Aycha and Secretary, Department of Social Services (Social services second review)

Aycha and Secretary, Department of Social Services (Social services second review) [2023] AATA 721 (6 April 2023)
Division:GENERAL DIVISION
File Number(s): 2018/2796
Re:Houssain Aycha
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Dr Stewart Fenwick, Senior Member
Date:6 April 2023
Place:Melbourne

The Tribunal affirms the decision under review and decides that:
(a)the Applicant was a member of a couple during the debt period;
(b)the Applicant was overpaid Newstart Allowance between 7 January 2009 and 31 July 2012 and Disability Support Pension between 1 August 2012 and 7 November 2017, resulting in debts to the Commonwealth; and
(c)there is no basis for the debts to be written off or waived.

.........................[sgd]...............................................
Dr Stewart Fenwick, Senior Member
Catchwords
SOCIAL SECURITY – Newstart allowance – Disability Support Pension – alleged overpayments – whether Applicant a member of a couple – reporting of income and assets – consideration of Islamic marriage and divorce – waiver or write-off of debt – decision affirmed
Legislation
Family Law Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Re Boscolo v Secretary, Department of Social Security [1999] FCA 106
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[2010] FCA 1084
Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Pelka v Secretary, Department of Family & Community Services [2006] FCA 735
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Secondary Materials
Black, Ann (2016) ‘Adaptations of Islamic family law for the Australian context’, 30 Australian Journal of Family Law
Black, Ann and Sadiq, Kerrie, ‘Good and Bad Sharia: Australia’s Mixed Response to Islamic Law’ (2011) 34(1) UNSW Law Journal
Buckley, Anisa, Not ‘Completely’ Divorced: Muslim Women in Australia Navigating Muslim Family Laws (Melbourne University Press, 2019)
REASONS FOR DECISION
Dr Stewart Fenwick, Senior Member
6 April 2023
BACKGROUND

