Wilson; Department of Family and Community Services - [2000] AATA 1077

DECISION AND REASONS FOR DECISION [2000] AATA 1077

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1185

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
  Applicant
           And    SUSAN WILSON
  Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member

Date7 December 2000
PlaceMelbourne

Decision      The Tribunal sets aside the decision under review and remits the matter to the Secretary for reconsideration in accordance with the following directions: (i)          that the total amount of supporting parent's benefit, sole parent's pension and sole parent pension paid to Mrs Wilson between 19 February 1987 and 15 August 1999 ("the relevant period") be recalculated; and (ii)       that the total amount paid to Mrs Wilson during the relevant period less any amount already recovered be raised and recovered as a debt due by Mrs Wilson to the Commonwealth.
  (Sgd) Joan Dwyer
  Senior Member

SOCIAL SECURITY – supporting parent's benefit, sole parent's pension and sole parent pension - whether married couple living separately and apart - financial aspects of the relationship - nature of the household - social aspects of the relationship - whether any sexual relationship between the people - nature of people's commitment to each other - decision set aside
PRACTICE AND PROCEDURE - need for review of procedures for administrative decision-making within Centrelink - need for identifiable original decision
Social Security Act 1947 ss 3A, 53(1), 54
Social Security Act 1991 ss 4(2), (3), (5), 249(1), 1224(1)

REASONS FOR DECISION

7 December 2000 Mrs Joan Dwyer, Senior Member

This is an application by the Secretary DFACS ("the Secretary") for review of a decision of the Social Security Appeals Tribunal ("SSAT") made 3 September 1999 setting aside a decision to raise and recover a debt being supporting parent's benefit, sole parent's pension and sole parent pension paid to Mrs Susan Wilson under the Social Security Act 1947 ("the 1947 Act") and the Social Security Act 1991 ("the 1991 Act") for the period 19 February 1987 to 1 August 1991.
The original decision is described in a reconsideration dated 23 March 1999 (T49 p161) and by the SSAT in its reasons, as having been made on 23 March 1999. That is puzzling as T44 pp133–144 is a submission and recommendation by Mr Moxom and Ms George of 23 March 1999. It is not possible to find a document showing who made the decision to accept that recommendation or when the decision was made, but Mr Moxom in the reconsideration which is also dated 23 March 1999 says that he made the original decision. This gives rise to some concern about the decision-making procedures within Centrelink. It appears that Mr Moxom was the investigating officer who made a recommendation, the decision-maker who accepted the recommendation and the officer who reviewed that decision. As there is no identifiable original decision that unusual scenario can not be confirmed or disproved.
I commented on the lack of an identifiable original decision in Re Newton and Secretary, Department of Family and Community Services [2000] AATA 349 and in Re Secker and Secretary, Department of Family and Community Services [2000] AATA 290. The comments made in those matters are equally applicable here (see Re Newton paragraphs 36–41, Re Secker paragraphs 1–18). I will not repeat them save to say, as I did in those matters that once a decision has been made and affirmed, an applicant must be entitled to review that decision. This matter is however different as the original decision to raise and recover a debt from Mrs Wilson was affirmed by an authorised review officer ("ARO") (T55), but set aside by the SSAT. Thus it is the Secretary who seeks to review that decision, even though it can not be identified in the T documents. I have considered whether there should be the same flexible attitude on the part of the Tribunal where slack administrative procedures lead to difficulty identifying a reviewable decision, even where the applicant for review is the Secretary. I have concluded that the failure on the part of Centrelink officers to clearly identify or correctly locate the original decision should not deprive either the Secretary or Mrs Wilson of review rights. Had I concluded otherwise that may have been a powerful incentive to Centrelink to improve its decision-making procedures. Such a review is clearly necessary.
Mr J Lenczner of Counsel appeared for the Secretary. Ms M Stavrakakis of Counsel appeared for Mrs Wilson. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 together with the exhibits tendered by the applicant. The applicant called Mr Wilson and Dr Sawyer, who is Mr Wilson's sister. She gave evidence over the telephone from the U.S.A. The applicant also called Mrs Taylor, another sister of Mr Wilson, who lives in New South Wales and also gave telephone evidence, and Mr Moxom, an employee of Centrelink. He gave evidence partly over the telephone. Mrs Wilson gave evidence and Mr Barker gave evidence on her behalf.
history of the application
On 13 February 1987 Mrs Wilson lodged a claim with the Department of Social Security ("DSS") for Supporting Parent's Benefit giving the date of separation from Mr Wilson as 2 February 1987 (T4). On that form Mrs Wilson put her residential address as 343 Frankston-Dandenong Rd, North Frankston, and that of her ex-spouse as 343/B Frankston-Dandenong Rd, North Frankston. The Interview Record dated 26 February 1987 (T5) records that Mrs Wilson said that her husband left the marital home on 2 February 1987 and now resided in the bungalow at the rear of the property "whilst he finds alternate accommodation". The reason for separation was given as "husband's violence". Mrs Wilson made a statement which reads:
I Susan Wilson hereby state that I have no other income or assets than those advised on this form. The separation from my husband occurred due to his violence. He now resides in a bungalow at the rear of our marital home. He does not support us financially as I no longer perform any domestic duties for him as when we were living together. He is looking for other accommodation and intends to move out. He is currently paying the mortgage on our home but I will take over the payments which will be reduced by the Ministry of Housing once I am granted a pension. I will advise if we reconcile or I change my address. I have read the above and find it true in every detail.

