Weaver and Anor and Secretary, Department of Family and Community Services
[2005] AATA 372
•28 April 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 372
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/618
GENERAL ADMINISTRATIVE DIVISION )
Re CARROLL WEAVER and
WAYNE HETHERINGTONApplicants
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
DECISION
Tribunal Dr KS Levy, Member Date28 April 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd].......................
K S Levy
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/618
GENERAL ADMINISTRATIVE DIVISION )
Re CARROLL WEAVER and
WAYNE HETHERINGTONApplicants
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICESRespondent
ORDER TO AMEND WRITTEN REASONS FOR DECISION [2005] AATA 372
Tribunal Dr KS Levy, Member Date9 May 2005
PlaceBrisbane
WHEREAS:
1. The Tribunal released a written decision in this matter dated 28 April 2005.
2. It has come to the attention of the Tribunal that there was an error or lack of clarity in the reasons for the decision as to the period of commencement of the marriage-like relationship of the applicants.
3. The Tribunal wishes to amend the written reasons so as to rectify the error or to remove ambiguity in the statement of reasons with a minimum of cost and inconvenience for the parties. In this regard, section 43AA of the Administrative Appeals Tribunal Act 1975 is applied to effect this amendment.
NOW THE TRIBUNAL THEREFORE ORDERS
4. That the statement of reasons of the Tribunal as recorded should be amended as follows:
a. In the first sentence of paragraph 59, the words “the Tribunal determined” are deleted and the words “it appears that” are substituted therefore.
b. A new sentence is inserted in paragraph 59 immediately after the amended first sentence as referred to in a. above:
“The Tribunal is of the view that it is not possible to determine that commencement with an adequate degree of accuracy and therefore, it is not possible to determine if there has been an overpayment, nor would it now be equitable to do so after such a long time interval”.
c. In paragraph 60, a new sentence is added immediately after the first sentence, as follows:
“The Tribunal accepts that the only definitive commencement of a marriage-like relationship between the applicants is as stated by the ARO in her decision of 3 March 2004, that is, it commenced on 28 January 2004”.
..........................................
K S Levy
Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and entitlements – Parenting payment and Newstart allowance – Whether applicants were members of a couple for a certain period – On balance of probabilities applicants were in a marriage-like relationship for the relevant period – Decision under review affirmed.
Social Security Act 1991 s 4, 24
Social Security (Administration) Act 1999 s 185
Administrative Appeals Tribunal Act 1975 s 29, 31Staunton-Smith v Secretary, Department of Family and Community Services (1991) 32 FCR 164; (1991) 25 ALD 27
Re Kinnane and Secretary, Department of Family and Community Services (AAT 12275, 10 October 1997)
Re SRH and Secretary, Department of Social Security (1996) 42 ALD 463
Re Ward and Secretary, Department of Social Security (1985) 7 ALN 66a
Re Secretary, Department of Social Security and Marshall (AAT 7079, 17 April 1991)
Re Erdman and Secretary, Department of Social Security (AAT 19039, 17 May 1996)
Re Jurd and Secretary, Department of Social Security (1990) 20 ALD 781aREASONS FOR DECISION
28 April 2005 Dr KS Levy, Member 1. This is an application under section 29(1) of the Administrative Appeals Tribunal Act 1975 by Ms Carroll Weaver and Mr Wayne Hetherington, for a review of the decision of the Social Security Appeals Tribunal (the “SSAT”), made on 1 July 2004. That decision affirmed the original decision made by an Authorised Review Officer (ARO) Centrelink dated 3 March 2004 which determined Ms Weaver and Mr Hetherington as each being a “member of a couple”.
2. At the hearing, before the Administrative Appeals Tribunal (the “Tribunal”) on 21 March 2005, it was noted that this matter was listed to be heard on the next day, 22 March 2005. It was also noted that the previous hearing had been adjourned as the applicants on that occasion, again turned up on the day before the allotted hearing date and the matter had to be adjourned as the parties indicated they could not come back on the next day. On this occasion, the Tribunal accommodated the parties and with the forbearance of the advocate of the Department of Family and Community Services, the hearing proceeded on the day the parties presented for hearing, albeit the day before the date listed for hearing.
3. The applicants represented themselves. The Secretary, Department of Family and Community Services (the “Department”) is the respondent in this matter, and was represented by Mr James Howard, Departmental Advocate. No witnesses were called.
