Acin and Secretary, Department of Employment and Workplace Relations

[2006] AATA 877

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 877

ADMINISTRATIVE APPEALS TRIBUNAL       )          No N2005/1165

GENERAL ADMINISTRATIVE DIVISION		)  )
Re		CARMEN GLORIA ACIN

Applicant

And SECRETARY, DEPARMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Professor I. Shearer, Senior Member

Date16 October 2006

PlaceSydney

Decision The Administrative Appeals Tribunal sets aside the decision of the Social Security Appeals Tribunal. In substitution for the decision set aside the Tribunal decides that the decision of the Authorised Review Officer of Centrelink to raise and recover a debt against the Applicant in the sum of $52,668.01 (as recalculated by the SSAT) is quashed.   

………………………………
    

Professor I. Shearer
Senior Member

  

CATCHWORDS

SOCIAL SECURITY – decision under review concerns a parenting payment and a debt made against the Applicant in respect of payments made – consideration of evidence – assessment of whether or not Applicant was in a marriage-like relationship – assessment of factors including financial aspects of the relationship, the nature of the household, the social aspects of the relationship and the nature of commitment to each other – the Tribunal decides that the decision of the Social Security Appeals Tribunal is set aside – In substitution for the decision set aside the Tribunal decides that the decision of Centrelink to raise and recover a debt against the Applicant in the sum of $52,668.01 is quashed.

Social Security Act 1991 – sections 4, 4(3A), 503, 1223(1), 1238,

Pelka v. Secretary, Department of Family & Community Services [2006] FCA 735

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

REASONS FOR DECISION

16 October 2006 Professor I. Shearer, Senior Member      

The decision under review

1.      The decision under review is the decision of the Social Security Appeals Tribunal (“SSAT”) dated 8 August 2005 affirming, subject to a variation, the decision of Centrelink to cancel the applicant’s “parenting payment single” and to raise and recover a debt against her in respect of payments made to her in respect of the period 10 April 2000 to 18 February 2005. The amount of the debt assessed, as varied by the SSAT, is $52,668.01.

2.      Payments were made to the Applicant on the understanding that she was, at the relevant time, a single parent. The decision under review was made after Centrelink came to the view that the Applicant was, during the relevant period, not single but a member of a “couple” within the meaning of the Social Security Act 1991 (“the Act”). The Secretary thus considered that the Applicant’s parenting payment should have been assessed taking into account her husband’s income.

3. The Act provides in section 1283 for the review by this Tribunal of decisions of the SSAT.

The background facts

4.      The applicant, Mrs Carmen Gloria Acin married Mr Sergio Acin on 26 March 1986 in Chile. Both are of Chilean birth. Mrs Acin joined her husband in Australia shortly after the marriage.

5.      Two children were born of the marriage: Andrew Acin, born on 14 July 1987, and Daniel Acin, born on 25 July 1989.

6.      On 27 September 1988, Mrs Acin lodged a claim for a sole parent pension, stating that she had separated from her husband on 18 September 1988. Mrs Acin was granted a sole parent pension as from 27 September 1988 and parenting payment single from March 1989.

7.      In 1991 Mrs Acin and her two sons, who had been living in rented accommodation at Maroubra, moved to Department of Housing accommodation at Waterloo. In 1997 they moved to other Department of Housing accommodation at Millers Point, where they continue to reside.

8.      Mr Acin, upon separation from his wife in 1988, shared accommodation with a friend at Kingsford. When the latter moved to Maroubra in 1998 or 1999 Mr Acin moved with him and stayed there until about 2003. In 2003, he moved to stay with friends at Seven Hills.

9.      It is common ground between the parties that Mr Acin moved into Mrs Acin’s home at Millers Point in February 2005 and remained there until March 2006. Mrs Acin sought the approval of the Department of Housing of this arrangement. 

10.     In March 2006 Mr Acin moved to a flat in Petersham.

11.     In November 2004 Centrelink instituted an investigation into Mrs Acin’s domestic circumstances and sent her an “Assessment of Living Arrangements” form to complete in January 2005.

