AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Administrative Appeals Tribunal of Australia
You are here:  AustLII >> Databases >> Administrative Appeals Tribunal of Australia >> 2011 >> [2011] AATA 52

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Download] [Help]

Russell and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 52 (3 February 2011)

Last Updated: 4 February 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 52

ADMINISTRATIVE APPEALS TRIBUNAL )

)

General Administrative Division
) No 2009/2753 & 2009/2754

Re
CHERYL RUSSELL

Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal
Professor RM Creyke, Senior Member

Date 3 February 2011

Place Moruya, NSW

Decision
The decision to treat Mrs Cheryl Russell as a member of a couple for the purposes of parenting payments and disability support pension is varied to apply from 1 January 1999.


.........................[sgd].............................

Professor RM Creyke, Senior Member

CATCHWORDS


SOCIAL SECURITY – sole parent pension – parenting payment (single) - disability support pension – whether applicant a member of a couple – consideration of Aboriginal culture and practices - whether special reasons not to be treated as member of a couple under section 24(2) Social Security Act 1991 (Cth) – decision varied


Social Security Act 1991 (Cth) ss 4, 24, 1223, 1237AAD


Boscolo v Secretary, Department of Social Security (1999) 90 FCR

Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110

Lambe v Director-General of Social Services [1981] FCA 171; (1981) 57 FLR 262

Main v Main [1949] HCA 39; (1949) 78 CLR 636

McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354.

Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611

Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92; (2008) 102 ALD 22

R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407

Re Anderson and Secretary, Department of Social Security [1993] AATA 172; (1993) 31 ALD 155

Re Broadbent and Secretary, Department of family and Community Services [2004] AATA 527; (2004) 81 ALD 713

Re Hulme and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 414

Re Lenard and Secretary, Department of Family and Community Services [2004] AATA 83

Re Lobb and Repatriation Commission (1990) 20 ALD 575

Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252

Re Tang and Director-General of Social Services (1981) 3 ALN No 49

Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 25 ALD 27

3 February 2011
REASONS FOR DECISION


Professor RM Creyke, Senior Member


  1. Mrs Cheryl Russell was granted sole parent pension from 19 December 1991. She was then divorced and had two dependent children: Scott, born 7 April 1978; and Cherie, born 29 June 1974. She also cared for Crystal, the niece of Mr Norman (also known as John) Russell, born 8 September, 1986.
  2. On 20 March 1998, Centrelink transferred Mrs Russell from sole parent pension to parenting payment (single). By 14 December 2001, Cherie and Scott were above the maximum age, and Crystal had left Mrs Russell’s care. She was therefore no longer entitled to parenting payment (single). On 9 November 2001, Mrs Russell claimed disability support pension as a single person.
  3. On 29 September 2004, Centrelink advised Mrs Russell of an overpayment of disability support pension for the period 30 January 2002 to 29 June 2004 because Mrs Russell did not declare or fully declare her earnings from the Department of Education & Training, NSW. A debt of $6,577.22 was raised. However, on 1 October 2004, Centrelink recalculated that amount to be $7,033.30.
  4. On 4 June 2007, Centrelink decided that Mrs Russell was a ‘member of a couple’ with Mr Russell and decided that Mrs Russell had not been entitled to any sole parent pension, or parenting payment (single) for the period 6 May 1993 to 23 November 2001. Centrelink also decided that her rate of disability support pension should have been paid at the married rate rather than the single rate for the period 23 November 2001 to 15 May 2007. Debts totalling $95,069.84 were raised. Centrelink decided there were no grounds to waive recovery of the debts.
  5. Following a request by Mrs Russell for a review of that decision on 19 July 2007 the original decision maker affirmed the decision.
  6. However, following a further application for review by Mrs Russell, on 15 February 2008, an authorised review officer decided to reduce the debt to $58,723.07. That figure comprised a sole parent pension debt of $37,097.22, a parenting payment (single) debt of $7,457.03, and a disability support pension debt of $14,168.82. The authorised review officer decided that Mrs Russell had separated for the period 17 October 1995 to 22 July 1996 when Mr Russell had lived at 4/1 Mogo Street, Mogo and 1/43 Train St, Broulee. As a consequence she had been entitled to the single rate of Centrelink payment during that period.
  7. On 23 June 2008 Mrs Russell was advised that her parenting payment (single) debt for the period 20 March 1998 to 23 November 2001 had been recalculated as $8,809.33. The meant the total debt became $60,075.37.
  8. On 19 May 2009, the Social Security Appeals Tribunal affirmed the decision to treat Mrs Russell as a member of a couple with Mr Russell for the period 6 May 1993 to 16 October 1995, and 23 July 1996 to 15 May 2007. On 11 June 2009, Mrs Russell lodged an appeal with the Administrative Appeals Tribunal. The matter had been set down for hearing by the Tribunal in August 2010 but Mrs Russell was hospitalised at that time. The hearing took place in Moruya on 17-18 November 2010.

Legislation

9. The relevant provisions of the Social Security Act 1991 (Cth) (Act) are found in section 4. Broadly the purpose of this provision is to enable a determination of whether two people are a ‘member of a couple’. The first question is whether the couple are legally married and ‘not ...living separately and apart from the other person on a permanent or indefinite basis’ (section 4(2)(aa)(ii)). For the purpose of making that assessment section 4(3) provides:


Member of a couple--criteria for forming opinion about relationship

4 (3)  In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), 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.

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


Person may be treated as not being a member of a couple (subsection 4(2))

24  (1)  Where:

            (a)  a person is legally married to another person; and

            (b)  the person is not living separately and apart from the other person on a permanent or indefinite basis; and

             (c)  the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.


Debts arising from lack of qualification, overpayment etc

1223   (1) Subject to this section, if:

            (a)  a social security payment is made; and

            (b)  a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;

the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment. ...

(1AB)  Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons: ...

          (b)  the person for whose benefit the payment was intended to be made was not qualified to receive the payment; ...

            (d)  the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation ...


Waiver in special circumstances

  1237AAD    The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

             (a)  the debt did not result wholly or partly from the debtor or another person knowingly:

                   (i)  making a false statement or a false representation; or

                  (ii)  failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

              (b)  there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

              (c)  it is more appropriate to waive than to write off the debt or part of the debt.

Note 1:       Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.


10. A debt arises if a social security payment is made to a person who is not entitled to payments because, for example, they were not qualified or payments were made as a result of a misrepresentation (section 1223(1), (1AB)(b)). The debt is a debt due to the Commonwealth.


Issues

11. The issues in this matter prior to the hearing were:

History

  1. Mrs Russell married Mr Russell on 18 April 1987 and the couple has not divorced. At the time they married Mrs Russell had two children by a previous relationship: Cherie, who was born on 29 June 1974; and Scott, who was born on 7 April 1978. Mr Russell's niece, Crystal, born on 8 September 1986 came to live with the family shortly after her birth. Both adults have treated all three children as their own. Cherie also has a son, Aaron, born 16 January 1995.

Separation


13. The couple separated some time in 1991. Mrs Russell said:


The problems were mostly around the kids; John would overrule what I was saying and doing when disciplining them. We had different opinions about how children should behave. This led to more problems because the kids would not trust me; they would go to the parent who let them get away with things. We would have words about it behind closed doors. We didn't air our difficulties to friends or neighbours. That was the way I was brought up. I always kept everything to myself, and still do. Money was also a problem - there was not enough. There were also problems with our sex life.

Despite our arguments, John was a good father to the kids...He has always been a good father to them, and has spent a lot of time with them...I think it was my decision to end the relationship. One day I said to John: 'I've had enough'. I can't recall whether John said anything then...I no longer know the date when we separated,...I remember that around [17 October 1991] John and I had had an argument about the kids and John said: 'I'm sick of fighting; I've had enough. He took the car keys and left the house. Later he returned for a bag and then left again. For a while I didn't know where he went.

14. Mr Russell's statement as to the reasons for the separation largely agreed with Mrs Russell's. The upshot was, as he said: 'One day Cheryl said 'Cherie's got a job in Canberra and we're leaving'.

