Williams; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1781
•19 September 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1781
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200500173
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
JULIE ANDREA WILLIAMS
Respondent
DECISION
Tribunal Ms L R Tovey, Member Date 19 September 2007
PlacePerth
Decision The Tribunal affirms the decision under review. ..........[Sgd Ms L Tovey].........
Member
CATCHWORDS
SOCIAL SECURITY – parenting payment – whether Respondent was living separately and apart from her husband on a permanent or indefinite basis
Social Security Act 1991 (Cth), s. 4(2), 4(3).
Lambe v Director-General of Social Services (1981) 57 FLR 262.
Lynam v Director of Social Security (1983) 52 ALR 128; (1983) 1 AAR 197.
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
REASONS FOR DECISION
19 September 2007 Ms LR Tovey, Member BACKGROUND
1. This is an application by the Secretary, Department of Employment and Workplace Relations ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 18 April 2005.
2. On 3 December 2004 a Centrelink officer decided to cancel Ms Julie Williams' ("the Respondent") parenting payments and raise a parenting payment debt of $55,019.83 for the period 8 September 1999 to 3 December 2004. That decision of the Centrelink officer was made on the basis that the Respondent was living with her husband, Paul Williams, as a member of a couple for that entire period, and that Mr Williams' income was sufficiently high that the Respondent was not entitled to any parenting payments for that period.
3. An Authorised Review Officer of the Applicant confirmed the decision of the Centrelink officer on 27 January 2005. The Respondent sought a review of that decision of the Authorised Review Officer by the SSAT.
4. On 18 April 2005 the SSAT decided to set aside the decision under its review and send the matter back to the Chief Executive Officer of Centrelink for reconsideration in accordance with the direction that the Respondent was living separately and apart from her husband in the period 8 September 1999 to 3 December 2004.
5. The Applicant now seeks a further review of that decision by this Tribunal.
ISSUES AND LEGISLATION
6. It is common ground between the parties, and I accept, that the critical issue for me to consider is whether or not, in my opinion, the Respondent and Mr Williams were, between 8 September 1999 and 3 December 2004, living separately and apart from each other on a permanent or indefinite basis. It is appropriate to note the legislative context in which that issue arises.
7. It is not in dispute that, if the Respondent was not a member of a couple, she was entitled to parenting payments, which are provided for by Part 2.10 of the Social Security Act 1991 (Cth) ("the Act"). Part 3.6A of the Act provides for the parenting payment rate calculators, with s.1068A of the Act applying where a person "is not a member of a couple". Section 1068B of the Act provides for the rate of parenting payment if a person "is a member of a couple".
8. It is common ground that the rate of parenting payments paid to the Respondent during the relevant period was calculated under s. 1068A, rather than s. 1068B, of the Act on the basis that the Respondent was not a member of a couple. The decision of the SSAT confirmed that these payments were correctly made on that basis.
9. Subsections 4(2) and 4(3) of the Act define when a person is a member of a couple in the following terms:
"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.
10. In the present case it is common ground between the parties, and I find, that the Respondent and Mr Williams married on 11 February 1995 and had not divorced at the time of the hearing of this application. It follows that s. 4(2)(a), rather than s. 4(2)(b), of the Act is the applicable provision, on the basis that the Respondent and Mrs Williams were legally married to one another for the whole of the relevant period.
11. On that basis, the issue raised by s. 4(2)(a) of the Act is whether, in my opinion, (formed as mentioned in subsection (3)), the Respondent was living separately and apart from Mr Williams on a permanent or indefinite basis during the period from 8 September 1999 to 3 December 2004. If she was, then the Respondent was not a "member of a couple" over the relevant period and the decision of the SSAT should be affirmed. Otherwise, the Respondent will be a "member of the couple" for the purposes of the Act and not entitled to parenting payments over the relevant period.
APPLICABLE PRINCIPLES
12. The considerations identified in s. 4(3) of the Act apply to the formation of both the opinion referred to in s. 4(2)(a) and that referred to in s. 4(2)(b)(iii) of the Act. Those considerations are to be taken into account, however, in asking the different questions posed by those two paragraphs of s. 4(2) of the Act. In the first case, the question is whether a person is living separately and apart from another person on a permanent or indefinite basis. In the second case it is whether two persons are in a "marriage-like relationship". As O'Loughlin J noted in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 167:
"Thus the task of the Tribunal, in its review of Mrs Staunton-Smith's circumstances, was, as it stated in par 6 of its reasons, to inquire whether she was living separately and apart from Mr Staunton-Smith; if the Tribunal was satisfied that she was not, then she did not classify as a "single person" and hence she was not entitled to a sole parent's pension. But the Tribunal went about its task by assessing the circumstances of Mrs Staunton-Smith as if she were allegedly living in a de facto relationship with Mr Staunton-Smith. Instead of inquiring whether Mrs Staunton-Smith was living separately and apart -- looking for indicators that might have pointed in that direction -- the Tribunal inquired whether she was living with Mr Staunton-Smith on a bona fide domestic basis. The Tribunal therefore looked for indicators that suggested a "living together" and so placed the wrong emphasis on its inquiry. In my opinion, the Tribunal erred by adopting a test or a standard that was reserved for couples who were allegedly living together in a de facto union. It is, of course, possible that, in a given situation, the facts that would establish that a man and a woman are not living separately and apart would also establish that they are living together as man and wife on a bona fide domestic basis. Nevertheless, the terms are not interchangeable."
13. The reference to two persons living together "on a bona fide domestic basis" reflected the language of the Act which had been repealed prior to the decision in Staunton-Smith. In that case the question was whether Mrs Staunton-Smith was "a married person who is living separately and apart from her spouse" for the purposes of s. 43(1)(c) of the Act as it then stood: see 32 FCR at 166. That wording reflects the wording of s. 4(2)(a) of the Act as it currently stands, although there was no reference to the persons living separately and apart "on a permanent or indefinite basis".
