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Carpenter; Department of Family and Community Services and [2002] AATA 17 (14 January 2002)

Last Updated: 28 May 2008



Administrative

Appeals

Tribunal


DECISION AND REASONS FOR DECISION [2002] AATA 17

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q99/1293,1294

GENERAL ADMINISTRATIVE DIVISION
)

Re
SECRETARY, DEPARTMENT
OF FAMILY AND
COMMUNITY SERVICES

Applicant
And
ARACELI CARPENTER

PAUL CARPENTER

Respondents


DECISION

Tribunal
Dr EK Christie, Member

Date 14 January 2002

Place Brisbane

Decision
The Tribunal affirms the decision under review.


(Sgd) EK Christie
MEMBER

CATCHWORDS

SOCIAL SECURITY - whether in a marriage-like relationship - specified criteria for forming an opinion about relationship – credibility of witnesses.

Social Security Act 1991 ss 4(2), 4(3), 4(3A), 4(5)

Re ACT Department of Health and Nikolovski (1996) AAT 10826

Briginshaw v Briginshaw (1938) to CLR 336

McDonald v Director-General of Social Security (1984) 1 FCR 354

Re Petty and Davis and Director-General of Social Security (1982) 4 ALN 214


REASONS FOR DECISION


14 January 2002
Dr EK Christie, Member

  1. This is an application by the Secretary, Department of Family and Community Services (“the Department”) to review a decision of the Social Security Appeals Tribunal (“the SSAT”) made on 28 October 1999 which set aside the decision of an Authorised Review Officer made on 24 April 1997. The SSAT substituted a new decision viz. that Araceli Carpenter and Paul Carpenter were not in a marriage-like relationship during the period under review (12 January 1995 to 9 January 1997).
  2. In its application of the law, the SSAT concluded:

“22. Having determined that Mrs Araceli Carpenter was not a member of a couple during the period 12 January 1995 to 9 January 1997, the Tribunal concluded that during this period she was therefore qualified for sole parent pension under section 249(1) of the Act, and received the correct rate of family payment. Consequently there has been no overpayment of sole parent pension or family payment.” [Exhibit 1, T2 Folio 9]


and

“19. Having determined that Mr [Paul] Carpenter was not a member of a couple during the period 12 January 1995 and 9 January 1997, the Tribunal concluded that during this period, Mr Carpenter was entitled to disability support pension at the single rate and received the correct rate of disability support pension. Consequently there has been no overpayment of disability support pension paid to Mr Carpenter.” [Exhibit 3, T2 Folio 9]


  1. The Department now seeks to have the decision of the SSAT reviewed because “the SSAT erred in finding that Mr and Mrs Carpenter were not in a marriage-like relationship during the period in question”.. Accordingly, Araceli Carpenter had incurred legally recoverable debts for sole parent pension and family payment and Paul Carpenter had incurred a legally recoverable debt of disability support pension in the amount of $3,090.02.
  2. At the hearing the applicant was represented by Mr P Kanowski, a Departmental Advocate. Araceli Carpenter was represented by Mr P Smith of Counsel, instructed by Messrs Porter Hulett, Solicitors and Paul Carpenter was represented by Mr A Harding of Counsel, instructed by Messrs Gilshenan and Luton.
  3. At the hearing the Tribunal had in evidence before it documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975:

The following Exhibits for the Applicant:


and the following Exhibits for the Respondents:


Facts

  1. On 20 February 1997 a Centrelink delegate made a decision to treat Araceli Carpenter as a member of a couple and to raise consequent overpayments of sole parent pension in the amount of $17,905.80 and family payment in the amount of $4,170 for the period 12 January 1995 to 9 January 1997. According to Centrelink, the total overpayment was a debt due to the Commonwealth under Section 1224 of the Social Security Act 1991 (the Act) (Exhibit 1, T2 Folio 3).
  2. On 20 February 1997 a Centrelink officer made a decision to treat Paul Carpenter as a member of a couple and to raise consequent overpayments of disability support pension in the sum of $3,090.02 which was a debt due to the Commonwealth under Section 1224 of the Act (Exhibit 3, T2 Folio 3).
  3. Based on the evidence before it, the SSAT made the following findings of fact (Exhibit 1, T2 Folio 7; Exhibit 3, T2 Folio 6):

(a) Paul and Araceli Carpenter were married in the Philippines in 1988 and there are two children of the marriage.

(b) In December 1994 Mrs Carpenter moved to Queensland from Darwin with her children to escape her husband’s violence.

(c) Her husband, Paul Carpenter, followed her to Queensland and lived separately from her in the Hervey Bay area.

