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[1991] AATA 189
respondent. The Tribunal affirmed the decision under review, which had set aside the delegate's cancellation of Webster's sole parents pension and the decision to recover the alleged overpayment.
3 cited instruments linked from this judgment.
The Tribunal had to decide whether Webster and Brient were living together as spouses, which would have affected Webster's qualification for sole parents pension. They shared a home and had a sexual relationship, but the Tribunal also considered how they handled money, household work, social life and family connections. It found that Brient largely treated the house as a convenient place to live, while remaining emotionally connected to his wife. On balance, the Tribunal decided that Webster and Brient's relationship was not marriage-like and upheld the SSAT decision that reversed the pension cancellation and overpayment decision.
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The Administrative Appeals Tribunal considered an application by the Secretary of the Department of Social Security to review an SSAT decision. The SSAT had set aside two decisions made by a departmental delegate: cancelling Maureen Webster's sole parents pension and raising and recovering an alleged overpayment of $26,030.30. The Tribunal's order was to affirm the SSAT decision.
The central question was whether Webster was living with James Brient as his “de facto spouse” during the relevant period, identified as 5 March 1987 to 7 December 1989. Under the definition quoted in [3], a de facto spouse was a person living with a person of the opposite sex “as the spouse” of that person “on a bona fide domestic basis”, although not legally married. The Department's position, as described in [2], was that a de facto relationship made Webster a married person under the Act and meant she did not qualify as a single person for sole parents pension.
The Tribunal traced the relationship's history. Webster and her children moved next door to the Brient family in 1981. The Department had scrutinised Webster's domestic circumstances from 1982, and she had made statements over time that differed in how they described her relationship with Brient [7]-[10]. Evidence indicated that Brient lived at other addresses before moving into Webster's home at 623 Geelong Road, Brooklyn, around Christmas 1987 [9], [25], [28].
Webster testified that Brient paid board, shared a bedroom with her, and had a sexual relationship with her, but did not take part in household work or show interest in her children. She said she cooked, washed and cleaned, while Brient sometimes helped with shopping and lawn mowing [16]. The Tribunal also considered the evidence about Brient's continuing relationship with his wife, including their children, ongoing sexual relationship and emotional attachment [20]-[22], [29].
The Tribunal accepted Webster's evidence generally, while noting difficulties with her reading and comprehension [24]. It also considered that her pension review answers and the joint bank account reflected adversely on her credit, but said the question to decide was the nature of the relationship, not her candour [28]. Considering the total circumstances, it concluded with some reservation that the relationship was not marriage-like [30]. It therefore affirmed the SSAT decision [31].
The decision turned on an overall assessment. The Tribunal did not treat cohabitation, sexual relations, or any single financial arrangement as conclusive. It referred to the statutory phrase “as the spouse” and “on a bona fide domestic basis” in s. 3(1) [3]. It also referred to the principle that “all facets of the inter-personal relationship” must be considered, which it said the Full Court had approved in Lambe v Director-General of Social Services [27].
The facts supporting a marriage-like character included that Webster and Brient shared premises from about Christmas 1987, shared a bedroom, had a sexual relationship, and opened a joint bank account on 27 March 1988 [28]. Webster also made a statement in December 1989 that described their relationship as similar to that of married couples [13]. The Tribunal did not ignore these matters.
Other circumstances weighed against that characterisation. Brient paid $100 per week towards household expenses, later increased to $135 after the pension was cancelled. Webster performed the domestic work, apart from some physical assistance with shopping. The Tribunal found that Brient had no interest in Webster's children and that their social life together was limited to occasional outings [28]. It accepted Webster's explanation that the joint account was opened for the specific purpose of paying rent, and noted that each also had an individual savings account with a small credit balance [28].
The Tribunal gave particular weight to the wider family circumstances. Since 1982, Mr and Mrs Brient had five children, including two born during the period in issue. The Tribunal considered that they retained an emotional attachment despite their separation, and that there was no exclusiveness in Brient's relationship with Webster [29]. The Tribunal's impression, in the absence of evidence from Brient, was that he had treated Webster's home as a convenient place to live [29].