Mr Aycha applied to the Tribunal on 10 May 2018 for review of a decision of the Social Services and Child Support Division (AAT1) dated 17 April 2018. This decision affirmed a prior decision by an Authorised Review Officer (ARO) dated 1 December 2017 to confirm two debts totalling $173,432.12.
The underlying debt decisions relate to the payment of $52,225.07 in Newstart Allowance (NSA) between 7 January 2009 and 31 July 2012, and the payment of $120,982.40 in Disability Support Pension (DSP) between 1 August 2012 and 7 November 2017.
The ARO determined that:
(a)between 7 January 2009 and 31 July 2012, Mr Aycha was entitled to receive NSA of $224.65;
(b)between 1 August and 7 November 2017 Mr Aycha was not entitled to receive any DSP payments; and
(c)the debts were raised as Mr Aycha was a member of a couple since 7 January 2009 and failed to notify the then Department of Human Services of that fact, and of his income, assets and partner’s income.
The Applicant migrated to Australia in 1994 and married Faten Aycha (Ms F) in 1997. While asserting separation and Islamic divorce from Ms F, the Applicant also asserts that he married a second woman, Ms Serine Akl (Ms S), evidenced by a certificate of Islamic marriage, but did not cohabit with her.
Mr Aycha first obtained support from Centrelink in the form of Special Benefit payment in early 1998, and later qualified for NSA at the beginning of 2000. The Applicant was found not to be qualified for DSP in late 2001, but was subsequently moved onto DSP in 2012. His history of payments includes some periods of suspension, including as a result of his income and asset levels. Mr Aycha was also rejected for NSA in early 2018. I note that this payment type was superseded on 20 March 2020 by the Jobseeker payment.
Mr Aycha was represented and lodged an Outline of Evidence (Outline), a Statement of Facts, Issues and Contentions (SFIC), and written closing submissions (CS). Two bundles of material were accepted into evidence during the hearing (Exhibit A1, 26 pages, addressing a range of matters, and Exhibit A2, 5 pages, comprising primarily copies of various identity documents).
The Respondent lodged documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (totalling in excess of 4,000 pages) (T), two bundles of Supplementary T documents (ST) (ST1-2/2018; ST1-8/2019), a Tender Bundle (of just over 1,000 pages) (R), a SFIC, Further Submissions (FS) in response to the ASFIC, and Further Closing Submissions in Reply (FCS). A bundle of photographs was taken into evidence at the hearing (Exhibit R1).
Mr Aycha gave evidence at the hearing with the assistance of an interpreter in the Arabic language. Evidence was also given by Ms Nihad Al Hatamleh, a friend of the Applicant, Mr Omar Sahmarani, a former neighbour, Mr Merry-Wayan El Houli, said to be an investor in property with the Applicant, and Mr Karamjit Singh, a former neighbour.
For the reasons that follow, I find that Mr Aycha and Ms F were a member of a couple at the relevant time, and that he owes a debt to the Commonwealth.
LEGISLATION
As noted above, NSA is not presently found in the Social Security Act 1991 (Cth) (the SS Act) having been superseded by Jobseeker payments. However, aspects of qualification for and payability of NSA were provided for in s 611 of the SS Act. This section (of continuing force) establishes asset value limits, including by reference to a person’s family situation (single or partnered), and NSA was not payable if a person exceeded their asset value limit. The rate of the allowance was provided for in s 643, being that calculated in a table set out in s 1068. This section (also of continuing force) includes modules setting out a maximum rate, and also how ordinary income is to be considered. Ordinary income is defined in s 8 quite broadly.
Payability of the DSP is provided for principally in s 98, and it is not payable if a person’s pension rate is nil. The rate is worked out, pursuant to s 117, according to calculators set out in s 1064. Similarly to the process identified above, various modules identify how certain factors, including a person’s partnership status, affect assessment of the rate. Where two people are determined to be members of a couple, their income and assets are treated as being pooled. Ordinary income and assets are addressed in separate modules, and a table establishes a person’s asset value limit, taking into account their partnership status.
Applicable to both payment types is the general meaning of ordinary income, which is taken under s 1072 to mean a person’s gross ordinary income from all sources. Amounts not forming part of periodic payments are treated under s 1073 as being averaged across each week of the year, broadly stated.
Sections 4(2) and 4(3) of the SS Act guide the determination of membership of a couple. A person is a member of a couple if legally married and is not, in the decision-maker’s opinion, ‘living separately and apart from the other person on a permanent or indefinite basis’ (s 4(2)). For the purposes of forming an opinion about relationship status, ‘regard is to be had to all the circumstances of the relationship’ including the following matters (s 4(3)):
(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 the 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.
A discretion exists in s 24 of the SS Act for a determination to be made that persons who are legally married, and not living separately and apart on a permanent or indefinite basis, are not to be treated as a member of a couple. There is authority for the view that this discretion is not to be engaged lightly, and that something unusual or different about a couple’s ability to pool resources must first be shown (Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, at [37]) (Kazmierczak).
Pursuant to s 1223 of the SS Act, payments of benefits above the level of entitlement are considered a debt to the Commonwealth. The decision-maker may decide that a debtor has no capacity to repay the debt under s 1236. There is power under s 1237 for this debt to be waived, including in circumstances where the debt was solely attributable to administrative error by the Commonwealth and was received in good faith (s 1237A), or where there are special circumstances (s 1237AAD).
Finally, under s 68 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), a person may be given notice that they are to advise of a specified event or change of circumstances.
ISSUES
The principal issue in this matter is whether Mr Aycha is to be considered a member of a couple from 7 January 2008. If so, amounts overpaid are debts to the Commonwealth and consideration must be given to whether circumstances arise justifying waiver.
A large amount of information relating to income and assets was presented, partly in order to support a finding on the quantum of the debt if I were to find that Mr Aycha was single. However, I address aspects of these matters where appropriate in these reasons in support of my principal finding.
EVIDENCE
The following is a brief summary of key events, properties and banking arrangements that arise in this matter. (This material is included as a guide only and is subject to any specific findings below).
Key life events, and reports about key events, can be summarised as follows:

Date

Event

Reference

15/1/97

Applicant marries Ms Fin Lebanon

Evidence

6/12/07

Religious divorce (per later certificate)