(d) During the [relevant] period 12 January 1995 to 9 January 1997, Mrs Araceli Carpenter was in receipt of sole parent pension and family payment in respect of her two children, Caren and Paul.

(e) Paul Carpenter was in receipt of disability support pension in 1995, 1996 and 1997.

(f) During this [relevant] period Mrs Carpenter lived at 18A Pilerwa Road, Mungar, on her own with her two children.

(g) Between 23 July 1995 and 23 September 1995, although Mrs Carpenter was overseas and the children were not in her care for that period, she continued to support them financially.

(h) During the period 12 January 1995 to January 1997

(i) Paul and Araceli Carpenter did not live together as a couple between 12 January 1995 and 9 January 1997.

  1. Gary Evans gave evidence on behalf of the applicant. Both respondents gave evidence on their own behalf. Sean Demetriou was called to give evidence for Paul Carpenter.

Issues before the Tribunal

  1. The only issue for the Tribunal to decide was whether Araceli and Paul Carpenter were in a marriage-like relationship over the period 12 January 1995 to 9 January 1997. If this were the case, whether there was some statutory basis under the Act for overpayments of social security entitlements received over this period to be waived.

Evidence of Gary Evans

  1. Mr Evans stated that he and his partner had lived on the same Mungar property as the Carpenters. Their house was about 200-300 metres from the Carpenters’ home. He was the registered proprietor of both houses on the property and had rented the Carpenters’ home to them for “a couple of years”.
  2. He stated that Paul Carpenter had a motor vehicle but Araceli Carpenter could not drive. Paul Carpenter always drove his family to Maryborough. Mungar was about 18 kilometres from Maryborough and there was no public transport from Mungar to Maryborough other than the school bus.
  3. The witness said that rent was paid to him in cash but that he had issued receipts on “a couple of occasions”.. However, no records of receipts had been kept. He said that rent was paid to him by Paul Carpenter but he could not recall Araceli Carpenter ever paying rent. However, he later acknowledged that some receipts may have been made out in Araceli’s name.
  4. Mr Evans stated that most of his financial records were lost in a flood some time in 1996. However, he could not recall the actual date. As a result of the flood, he stated that he could not provide bank statements, a rent receipt book or insurance records.
  5. Mr Evans said that he had a good deal of social interaction with the Carpenters seeing them, on average, 1 to 2 times per week. This interaction also included invitations for him to be a guest at social gatherings with the local Filipino community on about 20 – 30 occasions over the two year period. However, during cross-examination, Mr Evans could not name any of the members of the Filipino community whom he had interacted with and had met socially with the Carpenters.
  6. In terms of the Carpenters living relations in their two-bedroom rented home, Mr Evans stated that the respondents slept together in the main bedroom “as far as I know”. He conceded in cross-examination that he had never seen the Carpenters lying side by side in bed.
  7. In terms of the Carpenters social interaction, the witness stated that they referred to each other in endearing terms and he thought they were a couple in a “successful relationship”. However, in cross-examination, Mr Evans could not point to any objective criteria upon which to support his statement on the “successful relationship” the Carpenters had.
  8. Mr Evans denied that he had made advances to Mrs Carpenter, denied that he had become angry when he had been told by Paul Carpenter that the Carpenters were reconciling and denied that his friendship with Paul Carpenter had deteriorated from this time.
  9. Mr Evans acknowledged that he had grown marijuana on the Mungar property but had been “busted by the Police before it was sold”.. He also acknowledged that he had refused to provide a statement of evidence for the Tribunal hearing.