14. Also in Staunton-Smith, O'Loughlin J referred to a number of considerations to which regard should be had in making the assessment. Those considerations were similar in many respects to those which now appear in s. 4(3) of the Act. However, at 32 FCR 170, O'Loughlin J said of the factors which he identified:
"It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based."
15. In the case of a statutory list of considerations the Tribunal is required to consider, in relation to each, whether there is any evidence going to the question. However, the task remains one of considering the composite picture in light of all of the evidence and not to adopt the approach of treating the list of factors as a determinative checklist.
16. While distinct questions are posed by s. 4(2)(a) and 4(2)(b) of the Act, s. 4(3A) of the Act suggests that the two provisions may cover some common ground. Section 4(3A) provides that the Secretary must not form an opinion that two persons are in a marriage-like relationship if they are living separately and apart from each other on a permanent or indefinite basis. However, the fact that two persons are not living separately and apart from each other on a permanent or indefinite basis is not of itself sufficient to conclude that they are in a "marriage-like relationship". The inquiry under s. 4(2)(a) of the Act is therefore narrower than that under s. 4(2)(b) of the Act.
17. Further, notwithstanding the comments of O'Loughlin J quoted above, the earlier authorities dealing with when two persons are living together "on a bona fide domestic basis" are not irrelevant to a consideration under the current provisions of the Act. In Staunton-Smith at 171 O'Loughlin J recognised that the earlier authorities are of assistance in considering s. 43 of the Act as it then stood. He further referred with approval to two passages of authorities decided under the previous legislation which he considered were relevant to that consideration.
18. The first passage was from the decision of the Full Court of the Federal Court in Lambe v Director-General of Social Services (1981) 57 FLR 262 at 271, that:
"We agree with the Tribunal that in order to determine whether the appellant was living with Foxwell as his wife `all facets of the interpersonal relationship' of the two persons need to be taken into account. We also agree that the question of the financial support which Foxwell provides is an important, although not necessarily crucial, consideration, but is only one of a number of relevant matters which the Tribunal should take into account in characterising, as required by the definition, the nature of the relationship between the appellant and Foxwell."
19. The second passage was from a decision of Fitzgerald J in Lynam v Director of Social Security (1983) 52 ALR 128 at 131; (1983) 1 AAR 197 at 200, that:
"Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test."
20. Both of the above passages were also referred to as relevant to a consideration of the question of whether two persons were in a "marriage-like relationship" for the purposes of s. 4(2)(b) of the Act in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 543-4, [37]-[38]. In that case, at page 544, [39], French J also endorsed the statement of O'Loughlin J in Staunton-Smith at 173 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."
21. In Pelka at pages 556-7, [52] French J expressed the view that the reference to "pooling" in s. 4(3)(a)(iii) of the Act was to the putting of resources into a common stock or fund, sharing in common and combining for the common benefit. It involved something more than financial cooperation or separate contributions to different elements of household expense. In relation to cooperation, French J stated at 557, [53]:
"Cooperation is not identified as a specific factor in s 4(3) of the Act. That is not to say cooperative behaviour may not be taken into account for the matters listed in s 4(3) are not exhaustive. But cooperation of itself does not take a relationship very far down the path towards characterisation as 'marriage-like'. Cooperation is an indispensable feature of human society and of a multiplicity of different kinds of relationships within human society including the purely commercial. The same may be said of 'mutual benefit' which attaches to a large range of arrangements between people."
22. Later, French J stated at page 559, [61]:
"A decision-maker in applying the matters set out in s 4(3) should acknowledge that they are non-exhaustive and at least indicate that consideration has been given to whether there might be any other factors relevant to the difficult judgment of whether a 'marriage-like' relationship exists. Each of the individual matters listed in s 4(3) is accompanied by a non-exhaustive list of factors. Again, the decision-maker in each case should consider whether there are any other factors relevant to the particular matter listed."
23. I consider that the approach identified by French J also be relevant to a consideration of the matters identified in s. 4(3) of the Act in the context of s. 4(2)(a) of the Act. In doing so, I recognise that in the present case those matters are to be considered, not for the purpose of forming an opinion as to whether parties are in a "marriage-like relationship", but for the purpose of considering whether two married persons are living separately and apart from each other on a permanent and indefinite basis.
24. From the above authorities and discussion, I consider the following propositions to be applicable to this case:
(a)While decisions in similar contexts may be of assistance, it is always important to focus on the statutory language which identifies the relevant question. In this case that is whether the Respondent was living separately and apart from Mr Williams on a permanent and indefinite basis. That question is not to be approached by assessing the Respondent's circumstances as if she were allegedly living in a de facto relationship.
(b)The considerations identified in s. 4(3) of the Act are not exhaustive or exclusive, and are not to be treated as a determinative checklist. Rather what must be looked at is the composite picture of the persons' interpersonal relationship as a whole, having regard to all of the circumstances of the case as disclosed by the evidence, including but not limited to those matters specifically identified in s. 4(3) of the Act.
(c)Financial support given by one party to another is only one of a number of relevant matters that I should take into account in characterising the nature of the relationship. Financial cooperation does not itself necessarily indicate that two people are not living separately and apart on a permanent or indefinite basis. The reasons for shared financial arrangements must be taken into account, and may be as or more important than the nature of the financial arrangements themselves.
THE RESPONDENT'S EVIDENCE
25. In considering the composite picture of the interpersonal relationship between the Respondent and Mr Williams at the relevant time, it is convenient to begin with the evidence given by the Respondent as to the nature of that relationship.
