WVXS and Secretary, Department of Education, Employment and Workplace Relations Secretary, Department of Families, Housing, Community Services & Indigenous Affairs
[2012] AATA 311
•23 May 2012
[2012] AATA 311
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
V2005/1060
Re
WVXS
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
And
Secretary, Department of Families, Housing, Community Services & Indigenous Affairs
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 23 May 2012 Place Melbourne The reviewable decision, being the decision of the Social Security Appeals Tribunal made 11 November 2005 will be set aside and in substitution it will be decided that:
(a)the decision of a Centrelink officer made on 9 February 2005 to raise against, and recover from, the Applicant certain debts is set aside; and
(b)the Applicant was not a member of a couple within the meaning of the Social Security Act 1991 (Cth) at any time during the following periods:
(i)21 March 1995 to 26 June 1995;
(ii)25 June 1996 to 11 September 1996;
(iii)13 December 1996 to 27 November 1997;
(iv)12 December 1997 to 9 March 2001;
(v)5 May 2001 to 29 June 2001.
............[sgd J W Constance]....................................................
Deputy President J W Constance
CATCHWORDS
SOCIAL SECURITY – Disability Support pension – Newstart allowance – member of a couple – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth) ss 4(2)(a) and 4(3)
REASONS FOR DECISION
Tribunal: Deputy President J W Constance
Date: 23 May 2012
INTRODUCTION
For several periods between 21 March 1995 and 29 June 2001 the Applicant received payments of Newstart allowance and Disability Support pension under the Social Security Act 1991 (Cth). He received these payments at the single person rate on the basis that he was not a member of a couple with his wife at the relevant times. The Applicant claimed he was separated from his wife during the periods for which he received payment.
In 2005 a Centrelink officer (as delegate of the Secretaries) determined that during each of the relevant periods the Applicant was married to his wife and was not living separately and apart from her. It was decided to raise and recover debts of overpayments made to the Applicant, being the difference between the single rate and the higher rate payable to a member of a couple.
In 2005 the Social Security Appeals Tribunal affirmed the decision of the Secretaries. The Applicant applied to this Tribunal to review the decision of the Social Security Appeals Tribunal. The delay in finalising the application in this Tribunal has been brought about by the matter twice being dealt with on appeal.
For the reasons which follow, the decision of the Social security Appeals tribunal will be set aside and in substitution it will be decided that the Applicant was not a member of a couple during each of the periods in respect of which the debts were raised against him.
LEGISLATIVE BACKGROUND
Subsection 4(2)(a) of the Act provides:
(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
Subsection4(3) of the Act provides:
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation 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, or in a de facto relationship with , each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
ISSUE FOR DETERMINATION
I have to determine whether the Applicant was a member of a couple during all or any of the following periods:
·21 March 1995 to 26 June 1995;
·25 June 1996 to 11 September 1996;
·13 December 1996 to 27 November 1997;
·12 December 1997 to 9 March 2001;
·5 May 2001 to 29 June 2001.
THE APPLICANT’S EVIDENCE
The following paragraphs 9-60 are a summary of the evidence given by the Applicant and the documents relied upon by him. They do not contain findings of fact.
From the time of his marriage until 8 April 1994, the Applicant and his wife lived together at various addresses in Melbourne. Together they raised their two sons, one born in 1974, the other in 1978.
On 8 April 1994 Mrs M delivered to the Applicant a letter from her solicitors.[1] The letter advised the Applicant that his wife considered that their marriage had broken down irretrievably, that she wished to proceed with an application for divorce and that they should separate immediately. The letter requested the Applicant to leave the matrimonial home and to live elsewhere. In these reasons I shall refer to the address of the matrimonial home as “the home address.”
[1] Exhibit AA1.
Within a week of receiving the letter the Applicant moved out of the home.
The Applicant has never spent a night at the home since he left in April 1994. He has attended the home address on numerous occasions, sometimes on a daily basis, to visit his sons. He spoke to his sons in the driveway. He has not entered the house unless accompanied by police officers. He gave his younger son money but he did not make payments to his wife for the son’s support.
Since 8 April 1994 the Applicant has not made any payments to, or on behalf of, his wife to assist her financially. He has not paid any bills on her behalf. He did not remove her name from a joint bank account after they separated as he cancelled her access card sometime between 1994 and 1997.
Since April 1994 the Applicant’s relationship with his wife has been such that she has objected to his being in the driveway of the home to visit the sons. She often screamed at the Applicant and at times called the police to attend the home when the Applicant was visiting his sons.