Evidence of Araceli Carpenter

  1. Mrs Carpenter said that she and her two children had moved from Darwin to Queensland in December 1994 in order to leave Paul Carpenter. As she had no relatives in Australia and limited finances, she went to the home of her mother-in-law at the Hervey Bay Caravan Park. She had left Darwin by responding to an advertisement she had seen in a Darwin newspaper seeking someone to share petrol costs to travel to Queensland. Although the journey took two weeks, she could not remember the names of the two people with whom she travelled.
  2. The property rented at Mungar, from January 1995, was a home for her two children and herself only. She said that whilst Paul Carpenter had agreed to put the electricity account in his name, he only paid the account up to July 1995.
  3. Mrs Carpenter said that her husband “occasionally stayed” in the home when he came to see his children on weekly visits. She said, on these occasions, that he always slept in the sleepout and they never slept in the same bedroom.
  4. Mrs Carpenter said that, from May 1995 onwards, she had paid for her entire grocery needs from her bank account.
  5. The witness stated that she had travelled to the Philippines in July 1995 on being advised that her brother was dying. She had no alternative other than to leave her two children with Paul Carpenter as children were not allowed in the caravan park where her mother-in-law lived. During the period she was in the Philippines, Paul Carpenter had accessed her social security payments paid into her bank account in order to pay the rent for the Mungar property.
  6. On her return from the Philippines in September 1995, Paul Carpenter moved out of the Mungar property and maintained his earlier pattern of access contact with their children.
  7. Mrs Carpenter said that she had relied on the public bus service for travel to Maryborough and to ATMs in various centres, rather than transport provided by Paul Carpenter. However, she acknowledged that on some occasions (1-2 times per month) following her return from the Philippines, Paul Carpenter had provided transport for her.
  8. During cross-examination, Mrs Carpenter gave the following responses on the sources of transport used to make ATM transactions at centres away from Mungar:
  1. Mrs Carpenter also acknowledges that on her outgoing [migration] card to the Philippines, she had given her marital status as “separated but not divorced”. However, on her incoming card she had given her status as “married”. The witness stated that the difference arose because “she misunderstood the form”.
  2. Mrs Carpenter said that at no stage during 1996 did Paul Carpenter live in the house at Mungar with her, acknowledging that he might be there at weekends and sometimes three nights per week.
  3. Mrs Carpenter stated that Gary Evans was very friendly to her but she had avoided his advances. When Paul Carpenter was on the property, Gary Evans’ attitude towards her changed. Mrs Carpenter described Gary Evans’ partner’s presence on the Mungar property as “not often”.
  4. Notwithstanding the past history of domestic violence, Mrs Carpenter considered reconciling with Paul Carpenter because of the needs of her children. She said that in January 1997 she went to Collinsville with her husband “in order to start a new life”.. However, in November 1997, they had separated as “their relationship was bad”. She said that Paul Carpenter “had blamed her for everything”.

Evidence of Paul Carpenter

  1. Paul Carpenter said that he had stayed with his nephew [Sean Demetriou] at Noosa from January 1995 until April 1995 when his nephew went overseas. In January 1995 he had become aware that his wife’s landlord [Gary Evans] had been charged with marijuana cultivation. Because Mr Evans lived on the same property as his wife and children, his concern for the welfare of his children resulted in his visiting the Mungar property a number of times.
  2. The witness stated that from April 1995 to July 1995 he had lived either in rented premises at 3 View Street, Torquay or with his mother at Hervey Bay. He continued to pay rent in the Torquay property to August 1996.
  3. From July to September 1995, Mr Carpenter said that he cared for his children at Mungar whilst his wife was in the Philippines. Following his wife’s return to Australia, he spent up to three nights per week at the Mungar property. He did so because of his desire to maintain a connection and relationship with his children, the distance to travel to return to Hervey Bay as well as the need to look after some livestock (4 steers). However, whilst at Mungar he would not stay in the house but would camp out.
  4. In September 1996, the witness stated that he and his wife attempted a reconciliation. During this time he did not do anything social with his wife and did not have a sexual relationship. He said when he told Gary Evans of the reconciliation attempt, Mr Evans became angry and said that Araceli Carpenter would have to move out of the rented property if Paul Carpenter remained. Consequently, the witness said that he moved out to premises at Lot 19, Paterson Road, Paterson, but had only stayed there for two weeks.. During cross-examination, Mr Carpenter denied that the Paterson address was invalid and that receipts held may have been fabricated.
  5. Around this time, Mr Carpenter said that he and his wife considered reconciliation and decided to move to Collinsville. A tenancy agreement subsequently entered into at Collinsville did not commence until 9 January 1997. For most of the period up to the tenancy commencing, Mr Carpenter stated that he stayed with friends alternating with some trips to Mungar to move furniture to Collinsville.
  6. When challenged during cross-examination as to why he had given the Mungar address as his personal address in a number of business transactions, Mr Carpenter gave the following responses:

(a) the Mungar address was given when he opened an account with the Wide Bay Capricorn Building Society because he was living there when his wife was in the Philippines. He was unaware when she would return;

(b) two motor vehicles were registered at the Mungar address because he was residing there at the time of registration in the hope of reconciliation with his wife; and

(c) the Mungar address was given for his Commonwealth Bank account, notwithstanding that he was living in Collinsville, because he was staying at two residences at the time and because of a Bank requirement for six weeks residency to open an account.

