Richards and Anor and Secretary, Department of Education, Employment and Workplace Relations and Anor [2009] AATA 749 (29 September 2009)

Last Updated: 26 October 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 749

ADMINISTRATIVE APPEALS TRIBUNAL ) Nos 2008/5325

) 2008/5280

GENERAL ADMINISTRATIVE DIVISION		) 2008/5306
	Re		TAMI RICHARDS (2008/5325 and 2008/5280) LEIGH LONG (2008/5306)

Applicants

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT & WORKPLACE RELATIONS (2008/5325, 2008/5280 and 2008/5306) SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES & INDIGENOUS AFFAIRS (2008/5280)

Respondents

Added Party - LEIGH LONG (2008/5325)

DECISION

Tribunal

The Hon C R Wright QC (Deputy President)

Date 29 September 2009

Place Hobart

Decision

The decisions under review are affirmed.

[Sgd The Hon C R Wright QC]
Deputy President

CATCHWORDS

SOCIAL SECURITY - members of a couple - whether in a marriage-like relationship - overpayments - recovery of debts - parenting payment single - family tax benefits - pensioner education supplement payments - newstart allowance - Social Security Appeals Tribunal - decisions under review affirmed

Social Security Act 1991, ss 4(2)(b), 4(3)

REASONS FOR DECISION

29 September 2009

The Hon C R Wright QC (Deputy President)

1. There are three applications for review before the Tribunal. By mutual consent of all parties they have been dealt with and heard together in Launceston, Tasmania on 26 and 27 August 2009. The applicants, Tami Richards and Leigh Long were represented by Mr G Bissland and the Secretaries of the Department of Education, Employment and Workplace Relations and the Department of Families, Housing, Community Services and Indigenous Affairs were represented by Mr B Sparkes.
2. In October 2008 the Social Security Appeals Tribunal heard and determined applications brought by Ms Richards and Mr Long against departmental determinations:

(a) That they were members of a couple since 21 June 2000 and accordingly, their rates of social security payments should have been assessed on this basis;

(b) That overpayments to Mr Long of newstart allowance for the period 20 June 2000 to 20 August 2006 and 15 December 2007 to 13 June 2008 should be raised and recovered and;

(c) That overpayments to Ms Richards in respect of single parenting payments, family tax benefits and pensioner education supplement payments for varying periods between 13 June 2000 and 16 June 2008 should be raised and recovered. The total amount to be recovered from Mr Long amounted to $4,889.71. The total amount to be recovered from Ms Richards amounted to $52,094.18.

3. The Social Security Appeals Tribunal, in comprehensive written decisions, determined that the applicants had been living as members of a couple in a marriage-like relationship during the relevant periods and that the overpayments alleged in respect of each applicant had occurred and were recoverable as debts to the Commonwealth. The departmental decisions were affirmed.
4. In their applications to review to the Administrative Appeals Tribunal, the applicants challenged each of the decisions by the Social Security Appeals Tribunal but, at the hearing, the applications to review the nature and quantum of each of the overpayments was abandoned, and the hearing proceeded on the sole issue of whether or not the applicants had been members of a couple since 20 June 2000 for the purposes of the Social Security Act 1991. It was conceded that if this issue were to be determined adversely to the applicants, the sums claimed as debts due to the Commonwealth should be repaid.
5. The Social Security Appeals Tribunal made a substantial number of findings of fact in its Reasons for Decision published on 31 October 2008. However the proceedings before the present Tribunal constitute a merits review process in which all such findings are open to challenge and all relevant determinations will be based upon the evidence, both oral and documentary, presented at the hearing before this Tribunal. In fact many of the findings before the SSAT were not contested or were conceded by the witnesses, principally the two applicants, during their giving evidence. However in several important respects the evidence from each applicant varied from that which had been said by them to the SSAT and it was submitted by Mr Sparkes that this indicated a lack of candour or an intention to deceive or mislead this Tribunal. The male applicant's credibility was also impugned on the basis that he had made false or inaccurate statements in relation to past transactions with DEEWR and in respect of various commercial transactions and had made statements to other persons in which he admitted a marriage-like relationship with Ms Richards.