The Tribunal also examined the reliability and meaning of Webster's earlier statements. It was not convinced that she understood that a de facto relationship required more than a sexual relationship [24]. The evidence suggested that Brient did not move into her home until about Christmas 1987, so her admission relating to cohabitation before that point appeared unsupported [25]. The Tribunal considered her omissions and the closure of the joint account relevant to credit, but expressly separated those matters from the question it had to decide [28].
Ultimately, the reasoning was cumulative: the Tribunal considered the financial, household, social and personal relationships together [28]-[30]. It did not announce that any one factor controlled. Its conclusion was a factual assessment on the evidence before it, made “with some reservation” [30].
The judgment describes the statutory framework in ss. 3, 3A, 43 and 44 of the Social Security Act 1947. The relevant definition in s. 3(1) focused on living with another person “as the spouse” on a “bona fide domestic basis” [3]. The Department's case connected that definition to whether Webster was a married person and whether she qualified for sole parents pension under ss. 43 and 44 [2].
The Tribunal said that factors earlier decisions had treated as relevant in determining whether a de facto relationship existed had been given statutory force by s. 3A, effective from 1 January 1990 [26]. The judgment does not set out the text of s. 3A or enumerate its statutory factors. It therefore supports the narrower point that the Tribunal understood s. 3A to put previously relevant factors on a statutory footing from that date, but it does not support a detailed account of the provision's contents.
The relevant period began on 5 March 1987 and ended on 7 December 1989 [3], so it largely preceded the stated commencement date of s. 3A. The Tribunal nevertheless referred to s. 3A in explaining the development from earlier Tribunal practice to the statutory framework. It also cited Re Stoilkovic as an example of a prior Tribunal decision identifying relevant factors [26].
The judgment's approach, as expressed in this case, is to evaluate the relationship as a whole rather than infer spouse-like status from one feature. It cites Lambe for considering “all facets” of the relationship [27]. The listed facets in the decision include financial arrangements, household work, social activities and personal or family connections [28]-[29]. The judgment does not state a fixed formula, weighting system or threshold.
The result should be read within its particular legal and factual setting: the 1947 Act, the statutory definition quoted in the decision, the period under review and the evidence presented to the Tribunal. The judgment is an AAT decision, not a court judgment, and this source alone does not establish the status of its reasoning as binding precedent.
At [3], the definition describes a person living with another “as the spouse” on a “bona fide domestic basis”. In plain English, the question was not simply whether two people lived at one address or had a sexual relationship. The relationship had to have the character described by the statutory words.
At [24], the Tribunal said it was not convinced Webster understood that “a de facto relationship involves more than the existence of a sexual relationship”. This explains why her earlier statements were not treated as a complete answer to the statutory question. The Tribunal assessed what the relationship was in practice, rather than relying solely on Webster's use of labels.
At [27], the Tribunal referred to Lambe and the need to consider “all facets of the inter-personal relationship”. The practical significance is that the Tribunal looked at several dimensions together: who paid household expenses, who did domestic work, how the parties spent social time, and how each related to the other's family.
At [28], the Tribunal said that the nature of Webster's relationship with Brient, “not her candour”, was the issue it had to decide. In plain English, it acknowledged potentially damaging evidence about her answers without treating dishonesty, by itself, as proof that she was living with Brient as a spouse. The decision still records that those matters affected her credit.
At [29], the Tribunal described a lack of exclusiveness in Brient's relationship with Webster and noted his continuing emotional attachment to his wife. That assessment helped place the shared home and sexual relationship in the wider context of two families.
At [30], the Tribunal concluded, “with some reservation”, that the relationship was not marriage-like. This qualification signals that the evidence was complex, not that the Tribunal applied a different legal test. The operative result appears at [31]: the decision under review was affirmed.
The decision is relevant to disputes where qualification for a social security payment turns on whether someone was living with another person as a de facto spouse under the statutory language quoted in the case. It is especially fact-specific guidance for situations in which evidence points in different directions: shared housing or a sexual relationship may suggest a spouse-like relationship, while the parties' financial arrangements, division of domestic work, social conduct and connections with other family members may complicate that picture.