By letter dated 9 March 1987 Mrs Wilson was informed by DSS that she had been granted a supporting parent's benefit of $270.40 a fortnight commencing from 19 February 1987 (T6).

Mrs Wilson completed reviews as required and continued to receive supporting parent's benefit until 1 March 1989 when as a result of s 43(3) of the Social Security Legislation Amendment Act 1988 the payment became known as sole parent's pension. After the passing of the 1991 Act the payment was known as sole parent pension. Mrs Wilson's payments were cancelled at her request from 15 August 1991 because she had advised DSS that from 3 August 1991 she would be commencing a defacto relationship with Les Warhurst (T29).
Centrelink took over most of the functions of DSS from 24 September 1997. On 3 February 1999 Mr Wilson made a statement to Centrelink saying that he and Mrs Wilson had been living together as husband and wife at the matrimonial home throughout the period Mrs Wilson had been receiving supporting parent's benefit. His statement (T38 pp120-122) reads in part as follows:
…I wish to declare to Centrelink that my ex-partner, Susan Wilson, was incorrectly receiving the sole parent pension whilst living with myself as husband and wife. I believe that she received this pension from sometime in 1987 through to 1989. During this time we resided together at 343 Frankston - Dandenong Road in Frankston North. We have lived together at this address from when we purchased it in 1986 through to when Susan left in 1998. At no time during this period were we separated.
….
I had never had to pay any maintenance whatsoever. There is no court order of child support agreement/assessment made in the period of 1986 - 1998. I can confirm that Chris Painter did reside with us for a period of approximately 12 months in 1987. Chris lived out the back in our bungalow and paid us $40 per week board and lodgings. In relation to Darren Moulder, he has never resided at our address. I believe that there is no such person as Darren Moulder. I am of the belief that this name has been constructed … I can say that I have never lived at any other address since 1986 apart from 343 Frankston-Dandenong Rd. The resident[s] of 6 Aurea Court is [sic] Peter and Maria Vasilio. … I have never resided at the back in the bungalow at any time. I have always lived in the house. ..
Mrs Wilson was again interviewed. Extensive investigations were undertaken. On or about 23 March 1999 a decision seems to have been made to raise and recover a debt. Neither the date of making the decision nor the precise amount of the raised debt are set out in the T documents. Nor is there any written notice to Mrs Wilson of the making of the decision. It is referred to in two reconsiderations (T49 and T55).
The question for this Tribunal is whether or not Mr and Mrs Wilson were living "separately and apart" during the time Mrs Wilson was paid supporting parent's benefit and sole parent pension. This matter comes down to a question of credibility. The Tribunal has to decide whether it prefers the evidence of Mrs Wilson or that of Mr Wilson. I have concluded that Mr Wilson's evidence is more reliable than that of Mrs Wilson. This is to a significant extent because of the extensive corroboration from his sisters, from photographs and from his financial records. Additionally Mrs Wilson has changed her story many times and has also acknowledged that she lied to Centrelink but claimed that she did so because she needed money. Accordingly the decision of the SSAT will be set aside. The original decision seems to have found there was a debt of $30,668.20 representing all payments made between 9 March 1987 and 31 July 1991. The reconsideration decision of the ARO extended the period from 19 February 1987 to 1 August 1991. In fact it seems from T30 p86 that payments continued to 15 August 1991. However the increased period of payment of approximately three weeks starting from 19 February 1987 and finishing on 1 August 1991 seems to have increased the amount of the debt by almost $6000 to $36,619.50. That seems an unduly large difference bearing in mind that payment at the time of grant was stated to be $270.40 a fortnight (T6). Thus I propose to remit the matter to the Secretary with a direction that the debt be recalculated.
the relevant legislation
At the time Mrs Wilson claimed supporting parent's benefit the claim was made under the 1947 Act. That Act was repealed and replaced the 1991 Act which came into operation on 1 July 1991. Thus both Acts are relevant. When Mrs Wilson claimed supporting parent's benefit on 13 February 1987, s 54 of the 1947 Act provided that a person was qualified to receive supporting parent's benefit if that person was "a supporting parent in relation to a dependent child". The definition of "supporting parent" in s 53(1) included a requirement that the person be an "unmarried person". That term was defined to include:
"a married person who is living separately and apart from his or her spouse."
From 1 January 1990 the 1947 Act was amended by the Social Security and Veterans' Affairs Legislation Amendment Act (No. 3) 1989 (No. 163 of 1989) to provide in s 3A a list of circumstances to which the Secretary was to have regard in forming an opinion about the relationship of two people for the purposes of the definition of a "married person".
As already explained, from 1 March 1989 the supporting parent's benefit was changed to sole parent's pension. In the 1991 Act the term "sole parent pension" replaced "supporting parent benefit". The qualifications in s 249(1) of the 1991 Act for "sole parent pension" included:
(a)the person
(i) is not a member of a couple

The term "member of a couple" was defined in s 4(2) of the 1991 Act to include a married person who "is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent basis". Subsections 4(3) and 4(5) of the 1991 Act provided as follows:

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) . . . 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.