The Applicant did not notify anyone of his change of address. He continued to provide the home address as his address and continued to receive his mail at the home address. He collected his mail when visiting his sons.
About mid July 1994 the Applicant received a copy of a letter written by the solicitors to the Department of Social Security. The letter was dated 15 July 1994. It advised that they had been instructed by Mrs M that the Applicant left the home shortly after they had written to him in April 1994.[2]
[2] Exhibit AA2.
Hospital records in relation to Mrs M’s treatment on 7 August 1994 show the Applicant as her next-of-kin.[3]
[3] Exhibit AA56.
On 21 September 1994 Mrs M was treated at Sunshine Hospital. The notes of that admission[4] record, in relation to Mrs M, “separated – lives with son”. A further note in the same hospital records for 14 March 1995 refers to the Applicant as Mrs M’s “ex‑husband”.[5]
[4] Exhibit AA35.
[5] Exhibit AA36.
After he left the home the Applicant lived in a caravan in the backyard of 4 Swansea Street, St Albans for about one year. He then lived in the caravan on a vacant block of land in a neighbouring suburb for about six months.
Clinical notes relating to Mrs M’s treatment in hospital on 14 March 1995 record the elder son as her next-of-kin.
On 20 March 1995 the Applicant signed a form which he lodged with Centrelink advising it of personal particulars.[6] The form recorded the Applicant’s address as 4 Swansea Street, St Albans and that he was living in a caravan in the backyard. The Applicant did not complete the details of his address, although he was living at the address shown at the time the form was completed. The form also records the Applicant’s marital status as “separated”. After this form was lodged the Applicant did not advise Centrelink of any changes of his address until 2005.
[6] Exhibit AA27.
About 31 March 1995 the Applicant completed and lodged with Centrelink a claim for Job Search/Newstart Allowance.[7] The home address information box was not completed. The home address was recorded as the postal address. The date of separation was shown as 8 April 1994.
[7] Exhibit AA28.
On 21 April 1995 the Applicant signed and lodged with Centrelink a form headed “Living Arrangements”,[8] although he did not complete the details in the form. The form recorded Mrs M as his “ex wife”. It records also that the Applicant intended to share accommodation with Mrs M “until I can afford to move out”. The Applicant says that the form was altered without his authority.
[8] Exhibit AA29.
On 21 April 1995 the Applicant signed and lodged another Centrelink form entitled “Assessment of Living Arrangements – Separated Under One Roof”.[9] The Applicant’s name and home address and the name of his wife are not in the Applicant’s handwriting. On the form the Applicant completed the following answers to questions:
Do you exclusively occupy any area of the home? Yes
STAY WITH FRIENDS
How long do you intend to share accommodation?
TILL I CAN AFFORD A FLAT
Do you continue to share the use of household goods and furniture? No
[9] Exhibit AA30.
As part of the same form a Pensions Assessor Officer has noted:
Client only using address for mail.
No shared bills/accounts or possessions.
No shared leisure/social activities.
On 3 May 1995 Mrs M was treated at the Western Hospital. The notes of that treatment include the statement that:
…
Patient lives with her son (16yrs); separated from husband. Other son (20yrs) lives with husband.
Multiple problems over a long period reported by patient. Many of the problems are relating to separation ... other problems stated by patient are in relation to son & difficulties in particular to separation. ...[10]
The same notes record Mrs M’s next-of-kin as the eldest son.[11] It also records a doctor’s note that Mrs M “has been separated from husband for no. of years (not divorced)...”[12]
[10] Exhibit AA37.
[11] Exhibit AA38.
[12] Exhibit AA39.
Clinical notes in relation to treatment of Mrs M in hospital on 3 May 1995 record the elder son as her next-of-kin.[13]
[13] Exhibit AA51.
In response to a question as to where the Applicant moved after the caravan he replied:
With the wrong people.[14]
[14] Transcript 3.10.11 p.22.
The Applicant gave evidence that he recalled another address at which he stayed during this time. He nominated this address to the Tribunal.[15]
[15] Transcript 4.10.11 p.23.
Sometime in 1995 the Applicant acquired a post office box. Apart from correspondence from Centrelink he continued to have his mail delivered to the home address.
On 13 January 1995 the Applicant was injured at work.
On 20 November 1995 Mrs M’s solicitors wrote to the Department of Social Security in part as follows:
We advise that we act on behalf of the above named in relation to the Family Law proceedings. On our instructions Mrs M has been separated from the Applicant for in excess of twelve months and she is solely responsible for the upbringing of the child of the marriage under the age of eighteen years. …[16]
[16] Exhibit AA7.