The fact pattern here included a shared home and bedroom, a sexual relationship, contributions described as board, a joint account said to be for rent, and a limited shared social life [16], [28]. It also included evidence that Brient did not share household duties or show interest in Webster's children, alongside an ongoing relationship between him and his wife [20]-[22], [28]-[29]. The Tribunal assessed those circumstances together rather than treating one feature as determinative.
The decision also illustrates the importance of distinguishing the period when two people actually shared a home from earlier periods when their relationship may have existed in another form. The Tribunal found that Brient moved into Webster's home around Christmas 1987, and considered that her admission of cohabitation before then appeared unsupported [25]. That timing mattered because the period under review began earlier, on 5 March 1987 [3].
The decision does not establish that a particular arrangement, such as paying board, keeping separate accounts, or not taking part in housework, necessarily prevents a relationship being marriage-like. Nor does it say that an ongoing relationship with another person necessarily answers the statutory question. Those facts formed part of the overall assessment in this case. Its useful trigger is therefore the mixed-evidence problem: where several features may point in different directions, the reasoning calls for attention to the relationship in its totality.
The material provided contains no later cases or subsequent judicial treatment of Re Secretary, Department of Social Security and Maureen Webster. It is therefore not possible, on this source alone, to say whether later courts or tribunals followed, distinguished, limited or questioned the decision.
The judgment itself identifies and uses earlier authorities. At [23], it referred to O'Donnell v Reichard and Brandi v Mingot in connection with an inference the Tribunal considered reasonable because Brient did not give evidence. The Tribunal reasoned that, in the circumstances, it was reasonable to infer that his evidence would not have helped Webster. The judgment does not reproduce the reasoning of those cases, so their principles should not be expanded beyond the use expressly made of them here.
At [26], the Tribunal cited Re Stoilkovic as an earlier Tribunal decision about relevant factors in determining whether a de facto relationship existed. It then observed that such factors had been given statutory force by s. 3A from 1 January 1990. At [27], it cited Lambe for the need to consider all facets of the interpersonal relationship. These references show how the Tribunal situated its analysis in earlier decisions; they do not establish how later courts treated this AAT decision.
A reliable account of later treatment would require later judgments or other legal sources not included in the supplied text. No later authority, citation history or legislative developments are provided here.
Several matters are left unresolved by the decision's reasoning and the material supplied. First, the judgment does not reproduce s. 3A or specify all the statutory factors it says were given force from 1 January 1990 [26]. The decision therefore cannot, on its own, supply a full account of that provision or how each factor should be applied.
Second, the relationship period began before the commencement date the Tribunal gives for s. 3A and continued until 7 December 1989 [3], [26]. The judgment refers to the provision as part of the legal context but does not give a detailed transitional analysis. The source therefore does not explain how the Tribunal mapped the statutory change onto each part of the review period.
Third, the evidence from Brient was absent. The Tribunal made an adverse inference concerning the likely value of his evidence [23], but the judgment does not state why he did not attend. It records that Webster had discussed the proceedings with him, but says no explanation was given for his non-attendance [23]. The extent to which the missing evidence affected particular findings is not quantified.
Fourth, the Tribunal's conclusion was expressly reached “with some reservation” [30]. It does not identify a single decisive fact, nor does it set out a detailed weighting exercise for the competing circumstances. The decision accordingly leaves open how a different combination of shared finances, domestic responsibilities, social life and family attachments would be assessed.
Finally, the judgment does not provide later treatment or establish the present status of the statutory provisions it discusses. Any account of subsequent legal developments or current law would need sources beyond this decision. This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Social Security - Sole parent's pension - whether respondent living with a person of opposite sex in a marriage-like relationship - and therefore a "de facto" spouse and not entitled to pension.
O'Donnell v Reichard [1975] VicRp 89; 1975 VR 916
Brandi v Mingot 12 ALR 551
Re Stoilkovic and Secretary, Department of Social Security Decision No. 2493 (9 ALD N33)
Lambe v Director-General of Social Services [1981] FCA 171; 38 ALR 405
This is an application by the Secretary of the Department of Social Security for review of a decision of the Social Security Appeals Tribunal ("the SSAT") setting aside decisions of a delegate of the applicant firstly to cancel the sole parents pension paid to the respondent Maureen Webster and secondly, to raise and recover an overpayment of $26,030.30.