(5) If:
(a) a person claims, or is receiving, sole parent pension; and
(b)a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c)the claimant or recipient and the other person are legally married to one another; and

(d)       the claimant or recipient and the other person:
(i)        are living separately and apart on a permanent basis; or
(ii)        claim to be living separately and apart on a permanent basis;

the Secretary must not form the opinion that the claimant or recipient is living separately and apart from the other person on a permanent basis unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is living separately and apart from the other person on a permanent basis.

application of legislation

Thus the issue is whether Mr and Mrs Wilson were living separately and apart from 19 February 1987 to 15 August 1991. Mrs Wilson said they were in her original claim. and in the subsequent review forms. The SSAT in its reasons said that when Mrs Wilson appeared before the SSAT with her Counsel, Ms Stavrakakis she said that she had lied to the field officer and in her review forms when she had said that her husband had left the address. She said they were separated under the one roof because she could not get him to move out of the house.
Section 4(5) of the 1991 Act imposes a form of reverse onus on a recipient of "sole parent pension" if a particular residence has been the principal home of the recipient and a person of the opposite sex for at least eight weeks, and the recipient and the other person are legally married to another and:
(d)       the claimant or recipient and the other person:
(i)        are living separately and apart on a permanent basis; or
(ii)       claim to be living separately and apart on a permanent basis;

The circumstances of paragraph (d) are not fully met here. Mr and Mrs Wilson do not both claim to have been living separately and apart on a permanent basis at the relevant time. Mrs Wilson makes that claim, Mr Wilson claims that they were at the relevant time living together as a couple. In those circumstances as paragraph 4(5)(d) is not satisfied, I consider that s 4(5) has no application to this matter. Thus in order to succeed the Secretary must satisfy the Tribunal on the balance of probabilities that at the relevant time Mrs Wilson was living with Mr Wilson as a member of a couple and thus that Mrs Wilson was not at the relevant time an "unmarried person".
hearing before the ssat

In order to put the account Mrs Wilson gave to the SSAT into context it is necessary to briefly refer to the many statements Mrs Wilson had previously given to field officers. On 6 May 1987 Mrs Wilson was visited by a field officer who recorded the following information (T10):
..She stated A/N'S husband will be moving to 6 Aurea Crt, Frankston, with friends on 9/5. A/N states no action Re: settlement on maintenance has been taken at this stage but stated she will be moving from A/A soon as she will not be able to meet the mortgage repayments of $410-00 per month. She states she will advise of COA, maintenance & any other changes in her circumstances should they occur. Suggest continue payment at this stage with a further review in 6 months.
During the relevant period Mrs Wilson at different times notified DSS that she was sharing accommodation with three different lodgers or friends. On 5 January 1988 she notified DSS that she had a lodger, Mr C Painter, who had been residing at 343 Frankston-Dandenong Rd since November 1987. She stated that he was a 20 year old student at Frankston Technical College, he contributed $60.00 a week for board and lodging, and also contributed towards the bills (T15). In the next three review forms lodged 8 April 1988 (T17), 5 July 1988 (T18), and 16 December 1988 (T19), Mrs Wilson answered "No" to the question "Do you share accommodation with anyone other than your children?" In the review form lodged 10 March 1989 (T20) Mrs Wilson stated that she shared accommodation with a friend, Phill Barker. In the following form, lodged 1 June 1989 (T21), Mrs Wilson stated that she shared accommodation with "Darren Moulder, Friend".
The statement Mrs Wilson signed on 2 March 1999 when she was interviewed by Mr Moxom, after Mr Wilson had made his statement, reads as follows (T42 p130):
I wish to make the following voluntary statement to Centrelink I know that I can write this statement myself, but prefer that an officer of Centrelink write it for me. I am aware that I am able to have someone with me, including a legal representative whilst I make this statement, but I am happy to make one at this time. I am aware that there are penalties for giving false and misleading information. I have been made aware of the allegations made against me. I wish to declare the following information to Centrelink. I notified Centrelink that my ex-partner Mark Wilson was living in the spare bedroom when I first applied for sole parent pension. Mark then moved out into the bungalow out the back. Mark finally moved out of 343 Frankston-Dandenong Rd, around 1989 to 1990. He informed me that he was now living in a caravan park in Springvale Road, Springvale. During this time Mark had also lived with family and friends. Mark told me he had lived at 6 Aurea Crt, Frankston. I have been told that the residents of this address have never heard of Mark. I am unable to explain their responses. During the time of 1987 to 1991, I did work at Sage's Cottages for a short period. I believe that I did have Mark listed as an emergency contact. This would have been because of Monique. There were times when Mark did drive me to work. We originally broke up when Mark purchased the car. As he bought it on hire purchase. I believed that we could not afford it. The car repayments were made by Mark. All of the house payments were made by me. I would also pay the electricity bill. Mark would pay for the water, and we would usually split the phone bill. I would purchase all the weekly food shopping for myself, Monique and Mark if he was living there at the time. … .
… Mark would spend up to two weeks away from the house. This would occur around five times per year. During this time, Mark and I attempted several reconciliations but the most they would last was a couple of days and then he would be back in the spare room. My reason for claiming sole parent pension, was that as Monique was not Mark's biological daughter, he would not provide any financial support for myself or Monique. I was not getting any child support from Monique's natural father Michael. Mark and I finally reconciled in approximately 1991 and I notified Centrelink that I had a new boarder named Les. Les and I commenced living together as a member of a couple, a couple of months after he commenced living at my address. I am not sure if I notified Centrelink of this. Before I sign this statement, I wish for my lawyer to look over it. I realise that I can make my own statement with the assistance of my lawyer. I have been given a copy of this statement. The above statement has been read to me aloud and to my knowledge is true and correct. I am aware that there are penalties for giving false and misleading information.