26. The Respondent gave evidence that she commenced her relationship with Mr Williams in 1986, when she was 16 years old. They had three children together, Genevieve who was born in March 1988, Jessica born in June 1991 and Ruby born in April 1996. The Respondent married Mr Williams in 1995.
27. The Respondent's evidence was that she separated from Mr Williams in November or December of 1996, when Mr Williams left the family home at Mundara Close in Bluff Point, New South Wales. The Respondent and her daughters continued to live at the Mundara Close house, which was a rented government house, for the next two to three years. During that period Mr Williams came back to the house on only one occasion, for a period of three or four days. The reason for his return was to see his daughters, and the Respondent gave evidence that she did not resume any sort of relationship with Mr Williams during that time.
28. The Respondent's evidence was that there was an informal arrangement between her and Mr Williams as to the payment of child maintenance by Mr Williams to the Respondent. That arrangement had been looked at by the Child Support Agency, which would send a letter each year indicating how much Mr Williams was to pay. Mr Williams paid that amount to the Respondent by cash at irregular intervals. While he was frequently behind in payments, Mr Williams did pay the amounts which the Respondent considered to be owing to her by those irregular payments.
29. In January 1997 the Respondent applied for and received a parenting payment at the single rate. She continued to receive parenting payments at that rate until it was cancelled by the decision of the Applicant's delegate which is under review.
30. The Respondent gave evidence that she was declared bankrupt in NSW, due to a $15,000 debt which she couldn’t afford to pay. She said that in 1999 she was discharged from bankruptcy.
31. In about September 1999 the Respondent decided to move with her daughters and parents to Western Australia. The Respondent said that the main reason for the move was threats received from, and other difficulties which she and her parents were having with, Mr Williams' family. She also saw benefit in having her children living closer to their father, who she understood to be living in Western Australia at that time. The Respondent had lived in Kambalda as a child, and had siblings living in Western Australia, albeit outside the Perth metropolitan area, when she decided to move in 1999.
32. The Respondent gave evidence that she needed financial assistance to move to Western Australia and approached Mr Williams, who at that time owed her about $6,000 in child support payments. Mr Williams said that he was not able to give her money at that stage, but applied for an American Express credit card and a supplementary card in the Respondent's name. The arrangement was that the Respondent would use the supplementary card for food, fuel and accommodation on the trip by road to Western Australia. She did in fact use the supplementary card for that purpose. Mr Williams asked for the supplementary card back about a week after the Respondent arrived in Perth, and the Respondent returned the card to him at that time.
33. Mr Williams had also arranged, and paid the bond for, a rental property in Western Australia, at Aldinga Place, Waikiki. The Respondent's evidence was that she did not have the money to pay for the bond at that time, and Mr Williams agreed to pay the bond on condition that his name was on the lease, so that he would get the bond back when the Respondent moved out of the house.
34. The Respondent's parents also followed her to Western Australia, and lived at Aldinga Place with the Respondent and her children. Although he had arranged for this accommodation by a lease in his name, Mr Williams did not stay at the property at Aldinga Place. The Respondent's evidence was that Mr Williams visited the property on two occasions. The first occasion was for him to see how the children had settled into school. The second occasion was at Christmas time in 1999. The Respondent said that Mr Williams did not stay overnight at the house at Aldinga Place on either occasion. On the second occasion, and argument developed in which Mr Williams slashed the couch with a knife and jammed the Respondent's hand in a door. The police were called, Mr Williams took off and was not seen by the Respondent again for months.
35. In the following year, the Respondent began looking for alternative accommodation, and obtained assistance from Homeswest for the bond required. She found a house that she liked opposite her daughters' school, and applied to rent the house. The real estate agent informed the Respondent that the owner of that house did not want anyone that was single in the house. The Respondent's evidence was that, because she really wanted the house, she told the real estate agent that she was getting back with her husband. The real estate agent then, in front of the Respondent, telephoned Centrelink and informed them of the Respondent's circumstances.
36. Shortly after that occurred, the Respondent, her children and parents moved into a new house at Hercules Street, Rockingham. The lease was in the Respondent's name only. The Respondent's parents lived at that house for about six months, before moving to a villa. Mr Williams did not live at Hercules Street and never stayed overnight at that house. During the 12 months the Respondent and her daughters lived at Hercules Street, the Respondent came to the house on one or two occasions to see his children and, on another occasion dealt with in more detail below, when he wanted to discuss the purchase of a property.
37. In April 2000 the Respondent's situation was reviewed by a Centrelink officer, who concluded that the Respondent was living separately and apart from Mr Williams.
38. At this time the Respondent was continuing to receive Centrelink payments, including the parenting payments at the single rate, and child support payments from Mr Williams.
39. Also at this time the Centrelink payments were paid into an account held by both the Respondent and Mr Williams with Elcom Credit Union. They had held that account as a joint account prior to their separation. After the departure of Mr Williams it was used by the Respondent as her main account for day to day purchasing needs. It was the account into which all of her money was paid. After his departure, the Respondent noticed that Mr Williams used the account only a couple of times to withdraw money, which he subsequently repaid. The Respondent's evidence was that she was "pretty cranky" about that because, as far as she was concerned, it was her money in the account.
40. In February 2001 the Respondent was advised by Centrelink that she needed to open an account in her name only for the payment of her benefits. She opened an account with Bankwest at that time, and since then has used her Bankwest account as her main account, into which Centrelink payments were made and from which money required for day to day expenses was withdrawn. She continued to use the Elcom account, which had a credit card facility, for only a few items including payment of her internet subscription service which required the use of a credit card.
41. The child support payments received from Mr Williams at the time the Respondent was living at Hercules Street were in the order of $1,300 a month. Mr Williams continued to make these payments at irregular intervals. Payments were made in cash either by Mr Williams himself, by Genevieve (their oldest daughter) or by Jason (Mr William's son who is about 5 years older than Genevieve).