On 16 May 1996 Healey & Warren, Psychologists, wrote a report in relation to one of the Applicant’s sons. In part the report read:
[The son] perceived his mother as being in constant pain – he drives her to various appointments with specialists and performs more demanding domestic chores. …
His mother in particular experienced great embarrassment over the separation 2 years ago … He was uncertain of his father’s exact address but said he visits the home once a fortnight – [the son] acknowledged a high level of resentment towards his father, as prior to the separation he had been supportive of his sons, interested in their activities. …
This desertion by his father, at a time when his mother experienced great distress resulted in considerable shame for the family, and associated ‘collapse’ of their social interaction. …[17]
[17] Exhibit AA16.
On 19 November 1996 the Applicant registered a change of name to a name I will refer to as Chris K.[18] His reason for doing this was that he was experiencing difficulties because of the behaviour of his elder son.
[18] Exhibit AA8.
On 26 November 1996 the Applicant completed and lodged with the Department of Social Security a Claim for Special Benefit.[19] Apart from the Applicant’s signature, the form was blank when lodged. This form shows the home address and the post office box address, not in the Applicant’s handwriting. Under the heading “Separation Details” the date of separation from Mrs M is recorded as 8 April 1994 and the separation is said to be permanent. Under the signature on the form appear the handwritten words “As stated to me”, followed by initials.
[19] Exhibit AA31.
Clinical notes relating to Mrs M’s treatment in hospital on 3 January 1997 record the elder son as her next-of-kin.[20]
[20] Exhibit AA50.
Sometime during 1996 or 1997 the Applicant was employed by Baytech Industrial for an unspecified period. A document provided by Baytech Industrial states that the Applicant provided the home address as his address.[21] The Applicant gave this address as his address for mail.
[21] Exhibit AA26.
Clinical notes relating to Mrs M’s treatment in hospital on 15 April 1998 record the elder son as her next-of-kin.[22]
[22] Exhibit AA48.
On 4 February 1999 the Applicant attended a Centrelink office. It is recorded that the Applicant refused to provide his home address as someone from Centrelink had previously disclosed the address. He told the Centrelink officer that he was living with a female but not in a marriage like relationship. He refused to provide any further details.[23]
[23] Exhibit AA3.
A printout of Centrelink records[24] discloses that in July 1999 the Applicant’s address was recorded as 293 Main Road West, St Albans. The Applicant’s evidence as to how this information came to Centrelink is unclear. He was unable to recall when, and for how long, he lived at this address, other than he recalled that he moved into 293 Main Road West less than one year before November 2000.[25]
[24] Exhibit RR6.
[25] Transcript 4.10.11 pp.102-103.
In another printout of Centrelink records[26] Chris K is shown as having his address recorded as 293 Main Road West, St Albans in 2000. The records indicate that a substantial number of people in receipt of Centrelink benefits resided at this address between 1998 and 2004.
[26] Exhibit AA59.
Clinical notes relating to Mrs M’s treatment in hospital on 15 August 1999 record the elder son as her next-of-kin.[27]
[27] Exhibit AA47.
Between 27 November 2000 and 26 February 2001 the Applicant was imprisoned. The document provided to him shows his forwarding/postal address as the home address.[28] When the Applicant entered prison he told the prison authorities he was separated from his wife. He does not know how the authorities obtained the home address, but he said in evidence that it was probably because he had been charged on those premises. Centrelink records show that the Applicant’s address was recorded as 466 Main Road West, St Albans on 23 March 2001.[29] The Applicant gave evidence that he lived at 466 Main Road West upon his release from prison and that he did not return to 293 Main Road West.[30]
[28] Exhibit AA9.
[29] Exhibit RR6.
[30] Transcript 4.10.11 p.103.
By memorandum of 10 July 2004[31] the Victorian Department of Justice provided the following information to Centrelink in relation to the Applicant in a document entitled “Social History Prisoner Details”:
·“Marital status SEPARATED BUT NOT DIVORCED”
·“Last Address [the home address]”
[31] Exhibit AA13.
About 27 February 2001 the Applicant lodged with Centrelink a claim for Job Network Assistance while Looking for Work.[32] This form records his address as 293 Main Rd West St Albans and his postal address as the post office box number which he opened several years previously. At this time the Applicant was living at this address with many other people.
[32] Exhibit AA10.
On 9 March 2001 the Applicant lodged with Centrelink a form setting out various personal details.[33] He lodged the form without recording his permanent home address as at that time he refused to provide Centrelink with his residential address. He did record his post office box as his postal address. He believes that someone later added the home address as his permanent home address. The home address is in different handwriting to other sections of the form, which the Applicant completed.