15. Cherie's evidence as to the separation was:

After Mum and Dad got married things changed. They had seemed happier before. Now there was no communication...Things got to the point where Dad either slept in the lounge room, or, if we had visitors, in Scott's room in a bunk. If things got heated, Dad would get in his car and take off. Sometimes he would stay away. I got a job offer in Canberra. Mum said: 'Let's go'. At that stage I expected Dad to come too, until he said "I can't afford to give up work.

16. On 9 December 1991, Mrs Russell lodged a ‘Separation details’ form at Centrelink, Goulburn, in which she stated the couple had permanently separated as she was sick of fighting over the children and they had irreconcilable differences. That information was confirmed by Ms Julie Medway on 12 December 1991, who gave Mrs Russell’s address as 19 Caoura Cres, Goulburn. Mrs Russell gave evidence at the hearing that when Mr Russell left he was living with various other people. Some time early in 1992 Mrs Russell and Cherie left Goulburn for Queanbeyan.

  1. In a Centrelink ‘Separation details’ form signed by Mrs Russell on 10 March 2008, she affirmed that the separation was permanent and there was no chance of a reconciliation. She also conceded in that form that she had separated some time in 1991 but she could not be certain of the date.

Evidence of separation in period 6 May 1993 – 16 October 1995

  1. It became apparent during the hearing that there were difficulties in establishing the location of Mr Russell at a particular time and accordingly whether he and Mrs Russell were living together or apart. That was in part due to errors in the evidence which made the evidence unreliable. For example, the Centrelink records for Mrs Russell showed her residing at ’18 Queent Street, Mogo’ from 10 September 2008. That is the address of either Mrs Margaret Nye, Mr Russell's sister, or the caravan behind Mrs Nye's home in which Mr Russell resided from time to time. That was an error.
  2. Similarly there were probable errors in the Centrelink record of Mr David Russell, Mr Russell’s deceased brother, since he was said to be living variously at 12 Queen Street, Mogo, 13 Queen Street, Mogo, 18 Queens Street, Mogo, 13 Queen Street, Congo, and Unit 2, ???? Bateman’s Bay. The representative for the Secretary conceded, and the Tribunal agrees, these errors made the records unsafe to rely on.
  3. The evidence established that identifying a regular address for Mr Russell had been problematic since he moved between various people’s houses during the periods in question. There is also an issue about the accuracy of that evidence given that, from time to time, Mr Russell has given Mrs Russell’s address for institutional purposes or for convenience rather than as an accurate picture of where he was living. Also, there may have been delays in Mr Russell’s notification of a change of location. So the addresses provided to Centrelink by various organisations or government agencies did not necessarily reflect where he was residing from time to time. The Tribunal has taken these factors into account.
  4. At the hearing, the representative for the Secretary conceded that for the period 6 May 1993 to 16 October 1995 Centrelink had relied heavily on the NSW Road Traffic Authority listings of Mr Russell’s addresses. Those listings were likely to have been affected by the factors referred to in the previous paragraph. He conceded, given the lack of corroboration of Mr Russell’s whereabouts at this time, that it would be unsafe for the Tribunal to rely solely on that source of information. For that reason, he said it was not possible to be satisfied of Mr Russell’s living arrangements during this time. As a consequence the claim that Mrs Russell was not living ‘separately and apart’ during this period was not pressed.
  5. The Tribunal considers that concession was properly made and finds that there was insufficient evidence, in light of the following findings on the totality of factors, to enable the Tribunal to make a finding that Mrs Russell was not entitled to sole parent pension during that period.

Other evidence

  1. Cherie was diagnosed with some form of epilepsy in January 2003. According to records provided by Dr Martin Carlson, Cherie's general practitioner, and by the Moruya Hospital, for the period under consideration she was hospitalised for the condition on 9 occasions in 2003, 3 times in 2004, once in 2005, twice in 2006, and once in 2007. In that period, Cherie saw Dr Carlson 6 times in 2003, 7 times in 2004, 3 times each in 2005 and 2006, and once in 2008. The records indicate that Cherie had seizures on more occasions than are indicated by her visits to the hospital or the doctor.
  2. In 2006 Cherie was admitted to Westmead hospital for tests and Mr Russell stayed with her while she was there. Again in 2008 she was admitted to Westmead Hospital for one week to undergo further tests. On this occasion Mrs Russell stayed with Cherie and Mr Russell stayed at 35 Haslingden Street to mind Aaron. Cherie said her condition has improved as her current medication is working better than the Valpro she was first recommended. She can drive and is authorised by her doctor to do so, but when her seizures first occurred she was banned from driving for 6-8 months.
  3. Mr Russell gave evidence (which was corroborated by Mrs Russell) that Mrs Russell became frightened when Cherie was having a seizure and she or Aaron would always ring for Mr Russell. Mrs Russell was unable to lift Cherie because she was a dead weight on these occasions. Cherie was usually unconscious and often incontinent. She also bit her cheeks which would bleed.
  4. Mr Russell said he had had grown up with people affected by seizures and he was aware of how to handle the situation. Accordingly, Mrs Russell relied on him to assist her when Cherie was having an episode. When Cherie had had a seizure Mr Russell usually stayed overnight. Mr Russell said the last time he had stayed at 35 Haslingden Street for this reason was about 2008 when he was there for some 3 nights. He admitted he has, on occasions, stayed 4 nights but he was adamant he had, ‘Never stayed 7 nights straight’. However, in evidence Mrs Russell said that Mr Russell had stayed 7 nights at one stage to help with Cherie since she is physically hard to manage when she is having seizures and he also stayed to ensure her medications were regulated.
  5. Mrs Carol Gorst, who has known the family for over 30 years, have evidence that Mr Russell had not stayed very often at 35 Haslingden Street until Cherie started having epileptic fits. When these happened he stayed more regularly, often 2-3 nights a week.

Other information

  1. A tip-off to Centrelink on 14 March 2006 states that a ‘Cherie or Sharee’ (age 35-45) at ‘Hazelton Street, Moruya’ had been ‘married’ to a partner ‘John Russell’ for 10 years. John Russell’s address was given as ‘Hazelton Street, Moruya’ and Postal address as ‘Ison Street, Mogo’ .The tip-off also refers to ‘Cherie Russell’ who, it was claimed was employed by the NSW Education Department as a teacher’s aide at Moruya School.

Consideration

  1. The Tribunal is to decide whether the decision to raise and recover a debt from Mrs Russell was the correct or preferable decision. The collective decisions the subject of review, following the concession made by the representative for the Secretary at the hearing, are that Mrs Russell was overpaid sole parent pension for the period 23 July 1996 to 19 March 1998; that she was overpaid parenting payment (single) for the period 20 March 1998 to 22 November 2001; and was overpaid disability support pension (single rate) from 23 November 2001 to 15 May 2007.
  2. The key issue is whether Mrs Russell was ‘a member of a couple’ with Mr Russell during the relevant periods. In making that decision the Tribunal must take account of all the circumstances of their relationship.[1] The expression 'member of a couple' is defined in section 4(2) and (3) of the Act. The factors there listed are relevant but not exhaustive. The picture overall of the relationship must be considered.[2] Each factor must be considered in the context of the evidence as a whole and a decision made concerning the relationship which this process reveals. The decision must be made to the reasonable satisfaction standard of proof, on the balance of probabilities.[3] Mere suspicion or possibility is not sufficient.[4] In this case, a factor to be taken into account is the effect of Aboriginal culture and practices, as relevant, on the question of the relationship between Mr Russell and Mrs Russell.
  3. In particular, the Tribunal must have regard, that is, take into account and give weight to,[5] the following matters:
  1. The Act gives a particular meaning to the expression ‘member of a couple’ and it is that special statutory meaning which determines the outcome for the purposes of social security law, not what is understood as the meaning by the persons involved. It is the statutory meaning which governs the findings which the Tribunal must make. That is significant in this case since Mr Russell and Mrs Russell, according to the evidence which the Tribunal accepts, have a strong subjective belief that they are not a couple.
  2. In order for a couple to be living separately and apart normally there must be a physical separation as well as a breakdown of the marriage-like relationship.[6] It is possible, however, for a couple who are living under the same roof to be regarded as not a ‘member of a couple’, but there must be clear evidence that the relationship has broken down.[7] It is necessary at law to characterise the nature of that relationship.[8]
  3. While the parties’ view of their relationship is important, and the Secretary must take account of that subjective belief, the Secretary’s opinion is to be reached in light of objective indicators of the nature of the relationship.[9] The Secretary’s opinion must be that of a reasonable person who correctly understands the meaning of the relevant law.[10]
  4. The Tribunal accepts that there is a practical onus on Centrelink and on review, the Tribunal, to be satisfied of the facts in this matter before it can decide positively that Mr Russell and Mrs Russell have been living separately and apart on a permanent or indefinite basis, or that they are living separately under the one roof.[11] The Tribunal is required to be satisfied of its findings of fact to its reasonable satisfaction.[12]
  5. There was no dispute about two of the factors. Mrs Russell and Mr Russell are still married to each other. In evidence Mr Russell indicated that they had simply not got round to seeking a divorce, in part because of the expense, in part because neither of them had property to settle, so there was no need for a property settlement. However, in light of the issues which led to this application, he said he will now get a divorce. He said in evidence that it was his ‘biggest mistake’ not to get a divorce and ‘not to tell people that they were separated’. However, for the purposes of this matter, the couple were at all times legally married.
  6. There was also no dispute that Mr Russell and Mrs Russell no longer had a sexual relationship. According to the evidence of both Mr Russell and Mrs Russell the absence of a sexual relationship began before the separation in 1991. The Tribunal is satisfied that prior to the periods under consideration, any sexual relationship between them had ceased and has not been resumed.