42. In early 2001 Mr Williams visited the Respondent and proposed that they jointly purchase a house so as to be able to leave something for the kids. At the time the Respondent thought that this was a really good idea and she was quite exited at the thought that she could get a house. She said that they looked at a number of properties and put in an offer to purchase a house. The Respondent's recollection was that this was a house in Bibanup Court in Hillman, although documents before the Tribunal suggested that the offer was placed on a property at Giles Place, Waikiki on 8 March 2001. The Respondent accepted that her recollection as to the identity of the property for which a joint offer was made was in error.
43. The Respondent's evidence was that a person from Keystart came to her and Mr Williams and explained how much they could borrow. The Respondent's evidence was that she informed this person of her circumstances, including that she was separated from Mr Williams. She also made the person aware that she had been bankrupt and was told that her bankruptcy wouldn’t interfere with the purchase of the property as the bankruptcy had been discharged.
44. Subsequently, the Respondent's father advised her not to go ahead with the purchase of the property because of the violent history of her relationship with Mr Williams and that she could be left with a big burden. As a result, the Respondent decided that she wouldn't go ahead with the purchase of that property.
45. However, Mr Williams did proceed with the purchase of the house at Giles Place in Waikiki as sole purchaser. The Respondent said that she signed settlement documents under a power of attorney from Mr Williams. She said that she agreed to do this because Mr Williams was going to be away for a long period and he had no family in Perth who he could ask. She understood that the power of attorney was for use only on the day of settlement for the purposes of signing the settlement documents.
46. After the settlement of the purchase of the property at Giles Place, the Respondent and her children moved into the house. This was done pursuant to an arrangement whereby the rate of child support payments made by Mr Williams to the Respondent would be reduced from $1,300 to $700 a month. Both the Respondent and Mr Williams signed an agreement which said that:
"I Paul Williams have agreed to allow Julie Williams and my 3 children to stay at my house [*] Giles Place Waikiki, until such time that Julie finishes University and gets a job, which will be around the end of 2004 – beginning of 2005. And that it is agreed that I may see my children whenever I like. This agreement is made on the 1/5/2001 in the presence of Mrs Lea Valenti…"
47. The Respondent gave evidence that the letter was signed by Mr Williams before he left to work in the bush, and the letter was signed by the Respondent and Mrs Valenti, a neighbour, on 1 May 2001. The Respondent said that she attempted to provide this latter to Centrelink on a number of occasions in order to claim rent assistance, but the letter was returned and the application for rent assistance was refused. She said that the child support payments she received from Mr Williams were reduced to $700 a month from the time she moved into Giles Place until she moved out in 2005, when they returned to about $1,300 a month.
48. The Respondent said that she and her three daughters lived at the property at Giles Place, and that Mr Williams never lived there. He would visit the property every 8-10 weeks, and on some of those occasions would stay overnight for about 3 nights. On one occasion, the Respondent recalled Mr Williams staying for about a week, over the Christmas period. During the times when Mr Williams would stay overnight, the Respondent would stay at her parents' house. He did not keep any clothes or other possessions at the Giles Place house outside the times of his visits. The Respondent assumed that during these times Mr Williams slept on one of two futon couches in the living room. She said Mr Williams would not have slept in her bedroom because she kept that room locked.
49. The Respondent gave evidence that Mr Williams' son, Jason, also lived at the house at Giles Place for a period of about 12 months. The Respondent said that it wasn't her idea to have Jason there, but she agreed that he could stay as it was Mr Williams' house and he wanted his son to have somewhere to live.
50. The Respondent said that there were four bedrooms in the Giles Place house and that she used one bedroom and her three daughters had one bedroom each. During the period when Jason lived at the house he had one bedroom and the two youngest girls shared a room.
51. The arrangement for the Respondent to remain at Giles Place came to an end in March 2005, after Centrelink decided to cancel the Respondent's payments. At that time the Respondent attended an interview and was shown Mr Williams' bank and employment records. When Mr Williams became aware of this he became "very, very cranky". The Respondent understood this to be because she wasn't aware of where Mr Williams was working before that, and she had seen all of his bank account details. The Respondent said that Mr Williams told her to get out of the house. She said that she was in the process of getting out of the house anyway as she had just finished her degree, and moved to another premises in Rockingham. She said that Mr Williams has never lived or stayed overnight at that other premises, and has only come to that premises to pick up the children.
52. The Respondent gave evidence that she was aware that Mr Williams had a Westpac Account. She understood that Mr Williams gave a spare card for that account to Genevieve or Jason and would ask them to pay bills for him, including some child support payments made to the Respondent. The Respondent's evidence was that she had used the card on only two occasions that she could recall. On the first occasion she was selected to go to a conference at Coffs Harbour and Genevieve gave her the card to use for phone calls. The Respondent used the card for about $50 of phone calls at this time. On the other occasion the Respondent took the card from her daughter's drawer to purchase a book at Edith Cowan University. However, on other occasions Genevieve or Jason used the card to pay for expenses which were the Respondent's responsibility. The Respondent said that Mr Williams did not like this, and would take the amounts spent out of the child support payments.
53. The Respondent gave evidence that she had not had a sexual relationship with Mr Williams since 1996. Since that time she has not had any social outings with him of any sort.
APPLICANT'S CONTENTIONS AS TO THE RESPONDENT'S EVIDENCE
54. If the above account of the Respondent is accepted, I have little difficulty in concluding that the Respondent and Mr Williams have been living separately and apart continuously since their separation in 1996. While there has been some cooperation between the two, and in particular assistance offered to Respondent by Mr Williams, since 1996 they have maintained separate finances and each been responsible for their own expenses in the manner discussed above. They have not maintained a common household or, save for one or two occasions, slept under the same roof. The contact between them has been that which is necessary for the Mr Williams to see his children and deal with his child support obligations. They have had no social or sexual relationship, and no continuing commitment to each other.