In that statement Mrs Wilson maintained the position that she and Mr Wilson had separated when she first applied for the sole parent pension. She did refer to her and Mr Wilson having attempted "a couple of reconciliations", but she said "the most they would last would be a couple of days and then he would be back in the spare room." Her account of the reconciliation in 1991 is confusing. It implies, but does not make it clear that Les, who she described as a "new boarder", was in fact a fiction.
Mrs Wilson abandoned that account when she appeared at the SSAT. Instead she told the SSAT that she and Mr Wilson had been living separately and apart under the one roof and that she had lied to DSS and Centrelink officers because she did not believe they would accept that she and Mr Wilson were living separately and apart under the one roof. She gave detailed evidence as to the circumstances of their living arrangements. The SSAT did not hear from Mr Wilson. It made findings in accordance with Mrs Wilson's evidence.
evidence before the aat
I heard evidence from both Mr and Mrs Wilson and their witnesses. There was a dispute between them as to the early days of their relationship. Mrs Wilson said that Mr Wilson was definitely not Monique's father as she had been about three months pregnant when she met him in 1982. Mr Wilson denied that and said Mrs Wilson became pregnant at about the time they met, and he could have been Monique's father, and had treated her as his daughter from her birth. Monique was born on 9 May 1983. Mrs Wilson agreed that the relationship between Monique and Mr Wilson was very good from 1983 until 1987. Mrs Wilson said (trans. p97):
I mean they were very close. He would even have baths with her even though he wasn't the biological father, he would take her out, he would tickle her, cuddle her, all those normal sort of fatherly things and that started to deteriorate.
Mr and Mrs Wilson were married on 27 April 1985. They had been living together from 1983. At first they rented a place in Glenhuntly. Then in 1986 Mrs Wilson's father paid the deposit for a house they bought at 343 Frankston-Dandenong Road. For the first years it is not in dispute that they were very happy and Mr Wilson had an excellent relationship with Monique.
Mrs Wilson said that trouble first arose about the mortgage payments. She said: (trans. p97)
Sometime after that, maybe a year after heavies came over, you know, breaking the door down or bashing on the door saying: what's happening with the house payments, the house hasn't been paid for, you've missed the house payment. When I confronted Mark about it he said he bought a video and thought he had more money in the bank than he did. So that was that. A couple of months went by, more heavies came around and said: you're late with the repayments and now you owe us this interest. Well that was the end, that's when I just said: this is ridiculous, I'm lonely, I had to sit at home from six in the morning until 1 o'clock in the morning because he'd go out after work and if he wasn't playing squash he could have been at his girlfriend's place or anywhere, I have absolutely no idea where he was and yes, that was it. I mean he couldn't pay for the house and we didn't have a roof over our head and to me that was the whole basis of me marrying him was for him to support me and my daughter.
The matters which are required to be considered under s 3A of the 1947 Act from January 1990, and also under the 1991 Act, are also relevant as to the earlier period in considering whether Mrs Wilson was living separately and apart from Mr Wilson under the same roof after 13 February 1987. I will therefore consider the evidence under those headings.
(a) the financial aspects of the relationship
(i)any joint ownership of real estate or other major assets and any joint liabilities