Whether Mrs Russell and Mr Russell are ‘living separately and apart’

  1. A focus of the evidence was on the addresses for Mr Russell and Mrs Russell during the relevant periods. Where Mr Russell was residing has been critical. The Tribunal accepts that Mrs Russell physically separated from Mr Russell some time in late 1991 or early 1992 when she moved first to Queanbeyan and then to the south coast of NSW. Mr Russell has been a regular visitor at her various residences, often staying overnight, except during periods when he has lived with Cherie and her son Aaron.
  2. Evidence was based on Centrelink records, NSW Road Traffic Authority records, bank, business and tax records, the oral and written evidence of Mr Russell, Mrs Russell, Cherie Russell, Mrs Carol Gorst, Mrs Law-Smith, and statements by Ms Margaret Nye, Ms Christine Nye, and Mr James Allen, an Aboriginal who knew Mr Russell through their joint involvement with Aboriginal Housing and the Mogo Local Aboriginal Land Council, and evidence from Dr Eades, an expert in linquistic anthropology. The Tribunal also obtained Cherie’s medical records from Dr Carlson and the Moruya Hospital.

Living arrangements

  1. Mr Russell and Cherie have, since July 2009, been living at Peartree Lane, Moruya and from 13 October 2009 at Cambridge Cres, Broulee. Currently, Aaron, Cherie's school age son, spends the weekends and Wednesday nights at the Broulee address but stays with Mrs Russell at 35 Haslingden Street, Moruya, the other nights so he can be closer to his school.
  2. Mr Russell has been employed by the Mogo Local Aboriginal Land Council from July 1998. Mr Russell said he had been waiting for some time to obtain an Aboriginal Land Council house in the town and would have moved earlier had one come up. The move and the intention is evidence of Mr Russell’s contention that he is not a member of a couple with Mrs Russell. The Tribunal, however, must consider the position in the period between 23 July 1996 and 15 May 2007.

Location of Mrs Russell

  1. Since Mrs Russell first lodged a ‘Sole parent review’ form on 9 December 1991 she has lived at five different addresses, firstly in Queanbeyan and then in 1995 at 7 Massey Street, Broulee. Each of these residences has been in her sole name. Mrs Russell was accompanied by the three children.
  2. While Mrs Russell was at Queanbeyan, Cherie Russell moved out. On 16 January 1995, Aaron Russell was born to Cherie. Cherie gave evidence that the relationship with Aaron's father ended badly and she moved back with her mother while Mrs Russell was still at Queanbeyan and then moved with her to Broulee in 1995. In 1996, Scott, who has been living with Mrs Russell in Broulee, moved to Queanbeyan, following a relationship breakdown with Cherie.
  3. On 7 March 1996, Cherie and Aaron moved to 1/43 Train Street, Broulee. After a period they were joined by Mr Russell. On 23 July 1996, however, Cherie and Aaron returned to live at 7 Massey Street with Mrs Russell. On 21 October 1998 Mrs Russell, Cherie, Aaron, and Crystal moved into 35 Haslingden Street, Moruya, a 4 bedroom house, which remains the address for Mrs Russell and, during the week, Aaron. Crystal moved to Queensland in December 2001.
  4. At 35 Haslingden Street, Mrs Russell, Crystal, Cherie and Aaron each had a bedroom. Mrs Russell has always slept the computer room so she can use the computer. If Mr Russell stayed there he would either sleep on the lounge floor or, after Crystal left in 2001, in one of the bedrooms. By 2006 Mr Russell was sleeping in the master bedroom.
  5. Statements by Mrs Russell and Cherie indicate that Mr Russell would visit them regularly at their invitation, but usually only for two or three days at most. Mr Russell said his principal reason for visiting was to see the children. The Tribunal has accepted his evidence on this issue.
  6. On 9 November 2001, Mrs Russell claimed a disability support pension. She did not respond to the question whether she ‘shared accommodation’ with anyone else, including ‘people who regularly stay at your address (any number of nights per week)’.
  7. A Centrelink interview with Mrs Russell on 1 June 2007 records her address as 35 Haslingden Street, Moruya and that she is separated. She rejected the claim that she had been in a marital relationship with Mr Russell since 6 May 1993. At the same time, she acknowledged that after she left Goulburn and moved to various addresses in Queanbeyan that Mr Russell had stayed at those addresses, although in separate rooms. She explained that when he was with her he would drive her and the children to school or other places because she did not have a driver’s licence and because he continued to look after the children as his own. As she said too ‘we’re friends – even though we’re separated...You can be friends with people, whether you split with them or not’.