12.     On 23 February 2005 Centrelink determined that Mrs Acin was a member of a couple from 10 April 2000 and cancelled her parenting payment single. Centrelink also raised an overpayment debt of $54,076.35 for the period 10 April 2000 to 18 February 2005.

13.     On 23 March 2005 the original decision maker confirmed its decision after a request for reconsideration. However, on 31 March 2005 the original decision maker revised the overpayment amount to $52,668.01.

14.     The decision of 23 February 2005 was affirmed by an Authorised Review Officer (“ARO”) on 24 May 2005 following a request for review.

15.     On 8 August 2005 the SSAT varied the amount of the debt to $52,668.01 but otherwise affirmed the decision of the ARO of 24 May 2005.

16.     On 13 September 2005 Mrs Acin sought a review of the decision of the SSAT by the Administrative Appeals Tribunal.

The issue before the Tribunal

17.     The applicant, Mrs Acin, claims that from the time of the separation from her husband in September 1988 until February 2005, her husband was not living with her and her sons. They were not “a couple” within the meaning of section 4 of the Act. Between those dates she was living separately and apart from her husband. During that time Mr Acin had continued contact with his sons, that necessarily involved a degree of contact with Mrs Acin, but there was no re-establishment of the marital relationship. The respondent adduced evidence which in its view contradicted this claim.

The applicable law

18. Section 503 of the Act provides:

“A person’s parenting payment rate is worked out using:

(a)if the person is not a member of a couple – the Pension PP (Single) rate calculator at the end of section 1068A (see Part 3.6A); or

(b)if the person is a member of a couple – the PP (Partnered) Rate Calculator at the end of section 1068B (see Part 3.6A).”

19. Section 1223(1) of the Act provides:

“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.”

20.     The test to be applied in determining whether a person is a “member of a couple” is set out in section 4 of the Act. The following provisions relate to the situation of legally married persons:

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

(a)  the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3), living separately and apart from the other person on a permanent or indefinite basis; or

(b)  ….

…..

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

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

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

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

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

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

(b)the nature of the household, including:

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

(ii)the living arrangements of the people; and

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

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

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

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

(iii)the basis on which the people make 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.

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

The evidence before the Tribunal

21.     Both Mr and Mrs Acin gave evidence before the Tribunal, the former by telephone, the latter in person.

22.     They both attested that they were legally married in 1986, and remain so. Their civil marriage took place by proxy, with Mr Acin in Australia and Mrs Acin in Chile. There was no subsequent religious ceremony. The marriage certificate was issued in Chile. Although that was not produced to the Tribunal, I am satisfied that Mr and Mrs Acin contracted a lawful marriage in 1986. I am also satisfied that in law the marriage continues in force. This was not in dispute between the parties.

23. A preliminary point should be made regarding the existence of any onus of proof in proceedings such as the present. There is no requirement that the respondent must positively establish that the applicant is a member of a couple in accordance with section 4 of the Act. It is clear from the statutory scheme that the task of the Tribunal, like that of the original decision-maker, is to form an opinion as to whether or not during the relevant period the applicant was living separately and apart from her husband on a permanent or indefinite basis. As was stated by Woodward J in McDonald v. Director-General of Social Security (1984) 1 FCR 354, at 358; 6 ALD 6, at 11, there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it. The only onus borne by either party is to put before the Tribunal the material that that party considers is relevant to the Tribunal’s determination of the question posed by section 4(2) of the Act. Woodward J. continued:

“If the AAT finds itself in a state of uncertainty after considering all the        available material, unable to decide a question of fact either way on the   balance of probabilities, it will be necessary for it to analyse carefully the    decision it is reviewing. If, for example, it is a decision whether or not to            cancel a pension in the light of changed circumstances, then it has failed to          achieve the statutory requirement of reaching a state of mind that the pension    should be cancelled. If, on the other hand, it is a decision, to be made in the    light of fresh evidence, whether or not the pension should ever have been      granted in the first place, then it has failed to be satisfied that the person ever    was [so entitled].”