2. The decision of the delegate to cancel the pension was made on the basis that the respondent was living in a de facto relationship with Mr James Brient, which meant she was a married person within the meaning of s. 3(1) of the Social Security Act 1947 ("the Act") and not a single person as defined in s. 43(1) and therefore was not qualified for the purposes of s. 44 to receive a sole parents pension.
3. The SSAT decided the respondent was not living with Mr Brient as his de facto spouse and consequently her pension had been incorrectly cancelled and she had not been overpaid. The period in issue in this application is from 5 March 1987 to 7 December 1989, when her pension was cancelled. For present purposes the relevant definition of "de facto spouse" appears in s. 3(1) of the Act in the following terms:
""de facto spouse" means a person who is living with another person
of the opposite sex as the spouse of that other person on a bona
fide domestic basis although not legally married to that other person;"
4. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("the T documents") were received in evidence. Oral evidence was heard on behalf of the applicant from Mrs Rhonda Brient and departmental officers Ms Walker, Mr Rankin and Mr Kozac. The respondent gave evidence on her own behalf.
5. The respondent was born on 24 March 1947. She was married to Mr Terry Webster and there are three children of the marriage, the youngest now aged 21 years. She separated from her husband in 1969 and was divorced in 1975. The applicant has two other children, a son Carl aged 18 years and a daughter Allison aged 12 years. The respondent was granted supporting parents benefit on 18 December 1980 and a sole parents pension following the introduction of the Social Security Legislation Amendment Act 1988.
6. In 1981 the respondent with her children moved to a Ministry of Housing dwelling at 46 Parrakeet Road, Werribee which was next door to the house occupied by Mrs Brient and her six children. The families became friendly. Mrs Brient had separated from her husband in 1979. In December 1981 the respondent met Mr Brient who was in the habit of visiting his wife and children.
7. Since early 1982 the respondent's domestic circumstances have been the subject of ongoing scrutiny by the Department of Social Security. While this period is not in issue in these proceedings reference should be made to it by way of background.
8. On 15 April 1982 the respondent in a statement to Mr Kozac said that Mr Brient was her boyfriend and occasionally slept at her house, 46 Parrakeet Road, but that his permanent residence was the Rifle Club Hotel in Williamstown. She denied that she was living with him in a "husband and wife situation". On 14 September 1982 the respondent, in a second statement to Mr Kozac, said that Mr Brient stayed at her place on a regular basis but that he did not support her or her children. On 24 September 1982 in a further statement, the respondent stated she would not permit Mr Brient to stay at her home on a regular basis as she did not wish to place her pension at risk. The respondent was interviewed again on 30 March 1983 this time at her then address 17 Medford Street, Altona. She informed Mr Kozac that she was still seeing Mr Brient socially but he only stays with her occasionally at weekends. On 1 September 1983 the respondent informed Mr Kozac that Mr Brient had moved his belongings to her address (17 Medford Street) and stated that "we are living in a husband and wife situation together and now realise that my pension payments will be suspended". This statement was accompanied by the rider that if he refused to support her she would ask him to leave. On 9 September the respondent retracted the earlier admission of a "husband and wife situation" and made a further statement in which she explained her circumstances in some detail, claiming it was not a permanent relationship. There was no suggestion that up until then Mr Brient had provided any financial support for the respondent.
9. There was evidence in the T documents that Mr Brient was a lodger at the Rifle Club Hotel, Williamstown from 19 June 1981 to 6 May 1983 and at the Rose of Australia Hotel, Williamstown from 14 September 1983 and as at 9 September 1984.
10. When interviewed on 9 October 1985 by a departmental field officer, the respondent stated she had not heard from Mr Brient for sometime.
11. On an application form for continuation of unemployment benefit dated 28 July 1986 Mr Brient gave his address as 17 Medford Street, Altona.