4. At the hearing the Tribunal took the following documents into evidence as exhibits:
§Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
§ Exhibit 2 Computer Printout of the Parties Benefit Records which was Attachment 1 to the Secretary’s Statement of Facts and Contentions
Issues
5. The issue for determination by the Tribunal is whether Ms Weaver and Mr Hetherington were in a marriage-like relationship for a period prior to 28 July 2004, the date when Mr Hetherington moved interstate and has not since been on any Centrelink benefits.
Legislation
6. The legislative provisions which are relevant to the determination of this matter are as follows:
§ Social Security Act 1991 (“the Act”)
“Section 4
Member of a couple—general
4.(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(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;
(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.
Member of a couple—criteria for forming opinion about relationship
4.(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.
4.(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.
Person may be treated as not being a member of a couple (subsection 4(2))
24(1) Where:
(a) a person is legally married to another person; and
(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
24.(2) Where:
(a)a person has a relationship with a person of the opposite sex (the "partner"); and
(b) the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a marriage-like relationship; and
(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.”
Background
7. Ms Weaver commenced receiving parenting payment, (single) (PPS), as from 27 May 1999. Mr Hetherington was in receipt of newstart allowance for a similar period, although there was a period between December 1999 and August 2001 in which he was not receiving any benefits.
8. Both Ms Weaver and Mr Hetherington had had long dealings with Centrelink. In January 1998, Ms Weaver and Mr Hetherington lived together at Park Ridge, and then subsequently moved to another address at Park Ridge, then to Beaudesert, and then to Inala. They have been at the current address since October 2002. Ms Weaver has two children, Rhiannon and Cameron. Rhiannon is now approximately 5 years old, while Cameron is almost 3 years old. There was no dispute that Mr Hetherington is the father of Cameron, but not the father of Rhiannon.
9. Ms Weaver and Mr Hetherington had a joint bank account with the Commonwealth Bank for the period 1997 to 2003. It appears that this account may have been that of a non-profit organisation, the Equine Care Group, with which both the applicants were involved. Mr Hetherington had also been a signatory to Ms Weaver’s personal Suncorp Metway bank account for a period.
10. With effect from 11 February 2004, Centrelink determined that Ms Weaver and Mr Hetherington had been in a marriage-like relationship since at least 10 October 2002. As a consequence of that decision, a PPS debt of $2575.86 in respect of Ms Weaver for the period, 9 October 2002 to 27 January 2004, was raised. Similarly, a debt was raised against Mr Hetherington, in respect of his Newstart allowance for an amount of $1039.99. The latter debt was also in respect of the period 9 October 2002 to 27 January 2004.
11. Following a request for review by the applicants, an Authorised Review Officer (ARO) of Centrelink varied the previous decision on 22 March 2002. The effect of the ARO’s decision was to affirm that the applicants were members of a couple, but the decision in relation to the commencement date of the debt was varied to 28 January 2004. This had the effect of the eliminating the debts in relation to both of the applicants, although they continued to be paid at the same (lower) rates applicable to persons who were regarded as members of a couple.
12. In turn, that decision was appealed to the Social Security Appeals Tribunal (SSAT). Ms Weaver appealed on 20 May 2004 and Mr Hetherington appealed on 26 May 2004. The SSAT determined those appeals on 1 July 2004 that the applicants were indeed, members of a couple. That Tribunal made no decision in relation to the length of the relationship.
13. Shortly after that decision, Ms Weaver advised Centrelink on 28 July 2004 that Mr Hetherington had moved out of the residence with her and that he was then living in New South Wales. From that date, Centrelink have paid benefits to Ms Weaver as though she was not a member of a couple.
14. On 6 August 2004, Ms Weaver appealed to the Administrative Appeals Tribunal in relation to the decision by the SSAT. The record showed that Mr Hetherington had been joined as a party to the appeal. This was a point raised as a preliminary issue at the commencement of the hearing in terms of the status of Mr Hetherington in this appeal. This issue is dealt with below.
Preliminary Legal Question – Status of Mr Hetherington as a Party
15. This application formally recorded Ms Caroll Weaver as the applicant, with Mr Wayne Hetherington being joined as a third party. Mr Howard, advocate for the respondent, questioned the status of Mr Hetherington in this matter.