[33] Exhibit AA11.
Other sections of the same form were also left blank when the Applicant lodged it, in particular section 9 which is headed “Do you share your accommodation with anyone else?” The two names which have been added in this section are known to the Applicant, one being the Godfather of one of his sons. The Applicant did not include these names on the form. He did not give evidence as to how he believed these names were known to some other person who may have had access to the form to add this information.
Clinical notes relating to Mrs M’s treatment in Sunshine Hospital on 13 September 2001 refer to the Applicant as Mrs M’s “ex-husband”.[34] The same notes refer to both the younger son and the Applicant as “primary carers” and refer to the Applicant as “husband (separated)”.[35]
[34] Exhibit AA54.
[35] Exhibit AA55.
On 5 December 2001 the Applicant commenced employment with K & M Transport. On 5 April 2002 his employer submitted details of the Applicant’s employment to AXA Australia to enrol him in a superannuation scheme.[36] When Centrelink requested details of the Applicant’s application it was advised by AXA Australia that the Applicant’s marital status and the name of his spouse were unknown. The Applicant says that this information was unknown because he did not supply the information.
[36] Exhibit AA32.
Between about October 1994 and 2002 the Applicant lived at approximately 12 different addresses. With the exception of the address of 293 Main Road West St Albans he did not disclose these addresses to Centrelink because he was afraid that if he did so Centrelink would investigate the people to whom he had paid rent and his life would be put at risk.
Between 17 July 2002 and 7 November 2002 three warrants referring to the elder son were executed at the home address.[37] The Applicant was called to the home address by his younger son. An undated statement by a police officer which appears to refer to the execution of one of these warrants notes that the Applicant arrived at the home whilst police were present.[38]
[37] Copies of the warrants are exhibits AA20, AA21 and AA22.
[38] Exhibit AA18.
On 7 November 2002 Mrs M was treated at the Sunshine Hospital. The clinical notes relating to that treatment record, in part:
Dispute with husband tonight – he wanted to get back together. Currently separated but he still comes and lives with her (has girlfriend). Trouble with divorce papers.[39]
[39] Exhibit AA58.
On 8 November 2002 an Intervention Order against the Applicant was made in the Magistrates’ Court.[40] The order named Ms M as the aggrieved family member. The Applicant was restrained from certain conduct towards his wife. He asked the Magistrate not to restrain his attendance at the home address as he wished to see his son. The Magistrate agreed to this request.
[40] Exhibit AA23.
On 14 November 2002 clinical notes of Sunshine Hospital in relation to Mrs M record that she is “estranged from husband. Separated but [illegible] visit. [History] of physical abuse.”[41]
[41] Exhibit AA53.
From November 2002 until about April 2006 the Applicant’s elder son was in gaol. During that period the Applicant and his wife regularly visited their son. They made these visits together as it was a long way to the prison. During the time the son was in gaol the Applicant visited the home address for a short time about once per week to see his younger son and to collect his mail. During these visits there was usually some form of argument between the Applicant and his wife.
In 2002 the Applicant rented a unit in Percy Street, St Albans in which he lived by himself until 2005. There was no written agreement for the lease of this property and the Applicant paid the rent of $80.00 per week in cash. The landlord was known to the Applicant as they had previously worked together. There was no documentation of the Applicant’s residence at this address. The Applicant continued to have his mail delivered to the home address.
The only persons who were aware that the Applicant was living at the Percy Street address were his friends. He did not tell his sons of this address. Later the Applicant said that the only people who were aware of his address were his girlfriend and his landlord.
On 5 July 2004 Centrelink wrote to the Office of Housing requesting information concerning the Applicant. The request was for information as at the date of the letter.
On 8 July 2004 the Office replied as follows:
QUESTIONS
ANSWERS
1
Please list the names of the current
tenants of [home address]
[the Applicant]
2
Please advise, to the best of your
knowledge, the marital status of [the Applicant]
SINGLE
3
Please advise if you have [the Applicant]
(aka ... )listed as a tenant at any of your other properties
NO
In 2005 the Applicant rented a unit in James Street, St Albans and his younger son came to live with him. He advised Centrelink of the address of this unit.
The Applicant and his wife divorced in 2006.[42] When I asked the Applicant if he knew why it took from 1994 until 2006 for the divorce to occur he said that many solicitors had tried to telephone him about the divorce but he had “just hung up.”[43] Later his son told him that a solicitor had called many times to obtain the Applicant’s address for preparation of the divorce papers.