24.     It is to be noted that the present case falls into the first of the above categories, that is, the cancellation of an allowance.

25. It is convenient to deal with the evidence in relation to each of the criteria set out in the relevant sections of the Act, as reproduced above.

The financial aspects of the relationship (section 4(3)(a))

26.     Mr and Mrs Acin owned no real estate jointly. Nor did they own any other major assets jointly. They were not subject to any joint liabilities. There were no legal obligations owed by the one in respect of the other. During the relevant period there was no sharing of day to day household expenses; the evidence was that they led entirely separate lives in this respect, and under separate roofs.

27. The respondent raised three matters that may be said to be relevant under section 4(3)(a)(ii): (a) that Mrs Acin is the designated beneficiary of Mr Acin’s superannuation policy; (b) Mr Acin transferred ownership of a motor vehicle to Mrs Acin in 2004; and (c) that together they bought a computer on credit.

The superannuation policy

28.     Mr Acin has been employed by St Patrick’s Church Sydney from 25 November 2002 as a cleaner. His employer’s records state that at the time of his entry into this employment he was married and lived at Mrs Acin’s address in Miller’s Point. According to the National Catholic Superannuation Fund, Mr Acin commenced superannuation with that fund on 13 January 2003, listing his status as married, and naming his spouse as Gloria Acin, the applicant. Mrs Acin was nominated as the beneficiary of the policy.

29.     Mr Acin gave evidence by telephone before the Tribunal. In relation to his job application in 2002 he said that he “told a white lie” about his address being at Miller’s Point since he wanted a job close to his children. He also had school cleaning jobs in Bondi and Fort Street, and stated that being granted these jobs was dependent on his living in the area. An additional factor was that his driver’s licence at that time listed his address as Miller’s Point. He did not want to state his actual address and draw the attention of his employers to the discrepancy. The reason for giving the address of his wife on his driver’s licence was that a certain police matter had arisen in 1994 (which had been resolved in 1996) which made it desirable in his view not to disclose his actual residential address. He said that he was “surprised” to be informed now during the proceedings that his wife was named the sole beneficiary of his superannuation policy. He had intended that his children should be included and had thought that all three names were on the policy.

30.     Mrs Acin in evidence stated that she had allowed her husband to state on a number of occasions that his address was with her in Miller’s Point, in order to assist him in obtaining desired jobs in the city and eastern suburbs areas.

The car

31.     On 28 June 2004 Mr Acin transferred ownership of a Mitsubishi Pajero motor vehicle into the name of his wife. Mrs Acin stated that this was because her husband could no longer drive owing to a shoulder injury. The car was intended for their son Andrew (born on 14 July 1987) but could not be registered in his name because he was not yet aged 18. Mrs Acin used the car herself. There was no evidence that the use of the car was shared between Mr and Mrs Acin.

The computer

32.     In October 2002 it was decided that the son Andrew needed a computer for his school work. Mr Acin stated in evidence that “after many arguments” he agreed that he should buy it. He had previously assumed financial responsibility for the boys’ incidental schooling expenses. On the other hand Mrs Acin stated in evidence that she had bought the computer. It was her intention that Andrew himself should work to pay it off. She had merely “signed for it” after Mr Acin and Andrew brought it home. However, the weight of the evidence was to the effect that both Mr and Mrs Acin had gone to a Harvey Norman store together with Andrew to buy the computer on credit. Mrs Acin signed the credit application. The GE Capital Finance Australia Credit Application, dated 19 October 2002, stated that no deposit had been paid, and that the purchase price of $1,799 was to be paid in 12 months. Under the heading “Household Income Details”  “Applicant’s Total Yearly Income” was given as $25001-$40000, and “Partner’s Total Yearly Income” as also $25001-$40000. These details were clearly incorrect so far as Mrs Acin was concerned.