THE BACKGROUND TO THE PRESENT RELATIONSHIP BETWEEN MR LONG AND MS RICHARDS

6. As it emerged from their evidence and the evidence of Maurice Long, the father of Leigh Long, the relationship between the applicants was as follows. Mr Maurice Long is the owner of a property at 182 Vermont Road, Mowbray in Launceston. Leigh Long, who is now aged 35 years, has lived at 182 Vermont Road all of his life except for a brief interlude in 1999 to 2000, when he and Tami Richards cohabitated in a de facto relationship for a period of a few months. Tami Richards and Leigh Long first met in about 1992. Tami Richards, who was then aged about 15 years, had recently had a child named "L". Ms Richards was living in a property across the road from 182 Vermont Road and sought assistance from Maurice Long's wife, (now deceased), in caring for her young daughter. Tami Richards received no assistance from her own relatives and was readily befriended by Mrs Long. As a result of this relationship with the Long family, Leigh Long and Tami Richards became good friends and by 1993 had formed an intimate relationship as a result of which Ms Richards again became pregnant and gave birth to a daughter fathered by Mr Leigh Long in 1996. The daughter's name was "K". Thereafter although their romantic relationship may have waxed and waned, to some extent Leigh Long and Tami Richards regarded themselves as boyfriend and girlfriend and in 1999 they moved in together and formed a household with the two young girls. This period of cohabitation lasted variously estimated at between six and twelve months from 1999 to 2000. During this period of time the couple lived at 30 Verdun Street where Ms Richard had been living for about 12 months previously and after a few months she and Leigh Long moved to 52 Bill Grove, a property which had been acquired by Mr Maurice Long in 1998. 52 Bill Grove is diagonally opposite 182 Vermont Road.
7. Ms Richards and her two daughters have lived at the Bill Grove ever since. It is claimed that Leigh Long moved out of those premises some time early in 2000 and has lived at 182 Vermont Road ever since. However it is only the width of the public road which separates182 Vermont Road and 52 Bill Grove so movement between the two residences is virtually unrestricted. It is claimed that Ms Richards pays Mr Maurice Long $130.00 per week as rental for 52 Bill Grove. Leigh Long is a frequent visitor to 52 Bill Grove. It is claimed that the purpose of his visits is to maintain a close relationship with his daughter "K". He also says that he has a good and close relationship with "L". It seems to be clear that Leigh Long has made appropriate arrangements for any superannuation entitlements which he may have upon death, to be divided equally between "K" and "L" at the age of 25 years respectively. It is claimed that there is no direct financial relationship between Mr Long and Ms Richards as they have no joint bank accounts or joint property and neither provides financial assistance to the other. It is conceded that Mr Long gives some minor financial support to his daughter and "L" and it is said that "L" and "K" do some washing for him as an act of appreciation for his generosity. There is some evidence to suggest that Tami Richards in fact does the washing for Mr Long and I think that this is more probable than not. It is however only a minor feature in the overall relationship picture.
8. When the electricity supply was first connected to 52 Bill Grove in 1999, the account was placed in Mr Leigh Long's name. It was suggested that this was simply a matter of convenience as Ms Richards owed Aurora money when the account was first opened. The account was subsequently made into a Pay-As-You-Go account, still in Mr Long's name, but Ms Richards claims that she holds the payment card and makes the payments herself. She says that he has never paid the Aurora bill for her. There is evidence that a security system was installed at 52 Bill Grove and the account for that was also placed in Mr Leigh Long's name. Both applicants maintain that this was brought about because the security company installing the alarm required that the person contracting for the service must be in employment. It was stated that Mr Long was working at that time whereas Ms Richards was not. It was claimed that although Mr Long made the actual payments for the system, Ms Richards reimbursed him until the system failed to work correctly and was terminated after six or eight months. Both applicants stated that Ms Richards made the payments in respect of the system by reimbursing Mr Long's instalment payments. I find this very difficult to accept. The system was installed partially in response to a burglary that had taken place at 52 Bill Grove during which Mr Long's firearms were stolen. Thereafter Mr Long had a guns safe installed in Ms Richards' bedroom and his guns have been kept there ever since.