  1. Under cross-examination, Paul Carpenter denied that the View Street, Torquay residence was a fabrication to disguise the fact of cohabitation with Araceli Carpenter.
  2. Mr Carpenter stated he had paid for his wife’s electricity account at the Mungar property as an incentive for his wife and children to remain nearby and to not return to Darwin. He said that apart from paying this account they did not share any income or costs.
  3. Mr Carpenter said that he considered himself to be a single man and regarded Araceli Carpenter as a friend and the mother of their children. He said that it was not until they had settled in Collinsville that they were “fully reconciled”.

Evidence of Sean Demetriou

  1. The witness was Paul Carpenter’s nephew. The witness stated that Paul Carpenter had lived with him in a rental property of the witness at Noosa over the period January to April 1995. Whilst he could not recall the actual dates, he had fixed the period as it related to his arrival from Darwin and his departure for South Africa.

Contentions of the Applicant

  1. Mr Kanowski contended that Paul Carpenter’s evidence as to his actual residence was unreliable as the evidence before the Tribunal indicated that his home was at Mungar throughout the relevant period because:-
  2. It was Mr Kanowski’s contention that the View Street, Torquay address claimed by Paul Carpenter as his residence was a fabrication to disguise the fact of cohabitation. Records indicated that Paul Carpenter had never lived at either 3 View Street or 8 View Street, Torquay – regardless of which street number was the correct one. Furthermore, over the period April 1995 to August 1996, the vast majority of bank transactions were in Maryborough. Very few transactions were made in Hervey Bay. Accordingly, Mr Kanowski submitted this assertion was further factual evidence to suggest Paul Carpenter was living in Maryborough.
  3. Mr Kanowski referred to Paul Carpenter’s evidence that, as a social security recipient, he had continued to pay rent for 15-16 months for the Torquay residence – a residence he did not like and where he did not spend much time. Mr Kanowski submitted that Paul Carpenter’s evidence, in this regard, was “simply unbelievable”.. Furthermore, Mr Kanowski submitted that the postal address Paul Carpenter provided to the Department was his mother’s Torquay address – not the View Street, Torquay address.
  4. Mr Kanowski further contended that the address and residency at Paterson provided by Paul Carpenter was a further fabrication to disguise the fact of cohabitation. Departmental enquiries could not locate the Paterson allotment. In addition, the rent receipt book was signed by a ratepayer who did not live at Paterson.
  5. It was Mr Kanowski’s contention that Paul Carpenter’s evidence that the amount of time he claimed that he camped out in forests or parks over the relevant period was implausible.
  6. Mr Kanowski also contended that any assessment of the evidence of Paul and Araceli Carpenter, together with the dates and activities following their consideration of reconciliation, suggests that there was reconciliation with cohabitation from late November 1996. Furthermore, Paul Carpenter’s evidence of the length of time that he resided in Collinsville was clearly inconsistent with the evidence before the Tribunal.
  7. Mr Kanowski also contended that Araceli Carpenter’s evidence was inconsistent and unreliable, notwithstanding that quite straightforward matters were involved. Because of this inconsistency, he contended that the Tribunal should assign little weight to her evidence. Mr Kanowski referred to the following examples of inconsistent and unreliable evidence given by Araceli Carpenter as examples of where her responses had varied during the examination of her evidence:

(a) that she had travelled from Darwin to Queensland over a two week period and shared petrol costs with two other people – but could not remember their names; and

(b) her version of events with respect to –

(i) the extent Paul Carpenter provided transport for her from Mungar to Maryborough to allow her to go shopping;

(ii) whether she had spent Christmas Day 1995 and 1996 at Mungar or Hervey Bay;

(iii) the presence of Paul Carpenter at Christmas Day 1995 and 1996 family events; and

(iv) her travel to Maryborough from Brisbane following her return from the Philippines in 1996.