16. Mr Hetherington told the Tribunal that he had wanted to be joined as a party and stated that he returned a document to the registry to that effect. That document was not evident on the file during the hearing. However, as all parties (including the respondent) agreed that he be joined as an applicant, the Tribunal indicated that Mr Hetherington could be regarded as a party to the proceedings. The Tribunal indicated at the hearing that he could be regarded as joined by virtue of section 31 of the Administrative Appeals Tribunal Act 1975. That decision was based on the indication given by Mr Hetherington that he had returned a document in writing to the Registry, which was a requirement of section 31.
17. Since the date of the hearing, it is evident that no such document had been filed by Mr Hetherington in the Registry. Therefore, a document in writing as required by section 31, has not been satisfied.
18. However, it is clear that Mr Hetherington can be regarded as a party as a matter of law, by virtue of section 185 of the Social Security (Administration) Act 1999, which states:
“185 Parties to a review by the AAT
The AAT Act applies to an application under section 179 for review as if the reference in paragraph 30 (1) (b) of the AAT Act to the person who made the decision were a reference to each party to the review of the decision by the SSAT”.
19. Therefore, Mr Hetherington is to be regarded as being a party automatically, as a matter of law.
Evidence
§ Evidence of Ms Weaver
20. Ms Weaver stated that there were many issues that Centrelink had pursued in forming a conclusion that she and Mr Hetherington were in a marriage-like relationship. There were answers given to many of the concerns raised by Centrelink, although new questions always then arose.
21. She mentioned on a number of occasions at the hearing that she had never denied sharing accommodation with Mr Hetherington, or anybody else. But she said that “basically, we are friends”. She also pointed to what she regarded as practicalities of life - for someone who is young, single and not working, it is very difficult “to live in a house and pay rent, and everything else; so it’s a lot cheaper to have shared accommodation”. She stated that she did not want to share with strangers. She chose a long-term living arrangement with Mr Hetherington, as they were “two trusting friends that got on well in a household environment but only ever as friends”.
22. The second tranche of investigations into their arrangements by Centrelink occurred in January 2004. Mr Hetherington applied to go on to newstart allowance again. Ms Weaver claimed that the record of interview shows that he had claimed they were in a relationship. But, she says, he denied that and that she believes him. Her evidence was also that “Whenever you have an interview with anybody regarding Centrelink – it is not recorded accurately”. She also claimed that Centrelink officers were threatening, in that if she pursued her appeal, the debt may be raised again and she would have to repay Centrelink. She maintained also that she always had been truthful and declared any extra income such as from a local newspaper run, which she claimed amounted to “$20 a month if I am lucky.” Ms Weaver clearly felt that the evidence she presented has not been accepted by Centrelink.
23. In relation to the hearing before the SSAT, she seemed to mix evidence about interviews with Centrelink officers and evidence given to the SSAT and again she claimed that some of the evidence in the statements from interviews was not correct. But she reported that she had had no problems with Centrelink since June 2004 when Mr Hetherington moved out and went to New South Wales.
24. Ms Weaver referred to the number of issues which she had to answer to the Centrelink office, about a marriage-like relationship. These related to accommodation and financial arrangements. In relation to the latter point, Ms Weaver explained that Mr Hetherington had authority to sign withdrawals from her Suncorp Metway bank account at one stage, when she was ill with meningitis. She stated that she gave him authority to operate her account but had completely forgotten that that occurred and only regarded it as a temporary authority. She provided this authority so that bills could be paid at that time, and that it was only when Centrelink brought it up with her, that she realised that Mr Hetherington still had authority on her account. She ceased that authority shortly thereafter.
25. Ms Weaver’s evidence also claimed that Centrelink’s judgment was influenced by their perception that she and Mr Hetherington were running a business together. She claimed this was not true and that they were running a not-for-profit horse rescue organisation called “Equine Care Group”.
26. Under cross-examination by Mr Howard, Ms Weaver stated that in relation to the expenses of running the household, she and Mr Hetherington each paid for their own phone calls, and that the electricity bills were always split either evenly between them, or between themselves and any other persons who were living in the house at the time. In relation to food and grocery items, her evidence was that she and Mr Hetherington each paid their own way, although sometimes they may cook for each other, particularly if there was a barbecue. She stated that each did their own washing.
27. In relation to the children, Mr Hetherington was the father of Cameron, but she would not leave her son with him. She stated she had done this in the past only for very brief periods such as when she went to karate, or if she needed to have a shower, for example. She stated that Mr Hetherington did not contribute much at all in terms of caring for Cameron. Her view was that she did not have her children to have somebody else raise them.