9. Furthermore he has use and virtually sole occupancy of the garage at 52 Bill Grove. He keeps his tools and working clothes in the garage. Plainly he has had an interest in maintaining security cover for this property. Although not directly covered by the security system it should also be noted that Mr Long has been parking his work utility at 52 Bill Grove for several years and he and his father, who jointly own a sedan motor car, also park that at 52 Bill Grove. This latter vehicle is available for the use of Ms Richards and is used by Ms Richards and Mr Leigh Long for joint visits to the supermarket for shopping purposes. It is claimed that if Ms Richards wishes to use the vehicle for her own private purposes she is allowed to do so free of charge but she is expected to put petrol in the vehicle from time to time. It is claimed that Ms Richards does not have a set of car keys and must obtain the permission of Mr Maurice Long or Mr Leigh Long before using the vehicle. I find that she has virtually unrestricted and unconditional use of this motor car.
10. A good deal of documentary evidence was examined during the hearing and it became obvious that on many occasions Mr Leigh Long has caused third parties to list his residential address in their records as 52 Bill Grove, Mowbray. On the other hand there are other instances where he has given his address as 182 Vermont Road, Mowbray. Mr Long claimed that the key reason for his supplying Bill Grove as a residential address arose from the fact that when obtaining his firearms licence in 2000, he had given Bill Grove as his residential address because his guns were in fact stored there. He explained that the guns were stored in the principal bedroom at Bill Grove because his father hates guns and would not allow them to be stored at Vermont Road. Mr Leigh Long said that once he had listed Bill Grove as his residential address for the purpose of firearm storage. He later changed his residential address on his driving licence to also show Bill Grove as his residential address so that there was no apparent conflict between two addresses if the matter was later queried. He said that this was also a reason why he used Bill Grove as his residential address in respect of numerous third party transactions. Although this version of events was corroborated by Ms Richards and Mr Maurice Long to some extent, I find it unpersuasive and implausible. Of more significance to the issue is the fact that on several occasions in commercial or official documents Leigh Long has described Ms Richards as his "partner" or "fiancée".
11. Much of the evidence at the hearing concerned the intimate relationship between Leigh Long and Tami Richards. Mr Long said that he stayed overnight at 52 Bill Grove very rarely. He said this would only occur if Tami Richards was sick with migraine or some other illness and on those occasions he would stay to look after the children. He said that he would also sometimes stay there if he got home late after a shooting expedition and didn't want to go home and disturb his father. He said he has also stayed there prior to going away on a camping trip with the children but this has been on very rare occasions. He did however concede, as did Tami Richards, that they do have a sexual relationship. Mr Long said that sexual intercourse occurred very rarely, perhaps once in six months. He described it as a rare occurrence. He said that such intimacy as occurred between them did not involve an overnight stay but was just a spur of the moment type of contact. In cross-examination Mr Long was confronted with the suggestion that he had told the Social Security Appeals Tribunal that "he would be lucky to stay over one night per week at 52 Bill Grove". It was put to him that indicated that he was staying at Bill Grove with a frequency of probably one night a week but he denied this vehemently. His denial of this proposition was entirely unconvincing and his attempt at explanation of the use of the phrase "it would lucky to be one night a week" was completely unacceptable.
12. Ms Richards gave her evidence at the hearing the day after Mr Long. She denied having discussed the "lucky" phrase with Mr Long overnight but I have a strong suspicion that she did so. Nonetheless Mr Sparkes asked her "do you recall saying to the authorised review officer that he (Long) would stay roughly once a week". She agreed that she had made that statement to the review officer 12 months ago but said that the frequency of Mr Long's overnight stays had diminished significantly since then. Mr Maurice Long who generally impressed as a fairly reliable witness was also asked about the frequency of his sons visits to Bill Grove but in respect of this issue he appeared to me to be deliberately evasive. Mr Sparkes asked him how frequently Leigh Long stays overnight with Ms Richards at Bill Grove and his response was "you would have to ask him that". He was next asked "To your knowledge, does he?" and the response then was "well he probably does on occasions". The issue