  1. It was Mr Kanowski’s contention that the inconsistencies and ambiguity in Araceli Carpenter’s evidence had been an attempt on her part to down-play the level of her involvement with Paul Carpenter in order to conceal the true nature of their relationship.
  2. Mr Kanowski also submitted that in moving from Darwin to Queensland to flee from her husband, the most unlikely place for Araceli Carpenter to stay was at her mother-in-law’s residence – yet this proved to be the case. Paul Carpenter was also at his mother's home in December 1994.
  3. Mr Kanowski submitted that the Tribunal should give weight to the evidence of Gary Evans. He contended that Mr Evans was a straightforward witness who answered questions readily and only “baulked” at those that he considered unnecessarily intrusive of his privacy.
  4. Mr Kanowski contended that Mr Evans’ observations on the Carpenters were based over a period of time when he lived in close proximity to them and had a high degree of social contact. Mr Evans’ observations led him to believe that the Carpenters were not an estranged couple, but very much a couple who interacted with each other. Mr Kanowski submitted that whilst Mr Evans could not recall the names of some people in the neighbourhood with whom he had socialised with the Carpenters, this was not surprising given the passage of time.
  5. Mr Kanowski contended that the absence of Mr Evans’ financial records – bank statements, insurance records, rent book – should not be an obstacle to the Tribunal’s fact-finding process, because such records would be of limited value. Rent was paid in cash and very few rent receipts had ever been issued.
  6. Mr Kanowski submitted that any suggestion that Mr Evans’ evidence was unreliable because of the assertion that Araceli Carpenter had rebuffed his advances causing him to feel malice towards her, should not be accepted.
  7. Mr Kanowski contended that at no stage had Mr Evans contacted the Department to inform on the Carpenters living arrangements. Mr Kanowski submitted that such a perception by the Carpenters may have been a factor contributing to the friendship between them breaking down.
  8. Mr Kanowski contended that Mr Evans’ prosecution for growing marijuana resulted in a penalty “at the less serious end of the range” and the offence should not be used to discredit Mr Evans as a reliable witness.
  9. Mr Kanowski concluded that, considering the evidence as a whole, it could not be asserted that Mr and Mrs Carpenter were separated, as even on their own accounts, Paul Carpenter spent up to three nights per week at the Mungar property. Accordingly, there was only one inescapable conclusion: that Paul and Araceli Carpenter were not separated during the debt period. In failing to inform the Department that they were living as a couple and Paul Carpenter misrepresenting his status and whereabouts, waiver of all or part of their debts under the Social Security Act was not an option available to either Paul or Araceli Carpenter.

Contentions of the Respondent, Araceli Carpenter

  1. Mr Smith submitted that the Tribunal should attach weight to Araceli Carpenter’s account because it was objective and consistent evidence. There was no dispute that a domestic violence order had been taken out by her in September 1994. Prior to the relevant period, and the issue of the domestic violence order, Araceli Carpenter had advised the Department that she and Paul Carpenter were moving back together. In addition, the Department had been informed about prospects for reconciliation in November 1996.
  2. Mr Smith contended that an analysis of Araceli Carpenter’s Wide Bay Capricorn Bank Account indicated that she had paid for many groceries over the relevant period and there was an inference that Araceli and Paul Carpenter bought grocery items separately. It was Mr Smith’s contention that the pattern of expenditure generally tended to disclose two separate households over the relevant period - except for August to November 1996 when Paul Carpenter’s evidence was that he was boarding at the Mungar property.
  3. Mr Smith contended that Araceli Carpenter’s evidence under cross-examination was credible and should be given weight by the Tribunal because:
  1. It was Mr Smith’s contention that the Tribunal should attach little weight to the fact that Araceli Carpenter could not remember the names of “strangers” who had driven her and the children from Darwin to Queensland in 1994.
  2. Mr Smith submitted that although Araceli Carpenter had conceded that “she went to the shops with Mr Carpenter on occasions”, such a concession did not undermine the proposition that there was separate food expenditure.
  3. It was Mr Smith’s contention that the opening of the electricity account for the Mungar property by Paul Carpenter could be “explained by the maintenance agreement between them”.
  4. Mr Smith challenged the credibility of Gary Evans’ evidence contending that “grave doubts” attached to his evidence and overall that Gary Evans’ evidence was “unbelievable”. Mr Smith referred to the following aspects of Gary Evans’ evidence in this regard:
  1. Further examples of unreliable evidence given by Mr Evans, referred to by Mr Smith, were the incorrect assertions of Mr Evans that he had prepared income tax returns in 1996 and 1997. In addition, Gary Evans’ 1995 Tax Return did not declare rent received or audit fees. Furthermore, in material before the Tribunal, Mr Evans had denied to Miss Martin any involvement with marijuana cultivation.
  2. It was Mr Smith’s contention that Mr Evans did not have a particularly close personal relationship with Paul Carpenter. He stated that Gary Evans was unaware that Paul Carpenter was a social security recipient and consequently was in no position to make any assertions about the nature of Paul and Araceli Carpenter’s relationship. Moreover, it was Mr Smith’s contention that there was no other reasonable explanation as to why he had fallen out with the Carpenters other than Araceli Carpenter rejecting his advances when there was a possibility of reconciliation between the Carpenters. As a result, Mr Smith submitted Gary Evans’ response had been to have “the knife out for these people”.
  3. With respect to the evidence of Gary Evans, Mr Smith contended that it was noteworthy that Ms Isted (Evans’ partner) had not been called by the Department “to confirm or to attenuate Mr Evans’ version”.
  4. In terms of waiver of Araceli Carpenter’s debt, it was Mr Smith’s contention that she had not knowingly made a false representation to the Department as to her relationship with Paul Carpenter and had been honest in dealing with the Department as to the location of residence.