33.     In cross-examination considerable time was devoted to exposing inconsistencies in the evidence regarding the responsibility assumed by either parent for the purchase of the computer, and in drawing attention to the false statements as to income made by Mrs Acin in the document. However, in my view the evidence, at least in so far as it goes to the veracity of the Applicant, is equivocal. The credit application bears the hallmarks of a hastily executed document before a sales assistant keen to make a sale. I would not be prepared to find on the basis of this incident evidence of any significant pooling of financial resources (section 4(3)(a)(ii), or any joint responsibility for providing care or support of children (section 4(3)(b)(i)).

The nature of the household (section 4(3)(b))

34.     The evidence was that, during the relevant period, there was no joint responsibility for providing care or support of the children. As stated above, Mr Acin paid for the boys’ incidental school expenses, such as for books and for school sports and excursions. The computer incident has been already described. Mrs Acin was given a credit card in her own name as an extension card from Mr Acin’s, but both gave evidence that this was used only for the boys’ school expenses.

35.     It appeared from Mr Acin’s taxation return for the year 200-2001, and again in the two years following, that he had claimed, in the Family Benefits Schedule, 365 nights of care for his two children. Mr Acin stated in evidence that he was “amazed” to hear that he had made such a claim; he had been assured by his accountant that no such claim had been made. In any event the Family Tax Benefit was not paid to him. As is shown by the Notices of Assessment for those years, put in evidence by the Applicant during the hearing, the claim for Family Tax Benefit (“the FTB”) was not allowed “because another person has already been paid for this child (children).” This may be evidence that reflects poorly on the judgment or understanding of Mr Acin (and/or his financial adviser) in making the claim, but it is, in my view, not persuasive evidence of the nature of the relationship between Mrs Acin and himself.

36.     It was uncontested that, during the relevant period, Mr and Mrs Acin were not living under the same roof. Mrs Acin gave evidence that she spoke to her husband rarely. Mr Acin would visit his sons regularly, but he would meet them outside schools, and at weekends would pick them up from their home and take them to a park to play football or to see a film. According to Mrs Acin, Mr Acin “is a good father”. “Very occasionally” he would stay for dinner when dropping off the boys. He also attended the boys’ birthday celebrations. He never stayed overnight except for a short time when Mrs Acin was called back to Chile in response to a family emergency there and he cared for the boys at their home.

The social aspects of the relationship (section 4(3)(c))

37.     The evidence as to any “holding out” by either Mr or Mrs Acin that they were  married to each other was confined to the documents already referred to, which gave Mr Acin’s address as the same as Mrs Acin’s. I am satisfied on the evidence that this was merely “an accommodation address” and not the actual address at which Mr Acin was living. The fact that he described himself in documents as “married” was technically correct since he and his wife have never divorced or obtained a decree of separation. The older son Andrew gave evidence that his father lived apart and rarely entered the house. Normally he and his brother would be dropped off outside the house after their outings with him. The only independent person to give evidence as to the living arrangements of Mr and Mrs Acin was a friend of Mr Acin’s with whom he shared an apartment for most of the relevant period. Pressed to say whether there could have been times when Mr Acin was living elsewhere the witness said he could not be sure: “it was not my business”, and “it was a very long time ago.”

38.     Mr and Mrs Acin did not take holidays together in Australia, but they did make three overseas trips, together with the boys, two to Chile and one to Spain. All three trips were related to maintaining overseas family connections. Mrs Acin stated that she occupied separate accommodation on each occasion from that occupied by her husband and sons. On the two trips to Chile Mrs Acin’s fares were paid for by her father; her husband paid for himself and the boys. On the trip to Spain Mr Acin paid for the fares of Mrs Acin as well as of the boys, since it was a visit to his brother. Mrs Acin stated that she went on this trip only because she did not want her husband to travel abroad alone with the boys.