12. The respondent obtained a lease of a house at 623 Geelong Road, Brooklyn from 18 September 1986 initially for six months and has continued to live there. On 27 April 1987 the respondent had a further visit from a departmental field officer. She denied living with Mr Brient as wife/husband and said her sole income was her pension and family allowance.
13. In a further statement to a field officer (Mr Rankin) dated 4 December 1989, the respondent said:
"I have been living with James Brient in a relationship similar to
that of married couples since 1987. The only way we are different
from a married couple is that James doesn't give me any money
because he can't afford to. We are just like a married couple in
all other ways."
14. On 7 December 1989 the respondent's pension was cancelled.
15. In a written record of interview with departmental officers on 6 March 1990 the respondent disclosed that she had incorrectly answered questions in pension review forms relating to the occupants of her house, for the period from 24 February 1987 until 28 November 1989 in that she failed to disclose the presence of Mr Brient. She gave as the reason for the omission that she needed the pension to support her children.
16. The respondent in evidence said that Mr Brient lived in a bungalow in Corrigan Avenue, Brooklyn for about twelve months prior to moving to her house in Geelong Road in December 1987. She spent an occasional night with him at Corrigan Avenue. When Mr Brient came to live at Geelong Road, the applicant's five children were living with her. Her mother and step-father also lived there. Mr Brient gave her $100 per week for board. She shared a bedroom with him. She provided meals which he usually ate alone in the bedroom where he had a television set. She did all the laundry, cleaning and other household duties. He physically helped her with shopping and occasionally mowed the lawn. The respondent and her children referred to Mr Brient as "Jimmy". He did not show any concern for, or interest in, her children nor they for him. The only gifts he has given her are a $10 watch and a pair of shoes of about the same value, when she had none to wear. Once or twice Mr Brient took her to a darts night. He introduced her as "Maureen". The respondent has never claimed to be his wife. After her pension was cancelled Mr Brient increased his board to $135 per week.
17. The respondent said that in the early 80's she had asked Mr Brient about a divorce but he would not agree. The relationship is now distant and she is ambivalent towards him. Her social life is practically non-existent.
18. At present Mr Brient, his son Jason, the respondent and her daughter Allison reside in the respondent's house. Her children, Carol and Darren moved out sometime ago, Suzie and Carl a few weeks ago.
19. The respondent has looked after, at her house, some of the Brient children both before and after Mr Brient came to live at her house on the occasions when Mrs Brient has been in hospital giving birth to children. This the respondent said, was not at Mr Brient's request.
20. Mrs Brient is 37 years of age. She was married to Mr Brient on 11 May 1974. She has eleven children five of whom were born before she separated from her husband in 1979. Mrs Brient said she separated from her husband because he had sexually interfered with one of their daughters. Despite the separation she has maintained a relationship with her husband and borne six other children to him. From about 1981 she became aware that her husband was visiting the respondent who lived next door and she argued with her husband and the respondent about this. She had been friendly with the respondent and even though they argued she continued to visit the respondent after the respondent moved from Werribee to Altona and then to Brooklyn. They had talked about how Mr Brient used to go from one of them to the other.
21. The Brient family were brought to the attention of the Children's Protection Society in 1984 and a protection application was made on 4 February 1985 which resulted in the children being placed under a supervision order for three years. It was a condition of the order that the children were not to have any contact with their father unless otherwise directed by their supervising officer. Mr Brient continued to have contact with his family. On 13 January 1988, in proceedings for breach of supervision orders the children were placed on further supervision orders for a period of seventy-eight weeks with a special condition that contact with their father was to be supervised as directed by their supervising officer.
22. After the separation in 1979 Mr Brient agreed to pay maintenance for his children but payments were sporadic. Mr Brient has since bought Mrs Brient a washing machine and refrigerator and gives her and their children Christmas presents. He also bought her a car which he replaced with her present car about four years ago. She calls on him when the car needs repairing. Mrs Brient said she and her husband have never discussed the subject of divorce. When he comes to her house it is usually on his way to work. They have an ongoing sexual relationship. In recent times he has displayed affection towards her in public. Publicly she is known as Mrs Brient.