Contentions of the Respondent, Paul Carpenter

  1. Mr Harding submitted that Paul Carpenter did not maintain “a routine or normal lifestyle” and “he was a man who did not have conventional bonds” with many people. As a consequence, some of his recollections with people he had met could be vague.
  2. Mr Harding submitted that Paul Carpenter had a “loose” living arrangement at Noosa over the period January to April 1995 where he pitched his tent in his nephew’s backyard. Because of Paul Carpenter’s independent approach to life, his nephew would not be aware of his exact whereabouts at all times. Mr Harding contended that Sean Demetriou would remember the period Paul Carpenter stayed with him because “it was an important event in his life”.
  3. Mr Harding contended that the Tribunal should attach weight to Paul Carpenter’s evidence with respect to his residency, viz. “a loose connection with the View Street, Torquay property; he had continued to visit the Mungar property, but did not stay there but had camped out”. Mr Harding submitted that whilst Paul Carpenter’s lifestyle might be “unusual to people who have a more mundane and routine style of life” it was not a bizarre lifestyle and stated:

“He has camped in various places, not stayed in one spot for long, not stayed at View Street, on his own evidence, for very long, kept that as an address, spent time with his mother. He has lived a transient lifestyle.”


  1. Mr Harding stated that it was not in dispute that Paul Carpenter stayed at the Mungar property from July 1995 to September 1995 when Araceli Carpenter was in the Philippines. He was the father of their two children and was needed to look after them. Mr Harding stated that Paul Carpenter had a “bond” and a “strong connection” with the Mungar property through his children.
  2. Mr Harding made the following submissions in relation to assertions by the Department as to whether Mr Carpenter stayed at the 8 View Street, Torquay and Lot 19, Paterson Road, Paterson properties:

(a) that the Department’s enquiries on rental information about the View Street property should be regarded as equivocal as they did not specify whether there were any sub-tenants over the period July 1995 to May 1996; and

(b) that no-one had “properly followed” directions Paul Carpenter had provided for the Paterson property and the matter had not been effectively pursued.

  1. Mr Harding made the following submissions in relation to the use of the Mungar property address by Paul Carpenter for his bank account and motor vehicle records:-

(a) that Paul Carpenter had opened accounts with Westpac and the Wide Bay Building Society at the time when he was living at the property looking after his children;

(b) the CBA account was opened in December 1996 when he was attempting a reconciliation with his wife; and

(c) the dog was the children’s pet and “because of Paul Carpenter’s fluid lifestyle at the time” it was registered at Mungar in case it strayed; and

(d) the motor vehicle (registered in September 1996) and the boat (registered in December 1996) used the Mungar address because a reconciliation was being attempted at that time.

  1. Mr Harding submitted that the following matters went to Paul Carpenter’s credit:

(a) that when Paul Carpenter had moved into the Mungar address in August 1996, he had notified the Department of the move and the attempt to reconcile;

(b) that Paul Carpenter had advised the Department in October 1996 that he was leaving the Mungar property; and

(c) that Paul Carpenter had attended an interview with the Department on 14 November 1996 to advise of his reconciliation plans.

  1. Mr Harding contended that the evidence of Gary Evans should not be accepted by the Tribunal because it was inconsistent and contradictory, at the very least. Mr Harding referred to the following examples.

(a) Gary Evans’ evidence that he was helping the Carpenters was inconsistent with his accusations of Paul Carpenter in the file note of 15 February 2001. The evidence and accusations did not reconcile;

(b) Contradictions in advice to the Department and evidence before the Tribunal by Gary Evans in relation to back injury problems of Paul Carpenter;

(c) A failure by Gary Evans to name any members of the Filipino community he had met with the Carpenters over a two year period;

(d) Gary Evans’ evidence that the Carpenters had lived at the Mungar property from January 1995 onwards was inconsistent with Sean Demetriou’s evidence; and

(e) Gary Evans had fabricated “tales” about Paul Carpenter’s lifestyle activities (see Exhibit 3 T21 – subject to a subsection 35(2) Order).

  1. With respect to the question of waiver of overpayments, Mr Harding submitted that Paul Carpenter had been honest in his dealings with the Department as to his residential locations and had not made any false representations to the Department.