28. In relation to their sexual relationship, her son Cameron was born in June 2002. She stated that a sexual relationship occurred only once a month for three or four months with Mr Hetherington, and that that was now 2½ to 3 years ago. She confirmed for Mr Howard that lasted for about four months and then stopped.
29. In relation to other social activities, they shared some common social activities such as running the Equine Care Group which involved an occasional horse show, and it seemed apparent that she was very involved with this group. When she had to drive to these events, as well as undertake her duties there and also look after two children, having Mr Hetherington around was of benefit.
30. In relation to evidence previously provided to the SSAT about her staying over at friends’ places at night without her children, she stated that this was untrue and that she never left her two children alone with Mr Hetherington. However, she indicated there were occasions such as when she went to the Equine Care Group meetings, where Mr Hetherington accompanied her to share driving and other duties, when she did stay over at night. When Mr Hetherington was with her, they did not sleep in the same room.
31. When questioned about the evidence given to the SSAT about a sexual relationship with Mr Hetherington, she stated that she might have said that she only ever had sex once with him, however, she was confused and meant that she only had sex once before Cameron was conceived. Her evidence was also that her children did not like being with Mr Hetherington, and when asked whether there was any reason for this, she said that she could not speak for his nature but that she never saw him get “angry with either of her children, or anything like that”.
§ Evidence of Wayne Hetherington
32. Mr Hetherington indicated that he moved to New South Wales to do drought relief work through the Horse Rescue Association. He stated he had friends there who were having hard times, and so he went there to assist them. He mentioned that the problems with Centrelink in Brisbane also motivated him to move.
33. While he moved there about June or July 2004, there was not much work in New South Wales and he was offered a job driving semi-trailers in Queensland. He returned to Queensland in December 2004.
34. His evidence also was that there were inaccuracies in the records of interviews he had with Centrelink and those inaccuracies then appeared on Centrelink computers as a matter of record. For example, he claimed that the records show that he was interviewed by a person called “Brett”, whereas his evidence was that he had never been interviewed by a person by that name, although he had been interviewed by a man named “Kent.”
35. Mr Hetherington emphasised that he was gay and that he had notified Centrelink of this many years ago when living at Acacia Ridge. He said Centrelink then accused him of claiming to be gay simply because Centrelink had decided that they were partners.
36. Under cross-examination, Mr Hetherington gave very similar evidence to that of Ms Weaver in most respects. For example, in relation to the household, he claimed that each of them looked after their own affairs. He said that each did their own washing although there might have been some exceptions. Also, he may or may not cook for Ms Weaver, depending on the convenience and preference of each of them at various times. He stated that the electricity was in Ms Weaver’s name, but that he paid his share.
37. In relation to social activities, he claimed to have his own circle of friends with whom he socialised. However, with the Equine Care Group, there were various activities where they might both attend, although this would not be every occasion. In relation to the children, he claimed that Ms Weaver does most things for the children and that he would only be involved about 5% of the time. He also stated that Ms Weaver had a couple of other male friends and that Cameron was very “clingy” to her as a result.
38. In relation to their sexual relationship, he said it is not an emotional sexual relationship. The relationship lasted over quite a long period, however, they probably had not been sexual together since Cameron was born, nearly 3 years ago. When questioned further about this, he indicated that in previous times their sexual activity was somewhat haphazard, and that they might have sex once a month for some time, and then there could be no contact for another four or five months. On the other hand, he indicated that it could also happen four times in one week and then nothing again for another four months or five months, depending on their personal relationships with other people at the time.
39. In relation to what he said to the SSAT, Mr Hetherington was questioned about the decision by the SSAT and that it was based on his having an ongoing sexual relationship. He denied giving that evidence. However, he indicated that they had been sharing together for about 12 years, and that their sexual relationship had probably been for about eight years or so of that time.
Consideration
40. I have carefully considered all of the oral and documentary evidence presented by Ms Weaver, Mr Hetherington and the respondent in relation to the issues to be answered by the Tribunal. I have also considered the Social Security Act 1991 and relevant cases in reaching a decision in this matter.