[42] Exhibit RR4.
[43] Transcript 3.10.11 p.33.
EVIDENCE RELIED UPON BY THE RESPONDENTS
In response to a request for information by Centrelink, solicitors who had previously acted for the Applicant advised that they held a file note of 16 June 1995 that “the client has not received any DSS payments as his wife works.”[44]
[44] Exhibit RR23.
In a written statement made on 19 November 1995[45], Mrs M referred to a partnership of the Applicant and herself in respect of a hairdressing business operated by Mrs M. She stated also that the Applicant did not work in the shop.
[45] Exhibit RR47.
Solicitors acting for the Applicant in 1996 advised Centrelink that on 19 May 1996 a telephone message was received from a person who stated she was the Applicant’s wife and that he had suffered a heart attack.[46]
[46] Exhibit RR23.
In September 1996 the Applicant started work with a new employer. The employer’s records show the Applicant’s next-of-kin as his wife and two children.[47]
[47] Exhibit RR32.
On 6 November 1996 the Applicant signed a Tax Office Employment Declaration in which he claimed a dependent spouse rebate in respect of Mrs M.[48]
[48] Exhibit RR10.
On 10 January 1997 Mrs M signed a Pension Claim form. Those parts of the form requesting details of her partner were crossed out and the date of separation was shown as 8 April 1994. A son was recorded as a person to be contacted about the claim.[49]
[49] Exhibit RR25.
On 25 March 1997 the Applicant signed a compensation claim form in which he showed his residential address as the home address.[50]
[50] Exhibit RR23.
In March 1999 the Victorian Civil and Administrative Claims Tribunal heard a claim for compensation by Mrs M. In its decision the Tribunal referred to the evidence of Mrs M that her marriage to the Applicant was not a happy one and that she had a relationship with another man between September 1993 and June 1994.[51]
[51] Exhibit RR38.
In hospital clinical notes dated 14 September 2001[52] it is recorded:
[Mrs M] was at home when we arrived. Her ex-husband was there, [Mrs M] explained that her son called him to stay with her as they are concerned about her well-being and safety. … She described [her medical practitioners] as her main supports and only other support is a neighbour who is also a close friend.
[52] Exhibit RR39.
The Applicant gave evidence that on about 12 July 2002 he obtained finance from CapitalCorp Financial Services to purchase a 2001 Toyota Corolla motor vehicle.[53] In response to a questionnaire from Centrelink, CapitalCorp stated that the Applicant had advised that he was married to [Rosemary K]., a name which he agreed in evidence was used by his wife. CapitalCorp advised also that Rosemary K was a co-borrower.[54]
[53] Transcript 5.10.11 p.97.
[54] Exhibit RR18.
When cross-examined as to this transaction the Applicant agreed that his wife was named as a co-borrower, but said that she was not present when the loan application was made. He said that he used her name as he was using her address, i.e. the home address, and that someone other than he circled “married” on the application. The application form gave the option of “separated” as an alternative to “married”.
The Applicant gave evidence that at about the same time he made two other applications for finance in which he named Rosemary K as his wife and gave the home address.
The Applicant said that he made the loan repayments in respect of the vehicle. He denied that he gave it to his wife to use. He gave evidence that he left the car at the home for the use of his son. The Applicant said that his wife smashed the car but that he did not know how she did so, saying that maybe she was driving the vehicle or maybe she damaged it with a hammer or with her foot. He did not ask his son how the damage occurred.[55]
[55] Transcript 6.10.11 pp.12-13.
The Applicant agreed that during the time he owned the Corolla he owned another vehicle, a Holden Commodore, which he used. He was evasive in his response when it was put to him by Counsel for the Respondents that he purchased the Corolla for the use of his wife.[56]
[56] Transcript 6.10.11 p.14.
On 11, 12 and 13 November 2003 Mr Bozic carried out surveillance of the Applicant at the request of Centrelink. He provided a statement [57] and gave evidence.
[57] Exhibit RR28.
On each of the days referred to Mr Bozic observed the Applicant leaving the home address at approximately 6am and returning at approximately 5pm. The Applicant was observed leaving and entering the premises. He was observed to drive a Holden Commodore from premises of K & M Transport to the home address on each day.
A video record of the activity described was shown to the Applicant during the hearing and he confirmed that the person referred to was him. He was evasive when asked questions in relation to the video and said that he could not remember where he was living in November 2003. He said that his vehicle was parked at the home on these days so it could be used by his son.
Further surveillance of the premises at the home address was carried out on 2, 3 and 4 June 2004 by Mr Farrugia. He provided a statement dated 26 July 2007[58] and gave evidence.