Location of Mr Russell

  1. From the time Mrs Russell left Goulburn and moved to Queanbeyan, Mr Russell had resided first at 19 Caoura Cres, Goulburn until he was evicted in 1992. He worked in Goulburn until the end of 1992, after his eviction staying in various places, including with cousins of Mrs Russell, and with friends Vicki and Kevin Wild.
  2. Mr Russell was then selling sweets for Koala Candy in the Goulburn, Canberra and south coast regions. During this period, Mr Russell would visit Mrs Russell a lot to see the children and because, until he turned 15, Scott was working for him in the candy business. Mr Russell said he stopped doing the sweets business some time prior to May 1994.
  3. His evidence was that, during this period, he only stayed overnight with Mrs Russell on about 3 occasions. When he did stay he would arrive on a Thursday evening and leave on Sunday. He said he camped in the lounge room and spent time with the children who were helping him package up the sweets for sale. On other occasions he would stay in Queanbeyan with mates, sometimes with his brother William, and occasionally with his niece Madeleine. Mr Russell said in evidence that he had 6 sisters and 3 brothers, most living on the south coast of NSW. His brother William and his brother’s daughter Madeleine live in Queanbeyan.
  4. In Mrs Russell's sole parent pension review form dated 29 November 1994 Mr Russell’s address was given as Mogo. On 17 October 1995, his address is also shown on Centrelink records as 4/1 Mogo Street, Mogo. Mogo Street is adjacent to Queens Street, and close to Ison Street, Mogo. When Mrs Russell moved into 7 Massey Street, Broulee, the evidence was that Mr Russell was then living with his sister June at Ison Street, Mogo. According to Mr Russell, from about 1995 he lived full-time with his brother David in the caravan adjacent to his sister Margaret Nye's house at 18 Queens Street, Mogo.
  5. In a conversation between an authorised review officer and Mrs Russell on 19 October 2007, Mrs Russell said that since she left Goulburn between December 1991 and early 1992, Mr Russell had come and gone from the residences in which she stayed. The evidence of Mr Russell, Mrs Russell, Cherie, and Mrs Gorst was that Mr Russell moves around between the residences of Mrs Russell and Cherie, the houses of other family and friends, and the caravan at Mogo behind the house of Mr Russell's sister, Ms Margaret Nye.
  6. However, she said that since she had been at the house at 35 Haslingden Street from October 1998 he had started to stay with her more frequently. In her interview with Centrelink in June 2007 she said ‘He’s only supposed to be staying a couple of nights a week but when Sheree ended up being real crook I got ... (indistinct) ... and - to do stuff with Aaron, I got him to stay’. Mrs Gorst said Mr Russell started staying more regularly at 35 Haslingden Street when Cherie began having epileptic seizures from January 2003.
  7. Nonetheless, in a telephone conversation with an authorised review officer on 19 October 2007, Mrs Russell maintained that over this period he continued to stay at Mogo, sometimes, for months and once it was for at least a year. For the most part he lived in the caravan on the block of land next to his sister’s place at 18 Queens Street, Mogo. She said he was there at the time of the conversation with the authorised review officer.
  8. Mr Russell said in evidence that he did not stay in the caravan full-time till 1995. He noted that his sister Madeleine used to live at 12 Queens Street, Mogo before she moved to Hervey Bay and his sister Margaret lived at 18 Queens Street. It was possible that he stayed for a while with both and he may also have lived in Mogo with his nephew Thomas who rented 18 Queens Street after Madeleine moved. He said he could not clearly remember.
  9. Mr Russell said at the hearing that the caravan was 30 feet long and he had a three quarter size bed. The caravan was comfortable for two people. It had electricity but for water he went to his sister June’s house or to Mrs Russell. Basically the caravan was for sleeping only. In the morning he would pick Cherie up to go to work and take Aaron to school and then return them to 35 Haslingden Street, at the end of the day.
  10. On 7 March 1996 Cherie and Aaron moved into Unit 1, Train Street, Broulee. In evidence to the Tribunal, Mr Russell said that initially Cherie and Aaron moved out to Train Street without him. Cherie’s evidence was that she had moved to avoid Aaron’s father who was following her and was very controlling. While at Train Street, Cherie repeatedly telephoned him because she was afraid of people breaking in. Mr Russell said he found he was there practically every night. Eventually he moved in with her. On 23 July 1996, however, when Cherie and Aaron returned to live with Mrs Russell at 7 Massey Street, he said he returned to Mogo.
  11. A statement dated 30 July 2007 by Mrs Christine Nye, Mr Russell’s sister, as executor of her brother David’s estate, stated that Mr Russell ‘has been living with David at 18 Queens Street, Mogo on the block for the past 12 years until the time of his death on the 1 October 2006’. She said he was paying rent to David and since David died, into the estate. That would have meant Mr Russell began living at 18 Queens Street, Mogo in 1995. It is clear that the caravan was available at that time, although the Centrelink records, as earlier discussed, indicated that Mr David Russell may not have lived there until at the earliest 1993, and thereafter he is shown at a number of addresses in either Bateman's Bay, Sydney, Moruya, Congo, and Mogo. That does not mean Mr Norman Russell may not have also used the caravan behind Mrs Nye's house during the period from 1995.
  12. Mr Russell claims that he used 35 Haslingden Street, Moruya for mail, ‘as there was no mailing address at the caravan’. Mrs Russell said in her Centrelink interview of 1 June 2007 that she understood the reason Mr Russell gave her addresses as his mailing address was for convenience and he had asked her before he did so and she had said ‘Yes’. Cherie gave evidence that she collects his mail and gives it to him. Mr Russell, when asked why he had not had his mail addressed to his sister, said it was because he trusted Cherie more. He said that Cherie had offered to let Mr Russell use her address because he did not have one. Mrs Gorst corroborated that evidence since she said Mogo does not have a postal service and residents have to pick up the mail themselves. Nor is there an address for the caravan which is situated on a battleaxe block behind Mrs Nye's house.
  13. Mr Russell also said he leaves his belongings at 35 Haslingden Street because there was insufficient room in the caravan, and for security. He said Margaret’s area is not secure and he never kept any valuables there. Mr Russell said he has now put most of his stuff in storage. He said the model cars, his boat and the vehicle are left to his grandson and hence he housed them at 35 Haslingden Street since Aaron was living there. He also leaves a car there since Cherie drives it, and a boat trailer.
  14. Mr Russell said he visited 35 Haslingden Street most days and stayed overnight three or four nights a week, sometimes in Aaron’s room. Otherwise he lived at the caravan. In 2001, Crystal moved to Queensland and her room became the ‘junk’ room. Cherie's evidence was that after 2001, Mr Russell would sleep in this room and stay more often and by 2006, Mr Russell was sleeping in the master bedroom.
  15. Mrs Russell agreed in her Centrelink interview of 1 June 2007 that at times she and Mr Russell, and sometime Cherie and Aaron too would do things together ‘like fishing, garage sale-ing, travelling away to see family’, and that on occasions they go together to Tomakin for ‘the badge draw or the raffles – meat raffles’ and that he drives them there and back. She also agreed that she would hang out Mr Russell’s clothes if Cherie had washed them. She said only she and Cherie do the house cleaning at 35 Haslingden Street and Cherie mostly does the cooking. Cherie and Aaron do the gardening. She admitted that Mr Russell slept in one of the four bedrooms but would stay with his sisters at times.
  16. Mr Russell was also interviewed at Centrelink on 1 June 2007. In that interview he gave 35 Haslingden Street, Moruya as his residential address but he also said he lived at ‘18 Green [sic] Street’. He affirmed that he was not divorced but was separated. He maintained that he had not been living with Mrs Russell all the time, but had also lived at his sister’s, in the caravan, and with friends. However, he maintained strongly that the main reason he stayed at Mrs Russell’s house was ‘because of my daughter and my grandson’.
  17. Mr Russell also said that Aboriginal Housing did not know he was living at 35 Haslingden Street because it was not in his name. When asked why he did not notify Centrelink that he was living with Mrs Russell he said: ‘Well, I wasn’t living with Cheryl, I was living with my daughter’. He agreed at the Centrelink interview that he was living there from ‘time to time’.
  18. Later he summed it up in these terms:

Cheryl and I have got a good understanding. We don’t live together, we don’t have sex or anything like that... I’m only there for the kids. I know Cheryl gets terrified every time Sheree (?) has a fit and stuff like that. The first time she seen Sheree had a fit it just – like I had trouble to...calm her and Sheree down....I wouldn’t let go of my kids; that’s why I was there. I don’t live with Cheryl...’

My biggest mistake is I didn’t move – move my address, that’s all. But as – as - as for leaving my kids, that’s something I would never do. But as for Cheryl and I’s [sic] relationship, there is no relationship – and I mean no relationship’. ‘The kids are always trying to push us back together, but it’s not going to work and they know it. Cheryl knows it, I know it, and I aint [sic] trying to get back with Cheryl and Cheryl’s not trying to get back with me. We know it’s over and done with. It’s been over and done with for years, but because our kids try to keep us together we do things – like a photo, or we go places where they want us to go together just to keep them happy, you know’...The community think that there’s nothing wrong, because we don’t air our stuff out in front of the community and the community thinks everything’s sweet. The community are jealous of us in a big way.

  1. Mr Russell was a member of the Board of Mogo Local Aboriginal Land. He then became President but resigned in July 1998 to become the Co-ordinator. Mrs Russell and Cherie are both on the Board of the Council and are selected by members of the Council. Mr Russell, Mrs Russell and Cherie attend community events such as Land Council barbeques and picnics, and National Aboriginal Islander Day Observance Celebration (NAIDOC) week events.
  2. Mrs Dowling Law-Smith, an accountant who has assisted with book keeping for the Council for the last four to five years, said she had never known Mr Russell and Mrs Russell to live together. As far as she was aware Mr Russell lived with Cherie in one of the Aboriginal Land Council houses for the last two years and that before then he lived in the caravan and earlier with Cherie.