R102

25/12/07

Separation as reported by Applicant (NSS application)

R81

23/3/08

Separation as reported by Ms F (MOD S form, 23/6/08)

T171

19/4/08

Separation as recorded by Centrelink

T160

25/7/08

Commencement of first recorded period of child support

R110

5/12/08

Religious marriage to Ms S

R103

22/3/18

AAT1 hearing

AAT1

3/7/19

Applicant reports marriage to Ms S

FS

18/7/19

Religious divorce formally certified

R102

22/8/19

Family violence intervention order re incident 21/8/19

R109

1/2/21

Separation from Ms S

ASFIC/CS

I draw the following summary of property ownership from several sources (RSFIC, T82, T150) (I will refer to suburbs only for simplicity):
(a)Ms F is the registered proprietor of Property 1 Coburg North from 25 January 2000, which was later listed for rent from September 2010;
(b)Ms F was the registered proprietor of Property 1 Meadow Heights between 2 May 2011 and 28 February 2013;
(c)the Applicant was the registered proprietor of Property 2 Meadow Heights between 16 March 2010 and 29 February 2012;
(d)the Applicant is the joint proprietor with Ms F of a property in Roxburgh Park from 23 September 2010, for which a joint mortgage application was made;
(e)the Applicant is the registered proprietor of Property 2 Coburg North from 2 January 2013, which was later listed for rent on 30 January 2014, and which was used as security for the purchase of Campbellfield (below);
(f)the Applicant is the registered proprietor of a property in Campbellfield from 18 July 2014, which was also later listed for rent on 30 March 2015;
(g)Ms F is the registered proprietor of a property at Heathcote from 24 April 2017, for which funds were withdrawn from the mortgage over Roxburgh Park.
From the same sources, in summary, it appears that the Applicant has, or had at the relevant time: eight NAB bank accounts, three of which were held jointly with Ms F; six Westpac accounts, three of which are investment property loan accounts; three Commonwealth accounts, two being credit card accounts with Ms F as an additional card holder. Certain accounts have also been identified as owned by Ms F, including investment loan accounts.
In response to an information request from the Respondent Mr Aycha offered descriptions of the nature of a large number of transactions in bank accounts. The RSFIC includes tables setting out those transactions over $2,000 between 2009 and 2017, comprising a total in excess of $2.6m in deposits, calculated at over $1.2m when transactions related to property are excluded. At the hearing, the totals for certain years were amended by the Respondent’s representative, which I understood to increase the overall total to in excess of $2.9m.
Applicant
Mr Aycha stated in evidence that he believed he separated from Ms F about 9-10 years after their marriage. He stated that he tried to reconcile, being attached to his children, but when this did not work ‘at last the sheikh came and we divorced’. Mr Aycha stated that after ‘repeated requests’ from him he was able to stay in Roxburgh Park. Being separated under the one roof did not work, but there was a granny flat, and he informed Centrelink.
Mr Aycha stated that the joint purchase of this property arose from a community mediation effort. He was unclear about the full details of financing, but stated that both he and Ms F contributed funds and she was responsible for repayments. He stated that they shared no other finances, and accounts in joint names were from efforts to provide proof of marriage to immigration authorities, as Ms F had sponsored his visa.
The Applicant was unable to remember how long he stayed at this address, stated that Ms F’s brother also stayed there, and noted that he also travelled at times to Sydney. He was also unclear on where he moved to after Roxburgh Park. Mr Aycha stated that not long after divorcing Ms F he had a relationship with Ms S, but they experienced trouble during COVID-19 and divorced ‘a year or two ago’.
Mr Aycha acknowledged taking a trip to Lebanon with his children, stating that he departed with them first and Ms F followed. In this passage of evidence he appeared to indicate that he had to reassure his daughter that he had not kidnapped the children, and that Ms F travelled at the request of a son. Mr Aycha arranged an apartment for her, and the children then stayed there.