[58] Exhibit RR30.
At 5:14 am on 2 June 2004 Mr Farrugia observed a large truck leaving the home address. Mr Farrugia followed the truck and observed that it was being driven by the Applicant. The Applicant gave evidence that he had been called to the premises earlier that morning because of problems with his son.
On 4 June 2004 Mr Farrugia followed the Applicant driving a Commodore motor vehicle from the home to a nearby service station. The Applicant was observed refuelling the car while Mrs M was sitting in the front passenger seat. The vehicle was then driven to business premises where the Applicant alighted. Mrs M was observed to drive the vehicle back to the home.
Mr Farrugia recorded the incidents he referred to on video. It was shown to the Applicant who agreed that he was the male person seen in the video.
In a medical report dated 27 October 2005 in respect of the elder son[59] it is noted that the son advised that his parents separated when he was 23 years old. As the son was born in 1974 this would put the date of separation as 1997.
[59] Exhibit RR46.
CONSIDERATION
On the basis of the evidence of Mr Bozic I am satisfied on the balance of probabilities that the Applicant entered the home on 11, 12 and 13 November 2003 and was living at the home at that time. I rely also on the evidence of Mr Farrugia as to the Applicant’s activities in June 2004. I am satisfied that Mr Bozic and Mr Farrugia were honest witnesses. I formed this opinion by observing the manner in which each gave evidence and taking into account that nothing in the evidence before me suggested that either had a motive to fabricate the evidence given.
As a result, I am satisfied that the Applicant was an unreliable witness. On several occasions when giving evidence the Applicant said unequivocally that he had not entered the home since April 1994, except in the presence of police officers. I am satisfied that this evidence was false.
On the basis of the evidence relating to the Applicant’s purchase of the Corolla vehicle in June 2002, the evidence of the Applicant as to the circumstances of the loan application and the possession of that vehicle by Mrs M, I am satisfied on the balance of probabilities that at that time the relationship between the Applicant and his wife was not as described by him. I am satisfied on the balance of probabilities that, contrary to the Applicant’s evidence, he was providing financial support to his wife, at least by providing a vehicle for her use.
However, a finding that the Applicant was providing financial assistance to his wife in June 2002 and was residing in the home with her no later than November 2003, does not mean that the Applicant was a member of a couple in all, or any, of the following periods:
·21 March 1995 to 26 June 1995;
·25 June 1996 to 11 September 1996;
·13 December 1996 to 27 November 1997;
·12 December 1997 to 9 March 2001;
·5 May 2001 to 29 June 2001.
Although it is essential to make a finding in respect of each of the periods in question, to do so it is necessary to consider all of the evidence as to the ongoing relationship between the Applicant and Mrs M. In view of my finding as to the unreliability of the Applicant’s evidence I have to consider carefully the documents before me to determine whether the evidence of the Applicant can be corroborated.
21 March 1995 to 26 June 1995
I am satisfied that in April 1994 the Applicant and Mrs M separated and the Applicant moved out of the home, at least on an indefinite basis. I make this finding on the basis of the letters written by Mrs M’s solicitors on 8 April 1994 and 15 July 1994, which I accept accurately reflected Mrs M’s instructions to her solicitors at the time. There is support for this conclusion in the evidence of Mrs M given to the Victorian Civil and Administrative Tribunal that the marriage was unhappy about this time.
I have taken account also that although the Applicant was nominated as Mrs M’s next‑of‑kin in hospital notes in August 1994, reference to their separation was recorded on 21 September 1994 and 14 March 1995. On the latter date the elder son is recorded as Mrs M’s next-of-kin.
It is unlikely that Mrs M provided inaccurate information to both her solicitors and hospital authorities as part of a conspiracy to falsely represent that she and her husband were living separately. The various hospital records indicate that on most occasions when Mrs M was treated at hospital she was in a state of considerable distress. It is unlikely that her mental state at these times was such that she would have engaged in giving consistently false information as part of some plan to hide the fact that the Applicant was living at the former home.
The form lodged by the Applicant on 20 March 1995[60] recorded his address as 4 Swansea Street, St Albans and that he was living in a caravan.
[60] Exhibit AA27.