Consideration of the Issues

  1. At the end of hearing all of the oral evidence in this application for review, the Tribunal advised the parties that the credibility of witnesses may well be a critical issue in the Tribunal’s fact finding process into the nature of the marriage-like relationship between Araceli and Paul Carpenter. The Tribunal had the advantage of observing all witnesses in the presentation of their evidence as well as the opportunity to consider the documentary evidence before it. Accordingly, the parties were invited to present submissions on the issue of credibility in their final addresses.
  2. The extent to which inferences can be drawn from misleading statements, in the context of marriage-like relationships, was succinctly stated by the Tribunal in Re Petty and Davis and Director-General of Social Security [1982] 4 ALN 214:

“Where applicants make an untruthful or misleading statement concerning their relationship, they must realise that the inference is likely to be drawn against them, that they are endeavouring to conceal the true nature of their relationship. (at 4 ALN 215)”


  1. The Tribunal does not accept the evidence of Gary Evans in its entirety. The lack of corroboration of financial records, vehicle log books and rent receipt records through loss, purportedly in a flood, or somehow concealed in the Mungar property, limit the Tribunal’s fact-finding procedures. Furthermore, the Tribunal concludes that the observations made by Gary Evans on the Carpenters relationship are not based on any real or objective facts upon which the Tribunal could rely. Nor were they subject to independent corroboration (e.g., by his partner, herself a resident at the Mungar property). Moreover, the Tribunal accepts Mr Smith’s contentions (paragraph 66) that Gary Evans did not have a sufficiently close personal or harmonious relationship with the Carpenters upon which to base some form of impartial assessment of the nature of the Carpenters’ relationship. The Tribunal also finds the inconsistent responses given by Gary Evans in relation to his income tax returns is a factor to consider, to some extent, for the weight given to his evidence (see paragraph 65). Further contradictions in Gary Evans’ evidence raised by Mr Harding (paragraph 76) also affect the credit of Gary Evans and the reliability of his evidence.
  2. The credibility of Paul Carpenter as a witness was considered by the SSAT. The SSAT “did not find Mr Carpenter a particularly reliable witness” (Exhibit 3, T2, Folio 5) and:

“15. Whilst the Tribunal was not entirely comfortable with relying on all of Mr Carpenter’s evidence, on the totality of the evidence and relying in particular on Mrs Carpenter’s evidence, the Tribunal is satisfied that Mr and Mrs Carpenter did not live as a couple in terms of the Act during the period in question.” (Exhibit 3, T2, Folio 6).


  1. In relation to Paul Carpenter’s evidence, the Tribunal had enormous difficulty identifying the boundary where his evidence could be separated between reliable and unreliable, i.e., in terms of assisting the Tribunal’s objective for better-informed decision-making. Accordingly, the Tribunal assigns no weight whatsoever to Paul Carpenter’s evidence.
  2. The credibility of the evidence given by Araceli Carpenter was considered by the SSAT. The SSAT concluded that:

“10. Mrs Carpenter gave her evidence in an honest, painstaking and thorough manner and was a very credible witness. The Tribunal had no difficulty in accepting her evidence.” (Exhibit 1, T2, Folio 6)


and

“15. In considering the social aspects of the relationship and the nature of their commitment to each other, the Tribunal was greatly assisted by Mrs Carpenter’s detailed evidence regarding the history of their relationship....” (Exhibit 1, T2, Folio 7).


  1. The Tribunal has carefully considered the evidence of Araceli Carpenter as well as the contentions as to her credibility as a witness made by Mr Kanowski and Mr Smith. However, in the context of her evidence, the Tribunal did not always find there was sufficient consistency in her evidence on issues central to the questions (i.e. whether Paul and Araceli Carpenter are a member of a couple) now before the Tribunal to come to a decision to the reasonable satisfaction of the Tribunal according to the legal standard of proof. For example, the lack of consistency between her evidence and Paul Carpenter’s evidence as to where Paul Carpenter stayed when he visited the Mungar property (see paragraphs 22, 34), notwithstanding the evidence before the Tribunal that Paul Carpenter was staying at the Mungar property up to three nights per week. Together with the varied responses given under cross-examination by Araceli Carpenter (but see paragraph 48), the Tribunal concludes that it attaches little weight to Araceli Carpenter’s evidence such that no inferences on the nature of their relationship can be made.
  2. A person is a member of a couple for the purposes of the Act if that person meets the requirements of subsection 4(2) of the Act. In the Carpenters circumstances, subsection 4(2)(b)(iii) is relevant.

“4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a) ....; or

(b) all of the following conditions are met:

.......

(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship.”