In his evidence, Mr Aycha appeared to indicate that he accumulated debts to persons in the community when he was unable to obtain either work or social security benefits following an accident early in his time living in Australia. He described a range of mental health symptoms as arising from the accident. When asked about child support arrangements, Mr Aycha described this as being by mutual agreement, including that he and Ms F each cared for their children. Mr Aycha stated that authorities looked into the welfare of the children and ‘threw out the investigation’.
Mr Aycha stated that ‘within the community’ it was well known that he and Ms F were divorced. He denied any ongoing sexual relationship, and did not know whether she had ever established a new relationship. Mr Aycha stated that his children had met Ms S and she had cared for them for a period.
When asked about the ownership of Property 2 Coburg North, Mr Aycha stated that
Mr El Houli asked for it to be purchased in the Applicant’s name for personal reasons, and that Mr El Houli paid all expenses. Mr Aycha stated that Centrelink had given the arrangement the ‘all clear’, and he informed the agency about receiving rent from the property. The Applicant stated that he has a statement from Mr El Houli’s lawyers about the ownership arrangement.
Mr Aycha stated that he bought Campbellfield in order that his children could visit him, and that this property was owned with three partners, whom he had since paid out. The dispute had caused legal issues including action by the Sheriff (Exhibit A1). I understood Mr Aycha also stated in evidence that this property is in his name, but he has a zero-percentage share.
Mr Aycha was unable to say anything specific in evidence about Heathcote. When asked about Property 2 Meadow Heights, Mr Aycha acknowledged buying it but was unable to recall when he lived there. The Applicant acknowledged that a family used the bungalow at this property, but did not accept that this was a rental arrangement, and that Ms S lived with him in Coburg North. Mr Aycha stated that the latter was also bought in partnership, and that he had given this person’s details to Centrelink.
Mr Aycha stated that he lived in Sydney for four years, due apparently to issues with Ms F’s family. He agreed that Ms S also travelled up and back to Sydney, but she also had her own children to care for. The Applicant stated that he informed Centrelink of his Sydney address but that it does not appear on their records.
When asked about an intervention order instituted in 2019, Mr Aycha related this to the decision of AAT1 in that he considered Ms F’s family might have thought that the decision meant they were still married. He stated that he went to speak with her family to mediate on the basis that he had to obey the law, and the decision said Ms F was his wife, but they said ‘no’ and that they were divorced, or could verbally divorce right then.
In cross-examination, Mr Aycha was asked to describe the circumstances in which the certificate of Islamic divorce was issued in 2019 with respect to his 2007 separation from Ms F. He stated that Ms F told the Board of Imams and the sheikh ‘went with three to four witnesses and she said she didn’t want him at all’. Mr Aycha then stated that the sheikh came and gave him a document that he signed before witnesses: ‘if she does not want me anymore how can I accept her’? The Applicant stated: this occurred just before the date of the divorce, in 2007; the letter can be produced any time; was requested because of this Tribunal hearing; and, he lost the certificate issued in 2007.
When asked why this certificate had not been provided to Centrelink in 2007, Mr Aycha stated that he informed the agency and that an officer spoke to the sheikh to confirm. The Applicant stated that following this he was paid the single rate. He added that there are ‘so many things missing from the records’, and that he had been banned from attending Centrelink offices for two years. Mr Aycha also stated that a certificate for his marriage to Ms S was generated in 2008, but was not provided to Centrelink as it had not been asked for. The Applicant affirmed in his evidence that he had been married to her from 2008 until separation in early 2021.