Other location evidence

  1. Mrs Law-Smith said in evidence that for Land Council purposes the phone contacts for Mr Russell are his sister, his mobile, his daughter and the Council telephone number.
  2. Centrelink records show Mr Russell’s addresses, during the relevant periods, as:
  3. The Road Traffic Authority (RTA) of NSW on 10 August 2006 provided the addresses for Mr Russell, for the relevant periods, as follows:
  4. Tax records on 14 August 2006 for Mr Russell and Mrs Russell show their postal addresses as care of a tax agent in Moruya, and their residential addresses as 35 Haslingden Street, Moruya. Mr Russell did not nominate a spouse in his tax returns. However, ATO records reveal Mr Russell was on file as Mrs Russell’s spouse for a tax return processed on 5 August 2004.
  5. The authorised review officer had noted that Mrs Russell had claimed Mr Russell as a dependent in this return. However, the information in the Tribunal documents simply states ‘No spouse details listed on client’s [Mrs Russell’s] form. File shows spouse history with initial N Russell, processed on 5/8/04 with ATO (no other details provided).’
  6. In response to a Centrelink inquiry on 15 August 2006, the Moruya District Hospital provided details of ‘all admission records’ for Mrs Russell and for Mr Russell since 1991. The response noted in brief that Mr Russell was nominated as Mrs Russell’s ‘spouse/partner’, and her ‘husband’, and the emergency contact. Equally Mr Russell’s details showed Mrs Russell as his ‘wife’ and emergency contact. No addresses were listed for Mrs Russell. Mr Russell’s current address on 15 August 2006 was given as 35 Haslingden Street, Moruya, and his address in 1998 was given as 7 Massey Street, Broulee.
  7. At the same time, actual emergency admission records at Moruya Hospital for Mrs Russell are somewhat different. Hospital records for an emergency admission of Mrs Russell for 12 January 2002 list Mr Russell as ‘spouse’ and the address for both of them as ’35 Hazlington Street, Moruya’ but noted as marital status ‘Separated’. Medical records for admissions for Mrs Russell on 22 May 1998, and 2 June 1998, show her address as 7 Massey Street, Broulee and lists Cherie, at the same address, as the person to be notified. Her marital status was ‘separated’. Mrs Russell said in evidence at the hearing that she did not know Mr Russell was listed as her next of kin in relation to her admission on 12 January 2002. These contradictory records cast doubt on the accuracy of the information supplied by the Hospital to Centrelink.
  8. A surveillance Report for 23 to 30 August 2006 showed Mr Russell’s cars parked at 35 Haslingden Street, Moruya every one of the seven nights of the surveillance period. The report notes that Mr Russell did not visit or stay at 18 Queens Street, Mogo during the surveillance period.
  9. In summary, establishing where Mr Russell resided at any point in time has been difficult due in part to Mr Russell’s lifestyle. It is apparent from the evidence that he has, over the years, stayed overnight with many members of his extended family in Goulburn, Queanbeyan, Mogo, Moruya and Broulee. The description of Mr Russell by his sister, Mrs Margaret Nye, as ‘a take-away man, he’ll sleep anywhere’ supports this evidence. The willingness of Aboriginal people to offer a bed to members of their extended families is reflected in NSW Government Housing policy that Aboriginal housing should have ‘1 extra bedroom to help [Aboriginal families] meet their family responsibilities’.
  10. The Tribunal accepted the concession made by the representative for the Secretary, and earlier by the authorised review officer, that until 23 July 1996, there was insufficient evidence that Mr Russell regularly resided with Mrs Russell. The choice of 23 July 1996 as the starting point for the Tribunal’s consideration is that from that date Cherie and Aaron who had been residing with Mr Russell returned to live with Mrs Russell at 7 Massey Street, Broulee.
  11. Mr Russell’s residence after that date is not clear. There is evidence from Mrs Gorst that from July 1996, Mr Russell moved back to the caravan although he still spent some nights at 7 Massey Street and later at 35 Haslingden Street. Mrs Gorst appeared at the hearing. She is a long-standing friend of Mrs Russell’s and has known the family for over 30 years. That casts some doubt on the value of her evidence.
  12. If one discounts the evidence of Mr Russell’s sisters, who indicated he was living at the caravan, there is evidence of Mr Allen and of Mrs Law-Smith, both of whom are work colleagues, and of the local priest, that Mr Russell mostly resided in Mogo. Their evidence goes some way to supply the missing evidence that Mr Russell regularly spent time in the caravan and the Tribunal accepts that he did sleep in the caravan from time to time. The absence of direct evidence of his being at the caravan is understandable if Mr Russell’s claims that he only slept in the caravan are accepted. According to Mr Russell he frequently left 35 Haslingden Street close to midnight and returned from the caravan early in the morning to take Cherie and Aaron to school.
  13. By August 2006, however, there is evidence that at least for the week during which the surveillance took place Mr Russell had not slept at the caravan. Mogo is some 20km away from Moruya. Undertaking a 40 km round trip to sleep at the caravan and then return to 35 Haslingden Street to pick up Cherie and Aaron is unlikely if Mr Russell could stay over with Mrs Russell. After Crystal left in 2001 Mr Russell also had a separate bedroom. The issue is when this practice commenced.
  14. Initially, the Tribunal considered that the change may have occurred when Cherie began having seizures in January 2003. Mrs Russell, who was frightened by these attacks and not sufficiently strong to physically manage Cherie during these times, would always call on Mr Russell to assist. That situation could have been the circumstance which led to Mr Russell spending more time at 35 Haslingden Street.
  15. However, Mrs Russell’s diaries indicate that the change probably occurred earlier. From the beginning of 1999 until midway through 2000 Mr Russell was regularly present at 35 Haslingden Street. There are references to what ‘John’ was doing on about 20 per cent of the days covered in that period. So at least by the beginning of 1999, Mr Russell was more frequently spending time with her. Mr Russell would take her shopping on the weekends, give her lifts, withdrew her money, occasionally went fishing with her or to garage sales with her, and took her to the hospital or drove her to Boorowa to see her family. The entries indicate that Mrs Russell was seeing Mr Russell regularly, and was relying on him more than would be the case if he was simply a boarder, invitee or visitor.
  16. Nonetheless, Mrs Russell said in her evidence that:

There is no way that Norm would have been regularly coming and going over the years if I lived alone. It is Cherie and her son Aaron who he comes to see. Aaron doesn’t have a father and Norman is like both a grandfather and father figure to him.[13]

  1. The Tribunal accepts that Aboriginal people ‘have very strong ties with extended family’. Mr Russell’s commitment to his non-biological daughter, Cherie and her son are indicative of the strength of that tie. It is in that context that the Tribunal must view the residential arrangements between Mr Russell and Mrs Russell for the purpose of this claim. Nonetheless, Mr Russell’s residence arrangements have to be considered as a measure of the relationship he had with Mrs Russell, rather than with Cherie and Aaron since it is necessary at law to characterise the nature of that relationship.[14]
  2. There is evidence that Mrs Russell permitted Mr Russell to stay regularly since she moved to Queanbeyan. In the period under consideration, there is little evidence of the amount of time Mr Russell spent at 7 Massey Street, Broulee. There is, however, evidence that Mr Russell was spending more time at 35 Haslingden Street when Mrs Russell moved to that 4 bedroom house in October 1998 and particularly once Crystal left in December 2001, when there was a bedroom for Mr Russell.
  3. The evidence from the diaries indicates that Mr Russell was spending a considerable amount of time and providing significant support to Mrs Russell as well as Cherie and Aaron from the beginning of 1999. What led to this change is hard to pin down. The change had been a gradual one.
  4. On 13 July 1998 Mr Russell started work as an employee at Mogo Land Council. The Tribunal has assumed in the absence of evidence to the contrary that as coordinator, Mr Russell would have been required to maintain a regular pattern of work. The evidence of Mrs Law-Smith was laudatory of his performance and did not give any indication that he was not fulfilling the tasks he was employed to undertake.
  5. On that basis, Mr Russell was in regular employment from mid-1998 in Mogo. In conjunction with the evidence of the regularity of his interactions with Mrs Russell from January 1999, it is probable that a more settled work pattern precipitated the change in his lifestyle and led to his spending more time at 35 Haslingden Street from the beginning of January 1999. Mr Russell’s residence at the time is, however, only one of the factors which are relied on to decide whether two people regularly living in the same house are a couple. A discussion of these other factors follows.
  6. The conclusion of the Tribunal, therefore, is that it was not Cherie’s seizures which provided the impetus for a change in the pattern of Mr Russell’s spending more time at Mrs Russell’s house. Rather it was Mr Russell becoming the co-ordinator of the Mogo Land Council in July 1998, coupled with Mrs Russell’s move into a 4 bedroom house in Moruya. There were no other significant changes to the financial circumstances of the two, nor to their level of commitment to each other and their children. It was convenience coupled with Mr Russell’s commitment to the family which tipped the balance.