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

“4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets and any joint liabilities; and

(ii) any significant pooling of financial resources especially in relation to major financial commitments; and

(iii) any legal obligations owed by one person in respect of the other person; and

(iv) the basis of any sharing of day-to-day household expenses;

(b) the nature of the household, including:

(i) any joint responsibility for providing care or support of children; and

(ii) the living arrangements of the people; and

(iii) the basis on which responsibility for housework is distributed;

(c) the social aspects of the relationship, including:

(i) whether the people hold themselves out as married to each other; and

(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii) the basis on which the people make place for, or engage in, joint social activities;

(d) any sexual relationship between the people;

(e) the nature of the people’s commitment to each other, including:

(i) the length of the relationship; and

(ii) the nature of any companionship and emotional support that the people provide to each other; and

(iii) whether the people consider that the relationship is likely to continue indefinitely; and

(iv) whether the people see their relationship as a marriage-like relationship.

4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”


  1. Section 4(5) of the Act is a further provision which specifies considerations with respect to forming an opinion that the recipient is living separately and apart from the other person on a permanent basis:

“4(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

........”


  1. The Tribunal has carefully considered the applicant’s contentions and submissions and factual evidence before the Tribunal in this application for review, specifically in relation to the questions of law set by subsections 4(2), 4(3), 4(3A) and 4(5) of the Act in relation to the legal standard of proof as described by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361, 362.

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


  1. The Tribunal considers the contentions and factual evidence relied on by the applicant in relation to the requirements for a marriage-like relationship (see paragraphs 42, 43, 48, 49) have not been established to the reasonable satisfaction of the Tribunal. The evidence of Gary Evans has not been considered in the analysis of the issue of marriage-like relationship. Other evidence relied upon by the applicant such as analysis and location of ATM transactions is of limited value as the Tribunal concludes that it involves “indirect inferences” that are not supported by objective, positive facts. Consequently, there is factual uncertainty in the application for review brought by the Department.
  2. With respect to the respondents, the Tribunal concluded that little weight can be attached to the evidence of Araceli Carpenter. Accordingly, an analysis of her factual evidence in relation to the circumstances of her relationship with Paul Carpenter cannot be corroborated, independently, against his evidence – given the Tribunal’s findings on the reliability of Paul Carpenter’s evidence. Consequently, the Tribunal cannot evaluate their overall evidence to determine whether there is sufficient consistency in their evidence over issues central to the assertion of a marriage-like relationship that can be made out to the “reasonable satisfaction of the Tribunal” as there is factual uncertainty in their overall evidence because of “indefinite testimony” and “indirect inferences”.
  3. Analysis of cases decided by the Tribunal provides guidelines to follow in order to resolve factual uncertainty (see generally McDonald v Director General of Social Security [1984] 1 FCR 354). The general principle was stated in these terms in Re ACT Department of Health and Nikolovski (AAT 10826, 27 March 1996):

“A decision-maker, and a Tribunal standing in the shoes of a decision-maker, should not exercise a power to make a decision unless it is satisfied that the facts warrant the exercise of the power. If the decision-maker or the tribunal cannot be satisfied on the balance of probabilities that facts exist which warrant an exercise of the power, then the decision-maker or the tribunal should not exercise the power. This approach accords with the view stated by the AAT in Re Twyman and Commonwealth of Australia (1987) 13 ALD 402: ‘the status quo must remain unchanged unless the evidence establishes that it should be changed’ (citing McDonald v Director General of Social Security [1984] 1 FCR 354) [at para 9].”


  1. Based on the credibility and reliability of the evidence of the witnesses and inconsistencies and limitations in the evidence and materials before the Tribunal, the Tribunal concludes that the status of the relationship between the Carpenters cannot be satisfied on the balance of probabilities; facts do not exist which warrant an exercise of the power to make such a decision.. Accordingly, the status quo must remain. That is, the reasoning and conclusions (Exhibit 1, T2 Folio 9, Exhibit 3, T2 Folio 8) made by the SSAT that Araceli and Paul Carpenter were not living in a marriage-like relationship during the relevant period hold.
  2. For all of the above reasons, the Tribunal decides to affirm the decision under review.

I certify that the 93 preceding paragraphs are a true copy of the reasons for the decision herein of Dr EK Christie, Member


Signed: Denise Burton

Secretary


Date/s of Hearing 17, 18 April, 3 July 2001

Date of Decision 14 January 2002

Solicitor for the Applicant Mr P Kanowski, Departmental Advocate

Counsel for Resp. A. Carpenter Mr P Smith

Solicitor for Resp. A. Carpenter Messrs Porter Hulett, Solicitors
Counsel for Resp. P. Carpenter Mr A Harding

Solicitor for Resp. P. Carpenter Messrs Gilshenan and Luton


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