Norman to buy the house as without his financial inputs, the bank would not give Ms Norman the loan; and

§The applicant and Ms Norman jointly own the house in which they both lived and both contributed to the joint mortgage payments.

In Berghofer, the Tribunal applied the reasoning in Staunton-Smith and accepted the applicant’s intention and evidence as to how the situation arose for the purchase of the home. Notwithstanding that the property was jointly owned, on consideration of the statutory criteria under the Act, the Tribunal found insufficient weight of evidence, on balance, to support a finding that the applicant was a member of a couple.

(g)Berghofer’s factual case, with respect to the purchase of the home, is not entirely dissimilar from the situation of Miss Triplett and Mr Demosthenous.  However, it can be distinguished from Berghofer in that, in Miss Triplett’s and Mr Demosthenous’ case, the house was not jointly owned. 

(h)That Miss Triplett had refinanced her home mortgage with other insurance, and other, loans with AVCO Financial Services Limited[2];

(i)That Miss Triplett had acted on the financier’s advice that a loan application would be facilitated if she took it out as a joint loan – which she did; and

(j)That a letter from the Branch Manager, GE Finance and Insurance (Exhibit 12, 15 January 2003) clarifies the status of the loan account:

“Roelofje Triplett is the only name on our Title search for the property we currently hold as security.

Your personal loan with GE Finance & Insurance is in joint names [Triplett, Demosthenous].

GE does not know what marital status you hold.  However, on your original application you have been noted as ‘single’ and Christopher [Demosthenous] is on the application as the 2^nd borrower.”

[2] GE Personal Finance Pty was formerly known as AVCO Financial Service Limited:  See Australian Securities and Investments Commission database, 14 November 2002, “Notification of Resolution Changing Company Name”.  

85.     Whilst the SSAT expressed concern as to changes made by Miss Triplett to an email (a loan application) from St George Bank (see paragraph 70), Miss Triplett’s explanation for whiting out the name of an incorrect party for the loan (her former husband), was not in dispute by the respondent when the original document was sighted. The Tribunal considers that the fact that Miss Triplett submitted this document at the hearing offsets the concerns raised by the SSAT in this regard.

86.     Given all of the above findings and applying the test in Staunton-Smith, the Tribunal concludes that there is no joint ownership of real estate and that major assets are secured by a mortgage on the Margate home for which only Miss Triplett holds legal title.  In addition, financial resources provided by Mr Demosthenous are in the form of rent payments and electricity outlays, that is, in the form of payments by a boarder rather than in acquiring legal title or fulfilling legal obligations.  Accordingly, applying the reasoning in Staunton-Smith, the Tribunal accepts the intention and evidence of Miss Triplett as to how the situation for the purchase of the home at Margate, as well as the consolidation of the loans with GE Personal Finance, arose. The fact that only Miss Triplett held legal title to the Margate property is a significant difference for the Tribunal to weigh up, relative to the Tribunal’s findings for the situation on title and mortgage payments in Berghofer.

Nature of the Household

87.     Mr Ffrench has relied primarily on the evidence of Edward and Robyn Core.  The Tribunal has stated that it places no weight on their evidence. The only real evidence before the Tribunal is that of Miss Triplett.  That is Mr Demosthenous looks after himself.  She had the responsibility for most of cleaning and household duties subject to her ability to do such work because of the nature of her back condition.

88.     The Tribunal accepts Miss Triplett’s explanation for, on occasions, accompanying Mr Demosthenous to the shops and to the general practitioner – through to paying of bills.  Mr Demosthenous’ dyslexia and literacy problems compounded with the impacts of his medical conditions on his daily functioning (see Dr Noud’s report, 26 November 2003) are indicative of a person requiring some assistance in order to carry out some of the basic daily needs that need to be performed.  Dr Noud’s report makes clear that Mr Demosthenous’ major depression condition and associated poor concentration markedly affects his ability to manage his day-to-day affairs and his ability to manage day-to-day living. There was evidence before the Tribunal, as well as observations made during the hearing, that Mr Demosthenous could easily become agitated.  Dr Noud’s report explains the reasons for this.

89.     Notwithstanding this assistance given by Miss Triplett, in the context of the above findings, the Tribunal cannot conclude, on balance, that the “nature of the household” is one where a marriage-like relationship exists.    

Social Aspects of the Relationship

90.     The Tribunal finds Ms Leonardi to be an honest and credible witness who saw her task to provide independent and factual evidence on the social aspects of the relationship between the applicants based on the observations she had made.  Her evidence equates with the earlier observations made by Dr Noud, as recorded by one ARO [see paragraph 83(c)] when contacted by the ARO when reviewing this case.

91.     The respondent relied on the evidence of Mr Elmer and Mr Roberts in this regard.  The Tribunal finds their observations on this criterion to be limited, for example, “seen holding hands once”; “he told me Ms Triplett was his wife”.  Moreover, the Tribunal has concerns as to the representativeness of some of Mr Elmer’s evidence when due regard is given to the entire community living in the street – as well as in the context of Mr Ffrench’s comments that it was abundantly clear a neighbourhood dispute situation existed.