Mr Aycha stated that he had been with a third woman at one time, and had a child with her which did not survive, as represented in the material lodged with the Tribunal. He was directed to a customer contact record dated 7 December 2017 (R86, 701) that reports a discussion with an Arabic speaking officer on matters including the Applicant’s debts. When asked why he is recorded as saying that he had other relationships but ‘they were not serious’, Mr Aycha responded that Centrelink was aware of his marriage to Ms S, and that she spoke to them on his behalf on many occasions. The Applicant also stated that the date of separation of 25 December 2017 included in a Mod S Separation details form (R54, 444) was a mistake.
Mr Aycha was asked to provide further details of his relationship with a woman in Morocco. He described her as a member of the Royal family and that she provided fares for a trip, but the relationship did not work out. The Applicant could not recall when he had travelled to meet her. He added that Ms S was jealous and controlling and did not want him to go. It is not clear whether this was intended to mean that Mr Aycha did not in fact make a trip to meet her.
Mr Aycha was asked again why he did not provide evidence to AAT1 of his new marriage to Ms S, when he had instead provided information about communications in 2009 with a woman from Egypt. He responded that he had not been requested to provide evidence of his marriage.
Mr Aycha was asked when he attempted reconciliation with Ms F, and confirmed that this was post-separation. When the Applicant was asked how he could attempt reconciliation while married to Ms S, he responded that ‘the goal was to be an example for the kids, to feel I am looking after them’. Mr Aycha was asked if he travelled to Morocco in 2009 (AAT1 [20]) why he did so when married to Ms S. I understood his response to suggest that he thought he might be able to have more than one relationship at a time, but the woman in Morocco was not happy with this.
Mr Aycha was also asked to confirm whether he gave evidence before AAT1 ([23]) that he had no plans to divorce Ms F, and was still attempting reconciliation. He responded: ‘I am telling you in 2007 the marriage was over in religious, social and all other aspects’. When pressed, the Applicant replied further that he had never been asked previously about the divorce, and added that he was not assisted by a lawyer at that time.
Mr Aycha was then asked to confirm his evidence before AAT1 ([24]) that he had not established any other relationships, when he now said he was in a relationship with Ms S. He replied that ‘everyone has a hobby of looking for women …’. When asked why the outline of evidence provided by his legal advisers earlier in this matter did not refer to a relationship with Ms S, Mr Aycha responded that he hadn’t been asked, and also stated that she had been present with him during his attendance before AAT1.
When taken back to his evidence that the intervention order arose from the content of the AAT1 decision, Mr Aycha stated that Ms F was taking the member involved to Court because the decision caused problems in her family. When asked why the police reports refer to them being married for 22 years, the Applicant replied this must be a mistake. He repeated that he had obtained a religious divorce, and did not know if there is a legal divorce as he ‘does not know about these things’. Mr Aycha was asked why the report indicates Ms F was concerned after discovering the Applicant had an affair, responding that was ‘exactly what happened’, except it took place in 2008.
I summarise the Applicant’s responses to questions addressing a number of matters, including aspects of his financial affairs:
(a)he received authorisation to operate an ANZ account a year after his divorce from Ms F as this was used for child support, and the card was held by his daughter. He later provided a similar response in relation to an NAB offset account;
(b)an amount of $59,000 deposited into the ANZ account from his St George account in February 2009 may have been for school fees;
(c)some bank documentation referred to old addresses, and did not determine that he was living with Ms F, and his accommodation generally was not stable and he lived at several addresses;
(d)Roxburgh Park was purchased as an investment for their children with the urging of community leaders;
(e)he did not consider a joint NAB loan application referring to them as spouses to demonstrate that he and Ms F were married;
(f)he did not provide a clear response in respect of a deposit of $86,000 into a joint NAB account in August 2010, referring once again to school fees;
(g)this level of funds was available to him due to borrowings, rather than income, and discrepancies in income or employment history in loan documents were due to broker error;
(h)he did not consider the proceeds of sale of Property 2 Meadow Heights to be profit, he owed money to many people, and a statement had been provided to Centrelink;
(i)he did not report Ms S as his spouse and recorded his relationship status as ‘divorced’ in his DSP application because it was only an Islamic marriage, and she lived at her house, with her children;
(j)reference to being married in the 2012 loan application for Property 2 Coburg North must have been to Ms S;
(k)
he disagreed that he underreported the number of properties in which he had a financial interest, and considered it appropriate to report his ownership of