The form lodged with Centrelink by the Applicant on 21 April 1995[61] does refer to Mrs M living at his current address. However I note that there is a notation on the form, initialled by a third person, indicating that the form was completed from information supplied by the Applicant. Further the relationship of Mrs M to the Applicant is recorded as “ex-wife”. Although it is recorded that the Applicant intends to continue to share the accommodation with his wife “until I can afford to move out”, I am satisfied that this was not an accurate statement at the time. A second form[62], apparently lodged the same day and apparently in part completed by someone other than the Applicant, records that he was staying with friends until he could afford a flat. An assessor employed by Centrelink noted on the same date that he/she had formed the opinion that the Applicant was separated from his wife and was only using the home address for mail.[63]
[61] Exhibit AA29.
[62] Exhibit AA30.
[63] Exhibit AA30.
I have taken into account also that hospital notes dated 3 May 1995 refer to the separation and a son is recorded as Mrs M’s next-of-kin.
In view of the evidence I have referred to I accept the evidence of the Applicant that during the period 21 March 1995 to 26 June 1995 he was residing in a caravan at either 4 Swansea Street, St Albans or on the vacant block in a nearby suburb.
I have considered the evidence that the elder son had stated that his parents separated when he was 23 years old. However I do not consider that this evidence outweighs the other evidence to which I have referred. The son may have been mistaken as to the time of the separation as he was giving a history to a medical practitioner approximately 10 years after the event.
25 June 1996 to 11 September 1996
On 20 November 1995 Mrs M’s solicitors advised the Department of Social Security that they continued to act for her and that she had been separated from the Applicant “in excess of twelve months”.[64]
[64] Exhibit AA7.
On the basis of the report of the psychiatrists, Messrs Healey and Warren,[65] I am satisfied that in May 1996 the elder son informed them that his mother was affected by the separation “2 years ago” and that he was uncertain of his father’s exact address. It is unlikely that the son would have given this information to the psychologists if the information was incorrect. Again I have formed the view that it is unlikely that the son had the presence of mind to give a false history to the psychologist to conceal his father’s living arrangements.
[65] Exhibit AA16.
On the basis of the letter and the report together with the earlier documents to which I have referred, I accept the evidence of the Applicant that he was not residing in the home between 25 June 1996 and 11 September 1996. In reaching this conclusion I have taken into account that the Applicant claimed a dependent spouse rebate in respect of his wife in November 1996, however I consider that the other evidence outweighs this evidence.
13 December 1996 to 27 November 1997
The Applicant lodged a Claim for Special Benefit with Centrelink on 26 November 1996.[66] As with several forms in evidence, the Applicant claimed that this form was lodged in blank, other than that it had been signed by him. The form bears the notation “as stated to me” and initials. I am satisfied that the handwritten contents of the form (other than the signature) were written by a person other than the Applicant. I am not satisfied that the form was completed or altered after it was lodged. On the form the Applicant stated that he had separated from his wife on 8 April 1994 and that there was no prospect of reconciliation.
[66] Exhibit AA31.
Further hospital records for 3 January 1997 record the elder son as Mrs M’s next-of-kin.
There is little additional evidence in relation to this period. The evidence does not indicate that there was any significant change in the Applicant’s circumstances. On the basis of the evidence as to the pre-existing situation and the evidence referred to in the preceding two paragraphs, I am satisfied on the balance of probabilities that the Applicant was not residing at the home address during the period under consideration.
12 December 1997 to 9 March 2001; 5 May 2001 to 29 June 2001
In April 1998 and August 1999 Mrs M continued to nominate the elder son as her next‑of‑kin when attending hospital.[67]
[67] Exhibits AA48 and AA47 respectively.
The Applicant gave evidence that he did not disclose to Centrelink any of the addresses at which he lived between about late 1995 and 2002. However Centrelink records show that his address was recorded as 293 Main Road West St Albans in 1999 and 2000.[68] The records also indicate that a substantial number of people lived at this address during this time, which is consistent with the Applicant’s evidence.
[68] Exhibit RR6 and AA59.
The Applicant was in prison between 27 November 2000 and 26 February 2001. Records of the Victorian Department of Justice show that the Applicant’s marital status during his imprisonment was “separated but not divorced.”[69] However the same records indicate that the Applicant’s “last address” was the home address.
[69] Exhibit AA13.
On an application for benefits lodged on 27 February 2001 the Applicant’s address is recorded as 293 Main Road West, St Albans. Centrelink records for 23 March 2001 (i.e. a month after his release) show his address as 466 Main Road West. The Applicant gave conflicting accounts of where he resided immediately after his release. He said that he lived at 293 Main Road West in February 2001.[70] Later he said that he did not return to 293 Main Road West after his release and that he lived at 466 Main Road West.[71]
[70] Transcript 3.10.11 p.46.
[71] Transcript 4.10.11 p.103.
