AVON CAMPBELL and and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS - [2010] AATA 172

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 172
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200600679

GENERAL ADMINISTRATIVE DIVISION )

Re AVON CAMPBELL

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

And

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

Respondent

DECISION

Tribunal Deputy President P E Hack SC
Date12 March 2010
PlaceBrisbane

Decision
The Tribunal:

1. varies the decisions under review such that the family tax benefit debt as at 10 February 2010 is $4,794.35 for the 2002/2003 income tax year and $6,540.90 for the 2003/2004 income tax year;

2. otherwise affirms the decisions.

................[Sgd]..............................
Deputy President

CATCHWORDS
SOCIAL WELFARE – overpayments and debt recovery – parenting payment single – family tax benefit – “member of a couple” – factors relevant to assessment of “member of a couple” – not living separately and apart on a permanent or indefinite basis – decision under review varied
Social Security Act 1991 (Cth), ss 4(2)(a), (3)
Social Security (Administration) Act 1999 (Cth), s 179
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
REASONS FOR DECISION

12 March 2010 Deputy President P E Hack SC

Introduction

The applicant, Ms Campbell, was paid parenting payment single and family tax benefit payment for the period 2 July 2002 to 27 June 2005 (the relevant period). On 4 and 7 July 2005, Centrelink raised a parenting payment debt against Ms Campbell for the period 14 to 27 June 2005 and 2 July 2002 to 13 June 2005 respectively on the basis that Ms Campbell had been paid at the single rate when she was a “member of a couple” as that expression is used in s 4(2)(a) of the Social Security Act 1991 (Cth). On 15 and 17 August 2005, Centrelink raised a family tax benefit debt against Ms Campbell on the same basis.
On 13 July 2002, Ms Campbell married Mr Andrews. She did not notify Centrelink of her marriage to Mr Andrews until 10 March 2005 during a telephone conversation with a Centrelink officer where she claimed “she didn’t think that she had to tell Centrelink about this”. During the course of the marriage, Ms Campbell and Mr Andrews had three children together. The first child was born in April 2003, the second in June 2004 and the third in June 2005. On 28 March 2008 Ms Campbell divorced Mr Andrews.
Ms Campbell contends that notwithstanding the fact of her marriage, the Secretary ought to have been satisfied that Ms Campbell was living separately and apart from Mr Andrews, on a permanent or indefinite basis and was thus not a “member of a couple” during the relevant period.
The decisions of 4 and 7 July 2005 and 15 and 17 August 2005 were affirmed on internal and external review. Ms Campbell now seeks a review in this Tribunal.
Legislative framework
The rate of parenting payment and family tax benefit payable to a person is dependent upon whether the recipient is single or a member of a couple and is higher if the person is single[1]. Both parenting payment and family tax benefit are calculated by reference to the combined income and assets of the members of a couple. For present purposes, the term “member of a couple” is defined in s 4(2) of the SS Act in these terms:
“(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.”
[1] Social Security Act 1991 (Cth), s 503; A New Tax System (Family Assistance) Act 1999 (Cth), Schedule 1
For the purposes of s 4(2) of the SS Act, when forming an opinion about the relationship between Ms Campbell and Mr Andrews, regard is to be had to all the circumstances of the relationship including, in particular:
“(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.”
Thus the effect of s 4(2) is that where, as is the case here, a person is legally married that person is to be regarded as being a “member of a couple” for the purposes of the Act unless the Secretary, or the Tribunal in her stead, forms the opinion that the person is living separately and apart from the spouse on a permanent or indefinite basis.
Ms Campbell did not give any evidence during the course of the hearing. Absent Ms Campbell’s evidence, I am limited to the documents put before the Tribunal, which, I find, demonstrate a relationship that has many of the indicia in s 4(3).
FINANCIAL ASPECTS: The evidence before me comprises three joint financial applications. One with Trendwest in March 2003, another with Lombard Finance in September 2003, and a third with First Choice Appliance Rentals in March 2004. There is, as well, documentation from Westpac revealing the existence of a joint bank account that was closed in October 2003.
NATURE OF HOUSEHOLD: During a telephone conversation on 1 March 2005, Ms Campbell reported to a Centrelink officer that “they only lived together for three months” and “they had rented separate properties for a while after being married and that Mr Andrews then just lived with friends”. The Centrelink officer noted Ms Campbell was “adamant that Michael Andrews was not currently residing with her”. However, the ARO noted in her reasons for decision that during a telephone conversation between herself and Ms Campbell on 5 August 2005 Ms Campbell reported that “Michael has never moved out” and that she and Mr Andrews were only living together to care for their children. The two accounts provided by Ms Campbell are irreconcilable.
SOCIAL ASPECTS: While Ms Campbell denies the existence of a social relationship during the relevant period, there is evidence that Ms Campbell and Mr Andrews holidayed together on the Gold Coast in 2003.
SEXUAL RELATIONSHIP: During the 1 March 2005 telephone conversation, Ms Campbell reported to the Centrelink officer that “she had still maintained a sexual relationship with Michael to the current day”.
NATURE OF COMMITMENT: Ms Campbell and Mr Andrews were married for a period just short of six years. During this time they had three children together. There is, as well, evidence from Ms Campbell that she and Mr Andrews were living together to care for their children.
TOTAL PICTURE: Reference was made to the decision of Pelka v Secretary, Department of Family and Community Services[2] where French J said:
“Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those that weigh in favour of it.”
[2] (2006) 151 FCR 546, 555-6
Having regard to what French J described as “the total picture”, I am well short of being satisfied that Ms Campbell was living separately and apart from Mr Andrews on a permanent or indefinite basis during the relevant period. It follows that I would, without more, affirm the decisions. However, Mr Hamilton, who appeared for the Secretaries, informed the Tribunal that Centrelink, in the course of preparing for the hearing, had reconsidered the two family tax benefit debts with the result that the debt amounts were reduced from $12,064.88 to $6,540.90 and $8,328.35 to $4,794.35 respectively having regard to what is now known of Mr Andrews’ income during the relevant period. Centrelink accepts that the debts ought to be reduced accordingly.
I would then vary the decisions under review such that the family tax benefit debt as at 10 February 2010 is $4,794.35 for the 2002/2003 income tax year and $6,540.90 for the 2003/2004 income tax year but otherwise affirm the decisions under review.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC
Signed:         ..................[Sgd]..............................................................
  Associate
Date of Hearing  10 February 2010
Date of Decision  12 March 2010
Counsel for the Applicant         Self-represented
Counsel for the Respondent     Legal Services & Procurement Branch Advocate