the house

From the start of the relevant period Mrs Wilson and Mr Wilson jointly owned their home and had a joint mortgage liability. He was working full-time and I find that he was making mortgage payments from his earnings. I find that his failure on two occasions to keep making regular payments did precipitate a crisis in the marriage. Mr Wilson did not dispute that he was bad at living within a budget, but surprisingly he is excellent at keeping financial records. He produced a large number of bank records which showed all the house mortgage payments. They established that during part of the relevant period those payments had gone by direct debit from his salary to the Bank of Melbourne, or later Westpac, but difficulties arose when there was not enough money in the account for the direct debit. From his records that seems to have happened first in August 1986 (trans. p180) and for the second time in February 1987 (trans. p193). On each occasion there was then a double or substantially increased payment the following month, i.e. in September 1986 and March 1987.
Mr Wilson brought to the hearing bank statements relating to a number of different Westpac joint accounts and also a Commonwealth Bank joint account and RESI and Bank of Melbourne joint accounts relating to the relevant period (A1). He also produced copy pay advices showing the payments to the Bank of Melbourne, in respect of the mortgage. There are Westpac direct debits of $250 per fortnight showing on the pay packets, at least from 15 February 1989 to 3 January 1990. In 1988 the amounts were larger, for instance, $779 to Westpac from the nett pay of $800.79 for 8 June 1988, $593.22 to Westpac from a net pay of that amount on 27 April 1988. Mr Wilson said those were not all mortgage payments, but they were payments to the account from which the mortgage payments were made.
Mrs Wilson told Mr Moxom on 2 March 1987 that she claimed supporting parent's benefit because Mr Wilson would not provide any financial support for her or Monique. She said "All of the house payments were made by me." I find that is not the case. The payments were made by Mr Wilson from his salary. Mrs Wilson also said that Mr Wilson gave her $100 a month towards the mortgage payments she made. When Mrs Wilson was told during the hearing that there was evidence in the accounts before the Tribunal showing that direct payments were made from Mr Wilson's salary for the mortgage, she said that he paid it but she would reimburse him. I do not accept her evidence on this issue.
the car
Another joint asset and joint liability was the car. I find that once again it was a source of friction. In her statement of 2 March 1999 Mrs Wilson said: (T42 p130)
We originally broke up when Mark purchased the car. As he bought it on hire purchase, I believed that we could not afford it. The car repayments were made by Mark.
Mr Wilson agreed that the Toyota Corona station wagon was purchased on Monique's birthday, 9 May, in 1987 (trans. p15). He said that the arrangement between them before it was purchased had been that Mrs Wilson, who worked part-time as a waitress and as a musician, would make repayments on the car. After a time he became suspicious about how quickly the car was being paid off and learnt that Mrs Wilson had been claiming sole parent pension and using it to pay the car loan. He stated (T38 p120):
In order to stop Susan receiving the pension we took a loan off my sister, Phillipa Sawyer, for $12,500. With this money we paid out the car loan. After this had been done, Susan attended Social Security to cancel her pension.
Mrs Wilson said that she "cracked" when Mr Wilson came home about Mothers' Day or her daughter's birthday in May 1987 and said "I've bought a car." She said that she asked how he could do that as "you're basically declared a bankrupt. I mean all of your Mastercard and Visa are full. Who would give you a loan?" Mr Wilson told her that he had bought it on hire purchase through AGC. Mrs Wilson said that she rarely used the car and that she knew nothing about her sister-in-law, Dr Sawyer, ultimately repaying the car loan.
Dr Sawyer in her evidence confirmed that in about 1990 Mr Wilson had approached her for help in making the car payments. She said that he told her that he had discovered that Mrs Wilson was receiving a single parent's benefit and he was "encouraging Sue to discontinue receiving the benefit". She said he explained that one of the problems was that Mrs Wilson would not be able to make the car payments without the benefit. Dr Sawyer said that she agreed to make some payments but that proved inconvenient and so she just paid out the car obligation. She said the amount was somewhere around $10,000.
(ii)any significant pooling of financial resources especially in relation to major financial commitments
Mr Wilson said that throughout the relevant period he and Mrs Wilson lived together as husband and wife and pooled their resources. As he was working full time and Mrs Wilson was only working part-time he paid the house mortgage and other bills and she used her money towards contributing to food shopping and paying off the car at the rate of $100.00 a week. Those matters are further dealt with in paragraph 33 of these reasons.
(iii)any legal obligations owed by one person in respect of the other person
There is no evidence relevant to this matter.
(iv) the basis of any sharing of day-to-day household expenses
In her evidence, Mrs Wilson, at first said that she was not working during the marriage, even part-time. Later she said she did some cleaning for which she was paid cash. On the second day of hearing she stated that she played in a band for which she was paid about $20 to $60 a time, and that she worked at Sage's Cottage as a waitress for about four years, for approximately three days a week later reducing to one day a week. She said she earned $100–$150 a week. Mrs Wilson said that prior to February 1987 she had access to joint accounts and she bought the food shopping for the family, although sometimes on Mr Wilson's rostered day off they would go shopping together. She said Mr Wilson cooked sometimes and helped in the household when he was around on week-ends. She said that after February 1987 this changed.
Mr Wilson said that he continued to pay household expenses out of various bank and credit card accounts throughout the relevant period. Unfortunately no analysis of the accounts he produced had been prepared for the Tribunal by or on behalf of the applicant. This made it difficult for the Tribunal to obtain an overall picture as to the payment of household expenses. However there is evidence from which I find that throughout the relevant period Mr Wilson was paying gas, electricity, telephone and rates accounts. He produced Bank of Melbourne records for payment of telephone bill, Gas and Fuel Corporation and State Electricity Commission and also Mornington Peninsula District Water Board rates (A2). Mr Wilson also had a file of receipts for electricity, gas, telephone and council rates he had paid (A4). Further Mrs Wilson agreed that the financial transactions were all handled by Mr Wilson (trans. p195).
Mrs Wilson said that during the relevant period she did all the food shopping and that if Mr Wilson bought food it was only for his squash pals every second week. Mr Wilson produced a number of Eftpos receipts from Woolworths which he said related to food purchases. Mr Wilson agreed that when he was playing competition squash there was usually an at home game once a fortnight and that each of the players would bring a plate of food for the supper. But he denied that all the groceries he bought at Woolworths were for the squash fortnightly suppers. He said that the amounts indicate that obviously there would be groceries there for the family. He said he would buy food and put it in the cupboards at home and in the refrigerator and they would all eat it. He said his wife rang him at work and asked him to buy food for the home many times. I accept Mr Wilson's evidence and find that pooling of financial resources continued during the relevant period.
(b) the nature of the household, including:
(i)any joint responsibility for providing care or support of children
Mrs Wilson claimed that from February 1987 Mr Wilson would not provide care and support for Monique. He denied that and said he was always willing to be a father to Monique and provide care and support for her. He said that he never questioned whether he was Monique's father, he was happy to be her father, "whether I was or wasn't". He said he never paid any maintenance for her because he was living in the house with her and her mother as a family. Mr Wilson said that he would walk Monique to school on his rostered day off. On other days he had left for work before she went to school and Mrs Wilson walked her.
There was evidence that Mr Wilson took Monique with him when he went to coach squash on Sunday mornings in 1990 or 1991. He said she found the boys too boisterous. Mrs Wilson and Monique, in a statement included in the T documents, (T159–160), made some complaint about this saying that Monique had not enjoyed going to squash with Mr Wilson. However, even if that is so, it does show that Mr Wilson was accepting the responsibility of providing care for Monique. Mr Wilson said that during the relevant period on occasions over the weekend he and Mrs Wilson and Monique would go picnicking, or go to Sherbrooke Forrest or go to the beach.
It was put to Mr Wilson by Ms Stavrakakis that he would leave for work at six in the morning and only be back at about 1.00 am most nights, having gone straight from work to squash. He said (trans. p66):
It would vary on when I'd get back depending on whether I caught the train, was in the car pool. I finished work at Parkville at 4.40, by the time I get to the car it was nearly five, by the time I got to Frankston it was six. I'd then either bath Monique, feed her, serve dinner, make dinner, whichever was the case on the night, put her to bed, read a story every night at that time.
MS STAVRAKAKIS: What period are we talking about?---'87 to '91.
All right?---Monique was only four …. I wasn't allowed to go out to anything unless I put her to bed.