39.     In relation to the Incoming Passenger Card, made out in 2000 in connection with one of these trips, which was put in evidence, it was put to Mr Acin that he had stated his address as being the same as that of Mrs Acin. He agreed that this was incorrect. He had stated this as his address since that was the address at which his wife and sons were living, and they all handed in their passenger cards together. I do not consider this as a significant piece of evidence having regard to the totality of the evidence respecting the relationship. It was the kind of “white lie” told by Mr Acin on other occasions in order to avoid unwelcome questions.

Sexual relationship (section 4(3)(d))

40.     It was uncontested that Mr and Mrs Acin ceased having sexual relations in late 1988.

The nature of the commitment to each other (section 4(3)(e))

41.     Mr and Mrs Acin were married in March 1986. Their families knew each other in Chile. They lived together for only a short time before separating in September 1988. It was then that Mrs Acin applied for a sole parent pension. Mr Acin ceased paying the rent on what had been the matrimonial home at that point. Both Mr and Mrs Acin attested that they had not lived together since that time.

42.     Mrs Acin in evidence described their relationship in terms that denoted distance and coolness, yet for the sake of the children they maintained civility. “I haven’t been very interested in where Sergio lives. Sergio talks to the children all the time and so I can pass on any messages to him via the children. I don’t need to know where he lives or his phone number.”

43.     Mr Acin was not questioned about his feelings for his wife.

44.     In February 2005 Mr Acin moved into the house occupied by his wife and children. This was reported to the Department of Housing which made an upward adjustment on the rent. According to Mrs Acin she allowed him to do so in response to the urging of his children, especially the younger son Danny, and because Mrs Acin’s allowance had been cancelled in January 2005 and she was without an income. Mr Acin paid the rent and electricity bills during the time he lived there. In March 2006 Mr Acin left to resume living on his own.

45.     The period of living together under the one roof (but in separate bedrooms) mentioned above does not come into account in the present proceedings, otherwise than to illustrate generally the nature of the relationship between Mr and Mrs Acin.

46.     The evidence before the Tribunal generally showed a picture of estrangement accompanied by a tolerance based on shared concern for the welfare of their children. Beyond that, they did not see themselves as being in a marriage-like relationship.

Conclusion

47. On the basis of the evidence I am satisfied that Mrs Acin, during the period from 10 April 2000 to 18 February 2005, was living separately and apart from her husband on a permanent or indefinite basis, and that she was not a member of a couple for the purposes of the Act.

48. I have had regard not only to the specific criteria set out in section 4(3) of the Act, which are stated in non-exclusive terms, but to all the factors relevant to the relationship: Pelka v. Secretary, Department of Family & Community Services [2006] FCA 735, at paragraph 61. Both the applicant and Mr Acin gave their evidence through an interpreter. There were certain inconsistencies and ambiguities in their accounts. But generally I found them to be truthful so far as their memories allowed.

49.     I do not find myself in the state of uncertainty in this matter referred to by Woodward J in the passage cited above in paragraph 22 of these Reasons. The evidence pointed to by counsel for the Respondent as being inconsistent with their living separately and apart is capable of an understanding and plausible explanation in the light of the evidence as a whole.

Decision

50.     The Administrative Appeals Tribunal sets aside the decision of Social Security Appeals Tribunal of 8 August 2005. In substitution for the decision set aside the Tribunal decides that the decision of the Authorised Review Officer of Centrelink to raise and recover a debt against the Applicant in the sum of $52,668.01 (as recalculated by the SSAT) is quashed.   

I certify that the preceding 50 paragraphs are a true copy of the decision and reasons for decision of Professor I. Shearer, Senior Member:

Signed:         Associate

Date of Hearing              17 and 18 August 2006      

Date of Decision  16 October 2006

Solicitor for the Applicant  Ms J Finlay,

Welfare Rights Centre

Counsel for the Applicant  Mr M Vincent

Solicitor for the Respondent           Ms B Griffin,

Australian Government Solicitor

Counsel for the Respondent  Mr J Smith