Property 2 Coburg North, despite claiming the property belonged to his friend;
(l)he denied renting out this property at the time of reporting to Centrelink (R18) despite the form initially including rental income information, stating that the silent partner in the property had listed it, and no profit was made;
(m)he then acknowledged receiving rent when it was put to him that his own bank account was listed with the agent to receive rental income for this property, notwithstanding another person’s name was associated with that account on the form;
(n)he could not initially recall the reason for, or source of, a $152,000 cheque deposit into a joint account in early 2013, and then accepted it was related to the sale of Property 1 Meadow Heights by Ms F;
(o)he appeared unclear about the issue of additional credit cards to Ms F in respect of multiple accounts;
(p)he did not declare Ms S as a ‘partner’ when reporting his interest in a family day care business on the basis that he was only religiously married;
(q)he stated it was an ‘error of judgment’ to allow the family day care business to be in his name since he could not earn income while receiving DSP, adding that he did not know how much money was coming in and he was not aware the business was operating at Roxburgh Park, but then also acknowledged receiving income from this business;
(r)he accepted that he had bought Campbellfield in 2014, listing himself as single, and stated that he had a silent partner, but disagreed with records indicating Roxburgh Park was part of the security for the purchase;
(s)he explained that he needed a partnership to purchase property as his income from benefits alone was insufficient to make mortgage repayments;
(t)he stated that a series of loans to other parties reported to Centrelink (R84) was in fact a list of borrowings;
(u)he denied the information provided in a tip-off that he had lived for a substantial period at Roxburgh Park, and then acknowledged his evidence that he used a granny flat, and stated that photos tendered by the Respondent did not show a flat because it was in fact a room behind the garage;
(v)he did not agree that his prior evidence to AAT1 about the 2015 trip to Lebanon as being an attempt at reconciliation was a better explanation for the fact that all the tickets were sequentially numbered and issued on the same day;
(w)he acknowledged being stopped by the Australian Federal Police (AFP) on departure in the possession of substantial sums of cash that he stated were from Ms F and other relatives, and that he described himself as a provider of child care;
(x)he could not explain the reason behind a transfer between accounts of $252,000 in late 2015;
(y)he denied that a customer contact record of August 2017 was accurate by reporting upstairs/downstairs living arrangements as this should refer to him living behind the garage, and denied that he had told AAT1 that he slept in the lounge room; and
(z)he explained that a reference to him being married in a health record might be referring to his marriage to Ms S.
In re-examination, Mr Aycha explained his relationship with Ms S arose when she visited the family, and Ms F became jealous of their friendship. He stated that he married her once the Islamic divorce became final, in order that her family would not become upset.
Mr Aycha explained that he was affected badly by his accident and used painkillers and medication for his mental health, which had a big impact on him. He had also undergone a procedure for cancer. Mr Aycha explained that he had no schooling and was illiterate, and had limited experience with English classes in Australia. He stated that he only signed various applications and forms, and that the contents were not explained to him. Currently, he estimated that he owes $500-600,000 to community members and friends.
Evidence before AAT1
AAT1 records Mr Aycha as stating in evidence on 22 March 2018 that he continued to reside at Roxburgh Park with Ms F, but that he slept in the loungeroom. He also stated that he was not with Ms F in 2009, and travelled to Morocco looking for a bride, however they did travel to Lebanon together three years ago (2015) in an attempt to reconcile.
Mr Aycha is also recorded as stating that Roxburgh Park was a joint purchase and that he and Ms F contributed financially to this property. The Applicant explained that he was listed as next of kin in Ms F’s employment records because of the children.
Mr Aycha also indicated that he had no plans to divorce Ms F and that he was still trying to reconcile with her. The Applicant stated he has not established any other relationships, despite trying on dating sites. His family knew of the separation and any pooling of finances was done solely for the benefit of the children. Mr Aycha stated that he stayed at Campbellfield when not at Roxburgh Park, and that contrary to other information, Campbellfield was not rented out.
Other witnesses