Mr Wilson said that after he had put Monique to bed he would go out if he was playing squash that night but that would only be one or two nights a week depending on which year it was.

Dr Sawyer said it was her view that Monique and Mr Wilson had a "very, very good relationship until she hit the teenage years" (trans. vol 2 p137). Dr Sawyer produced copies of three very happy photographs she had taken of Mr Wilson, Monique and Mrs Wilson in the Exhibition Gardens in Melbourne in 1986 or 1989. They show an apparently happy family. She said that the relationship between Mr Wilson and Monique did not breakdown so far as she was aware until the 1990's when Mrs Wilson told Monique that Mark was not her natural father. Prior to that, in about 1993 Dr Sawyer had done all Monique's orthodontic work and had subsequently paid airfares for Monique to travel to Sydney to see her for adjustment to her orthodontics. Dr Sawyer also in the 1990's had offered to pay private school fees for Monique.
I accept the evidence of Mr Wilson and Dr Sawyer and find that during the relevant period Mr Wilson accepted joint responsibility for providing care and support of Monique. I find that Mr Wilson was happy to be Monique's father and that he cared for and treated her as his daughter and in no way paid attention to the fact that she may not have been his biological daughter. His sister also treated Monique as if she were Mr Wilson's daughter, during the relevant period.
(ii) living arrangements
Mrs Wilson was asked by her Counsel to describe her living arrangements from 1987 to 1 August 1991. She replied (trans. p99):
Well we used to share a bedroom, we used to share even the car really. I mean, you know, if I had to do shopping or something, he would take me to shopping, or he would say "there's the car, I'll mind Monique, you go shopping".

Obviously Mrs Wilson must have been referring to the period after 9 May 1987 when the car was purchased. However Ms Stavrakakis clarified that she was asking about sharing the bedroom during "the relevant period in question." Mrs Wilson replied (trans. p101):

That's basically when whoever got – was in the bedroom, got the bedroom, and whoever else came home after, which was usually him, got the couch. Then we actually moved his things into the spare room, because I was the one always home, so I got the bed – the family bed. I was there first, so he'd sleep on the couch, or he'd sleep in his bed in the spare room. All of his belongings were then put into the spare room.

Mrs Wilson said that during the period 1987 to 1991 she and Mr Wilson were friendly and might sometimes watch a video together or he might help her fill out her tax form. She said they were not totally hostile but they would still fight and try and kick each other out of the house. She said the only renovations done at the house were done by her while Mr Wilson was at work. She referred to painting or gardening as the work she did.
Mr Wilson said that arguments developed because he was "hopeless at keeping to a budget and because of his wife's involvement with drugs". He said his wife did contribute to the household expenses from her part-time employment. He said that during the relevant period he and his wife were sleeping in the same bed sharing everything around the house, and doing chores around the house together. Mr Wilson said he had never moved into the spare room.
As to house renovations, Mr Wilson produced a number of accounts (ex. A12) showing that during the relevant period a considerable number of house renovations were done by tradesman and the accounts for that work were made out to him and in one case to Mrs Wilson. Those accounts are as follows:
Date    Account sent to        Nature of Work        Cost
15/11/98        Mr Wilson     Install new gas hot water unit.      280.00
11.5.90          Mr Wilson     kitchen plumbing work (quote only)         580.00
11.5.90          Mr Wilson     relocate lights etc.    185.00
6.7.90 Mr Wilson     Windows and doors 2390.00
23.10.90        Mrs Wilson    kitchen plumbing     400.00

I accept Mr Wilson's evidence on these issues and find that the living arrangements during the relevant period were those of a married couple.
(iii) the basis on which responsibility for housework is distributed
I find that there is nothing about the way housework was distributed in the relevant period to indicate that Mr and Mrs Wilson were not members of a couple. Because Mr Wilson worked full time Mrs Wilson cooked during the week. He cooked over the weekend and occasionally during the week. He said he usually did the washing over the weekend. He said he also often picked up food for dinner when Mrs Wilson rang and asked him to do so.
Dr Sawyer said that she, her husband and three children stayed with Mr and Mrs Wilson for one night in about July 1989. She said that she had dinner with Mr and Mrs Wilson and Monique and her impression was that they were a family unit.
Mr Wilson's other sister, Mrs Taylor, lives in New South Wales. She said that she came to Melbourne and stayed in Mr and Mrs Wilson's spare bedroom for about a week in about August 1988. She said that Mr and Mrs Wilson seemed to occupy their bedroom at night. Mrs Taylor said they ate home cooked meals. She remembered Mr Wilson making some meals of a chicken and lemon dish and a vegetable pie. Mrs Taylor said that Mrs Wilson tended to sleep in late in the morning and Mr Wilson got Monique up in the morning and fed her and made her lunch. She said he also bathed her in the evening.
In cross-examination Mrs Taylor agreed that during telephone conversations both Mr and Mrs Wilson had discussed difficulties in the marriage with her. She said the issues were common threads in all marriages such as struggling with money, small children, opportunities for communication.