55. The position of the Applicant was that the Respondent's evidence did not reflect the true position and that I should draw an inference from other evidence that the Respondent and Mr Williams were not living separately and apart from each other during the relevant period. A very important question therefore is whether I accept the evidence of the Respondent as to the nature of the relationship between herself and Mr Williams during the relevant period. For the following reasons I do accept that evidence.
56. Firstly, there was nothing in the evidence of the Respondent which gives me concern about accepting her evidence as a true account. The Respondent's evidence is consistent with the information she gave to the Authorised Review Officer, the evidence she gave to the SSAT and the statement of material facts prepared for the Tribunal on her instructions. The Respondent maintained her position throughout a very aggressive and sustained cross-examination by counsel for the Applicant. I did not find her answers to be "evasive", as the Applicant sought to characterise them.
57. Secondly, the Respondent's evidence was also corroborated in significant respects by other evidence given to the Tribunal.
58. The Respondent's mother, Mrs Newsham, gave evidence before the Tribunal. She confirmed the separation of the Respondent from Mr Williams and the circumstances of the family's move to Western Australia. Mrs Newsham said that while she lived with the Respondent at Aldinga Place and Hercules Street Mr Williams would come to the house but didn’t live there. Mr Williams stayed overnight only once, in Christmas when there was a fight during which Mr Williams slashed the couch and jammed the Respondent's hand in a door. She confirmed the Respondent's evidence as to the circumstances in which the Respondent decided not to participate in the purchase of the property at Giles Place. Mrs Newsham also confirmed that the Respondent would stay at her house when Mr Williams stayed overnight at Giles Place.
59. The Respondent's daughter, Genevieve, also gave evidence before me. Her evidence confirmed the living arrangements described by the Respondent and her use of Mr Williams' Westpac card.
60. I note that the Respondent also called Mr Bemrose, a student friend of the Respondent's from Edith Cowan University. While his evidence was not inconsistent with the account of the Respondent, I did not find it of particular assistance in resolving this matter because the extent of his contact with the Respondent and Mr Williams was not, in my view, sufficient to enable any firm conclusions to be drawn from it.
61. The agreement between the Respondent and Mr Williams dated 1 May 2001 is also a contemporaneous document which supports the Respondent's evidence. The Applicant called Mrs Valenti and, while her evidence was vague in a number of respects, she did recall witnessing the Respondent's signature on the agreement in early 2001.
62. Thirdly, there is no direct evidence to the contrary of the evidence given by the Respondent, her mother and daughter.
63. In that regard, I note that the Applicant sought, and was granted, an adjournment of the proceedings before me on the ground that the Applicant wished to have an opportunity to adduce evidence of persons with direct knowledge of the relationship between the Respondent and Mr Williams. The adjournment was granted on 5 July 2006 and the hearing did not resume until 8 November 2006. Despite being given that opportunity, the Applicant did not call any direct evidence about the relationship. I do not draw any adverse evidence as to what the witnesses anticipated by the Applicant would say from the fact that the Applicant did not call those witnesses. That is I do not, in the circumstances, draw an inference that the witnesses were not called because the Applicant feared to do so. However, the position remains that the Applicant was given ample opportunity to call direct evidence in support of its case, expressed an intention to do so and in the end was either unable or unwilling to adduce that evidence. That background increases the confidence with which the direct evidence by the Respondent and her mother and daughter may be accepted.
64. I should also make specific reference to the failure by either party to call Mr Williams to give evidence before me. The Applicant tendered the statement of Paul Maishman, a Centrelink Officer, who gave an account of a telephone conversation which he had with Mr Williams on 7 July 2006. When the position in relation to the current proceedings was explained to Mr Williams, he responded with words to the effect that the matter had nothing to do with him, that he had nothing to do with the Respondent and that he only wanted to see his kids. Mr Williams indicated that he wished to be paid to go to the Tribunal to give evidence. That evidence adduced by the Applicant is relevant in two ways. Firstly, it explains why the Respondent would not be expected to call Mr Williams. He was antagonistic towards her and would only attend the Tribunal if his expenses and loss of income, which the Respondent could not afford, were paid. Secondly, his reaction to Mr Maishman was entirely consistent with the evidence of the Respondent. While the weight to be given to that evidence is limited by the fact that it was not on oath and the Applicant has not had an opportunity to test it, it is evidence adduced by the Applicant which is consistent with the account given by the Respondent.
65. Fourthly, I do not consider that any of the particular matters raised by the Applicant, by reference to the documentary evidence before me, either individually or taken in combination, provide a reason for rejecting the evidence of the Respondent. I deal with the particular matters raised by the Applicant under the headings below.
Offer to Purchase Property at Giles Place Waikiki
66. The Applicant obtained, and produced to the Tribunal, documents associated with the joint offer of the Respondent and Mr Williams to purchase property at Giles Place, Waikiki, and the application for finance and settlement of the purchase of that property. Included in the documents obtained from Westland Building Society, the financier of the purchase, was a copy of the Respondent's Certificate of Discharge from Bankruptcy on 21 December 1999. Against the date of the discharge someone has written the following note:
"< 2 yrs \ not eligible for K/S loan. Deal to proceed in just Mr W name."