Financial arrangements

  1. Mr Russell and Mrs Russell do not share ownership of any real estate. Both have stayed in rented properties. Since early 1992 when she left 19 Caoura Cres, Goulburn Mrs Russell has consistently rented property solely in her own name. In particular, since July 1996 the rental agreements for 7 Massey Street, Broulee and subsequently at 35 Haslingden Street, Moruya have been solely in her name.
  2. A life insurance policy notice for Mr Russell dated 28 August 2006 lists Mrs Russell and Mr Russell as beneficiaries under a Family Plan. A notice dated 1 February 2006 from Insuranceline regarding a Funeral Plan policy lists both Mr and Mrs Russell as beneficiaries. In the Centrelink interview of 1 June 2007, Mr Russell accepted that Mrs Russell was a beneficiary of his funeral plan but said:

When I took it out she was on the thing, yeah, to start off, ‘cause I – I – what I was doing. I was protecting her, her grandchildren and everything. ...I mean to say, ‘cause we’re not in a relationship, but I aint going to have my – my kids turn around and she dies and she can’t afford to pay for the funeral, you know. What’s a funeral fund? It’s nothing really, though.

  1. An AMP Retirement Savings Account, opened on 13 July 1998, in the name of Mr Russell listed Mrs Russell as beneficiary and nominated her as ‘wife’. It was established that this was not in favour of Mrs Russell but of Cherie and this mistake has been cleared up by the company.
  2. Mrs Russell and Mr Russell have separate bank accounts. Mrs Russell said she did not know with which institutions Mr Russell banked. Mrs Russell’s sole parent pension payments went into a St George Freedom Account in her name, an account she had from the time she was in Goulburn. Mrs Russell, while at Goulburn had a St George account and an account with the ANZ Banking Corporation for her sole parent pension opened at least in 1992. She has two other accounts in her own name: a Westpac account opened in 1999, and an ANZ account opened in 2006.
  3. Mr Russell had two Westpac accounts in his name at least one of which was opened in 1992, a Commonwealth Bank account opened in April 2006, and a National Bank account opened on 19 October 2006.
  4. Mrs Russell admitted Mr Russell would get money out of an ATM for her if she asked him to do so. However, there is also a reference in Mrs Russell’s diaries on 8 April 1999 to ‘Joann[e] rang said she used my account number so they could put money in for John ... from Scott’, indicating that Mrs Russell gave her pin number and account details to others on occasion. This means there is less significance to Mr Russell also having access.
  5. At the hearing it was established that Mrs Russell is blind in one eye as a result of her diabetes and has difficulty with ATM machines and that Mr Russell performed this function for her for this reason. As he explained, in addition ‘when it comes to using Keycards and stuff like that Cheryl is very sort of – what would you call it – not very bright on that sort of stuff and I just used to go and do it all the time’.
  6. Mrs Russell agreed that she, Mr Russell and Cherie had at one time all subscribed to Chrisco food packs since it was a convenient way to get food delivered and it had Christmas presents in as well. Mr Russell said he regarded his contribution as being ‘for the kids’. The account was in Mr Norman John Russell’s name only and was closed on 21 October 2004.
  7. Mr Russell said he paid for the cars some of which are registered in Mrs Russell’s name. He did so because Cherie drove the car and Cherie often used it to transport Mrs Russell, for example, to Mogo Aboriginal Land Council Board meetings. The Tribunal accepts on the evidence that this was for convenience only and that at no stage has Mrs Russell paid for the vehicles or driven them. Mr Russell has been the purchaser. She has never had a driver’s licence, is now blind in one eye, and does not drive. When she needs to be transported somewhere Mr Russell or Cherie will drive her and she may contribute to the cost of petrol. The payment for petrol can be seen as no more than the reimbursement of monies which would be expected of friends, relatives or visitors.
  8. Mr Russell and Cherie had joint NRMA membership and Cherie was on his AAMI car insurance. That is no longer the case as Cherie does not have her own vehicle. Mr Russell and Mrs Russell lodge separate tax returns and neither claims any spousal deductions although Mrs Russell’s 2004 return apparently referred to Mr Russell as her ‘spouse’. Mr Russell said he could not explain why on the 2006 tax return his accountant had listed his residential address as 35 Haslingden Street, Moruya. He may not have listed 18 Queens Street because the tax refund was to go to Cherie but he said he honestly did not know the reason.
  9. Mr Russell said that money was not an issue between him and Mrs Russell before they were married but it became so during the marriage. After they split up, Mr Russell said Mrs Russell had asked him for money a couple of times and he had said ‘No’ and she stopped asking. Since then when the question of assistance with bills came up it was almost always Cherie who asked, not Mrs Russell. Once or twice only Mrs Russell had asked for assistance.
  10. Extracts from Mrs Russell’s diaries for 1999 and 2000 showed that electricity, gas and a telephone account, the cost of a trailer, and Aaron’s school fees were divided by three during this period. Mrs Russell said in her Centrelink interview on 1 June 2007 that since she has been living at 35 Haslingden Street, Moruya she had asked Mr Russell to pay board of $40.00 a week. That was because he was living there, Cherie would cook him meals and he was using the telephone and electricity. She said she thought this was only fair. As she said ‘I’ve asked him to help me pay – the whole three of us put money in on the electricity, the phone bill and stuff like that’. However, only Mrs Russell and Cherie pay the rent. Otherwise, Mrs Russell said, Mr Russell does not support her financially.
  11. Cherie acknowledged that Mr Russell helped pay some household expenses at both 7 Massey Street, Broulee and at 35 Haslingden Street, Moruya. Cherie’s evidence was that when money had been borrowed from Mr Russell she would try to pay it back. Sometimes Mr Russell refused the offer and if that happened Cherie and Mrs Russell put the money towards other expenses.
  12. Mr Russell says he sees the payments as being for Cherie and Aaron, not Mrs Russell; Mrs Russell pays for herself. That is the arrangement. As for repayment he said it was not in cash but Mrs Russell did pay for registration of a car and for petrol. Cherie always wants to repay but Mr Russell says there is no need, but if he does need financial assistance and Cherie has the money she will give it to him. Mrs Russell, when asked for evidence that she repaid Mr Russell money if he lent it to her, acknowledged that she had no idea why she did not write down the amount. Mr Russell also said in evidence that he never asked his daughter to repay the amounts she had asked him to pay.
  13. These payments by Mr Russell are, however, indications of a significant sharing of day-to-day household expenses for the period January 1999 to May 2000. On at least 8 occasions in the 17 month period, that is, almost every second month, gas, telephone, electricity bills, some repairs, the cost of a trailer, and Aaron’s school fees were split between Mr Russell, Mrs Russell and Cherie. Given that it is common for utility, including telephone, bills to be bi-monthly, this suggests that all the significant bills, except the rent during this period were split in this fashion. So the evidence, at least during 1999 and 2000, is that these payments were routinely shared and the sharing of household expenses does suggest the two are a ‘member of a couple’.
  14. Summing up, the financial arrangements of Mrs Russell and Mr Russell are equivocal. The two do not jointly own property, Mrs Russell only pays rent for her residences, and the two have separate bank accounts which strongly suggest independent financial arrangements are the norm. Mr Russell also said that his principal beneficiary is Cherie, not Mrs Russell.
  15. On the other hand, Mr Russell does contribute to a funeral plan which benefits Mrs Russell. As Mr Russell said in evidence this meant if either he or Mrs Russell died, the burden of the funeral would not fall on the children. The evidence indicates that attending funerals is significant in Aboriginal culture and it is expected that extended family members participate. The costs can, accordingly, be high and Mr Russell’s ensuring that neither of them would be deficient in meeting that expectation on their death is indicative of the kind of step which would be taken by a caring family member. Given the explanation of the significance for Aboriginals of being able to pay for funerals at which extended family are present, the Tribunal gives some weight to this factor as an indicator of a familial relationship.
  16. Mrs Russell pays for the registration of one or more cars, a payment which was seen as recompense for past financial assistance of Mr Russell and their cost has been borne by Mr Russell. She pays for petrol when he has given her a lift so this is only recompense for a service. Mr Russell’s act of friendship in withdrawing money for Mrs Russell can also be given little weight.
  17. The sharing of household expenses, coupled with his strong commitment to ensuring that at least Cherie and Aaron are protected financially, thus indirectly benefiting Mrs Russell, do indicate a level of financial interdependence between Mr Russell and Mrs Russell. At the same time, the sharing of the bills could be characterised as no more than the behaviour of a fellow tenant or boarder were it not for the failure to repay in any systematic or regular manner. So on balance, although the financial arrangements of Mr Russell and Mrs Russell are for the most part quite separate, the manner in which sharing of major bills occurred from January 1999, do marginally suggest that at least from that time Mr and Mrs Russell’s financial arrangements were more akin to those ‘of a couple’ than of a boarder, or fellow tenant.