92.     Accordingly, the Tribunal prefers the evidence of Ms Leonardi and finds that the relationship was one of “just friends living under the same roof”.

Sexual Relationship

93.     The Tribunal concludes that there is little real evidence before the Tribunal in this regard.  Rather, there is merely “indefinite testimony or indirect inferences”.  Accordingly, applying the Briginshaw test, the Tribunal cannot be satisfied, at the legal standard of proof, that a sexual relationship exists.

Nature of the Commitment

94.     The Tribunal considers that the nature of the commitment is in the form of a promise that Miss Triplett made to the now deceased father of Mr Demosthenous.  That is, the commitment was to the deceased father – not to Mr Demosthenous.  Moreover, this promise was made by her with the full understanding of a longstanding ethnic family feud where deep divisions existed within the family.  It is clear from the evidence given and observations made during the hearing that these bitter divisions still exist in Mr Demosthenous’ family.  For example, Ms Leonardi’s evidence referred to situations where people would yell, scream and argue at the front gate of Miss Triplett’s home – at any time during the day or night.

95.     The nature of companionship to one another can best be described in Ms Leonardi’s evidence, which the Tribunal accepts, that she had never seen the applicants “affectionate in any way”. 

96.     Miss Triplett’s commitment to Mr Demosthenous needs to be considered in the context of his limitations, as stated by Dr Noud, in expressing his professional opinion:

§Mr Demosthenous’ literacy problems limits his ability to manage his financial affairs;

§his major depression and associated poor concentration markedly affects his ability to manage day-to-day affairs;

§his major depression and associated poor concentration restricts his capacity to make rational decisions in relation to social and emotional behaviour to others.

97.     Counter-balanced against these facts are the facts that the applicants have lived together under the one roof for over ten years. However, Ms Leonardi’s evidence in this regard is also relevant.  Specifically, her evidence that Miss Triplett, because of her age and personal possessions, would not seek to replace Mr Demosthenous with another boarder;  also, that Miss Triplett had known him for years and she was comfortable in Mr Demosthenous’ presence [see paragraph 46(e)]. Furthermore, Ms Leonardi thought they were “brother and sister” or just friends living under the same roof [paragraph 46(b)].

98.     However, the nature of the companionship the applicants provide to one another is not indicative of one where there is any real evidence of emotional support that the applicants provide to one another. Ms Leonardi’s oral evidence, and Dr Noud’s report, are powerful indicators which enable the Tribunal to delve deeper to find reasons to determine the correct nature of the relationship: Staunton-Smith’s case. 

99.     Insofar as the commitment of the applicants is concerned, the Tribunal is of the view that their friendship is likely to continue and that it has elements of support – not only in a practical sense with respect to financial resources, but also with respect to home maintenance and security in relation to harassment. The Tribunal is satisfied that any such commitment between Miss Triplett and Mr Demosthenous cannot be categorised at a predominantly emotional commitment [as found in Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497].

100.   Moreover, it is difficult to support a case for relying on the loan applications with AVCO in which the term “de facto” was recorded in some, but not all, applications.  The letter from the branch Manager of GE Finance and Insurance (15 January 2003) states that GE did not know what marital status the applicants had and that the original application had Miss Triplett’s marital status recorded as “single”.  In addition, the loan forms in which “de facto” did appear were completed by AVCO staff and signed by the applicants.  Accordingly, the Tribunal concludes that reliance on this aspect as an indicator of a relationship that is likely to continue, is “indefinite testimony” (Briginshaw’s case) and so cannot meet the legal standard of proof.

101.   The Tribunal accepts Ms Leonardi’s evidence that the applicants were just friends living under the same roof as well as Dr Noud’s expert opinion on Mr Demosthenous’ medical conditions and their impacts on his daily functioning.  Together with the Tribunal’s earlier findings in this regard [see paragraphs 23, 25 and 88], the Tribunal concludes that, on balance, the nature of commitment cannot be seen as one which represents a marriage-like relationship – but rather an “unusual relationship”.

102.   For all of the above reasons, based on the “Financial Aspects of the Relationship”, “The Nature of the Household”, “Social Aspects of the Relationship” and the “Nature of the Commitment”, the Tribunal finds that during the relevant period 26 June 1993 to 13 August 2002 (Roelofje Triplett) and 26 June 1993 to 22 August 2002 (Christopher Demosthenous), the applicants were not in a marriage-like relationship.

103.   The Tribunal has no discretion other than to apply the facts to the statutory criteria that prescribe the legal meaning of a marriage-like relationship for social security recipients. The Tribunal has no alternative other than to make the decision it has made based on the facts and their application to the law.

104.   The decision under review is set aside and in substitution therefore the Tribunal decides that Roelofje Triplett and Christopher Demosthenous were not in a marriage-like relationship over the period June 1993 to August 2002.

I certify that the 104 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member

Signed:         Sarah Oliver
  Associate

Dates of Hearing  14 July 2003 and 19 November 2003
Date of Decision  23 July 2004      

The Applicants appeared in person
For the Respondent                  Mr T Ffrench, Departmental Advocate