67. The Applicant submits that I should find, principally from the above note, that the only reason why the Respondent did not proceed with the joint purchase of the property at Giles Place pursuant to the original contract dated 8 March 2001 was because the Respondent could not obtain finance. I am not prepared to make that finding, in the face of the evidence of the Respondent and her mother to the contrary, on the evidence relied on by the Applicant. There are a number of reasons why the note could have been written consistently with the Respondent's evidence. For example, it may have been that the Respondent decided not to proceed on other grounds before she was informed of the financier's decision. There was no evidence adduced by the Applicant to show the time at which, or the circumstances in which, the note was written, which show it to be necessarily inconsistent with the evidence given by the Respondent and her mother.
68. The Applicant also relies on the application for a first home owner's grant signed by the Respondent and Mr Williams on 8 March 2001. Firstly, the Applicant points to the fact that the Respondent and Mr Williams both gave their current residential address as the property at Hercules Street, Rockingham. Secondly, the Respondent and Mr Williams both signed a declaration which included the statement:
"I intend to reside in the home that is the subject of this application as my principal place of residence within 12 months of settlement or within 12 months of completion of construction".
69. As to the first of these matters the Respondent's evidence, which was not contradicted by other evidence, was that Mr Williams used her various addresses as his mailing addresses after the separation of the couple. That explains why the Hercules Street address was provided.
70. As to the second matter, the Respondent's declaration was true so far as her situation was concerned. She did not in terms make any declaration about the intentions of Mr Williams. It may be that she was aware that Mr Williams had made an incorrect declaration, but whether the application involved some fraud on the revenue is not a matter for me to determine. It may be that the Respondent did not see or appreciate the significance of this sentence in the documentation which she was asked to sign. That is consistent with the Respondent's evidence that she informed the Keystart officer of her situation, that the documents were completed by the officer and she followed his guidance. Whether or not the Respondent appreciated the false statement made by Mr Williams in the document she signed, that is not necessarily inconsistent with her evidence before me that Mr Williams did not ever live in the property at Giles Street. I am not prepared to reject the evidence of the Respondent on the basis of this documentation.
The Elcom Account
71. The Applicant has identified 11 transactions shown in the Elcom account records in the period 2 September 1999 to 28 February 2001 which "irrefutably occurred outside the metropolitan area". Those transactions do not include transactions at "Scott/Son" which it is submitted took place at Mt Magnet. The Applicant also notes that all deposits to the Elcom account in that period consisted of Centrelink payments payable to the Respondent, save for one deposit of $10.00. The Elcom account was in the joint names of the Respondent and Mr Williams. The Respondent's Centrelink payments were made into this account until February 2001.
72. I note that the total amount of the 11 transactions identified by the Applicant is only $364.15. All but three of the transactions occurred in October to December 1999. The other three transactions consisted of two withdrawals totaling $90, both made in Kalgoorlie on 1 July 2000, and one purchase of $58 made in Mt Magnet on 16 September 2000. I note that the account was in debit for the whole of the period between September 1999 and February 2001, generally in an amount close to the limit of $1,000.
73. I find that at all material times that the Respondent and Mr Williams had a joint liability of the amount owing on the Elcom Account. I find that Mr Williams used the account to make withdrawals or purchases on 11 occasions between 2 September 1999 and 28 February 2001, for amounts totaling $364.15, during which time the deposits made into the account were payments from Centrelink to the Respondent. All but three of those transactions occurred in October to December 1999, two occurred on 1 July 2000 and one occurred on 16 September 2000. There is no evidence before the Tribunal as to the location at which the "Scott/Son" transactions occurred, and I am unable to find that those transactions were by Mr Williams.
74. However, I do not find those facts to be inconsistent with the evidence of the Respondent. The Applicant points to cross-examination of the Respondent when she said that she only noticed that Mr Williams used the account "once or twice". Given the amounts involved, and the concentration of transactions around certain dates, it is perfectly natural that the Respondent would now only recall having in the past noticed the use of the account by Mr Williams on one or two occasions.
75. Further, I am not prepared to accept the Applicant's submission that I should find that the Respondent knew that Mr Williams regularly and frequently used her Centrelink payments. Firstly, the transactions which I have found were performed by Mr Williams can hardly be described as regular or frequent. Secondly, as the account was always substantially in debit, it is not correct to characterise the use of the account as the use of Centrelink payments. The effect of the payment of the Centrelink payments into the Elcom account was to reduce the joint indebtedness of the Respondent and Mr Williams, but that was merely the legal consequence of a payment into a joint account. Mr Williams' use of the account merely created a further joint debt. In any event, I accept the evidence of the Respondent that these amounts were repaid to her by Mr Williams.
The American Express Account
76. The Applicant points to the fact that the application for this account, signed by the Respondent and Mr Williams on 21 July 1999, referred to the Respondent's Bluff Point address as Mr Williams' residential address. As I have noted, the Respondent's evidence explains this by indicating that Mr Williams used her address as his mailing address although he did not live with her.
77. Otherwise the Applicant's submissions note that the Respondent's evidence in relation to this account was given only when matters were put to her. In relation to that I accept the submission of counsel for the Respondent that:
"The Respondent used the American Express card for a period of a few weeks in September 1999 more than 5 years before she was asked to recall that period of her life. There was no reason why she should remember it or its use before it was brought to her attention."
78. From this the Applicant submits that I should use the information about the American Express account to reject the Respondent's evidence and make a finding that both the Respondent and Mr Williams were living in NSW at the time they made an application for an American Express credit card for their mutual and joint benefit. I am quite unable to draw that conclusion from the records relating to this account. That inference is quite inconsistent with the evidence of the Respondent and her mother, and I am not prepared to draw it from the material relied on by the Applicant.
Lease of Property at Aldinga Place
79. The Applicant's closing submission in relation to the evidence about the lease of property at Aldinga Place is fully reproduced as follows:
"The respondent's evidence that Mr Williams provided the lease of this house only really in truth for his children should be rejected. It is not credible when looked at the respondent's evidence as a whole".