was revisited a few questions later and he was again asked "do you know how many nights he might stay with her?" His answer was "I just said to you I don't". The evidence plainly suggests that Mr Maurice Long and Mr Leigh Long are the sole occupants of the property at Vermont Road. Neither seems to lead a very active social life and Mr Leigh Long does not claim to have had any female companion or sexual partner since separating from Ms Richards in 2000. I would have thought in these circumstances that a person in the position of Mr Maurice Long would have a better awareness of his son's comings and goings at night than his evidence would suggest. Whilst an ongoing and frequent sexual relationship is often very difficult to establish in the absence of admissions by one or both of the relevant participants, it is nonetheless of strong probative value in the establishment of a marriage-like relationship. It is certainly not the only criterion by which the existence of such a relationship can or should be judged. It is however one of the important factors to be taken into account under the statutory provisions. It also seems to me that an attempt to conceal the existence or frequency of a sexual relationship can strengthen adverse inferences where it appears that the parties have attempted to conceal the true nature of the relationship from the authorities or the Tribunal.
13. Both Mr Leigh Long and Ms Richards referred to their relationship, in its current form, as a "boyfriend/girlfriend relationship". I am satisfied that even if there was a genuine separation between the parties in 2000 based upon the tendency to have frequent arguments, a strong bond and intimate relationship has continued between them. The fact that during a substantial part of any given week they may reside a short distance apart on opposite sides of the road does not negate this conclusion. In reaching this conclusion I have not overlooked the evidence of Mr Steven Butt, a life long friend of Ms Richards' family. He has been a frequent visitor to her home over the years, although it seems to me that these visits have been irregular. He says that he does not see Leigh Long and Tami Richards as a couple, but I do not think his opinion is determinative of the issue. I do not regard him as an untruthful witness but I think his subjective assessment of the relationship between the applicants was highly coloured by his long term friendship with Ms Richards.
14. It is my opinion that within the meaning of both section 4(2)(b) of the Social Security Act 1991 the applicants are members of a couple when assessed against the criteria prescribed by sub-section 4(3). Both in the past and at the present time Ms Richards has derived financial benefits from the relationship which have been reviewed above. Whilst there is no evidence of direct monetary payments having been made to her by Mr Leigh Long, it is clear that she has derived financial benefit in a number of areas. I have already commented upon the nature of the household, the social aspects of the relationship of the applicants and also their sexual relationship. It is quite clear to me that there is an on-going emotional commitment between the two applicants. Whilst it is plain that the commitment is to a large extent based upon their mutual care and concern for "K" and "L", there is also a strong personal bond between them. For obvious reasons they have attempted to minimise this relationship for the purpose of the present proceedings. Mr Sparkes referred me to a large number of previous decisions of the Courts and Tribunals in relation to issues regarding the existence of a marriage-like relationship. Whilst helpful in a general way it seems to me that each case is very much dependent upon its own circumstances and should be assessed accordingly.
15. As a footnote it may be recalled that Ms Richards in her evidence said that the frequency of Mr Long's overnight visits had diminished substantially in the last twelve months. The overpayment periods in respect of which recovery is sought against them does not extend beyond June 2008, so any lessening of sexual contact between them since that time really has no bearing upon the outcome of these proceedings. I should add as a second footnote, however, that I am entirely unconvinced that the nature of their relationship has changed in any significant way since that time. In respect of each of the three applications to review currently before me, I am of opinion that the relevant decision should be affirmed. There will be orders accordingly.
    

I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon C R Wright QC (Deputy President)

Signed: R Hunt (Administrative Assistant)

Date/s of Hearing 26 and 27 August 2009

Date of Decision 29 September 2009

Counsel for the Applicant Mr G Bissland

Solicitor for the Applicant Launceston Community Legal Centre

Counsel for the Respondent Mr B Sparkes

Solicitor for the Respondent Centrelink Legal Services