Mrs Taylor said that while she was staying with Mr and Mrs Wilson in 1988 Mrs Wilson had gone out one evening for band practice, and she thought she went to watch a band another evening. She agreed that Mrs Wilson was out most evenings that week, but remembered her eating dinner with them on at least one occasion.
I find that Mr and Mrs Wilson did share the housework and child care in a way that seemed practical taking into account their different lifestyles. Mrs Taylor's evidence supported that of Mrs Wilson in some respects but not to such an extent as to suggest Mr and Mrs Wilson were not living as a couple at the relevant period.
(c) the social aspects of the relationship
(i)whether the people hold themselves out as married to one another
The evidence of Dr Sawyer and Mrs Taylor is that Mr and Mrs Wilson did hold themselves out as married to one another during the relevant period.
Even the evidence of Mr Barker supported that analysis in that he said in his statement (T46 p157) that he would ask Mrs Wilson when he was visiting, "Where's Mark". That sounds as though he expected him to be around. As Mr Barker said his visits were usually during the day, it was not surprising that Mr Wilson was usually not at home but at work when the visits were on weekdays. When Mr Barker and Mr Wilson were at the home at the same time Mr Barker said he did see Mr Wilson and Monique coming in together from playing ball or playing with the dog outside.
Mr Barker said he and his wife had first met Mr and Mrs Wilson in about 1988 or 1989 at a party or social function. That indicates that they were going out socially together during the relevant period. Mr Barker said his son got on well with Monique so they spent time together. He said when he first went around to the home he used to try to start a conversation with Mr Wilson but "it would just stop".
I find Mr and Mrs Wilson did hold themselves out as married to each other to his sister, to friends and to tradesmen.
(ii)the assessment of friends and regular associates about the nature of the relationship
The only friends or regular associates to give evidence were Mr Wilson's two sisters and Mr Barker. They all understood that Mr and Mrs Wilson were a couple although Mrs Taylor was aware of some difficulties in the marriage and Mr Barker believed, on what Mrs Wilson had told him, that Mr Wilson did not accept his financial responsibilities.
(iii)the basis on which the people make plans for and engage in joint social activities
Mr Wilson said that during the relevant period he, Mrs Wilson and Monique went on annual holidays together. He produced a photograph of the three of them together on a trip to visit his father on Bridie Island in 1988 and said that similar holidays took place each year. Mr Wilson also said that he and Mrs Wilson and Monique had regular visits to Queensland nearly every year during the summer holidays. Mr Wilson said that every Christmas they would go either to his father in Queensland or to Mrs Wilson's parents and sometimes they would go twice a year.
Mrs Wilson denied that every Christmas they went away on holidays together. She said that she went on holidays with Monique to her mother's house or her sister's house but Mr Wilson did not go because he was involved with squash and other commitments. She said that her friends had told her years later that his commitments had not been squash, but with a girlfriend. Mr Wilson denied ever having had a girlfriend and said that he did not go away to squash tournaments until after 1991.
Mr Wilson also described weekend outings as a family to Sherbrooke Forest or the beach. He said there was not much socialising with other couples. His friends were totalling discouraged from coming around and therefore would only visit once or twice. Mr Wilson said that he tried to stop Mrs Wilson's friends coming around and smoking marijuana in the home by being rude to them but he did not actually ever say to her that he did not want them coming over. He said that was because he was trying to keep his family together. Dr Sawyer said that on two occasions when she visited Melbourne in the relevant period she had dinner out in Carlton with Mr and Mrs Wilson and Monique once, and the other occasion they all went to lunch and for a walk. Mr Wilson said the walk was in the Exhibition Gardens and that is when the photographs attached to Dr Sawyer's statement (A6) were taken.
I accept Mr Wilson's evidence as to the annual holidays to visit family in New South Wales and Queensland. I find that there was some shared socialising like the party at which the Wilsons met the Barkers and the occasion with Dr Sawyer, but Mr and Mrs Wilson also had separate friends. That evidence does not support a finding that Mr and Mrs Wilson were living separately and apart at the relevant time.
(d) any sexual relationship between the people
Mrs Wilson said that they had sexual relations during that period an absolute maximum of ten times, but probably not even once a year. She said they had sexual relations because she did not want to bring boyfriends into the family home because they both pretended to Monique that he was her biological father. Mrs Wilson said that during the period she had casual boyfriends and Mr Wilson had one girlfriend. She said she knew about that because the husband of the lady rang her one day and asked if she knew what was going on, and also they would go away together in the school holidays.
When Mr Wilson was asked about the suggestion that they only had sexual relations about ten times in the relevant period he simply replied "I wasn't counting" (trans. p39). When I asked him to clarify that answer he said it would have been more than ten times, but he did not assert that he and Mrs Wilson had frequent sexual relations. However he denied that he had ever had a girlfriend or ever had another sexual relationship during the time of his association with Mrs Wilson. He said that he had loved her even after the break up of the marriage and had sought counselling about the issue (trans. p186).
I have no reason not to accept Mrs Wilson's evidence that she had other sexual partners as well as Mr Wilson, but I do not accept her evidence that Mr Wilson had a girlfriend during the relevant period. Her evidence as to her other relationships and the infrequency of sexual relations are factors I take into account which weigh against the relationship between Mr and Mrs Wilson being that of members of a couple, but they are not decisive of the issue.
(e) the nature of the people's commitment to each other
(i) the length of the relationship
In February 1987, when Mrs Wilson claimed she and Mr Wilson had separated, they had been together as a couple for almost five years.