80. I find the above passage to be no more than unpersuasive assertion. It is contrary to the Respondent's evidence, which I have accepted.
The Westpac Account
81. The Applicant has prepared a schedule analysing documentary evidence before me which shows that Mr Williams' Westpac account, into which his salary was paid, was accessed on numerous occasions in the Perth metropolitan area at times when Mr Williams was working in remote locations. From this it is sought to establish that the Respondent had unhindered access to the account.
82. The evidence of Genevieve Williams, which was not contradicted by any direct evidence, was that there were three people who had been given access to Mr Williams' Westpac account. Those three people were Genevieve, Jason and, unknown to Mr Williams, Genevieve's boyfriend. While many of the transactions on the account were performed at Mr Williams' request, it is clear that many were not. Genevieve Williams' evidence is a good advertisement for why it is not a good idea for a parent to give their child access to the parents' main bank account. However, all of the direct evidence is that this is what occurred in this case. While I find the arrangement to have been unwise, I do not find it to be so incredible as to convince me that I should reject the Respondent's evidence on that basis. Further, given the number of persons who had access to and used the account, I am not able to make findings as to which of the persons performed particular transactions in Perth while Mr Williams was away.
83. On the evidence before me I find that Mr Williams maintained the Westpac account with the intent that the money in it be for his use to the exclusion of the Respondent. I find that the Respondent was not authorised by Mr Williams to operate the account. I find that Genevieve and Jason were authorised to use the account in a manner approved by Mr Williams, and operated the account both in that manner and in respects not authorised by Mr Williams. I find that where Mr Williams realised that the account had been used, either by Genevieve or the Respondent, for the Respondent's benefit, he deducted the amount used from the child support payments which he owed the Respondent. Those findings are consistent with the evidence of the Respondent, and do not cause me to reject that evidence.
WERE THE RESPONDENT AND MR WILLIAMS LIVING SEPARATELY AND APART ON A PERMANENT OR INDEFINITE BASIS
84. For the above reasons I accept the evidence of the Respondent as to the nature and circumstances of her relationship with Mr Williams. I find that the facts are as described in the summary of the Respondent's evidence at paragraphs 25-53 above, with the additional findings I have made at paragraphs 73 and 83 above.
85. As I have indicated it is clear from all of those circumstances that the Respondent and Mr Williams were living separately and apart on a permanent or indefinite basis at all times after late 1996. It follows that they remained living separately and apart on a permanent or indefinite basis for the whole of the relevant period between 8 September 1999 and 3 December 2004. I reach that conclusion having regard to the factors identified in s. 4(3) of the Act in the manner discussed below.
Financial Aspects of the Relationship
86. The facts which I have found above show that the Respondent and Mr Williams did not, during the relevant period, have joint ownership of real estate or other major assets. They did have a joint liability, namely the debt in the vicinity of $1,000 owed to Elcom described above. The amount of the liability was not significant, and does not affect the general position that the Respondent and Mr Williams separately arranged their finances in the manner described above.
87. I am unable to find that there was any significant pooling of financial resources, in the sense described by French J in Pelka, during the relevant period.
88. The legal obligations between the Respondent and Mr Williams were rather informal, generally not carefully documented and therefore not easy to define with precision. Mr Williams had an obligation to pay child support to the Respondent in the amount of around $1,300 a month. It was agreed that during the period when the Respondent was staying at Giles Place, the amount of that liability was reduced to $700 a month. The Respondent and Mr Williams proceeded on the basis that the Respondent was liable to repay the funds used from Mr Williams' Westpac account for her benefit. The amounts incurred by the Respondent on Mr Williams' American Express card in 1999 were deducted from the amount of child support payments which Mr Williams then owed the Respondent. The amounts withdrawn by Mr Williams from the Elcom account during the period when the Respondent's Centrelink payments were being deposited into that account were at least generally repaid by Mr Williams to the Respondent. Those financial arrangements indicate that the parties separately conducted their finances.
89. I find that the Respondent did not contribute to Mr Williams' household expenses in any significant manner. The only evidence of a contribution by the Respondent was in relation to the occasional use of the Elcom account by Mr Williams prior to February 2001. As I have noted:
(a)the amount involved was not significant;
(b)the result was to increase the joint liability of the Respondent and Mr Williams, which remained outstanding when the Respondent ceased principal use of the account in February 2001; and
(c)the amounts were at least generally repaid by Mr Williams to the Respondent.
90. I find that the basis on which Mr Williams contributed to the Respondent's household expenses was as follows:
(a)Mr Williams provided the American Express card to assist the Respondent with moving expenses in 1999, on the basis that the amount used would reduce his outstanding liability to pay child support;
(b)Mr Williams provided bond money and arranged for the connection of utilities at the house at Aldinga Place, and obtained the lease in his name on the basis that the Respondent would be responsible for payment of rent and other day to day outgoings;
(c)Mr Williams made payments of child support to the Respondent in the manner indicated above;
(d)Mr Williams allowed the Respondent and their children to live in the Giles Place house in return for a reduction in his child support liability and, for a period of 12 months, on condition that his son Jason also be allowed to reside at the house; and
(e)Funds from Mr Williams' Westpac account were used for the Respondent's household expenses, generally without Mr Williams prior authority, and Mr Williams regarded the Respondent as being responsible for repayment of those amounts either directly or by a reduction in Mr Williams' child support liability.
91. The above facts show that the Respondent and Mr Williams generally had separate finances, subject to the obligations which might be expected of a separated couple, and regarded themselves as liable to one another in respect of money used for the benefit of the other. While there is evidence of some financial cooperation, it is the kind of cooperation which is not inconsistent with their living separately and apart on a permanent or indefinite basis.