23. The Tribunal did not have the advantage of hearing from Mr Brient. The respondent in cross-examination agreed she had discussed these proceedings with him but no explanation was given to the Tribunal for his non-attendance. In those circumstances I regard it as reasonable to infer that Mr Brient's evidence would not have helped the respondent. See O'Donnell v Reichard [1975] VicRp 89; 1975 VR 916 and Brandi v Mingot 12 ALR 551 at 559.
24. The respondent presented as a person who had difficulty in reading and comprehension which I am satisfied was not contrived. I am equally satisfied that her evidence generally, which she gave to the best of her ability, should be accepted. Having heard her evidence I am not convinced that in her discussions with departmental officers she had a clear understanding that a de facto relationship involves more than the existence of a sexual relationship. When Mrs Walker interviewed the respondent on 6 March 1990 the questions were directed not to the circumstances of the respondent's relationship with Mr Brient but to the truth of the answers given by the respondent in the review forMs Those answers do not necessarily give an insight into the nature of the relationship.
25. After he separated from his wife in 1979 Mr Brient appears to have lived at various locations. There was evidence that for about a year prior to December 1987 he rented a bungalow at Corrigan Avenue. The material in the T documents is consistent with the respondent's evidence that Mr Brient moved to her address at about Christmas time 1987. That being so the answers of the respondent admitting to living with Mr Brient insofar as they relate to the period up to December 1987 as stated in the interview with departmental officers on 6 March 1990 appear to be without foundation and lend support to the view that the respondent's perception of a marriage-like relationship being one where a sexual relationship is present.
26. The factors which previous decisions of the Tribunal have found to be relevant in determining whether a de facto relationship exists (see Re Stoilkovic and Secretary, Department of Social Security Decision No. 2493 (9 ALD N33) have been given statutory force with the introduction of s. 3A of the Act with effect from 1 January 1990.
27. In Lambe v Director-General of Social Services [1981] FCA 171; 38 ALR 405 at 413 the Full Court of the Federal Court approved the view of the Tribunal in that matter that "all facets of the inter-personal relationship" of the two parties need to be taken into account.
28. I find that the financial, household, social and personal relationships of the respondent with Mr Brient were generally as described by the respondent. In summary they have shared premises at 623 Geelong Road, Brooklyn since about Christmas time 1987. A sexual relationship exists. He contributed $100 per week towards household expenses, increased to $135 since her pension was cancelled. She does all the cooking, washing and other household duties apart from some physical assistance with shopping. Mr Brient does not share in any domestic activities. He has no interest in the respondent's children. The respondent's social life with Mr Brient is confined to an occasional outing at the Trash and Treasure Market. The respondent and Mr Brient opened a joint bank account on 27 March 1988. I accept the respondent's explanation that it was a specific purpose account, opened for the payment of rent. Both the respondent and Mr Brient have individual savings accounts with small credit balances at the same branch of the bank at which the joint account was held. The closure of the joint account shortly prior to the hearing and the answers of the respondent to pension review forms during 1989 and 1990 reflect adversely on her credit but in the final analysis the nature of her relationship with Mr Brient not her candour is the issue for the Tribunal to decide.
29. Since 1982, (when the Department of Social Security began to investigate the respondent's circumstances), Mr and Mrs Brient have had five children, two of whom were born during the period in issue in these proceedings. Objectively it would appear that Mr and Mrs Brient have retained an emotional attachment notwithstanding their separation in 1979. It cannot be said there has been any element of exclusiveness in Mr Brient's relationship with the respondent. As best as one is able to establish in the absence of evidence from Mr Brient, the impression gained is that he has treated the respondent's home as a convenient place to live during the period in issue and from time to time on other occasions.
30. The facts in this application reveal a complex interaction of two families. Looking at the total circumstances which have emerged from the oral evidence and material before the Tribunal I have, with some reservation, come to the conclusion that on balance the facts reveal that the relationship of the respondent and Mr Brient was not marriage-like.
31. Accordingly the decision under review will be affirmed.
O'Donnell
Reichard
The Tribunal affirmed the decision under review, which had set aside the delegate's cancellation of Webster's sole parents pension and the decision to recover the alleged overpayment.