41. In assessing whether a person is a member of a couple for the purposes of section 4(2) of the Act, the Tribunal must form an opinion, having regard to all the circumstances of the relationship, and particularly those as outlined in section 4 (3) (a) to (c). In carrying out of that assessment, it is a matter for the Tribunal to make a determination based on the weight of evidence, credibility of witnesses and all of the circumstances of the relationship, taken as a whole. Mr Howard referred the Tribunal to Staunton-Smith v Secretary, Department of Family and Community Services (1991) 32 FCR 164; (1991) 25 ALD 27. The findings of fact and relevant issues are set out below.
42. The Tribunal makes the following findings of fact:
a.The parties do not jointly own any real estate, bank accounts or have any joint liabilities;
b.There are no assets other than a car owned by Ms Weaver and separate bank accounts or liquid assets;
c.Ms Weaver paid the electricity and telephone accounts, and also paid the rent. These accounts were in her name and Mr Hetherington reimbursed her for some portion of those expenses;
d.For the 12 years or so which the applicants have lived together, they have cohabited without difficulty and based on the evidence provided, a significant level of trust exists between them. The Tribunal accepts that to a large degree, they provide for their own day-to-day requirements, and there was a considerable degree of co-operation, pooling or sharing of resources and mutual benefit involved. This was essentially a practical matter where financial resources were very scarce;
e.The period of cohabitation has existed for the majority of the time from 1994 until December 2001 and from 11 October 2002 until June 2004, at which time Mr Hetherington went interstate. The sexual relationship between the applicants, while not exclusive between themselves or frequent, continued for the majority of the period until October 2002.
f.Mr Hetherington’s claim of being gay, was regarded as disingenuous and was not accepted by the Tribunal;
g.The parties have indicated a commitment to each other, both emotionally and socially. The commitment to children was stronger in relation to Ms Weaver. Despite Mr Hetherington, being the father of one of the children, evidence of him committing to a parental obligation is not apparent.
§ The Financial Aspects of the Relationship
43. The question of financial support is one of a number of important considerations. In relation to the financial aspects of the relationship, the facts indicate that each of the applicants has a paucity of financial resources and, almost by necessity, keep their financial resources separate. Both of the applicants, maintain that they essentially lived within one household, but lived separate lives. From a financial point of view, this is factually correct, however, that ignores some of the other indicia which may be informative of the relationship, if the financial resources were more affluent. Indeed, Ms Weaver implied that Mr Hetherington paid his share of the bills but contributed very little in relation to the children or other aspects, other than assisting in the activities in which they were both involved with the Equine Care Group.
44. Mr Hetherington agreed that he reimbursed his share of expenses to Ms Weaver, but also stated in evidence at the Tribunal hearing that when he went to New South Wales, he said to her “look, I’ll send you money from down there…..to pay the bills”. Also, under cross examination, he amplified their relationship and how he perceived it was affected by the Centrelink policy. In this regard, he stated “I can’t pay her rent, because then they take that off her benefit. But I’m allowed to be a lodger, and buy food and contribute towards bills, and that can vary on a weekly basis.” But the actual financial support provided when both parties are on Centrelink benefits is not of great weight [Re Kinnane and Secretary, Department of Family and Community Services (AAT 12275, 10 October 1997)].
§ The Nature of the Household
45. The household of Ms Weaver and Mr Hetherington appears to have functioned in the way of sharing accommodation and also using common facilities such as the kitchen, lounge and laundry. Ms Weaver does most of the house work but they each apparently undertake their own washing and other duties.
46. In the context of a marriage-like relationship, the period of time together is indicative of whether a relationship should be regarded as a marriage-like relationship [Re SRH and Secretary, Department of Social Security(1996) 42 ALD 463].
§ Social Aspects of the Relationship
47. The evidence before the Tribunal indicated that the applicants have not held themselves out to be partners or as being in a de facto relationship. However, they had had a close relationship in many respects over a long time. From the evidence presented, it would seem that the relationship has not been one of a conventional marriage-like relationship in the ordinary sense, at least not for all the time that they had cohabited. For example, Mr Hetherington indicated that Ms Weaver has had other male friends since Cameron was born, such that Cameron is sometimes closer to some of those male figures than to himself. This would also appear to be the case at least in some previous times, as Mr Hetherington is not the father of the eldest child Rhiannon.