Nature of the Household
92. I find that there was no common "household" of the Respondent and Mr Williams during the relevant period. I find that they did not reside at the same address since separating in late 1996. Putting aside one or two occasions, they have not slept under the same roof since that time. While they shared some responsibility for the care of their children, the nature of that arrangement is consistent with that of a separated couple. There was no evidence of any significant sharing of responsibility of housework.
Social Aspects of the Relationship
93. The Respondent and Mr Williams do not make plans for, or engage in, any social activities together. The only exception to that rule which the evidence discloses is that they have on some occasions spent Christmas with each other. However, that has simply been to enable both the Respondent and Mr Williams to spend time with their children, and on the occasion it occurred in Christmas 1999 there was a violent fight which led to the police being called and Mr Williams departing.
94. In reaching the above conclusion I have taken account of the evidence of Mr Bemrose that he saw the Respondent and Mr Williams together in a crowd after the Respondent's graduation ceremony. The Respondent was not asked about this. Genevieve Williams gave evidence that Mr Williams did not attend the graduation ceremony but was there after the ceremony to pick up the Respondent, Genevieve and her sisters and drive them home. That evidence of Genevieve Williams, which I accept, is consistent with the evidence of Mr Bemrose and shows that Mr Williams did not attend the graduation ceremony.
95. I also note that Mr Bemrose gave his evidence before the luncheon adjournment, and Genevieve gave her evidence after the luncheon adjournment, on 9 November 2006. Counsel for the Applicant put to Genevieve in cross-examination that Genevieve and the Respondent had discussed Mr Bemrose's evidence over the luncheon adjournment. Genevieve denied that suggestion, and was supported in that denial by the evidence of Ms Beaumont, the Respondent's advocate who had lunch with Genevieve and the Respondent. I accept that the evidence of Mr Bemrose was not discussed with Genevieve over that luncheon adjournment.
96. There is little evidence before me as to the assessment of friends and regular associates as to the nature of the relationship between the Respondent and Mr Williams. Such evidence as there has been presented is to the effect that the Respondent was regarded as either single or separated from her husband. That was the effect of the evidence of Mr Bemrose, as well as forms completed by a Dr Gadre and a Ms Singleton.
97. Finally, s. 4(3)(c) of the Act specifies that I should have regard to whether the Respondent and Mr Williams held themselves out as married to each other. The facts found above include instances where those parties have held themselves out as married. However, that simply reflects the fact that they are in fact married to each other. I regard this factor as being of greater relevance to the issue, which arises in cases under s. 4(2)(b)(iii) of the Act, as to whether the parties are in a marriage-like relationship. When the question is whether persons who are legally married to each other are living separately and apart on a permanent or indefinite basis, there must be a limit to the weight to be given to whether the persons hold themselves out as married.
98. A question which I would regard as being of greater significance is whether or not the Respondent and Mr Williams held themselves out as separated. To the extent that there is evidence of this in a social setting, it tends to show that the Respondent and Mr Williams have held themselves out as separated. However, in a business setting there have been a number of occasions where the Respondent and Mr Williams have held themselves out as living with each other. The application for the American Express card, the application for a first home owner's grant and the representation made by the Respondent to the estate agent when trying to rent a house in 1999 provide illustrations of such a representation being made. However, I find that these representations were either made to accommodate Mr Williams' use of the Respondent's address as his mailing address, or to gain some other benefit. On the facts as I have found them those representations made in a business setting do not reflect the true state of the relationship between the Respondent and Mr Williams.
99. Taken as a whole, I regard the social aspects of the relationship between the Respondent and Mr Williams as strongly suggesting that they were living separately and apart on a permanent or indefinite basis.
Sexual Relationship
100. The Respondent and Mr Williams have not had a sexual relationship since they separated in late 1996.
Nature of the Commitment to Each Other
101. Despite separating in late 1996, the Respondent and Mr Williams have made no attempt to divorce each other. The reason for this appears to be inertia and a desire to avoid the costs of divorce, rather than any commitment of the two parties to remain married. The evidence of the Respondent in cross-examination was that her children went to Catholic schools, that she also did not want to pay for the cost of a divorce, but that if she found someone she would certainly be remarrying. She said that she and Mr Williams had three children together and that was as far as the relationship goes.
102. Based on that evidence, I find that the Respondent and Mr Williams do not have, and have not since 1996 had, any commitment to each other. They do not provide each other with either companionship or emotional support, see their relationship as involving only their children and regard themselves as separated.
Conclusion
103. Having regard to all of the above matters, it is my view that at all times since late 1996 the Respondent and Mr Williams have been living separately and apart from each other on a permanent or indefinite basis. It follows, for the above reasons, that the SSAT was correct to set aside the decision of the Applicant's delegate.
104. In reaching this conclusion, I have considered the composite picture of the relationship between the Respondent and Mr Williams at the relevant time. While I have had regard to the particular matters identified in s. 4(3) of the Act in the manner described above, I have recognised that those matters, and the list of factors relating to each matter, are non-exclusive. In respect of each of those matters and factors I have considered whether there are any other factors relevant to the judgment I am required to make and, where I have concluded that there are other factors, had regard to them in the manner described above.
DECISION
105. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 105 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed:………......[Sgd Ms C Skinner]........................
AssociateDates of Hearing: 5 July 2006, 8-9 November 2006,
10 January 2007
Date of Final Written Submissions 17 January 2007
Date of Decision 19 September 2007
Representative for the Applicant Ms K Beaumont (5 July 2006)Mr H Christie (8-9 November 2006,
10 January 2007)
Representative for the Respondent Ms N Owen-Conway (5 July 2006,
8-9 November 2006)
Mr S Ferguson (10 January 2007)
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