(ii)the nature of any companionship and emotional support that the people provide to each other
I find that at the relevant time there was some companionship and emotional support provided by Mr and Mrs Wilson to each other. That is apparent from his evidence and even from Mrs Wilson's evidence that they were not totally hostile and still watched a video together sometimes and he helped her with tax forms (see paragraph 42). I also find from the evidence I have accepted as to Mr Wilson's care and responsibility for Monique, and his sharing of household chores, that he was providing considerable emotional support for Mrs Wilson, even if she did not recognise that at the time.
(iii)whether the people consider that the relationship is likely to continue indefinitely
I find on the evidence that Mr Wilson at the relevant period did consider that the relationship was likely to continue indefinitely. It is difficult to make any finding as to what Mrs Wilson thought. She said that she had married Mr Wilson to obtain financial support for herself and Monique, and once it was apparent he was not a good provider, she did not see the point of the marriage. On the other hand she was a very unreliable witness. I do not accept that the evidence she gave necessarily reflected her opinion at the relevant period.
(iv)whether the people see their relationship as a marriage-like relationship
I find that Mr Wilson did see the relationship as a marriage-like relationship at all relevant times. Mrs Wilson's evidence would suggest that she did not but her evidence was so unreliable in so many respects that as Ms Stavrakakis said, the difference between them is "black and white". I have decided that I prefer Mr Wilson's evidence to that of Mrs Wilson.
consideration of all factors
Mr Wilson said that he regarded himself and Mrs Wilson as happily married during the whole period from 1985 to 1991. He said he did not see any change at all in that period. The major hassles only came in 1996 and later. Mrs Wilson's evidence contradicted that evidence, but on many occasions it was found to be untrue. Mrs Wilson at one stage said that even though the many statements she made in support of her application for supporting parent payment or sole parent pension were untrue, they were not lies, because she needed the money to support herself and Monique. I do not accept that she needed the money to support herself and Monique, but even if she had a reason for making a false claim, it does not of course stop the statements in support of that claim being false. The impression Mrs Wilson gave me was that she was prepared to say anything that came to mind at the time.
I did have some concerns about Mr Wilson's evidence too, but those concerns did not relate to the substantive issue. They related rather to whether or not Mr Wilson acquiesced in the deception, in order to assist the family's financial problems.
The evidence of Mrs Taylor was the basis for that concern. She said (trans. p152):
The only sense in which I was aware of any separateness of money was when they were – Sue was claiming the Supporting Mothers' and Mark was trying to pretend that he wasn't there, that's all I know about it. I don't know any details, whether that's correct or not, that's what I was told.
Later Mrs Taylor said she understood that was before they were married (trans. p152). That is possible as Monique was born in 1983 and Mr and Mrs Wilson did not marry until 1985. I make no finding on the issue as it was not put to Mr Wilson or Mrs Wilson. However even if Mr Wilson acquiesced in the deception that would only add weight to the finding that Mr and Mrs Wilson were members of a couple at the relevant time and were not in fact living separately and apart.
On the evidence taking all the relevant circumstances into account I have formed the opinion that throughout the relevant period Mr and Mrs Wilson were married persons who were living under the one roof and were not living separately and apart from each other on a permanent basis. Thus I find that they were "members of a couple" and Mrs Wilson was not entitled to payment of supporting parent's benefit or sole parent's pension or sole parent pension. The whole amount paid to her during the relevant period should not have been paid.
There was no discussion as to the applicable date for considering the overpayment provisions in the relevant legislation. In March 1999, when the overpayment was raised, s 1224 of the 1991 Act provided:
1224 Debts arising from recipient's contravention of law
(1)       If:
(a)an amount has been paid to a recipient by way of social security payment; and
(b)       the amount was paid because the recipient or another person:
(i)        made a false statement or a false representation; or
(ii)failed or omitted to comply with a provision of the social security law or this Act as in force immediately before 20 March 2000 or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth.
I am satisfied that the amount paid to Mrs Wilson was paid because she made many false statements between 13 February 1987 and 29 July 1991 (T29). Thus the whole amount is a debt due to the Commonwealth.
As already explained in paragraph 9 of these reasons, there seems to be a discrepancy in calculation of the amount of the debt due to the Commonwealth. In T55 p180 it is stated that the debt raised in respect of the period 9 March 1987 to 31 July 1991 was $30,668.20, but that the correct figure is $36,619.50 in respect of the period 19 February 1987 to 1 August 1991. That appears to be a very significant difference bearing in mind that the extended period is less than three weeks longer than the period in respect of which the debt was first calculated. I consider that it is necessary to recalculate the debt to clarify that discrepancy.
The decision under review will be set aside. The matter will be remitted to the Secretary for reconsideration in accordance with the following directions:
(i)that the total amount of supporting parent's benefit, sole parent's pension and sole parent pension paid to Mrs Wilson between 19 February 1987 and 15 August 1999 ("the relevant period") be recalculated.
(ii)that the total amount paid to Mrs Wilson during the relevant period less any amount already recovered be raised and recovered as a debt due by Mrs Wilson to the Commonwealth.
I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed:         Anne O'Rourke
  Associate
Date/s of Hearing  20 June and 6 July 2000
Date of Decision  7 December 2000
Counsel for the Applicant        Mr J Lenczner
Solicitor for the Applicant         Blake Dawson Waldron
Counsel for the Respondent    Ms M Stavrakakis
Solicitor for the Respondent    Taylor Splatt and Partners