48. While at home, the applicants painted a picture of living relatively independent lives, but their social lives had some similarities. However, their association with the Equine Care Group, together with the length of time they had lived together, demonstrated a close bond and a high degree of trust between them. The degree of trust is a factor which Ms Weaver emphasised at the outset. Their activities in relation to the Equine Care Group seem to be the main common social activity for both of the applicants. It not only involves the formal aspects of meetings and shows associated with their interest in horses, but the associated social activities, such as barbecues with common friends. This highlights that the social aspects of their relationship were characterised by some stability, as one would find in a stable married relationship. The Tribunal accepts that there were undoubtedly incidents where they did not both attend these events, however, this does tend to be one of the common and long-standing arrangements, which binds them together, which also included attendance by the children.
§ Sexual Relationship
49. While Mr Hetherington described the sexual relationship as not being an emotional one, there appears to be evidence of a significant emotional relationship between them over a recently long period of time. Where it is not known whether the parties concerned share the same bedroom, they may still be in a marriage-like relationship where other factors establish the relationship [Re Ward and Secretary, Department of Social Security (1985) 7 ALN 66a]. However, where there is only spasmodic sexual relations between the parties and was not regarded as a loving or permanent relationship but just satisfying physical needs, there may be no marriage-like relationship, particularly where there was an absence of many other common indicia [Re Secretary, Department of Social Security and Marshall (AAT 7079, 17 April 1991)]. In the latter case, there was no permanence, no mutual society, no family bonds and no social life.
50. In this case Ms Weaver, in her evidence, stated that the sexual relationship with Mr Hetherington was a most infrequent event and that it only occurred three or four times. While Mr Hetherington is the father of the youngest child Cameron, she regarded the fact that he is the father of one of her children as merely a “one off” incident.
51. However, Mr Hetherington, gave evidence to the contrary, and stated that they had had a sexual relationship for 8 out of the past 12 years they had lived together. Mr Hetherington’s evidence in this regard was accepted as being more credible than that of Ms Weaver. However, the Tribunal accepted that despite some credibility issues, the sexual relationship has not existed since October 2002, shortly after the youngest child was born.
§ Nature of the Commitment to Each Other
52. The evidence provided orally and in the exhibits indicates a commitment by the applicants to each other which has been a longstanding one. It is clear that the applicants had a relationship for a very long time, although all aspects of the relationship might not always have been regarded as strong in the sense that one would anticipate in a conventional sound marriage relationship. There are some issues which undoubtedly placed considerable pressure on the relationship between Ms Weaver and Mr Hetherington from time to time, and in particular, the financial aspects of the relationship mitigate against the relationship being positive all the time. However, there are other more idiosyncratic issues which indicate that the applicants have a commitment to each other. For example, it appears that Ms Weaver does not want to share control of children with Mr Hetherington, and the evidence indicates she also has had other male friends since October 2002. Mr Hetherington indicated that the children sometimes cling more strongly to some of these males than to him. However, on the evidence of both of the applicants, it appears that Mr Hetherington does not contribute greatly to oversight of the children, apart from some financial commitment, and being there to support Ms Weaver at various times. The evidence showed that the duties undertaken by each in the household and in their relationship was a matter of mutually agreeable preference, rather than being strongly indicative of a conventional marriage-like relationship.
53. In this case, the evidence put forward by the parties was claimed to be more of a friendship relationship than a marriage-like relationship. While this is an important factor, the Tribunal must determine whether self-serving evidence of the parties is truthful and therefore whether it can be relied upon [Re Erdmann and Secretary, Department of Social Security (AAT 10939, 17 May 1996)].
§ Is there a marriage-like relationship?
54. The requirements of section 4 require evaluation of whether, on the balance of probabilities, there is a marriage-like relationship. In other words, having regard to the weight to be placed on the various indicia which define the relationship in question, whether the relationship has the hallmarks of one which most people in the community would regard as a marriage-like relationship. This does not necessarily mean that all aspects that one might expect, or even think would be desirable are existing in the present case, but rather, whether taking account of the weight of the various aspects of evidence, there is a “marriage-like relationship”.