The nature of the household

  1. On 23 March 2006 a Centrelink specialist officer recorded a conversation with Mrs Russell in which she said she had ‘never been on holidays w/Norman, has no access to his accounts/money, no joint loans and only banks w/Westpac’. Following a suggestion from Mrs Russell, the officer contacted Ms Gorst who confirmed ‘there is no chance of reconciliation’.
  2. Nonetheless, there is evidence from the nature of the household of some aspects of features of being a ‘member of a couple’ rather than simply an invitee, boarder, or visitor. Mr Russell and Mrs Russell have consistently shared responsibility for providing care and support of their three children.[15] It is Mr Russell whom Mrs Russell relies on when Cherie has a seizure; each parent went to Sydney on the occasions when Cherie was hospitalised there for the condition. In the period under surveillance, Mr Russell drove Cherie and her son to and from school every day and then returned to work in Mogo. Mr Russell’s relationship with Cherie and Aaron her son is close and the three have been living together for periods including at present. Mr Russell employed Scott to work with him when he was with Koala Candy and Mrs Russell has provided accommodation for all three children over the years until Scott and later Crystal left home, and she now houses Aaron most days of the week.
  3. Mr Russell’s evidence was that his chief reason for visiting Mrs Russell’s residences was to see his children and Aaron. They were his principal focus and Mrs Russell’s presence was only incidental. He said in evidence that he had felt intimidated and bullied by Centrelink that they were going to make him give up his family. That was something he said he would never do. His family, meaning his children, particularly Cherie and Aaron, meant everything to him. He had been very upset when in the 2007 interview the Centrelink officer had suggested he did not need to consider them because they were not his biological children. In his eyes he has raised them and he considered them to be his own. He said they were his family. That mean they were his responsibility and he would not abandon them. That view, strongly held by Mr Russell, is evidenced by his later moving out with Cherie and Aaron, and was accepted by the Tribunal.
  4. Nonetheless, Mr Russell is a financial backstop for Mrs Russell in an emergency although he has asked her to repay amounts on occasion. He has contributed to household expenses. Even though he says he regards this as for Cherie and Aaron and not for Mrs Russell, he knows that indirectly she is benefited. As Mrs Russell does not drive Mr Russell often drives her when she needs to go places, particularly when Cherie is not able to do so.
  5. The surveillance report in August 2006 identified Mr Russell’s personal items in the bathroom and his clothes in the master bedroom suggesting he was more than an occasional boarder. By 2006, he was also housing possessions such as his model cars, his boat and his vehicle at 35 Haslingden Street. Although this was partly for practical and partly for security reasons, again, this does not suggest he was simply a visitor and invitee, not a resident.
  6. Mrs Russell agreed that on occasions she would hang out Mr Russell’s clothes washed by Cherie and would presumably take in the clothes when dry. Mr Russell shared meals that Cherie for the most part cooked. Mr Russell did not contribute to housecleaning nor to gardening at 35 Haslingden Street.
  7. Summing up, although Mrs Russell said she did not go on holidays with Mr Russell, the evidence establishes that during the relevant period, Mr Russell continued to spend several days a week living at her house, although he slept either in the lounge or in a separate bedroom; the two have provided care and support for their three children. Mr Russell also provides practical support to Mrs Russell when Cherie was having seizures and takes Cherie and Mrs Russell to hospital and is nominated as a contact for them both. He also provides financial support as needed. Mrs Russell undertakes some household services for Mr Russell and has been prepared to house Mr Russell whenever he wished to stay.
  8. Although Mrs Russell and Cherie claimed that Mr Russell was only in the house as a guest and by their invitation, and Mr Russell said that he was not living full-time with Mrs Russell, the circumstances outlined indicated a more regular and supportive presence of Mr Russell in her life that would be provided by a mere visitor or invitee. On balance, the nature of the household at least from January 1999 indicates the two were a ‘member of a couple’.

Social aspects of the relationship

  1. Cherie’s evidence was that over time the relationship between Mrs and Mr Russell was better and there were fewer of the arguments which caused the two to separate. In his Centrelink interview of 1 June 2007, Mr Russell said that overall Mrs Russell was unsociable and people did not see the two of them out together. In fact he said people thought Cherie was his wife, not Cheryl, if he was ever at the club with both.
  2. It is significant that the Centrelink investigation started from a ‘tip-off’ that it was Cherie and Mr Russell who were a couple, not Mr Russell and Mrs Russell. That perception of the informant was apparently shared widely although not universally in the local community. Mrs Gorst’s evidence confirms that this was the case. Mrs Law-Davis said she did not believe Mr Russell and Mrs Russell were a couple. Mr Russell’s sisters, the local priest, and Mr Allen agreed.
  3. At the same time, others in the community did consider them to be a couple. Mr Russell said in relation to the statement on the GP Management Plan document by Dr Carlson, the family’s treating general practitioner, under ‘Social history’ that Mr Russell ‘lives with wife, daughter and grandson’ that he had never told the doctor they were separated. He explained the Doctor’s perception on the basis that no one knew, as far as he was aware of their separation, except Centrelink. As he said: ‘No-one asked; we didn’t tell’. Mrs Russell also said she had been brought up not to share family problems outside the immediate family. As he said in his interview with Centrelink in June 2007 ‘The community think that there’s nothing wrong, because we don’t air our stuff out in front of the community and the community thinks everything’s sweet’.
  4. The diary entries indicate that on some 8 occasions in the seventeen months covered the two either had a garage sale at 35 Haslingden Street, or went together to other garage sales, or to a meat draw at the club. Mr Russell also regularly took Mrs Russell shopping when the two would have been seen together by others.
  5. However, Mr Russell said it was rare for him and Mrs Russell to go fishing or to go to meat raffles. He agreed that in the past they would go to an occasional garage sale together, but said that now that Aaron has football, Saturdays are too busy for garage sales. Mr Russell’s evidence is that generally he and Mrs Russell do not go out socially unless it is a special family occasion when they did so for the kids such as going to the Club for Father’s Day. There was also independent evidence that Mr Russell and Mrs Russell did not sit together at Aboriginal Land Council functions and that Cherie, not Mr Russell, would often drive her to these events. A couple who have separated in a civil fashion would be likely to do the same.
  6. Evidence from real estate agents with whom she rented, from Moruya Hospital records where she is recorded as ‘separated’, from tax, bank and other official records are also evidence of the perception of Mrs Russell that the two were not ‘a couple’.
  7. Summing up, so although the general community may have seen the two together on occasions, there is also strong evidence from the tip-off that it was Cherie, not Mrs Russell who was seen as Mr Russell’s ‘partner’. The Tribunal considers that others’ perceptions would not be strongly that the two were ‘a member of a couple’.