The form lodged by the Applicant with Centrelink on 9 March 2001[72] records his “Permanent Home Address” as being the home address. This entry is not in the Applicant’s handwriting. However on the same form it is stated that the Applicant is separated and is sharing free accommodation with friends.
[72] Exhibit AA11.
The evidence before me as to the Applicant’s residence/residences during 2001 is unclear. However there is no reliable evidence that the Applicant was living at the former home in this period. In considering this question I have taken into account that it was not until November 2002 that hospital records refer to Mrs M stating that the Applicant still comes and lives with her but that they are currently separated.[73]
[73] Exhibit AA58.
I have taken into account also that it was in mid-2002 that the Applicant purchased the Corolla vehicle which was made available for the use of Mrs M.
On the basis of the evidence I have referred to I am satisfied on the balance of probabilities that the Applicant was not living at the home address between 12 December 1997 and 29 June 2001.
Consideration of the criteria in subsection 4(3) of the Act
In deciding whether the Applicant was a member of a couple I am to have regard to all the circumstances of the relationship, including, in particular, the matters set out in subsection 4(3)(a)-(e) inclusive.
Financial aspects of the relationship
The evidence as to the financial relationship (if any) in the relevant periods is very limited. I am satisfied that the Applicant maintained a bank account jointly with his wife in March and June 2003.[74] On the basis of the Applicant’s evidence that he cancelled the card giving his wife access to funds in the account some years after the separation, I am satisfied that for at least part of the period under consideration Mrs M had access to jointly held funds. However there is no evidence that Mrs M did access any funds in this account after separation. Nor is there any evidence that the Applicant provided any financial support to his wife between separation and 29 June 2001, being the end of the last period under consideration.
[74] Exhibit RR22.
There is no evidence of joint ownership of property, joint liabilities, significant pooling of resources, legal obligations or sharing of day-to-day household expenses.
Nature of the household
On the basis of the evidence of the Applicant I am satisfied that the Applicant made some financial contribution to the support of his younger son who was 16 years old at the time of separation. None of the other factors in subsection 4(3)(b) are relevant on the evidence before me.
Social aspects of the relationship
I have found that on the balance of probabilities the Applicant and Mrs M did not live in the same house during the relevant period. I am satisfied that on occasions the Applicant advised Centrelink and other organisations that he was married. However, other than the evidence of the Applicant, which I accept, that his wife travelled with him to visit their son in prison, there is no evidence to support a finding that he and his wife enjoyed any of the normal social aspects of a married couple in any of the relevant periods. The hospital records of the complaint’s wife support this finding.
Any sexual relationship between the couple
There is no relevant evidence in relation to the sexual relationship in any of the relevant periods.
The nature of the commitment to each other
There is no evidence of commitment between the Applicant and Mrs M during any of the relevant periods.
CONCLUSION
There is no dispute that the Applicant was a member of a couple prior to 8 April 1994. I am satisfied that sometime after 29 June 2001 the Applicant again resided in the same house as his wife. I accept the argument put on behalf of the Respondents that evidence as to the nature of a relationship outside the period in question may be evidence as to the nature of the relationship within that same period. However I am not satisfied that the evidence in this application is such to enable me to make such a finding.
On the evidence before me I am satisfied on the balance of probabilities that in the relevant periods the Applicant was living separately and apart from Mrs M. I am satisfied that the Applicant was not a member of a couple in any of the relevant periods.
I am not satisfied that the Applicant received payments in excess of his entitlements for Newstart allowance or Disability Pension under the Social Security Act 1991(Cth) during any of the relevant periods.
The reviewable decision, being the decision of the Social Security Appeals Tribunal made 11 November 2005 will be set aside and in substitution it will be decided that:
(a)the decision of a Centrelink officer made on 9 February 2005 to raise against, and recover from, the Applicant certain debts is set aside; and
(b)the Applicant was not a member of a couple within the meaning of the Social Security Act 1991 (Cth) at any time during the following periods:
(i)21 March 1995 to 26 June 1995;
(ii)25 June 1996 to 11 September 1996;
(iii)13 December 1996 to 27 November 1997;
(iv)12 December 1997 to 9 March 2001;
(v)5 May 2001 to 29 June 2001.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
.........[sgd]................................................
Associate
Dated 23 May 2012
Dates of hearing 3, 4, 5, and 6 October 2011;
30 and 31 January 2012; and
1 February 2012Date final submissions received 27 April 2012 Applicant In person Counsel for the Respondent Mr R Knowles Advocate for the Respondent Ms S Krauss Solicitors for the Respondent Australian Government Solicitors
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