55. In evaluating the evidence as a whole, the Tribunal is conscious that the applicants had claimed to provide honest information always to Centrelink. However, the Tribunal has been in some doubt about the efficacy of some of the applicants’ evidence. For example, at the outset the attendance of both applicants on the day before the hearing date, on two occasions, on the basis that they had been told by someone in the registry to come on that day, seems less than credible, especially when it occurred twice. The denial about evidence given to the SSAT, which was documented in the decision of the three persons of that Tribunal, also seems questionable. In addition, the contradictory evidence of the duration of the sexual relationship of the two parties is so much at odds with each other – Ms Weaver said it occurred 3 or 4 times; Mr Hetherington said it went on for about 8 years with varying frequency. Therefore, both the applicants’ evidence could not be accepted without question. It would seem more likely that the evidence of Mr Hetherington should be preferred in that respect. His claim of being gay was also not regarded as genuine.
56. However, in addition to the applicants’ disputation of evidence given to Centrelink Officers, they have also disputed the efficacy of the SSAT decision. It appears there have been a number of differing versions of the facts to Centrelink and SSAT and even the ARO decision indicates a sexual relationship was admitted until “recent months” prior to that decision in March 2004, contrary to other previous accounts and that given to this Tribunal.
57. These credibility issues are relevant in evaluating the evidence as a whole. In respect of the nature of the household, social aspects of the relationship, the sexual relationship, and the nature of the commitment to each other, the weight of the evidence indicates, on the balance of probabilities, that the applicants had a marriage-like relationship. While the financial aspects of the relationship do not provide much weight to that assessment, this latter aspect is merely the reality of the situation for the applicants rather than any discretion which they might exercise if they had had a more than a rudimentary pool of resources. Also, even though the commitment to the children appears to be strong in the case of Ms Weaver and not so strong in respect of Mr Hetherington, this is also a matter which both parties seemed comfortable with, and both children referred to Mr Hetherington as “Dad”. It would be of concern if the receipt of benefits by the mother discouraged contact between an applicant and his child or children [Re Jurd and Secretary, Department of Social Security (1990) 20 ALD 781a], but this was not the case here. On the basis of all these factors, the tribunal finds on the balance of probabilities that there has been a marriage like relationship for a considerable period of time, and at least up to 11 October 2002.
§ What Was The Period Of The Marriage-Like Relationship?
58. The official record indicates that Ms Weaver and Mr Hetherington has shared the same address from 5 January 1998, and then moved together - in October 1998. They then moved together again in September 2001 until January 2002. Evidence was given to the SSAT, that the applicants lived separately, from about this time, until October 2002, when they again commenced sharing accommodation at 128 Sanderling Street, Inala. In the decision of the ARO dated 22 March 2004, it appears that Ms Weaver indicated that she had only agreed to Mr Hetherington, living in her current residence until he got a job. However, he obtained employment between August 2003 and January 2004, yet he continued to reside with her.
59. On the evidence available, the Tribunal determined that the applicants have had a marriage-like relationship for a number of years (although perhaps not continuously), from some time in the mid to late 1990s until October 2002. From October 2002, the evidence presented by the applicants is that there has not been a sexual relationship since that time until Mr Hetherington moved out of shared accommodation with Ms Weaver in about June 2004. As some of the evidence of the applicants has not been credible, there is undoubtedly some uncertainty about the strength of the evidence from October 2002. However, there was no contradictory evidence about the sexual relationship from that time and there has been some evidence suggesting that Ms Weaver has since had other male friends who often visit her at home and interact with the children. As there is no contrary evidence about the relationship from October 2002, then despite some doubt about the credibility of evidence elsewhere, the applicants are entitled to the benefit of the doubt in this latter respect. This conclusion is also consistent with the fact that Ms Weaver has had a child to another person other than Mr Hetherington about 5 years ago.
60. It is not possible to be definitive about when the marriage-like relationship commenced, except that it is reasonable to expect that it commenced about the mid-1990s. Clearly, there was a break in their living together between January 2002 and October 2002 and the evidence of a lack of relationship following that period has lead the Tribunal to the conclusion that on the balance of probabilities, there has been a change in arrangements from 11 October 2002. Therefore, the marriage-like relationship has ceased from that date. On the basis of that finding, the issue of any outstanding debt from 11 October 2002 and onwards is not relevant. Therefore, consideration of write-off or waiver of debt is unnecessary. In the circumstances, the Tribunal affirms the decision under review, namely that of the SSAT dated 1 July 2004, which confirms the decision of the ARO of 3 March 2004.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member.
Signed: Camille Banks
AssociateDate/s of Hearing 21 March 2005
Date of Decision 28 April 2005
The Applicants appeared in person
For the Respondent Mr James Howard
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Judicial Review
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Administrative Appeals
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Social Security
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