The nature of the people’s commitment to each other

  1. The evidence of Mr Russell and Mrs Russell strongly indicates that from their own perspective they perceived themselves to be separated. That is, they are not committed to each other and do not see themselves as a couple. Their separate bank accounts, Mrs Russell’s statement that she had ‘never been on holidays w/Norman, has no access to his accounts/money, no joint loans’, the statement by Mr Russell that after they split up Mrs Russell had asked him for money one or two times and when he said ‘No’ she stopped asking, supports their perception.
  2. In addition, in a diary entry on 15 April 2000 that she asked John for twenty dollars and he said ‘Yes, as long as I pay it back’ supports the perception that he did not regard himself as financially responsible for Mrs Russell although on occasion he would be prepared to help her out.
  3. At the same time, Mr Russell’s concern for and support of Mrs Russell in assisting her when Cherie is having a seizure, in giving her lifts when she needs them, and in assisting her financially, indicated a humane attitude to providing for her which suggests a level of commitment to her well-being.
  4. Equally Mrs Russell’s willingness to house Mr Russell when he wished to stay, permitting him to leave his things in her house, and to providing food and assistance with his washing also indicate a degree of support on a continuing basis which goes beyond that to be expected in relation to a boarder, visitor, or even a friend. Mrs Russell also had expectations of him, in relation to provision of support and assistance that were greater than those which could be imposed on someone who had no familial commitment.
  5. Summing up, although Mr Russell’s predominant motivation may have been to benefit and support Cherie and Aaron, his commitment, objectively, was to the family group including Mrs Russell and not just to Cherie and Aaron. Equally, Mrs Russell’s support for Mr Russell was indicative of more than would be expected for someone who was simply a friend or boarder. The commitment of the two to support each other is more the commitment of a family member than of someone with no familial connection.

Conclusion

  1. The Tribunal has accepted as correct the concession made by the representative of Centrelink that there was insufficient corroborative evidence to sustain a finding that Mrs Russell was not a ‘member of a couple’ in the period to 22 July 1996. That means that in order to make a finding that the two are a ‘member of a couple’ from 23 July 1996, some significant change must occur to change the relationship from Mrs Russell not being a couple on 22 July 1996.
  2. In their eyes Mr Russell and Mrs Russell are not a couple and have not been since 1991. At the same time, it is not their subjective belief but objectively determined, relevant factors which must be used to decide whether they were a ‘member of a couple’ during the relevant period.
  3. Taking the relevant factors into account the two remain legally married to each other, but have had no sexual relationship for a considerable period. It is probable that the community do not see Mr Russell and Mrs Russell as a couple.
  4. For the most part the finances of the two are separate although the sharing of major bills from the commencement of 1999 and the failure by Mrs Russell to make regular repayments indicates a degree of financial interdependence of the kind enjoyed as a ‘member of a couple’. Mr Russell also began spending more time at the same residence as Mrs Russell at least from the beginning of January 1999. In addition, the circumstances of Mr Russell’s contribution and place in the household at 35 Haslingden Street from January 1999 indicated more support than could be expected of a mere visitor or invitee.
  5. These circumstances are indicative too of the commitment each has to the other. Mr Russell’s level of support directly or indirectly for a woman he does not regard as his partner is indicative of his humanity and is a credit to the civility of the relationship the two have established. However, in conjunction with other factors this behaviour tends to indicate that legally the two would be regarded, at law, as ‘a member of a couple’.
  6. The Tribunal finds, accordingly that from 1 January 1999 to 15 May 2007, taking account of the factors in the Act, including the generous accommodation practices of Aboriginal people, Mrs Russell was a ‘member of a couple’ with Mr Russell.
  7. Given the nature of the findings under the relevant factors, the Tribunal concludes that there is insufficient evidence that the relationship between Mr Russell and Mrs Russell had broken down to enable it to make a finding that the two no longer had a familial relationship and could be said to be living separately and apart under the one roof.

‘Special reason’ to treat the two as not a member of a couple (section 24(1))

  1. Nor are there grounds for a finding that there is a ‘special reason in the particular case’ not to treat the two as a member of a couple in accordance with section 24(1) of the Act. Although the discretion to make such a finding 'is not lightly to be enlivened',[16] as French J said in Boscolo v Secretary, Department of Social Security:

The core of the requirement for 'special circumstances' or 'special reasons' is that there be something unusual or different to take the matter the subject of the discretion out of the ordinary course....But that does not require that the case be extremely unusual, uncommon or exceptional.[17]

  1. Each of Mr Russell and Mrs Russell has indicated respect and concern for the welfare of the other and neither has suggested unequivocally that the good relationship which has been exhibited between them over the previous decade no longer exists.[18] Mr Russell has said that as a matter of principle he would continue to care for Mrs Russell, generally and, if necessary, financially. Mr Russell’s commitment to support Mrs Russell is indicated by the fact that during the period in question when Mrs Russell needed Mr Russell’s support, particularly with assistance when Cherie had a seizure, he always responded. Mr Russell admitted he would sleep the night at Mrs Russell’s residences at these times.
  2. The two also shared major expenses, went shopping together, and Mr Russell assisted Mrs Russell by obtaining cash for her when she needed it and driving her places to which she needed to go. Even though they may not always eat together or socialise together and had no sexual relationship there remained a degree of interdependence which was indicative of a close familial relationship, not one which had broken down. On balance, although the two did not consider themselves to be a ‘couple’, for the purposes of the legislation they were so regarded at the time and the Tribunal considers there were no 'special circumstances' which would justify treating Mrs Russell as not a 'member of a couple'.

Waiver

  1. Nor is there a sufficient reason to waive all or part of the debt. Mrs Russell had been found to have breached notification requirements in the past. She was on notice about her obligations to Centrelink. Her subjective belief in her ‘single’ status was not one to which she could adhere in the face of her earlier failures to comply with obligations under the Act. Nor is her poor health of sufficient moment to warrant waiving all or part of the debt.
  2. Mrs Russell’s financial circumstances are not sound. The findings in this matter indicate she has a considerable overpayment which will need to be recovered by the Secretary. However, arrangements can be made to negotiate a rate of repayment which will not leave her destitute.

Decision

142. The Tribunal varies the decision under review and finds that from 1 January 1999 until 15 May 2007 Mrs Russell was a ‘member of a couple’ with Mr Russell. The matter is remitted to Centrelink for recalculation of the amount of the overpayments.

I certify that the 142 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.


Signed: ...................[sgd]...........................

C. Baillie, Associate


Date of Hearing 17-18 November 2010

Date of Decision 3 February 2011


Solicitor for the Applicant Marc Pericaud

Pericaud Zraika Solicitors and Barristers

Counsel for the Applicant Mark Vincent


Solicitor for the Respondent Bernard Slattery

Centrelink Advocacy Branch


[1] Lambe v Director-General of Social Services (1981) 57 FLR 262.
[2] Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92; (2008) 102 ALD 22 at 27; Lambe v Director-General of Social Services [1981] FCA 171; (1981) 57 FLR 262 at 271.
[3] McDonald v Director-General of Social Security (1984) 1 FCR 354.
[4] Re Hulme and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 414 at [7].
[5] Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252.
[6] Main v Main (1949) 78 CLR 636.
[7] Re Lenard and Secretary, Department of Family and Community Services [2004] AATA 83.
[8] Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27.
[9] Re Tang and Director-General of Social Services (1981) 3 ALN No 49.
[10] R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430 per Latham CJ; Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 118 per Gibbs CJ; Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 654 per Gummow J.
[11] McDonald v Director-General of Social Security (1984) 1 FCR 354.
[12] Ibid; Re Broadbent and Secretary, Department of family and Community Services (2004) 81 ALD 713.
[13] Statement of Mrs Cheryl Russell to Social Security Appeals Tribunal of 13 March 2009.
[14] Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27.
[15] Re Anderson and Secretary, Department of Social Security [1993] AATA 172; (1993) 31 ALD 155 at 170.
[16] Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 at 536.
[17] Ibid, at 537.
[18] Re Lobb and Repatriation Commission (1990) 20 ALD 575 at 577.

AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/cth/AATA/2011/52.html