Ms Al Hatamleh provided written (R104) and oral evidence that she has known the Applicant for 10-12 years, and they lived together at Property 2 Meadow Heights for one to two years, although was not able to be specific about when, perhaps in around 2015. The witness was also unsure how much time Mr Aycha spent at the property, as he also spent time at other places including in Sydney.
Ms Al Hatamleh stated that she understood that Mr Aycha was separated from Ms F, and the Applicant lived in a bungalow at the rear of Property 2 Meadow Heights ‘with his second wife’. In oral evidence, the witness was not sure if the Applicant was married to Ms S, but was told this fact later by Mr Aycha, and stated she socialised once or twice with the Applicant and Ms S.
The witness was asked to explain a Centrelink customer contact record arising from a call made by her on 11 December 2015 (R92). I understood Ms Al Hatamleh’s response to be that the reference in this record to ‘no-one living with her’ was in reference to her not being in a relationship (the record refers to an inquiry about the single rate of a particular benefit type, noting also that Mr Aycha was using her address, Property 2 Meadow Heights, for Centrelink purposes).
Mr Sahmarani provided written (R106) and oral evidence that he had known Mr Aycha for 16-17 years, having been a neighbour in Coburg North for more than five years, from around 2004-2005. He stated Mr Acyah and Ms F were still together then, but he observed both police and social services attended Property 1 Coburg North and the marriage ultimately broke down in 2007. He stated further that he met another partner of Mr Aycha socially for coffee, but did not know her name.
In cross-examination, Mr Sahmarani confirmed that he knew the Applicant extremely well and that they speak approximately once a month. However, he was unable to offer further information about specific aspects of Mr Aycha’s personal, property or financial arrangements.
Mr El Houli provided written (R108) and oral evidence that he obtained the assistance of Mr Aycha to purchase Property 2 Coburg North on his behalf as the witness had been unable to obtain a loan. Mr El Houli stated that he makes the repayments on the loan and the Applicant lives there rent-free. He acknowledged in evidence that this property had been rented for a period of time, but did not have any of the documents.
In cross-examination, Mr El Houli added that the arrangement in respect of this property also arose due to issues with his own divorce. The witness was unable to add or confirm details about the property purchase, and was very vague about the purchase price. He appeared to confirm, when prompted, that a Mustafa Ali had been associated with the rental of this property.
Mr Singh stated in evidence that he was Mr Aycha’s neighbour between approximately 2014-2019 in Meadow Heights. He understood that Mr Aycha had been married, became separated and married someone else, but did not know to whom. In cross-examination,
Mr Singh stated that Mr Aycha was ‘back and forth’ to Sydney a lot during the time he knew him.
Other material
A further written declaration was lodged by a Mr El Shaker, a resident of NSW (R105), who states that he would often see the Applicant and Ms S together ‘when they lived in Sydney’, and that he is aware Mr Aycha used to move back and forth between Melbourne and Sydney.
Mr Aycha provided evidence of periods of residence in Sydney comprising copies of driver licences dated in 2011 and 2016 (R100). He also provided copies of Health Care Cards in his name and that of Ms S at Property 2 Coburg North dated 2019 (R101). Copies of Centrelink customer cards were received as exhibits bearing dates between 2013-2017 and reflecting the addresses Property 3 Meadow Heights and Roxburgh Park (for years 2015 and 2017). Copies of Victorian driver licences for the addresses at Properties 2 and 3 Meadow Heights were also exhibited, the former apparently being Mr Aycha’s current licence.
VicRoads records (T76) and Centrelink records (T159) indicate that Mr Aycha has reported twelve different Victorian addresses to those agencies between 1995 and 2018, as well as the NSW address referred to above. Records of the same agencies (T199, T218) indicate that Ms F has reported eight different Victorian addresses over a similar period and there is broad correlation across these records.
More specifically, this material appears to indicate that Ms F reported Property 1 Coburg North as her address until late 2010, before changing this to Roxburgh Park (with a minor exception to this pattern). There are greater inconsistencies across the records in
Mr Aycha’s case, but he appears to have reported Property 3 Meadow Heights as his address for Centrelink purposes from late April 2008 (changing from Property 1 Coburg North) and then reported Roxburgh Park as his address in 2014 and then again in 2015. He subsequently reported Campbellfield as his address from early 2018.
The Applicant lodged a certificate dated 18 July 2019 purporting to be a record of an Islamic divorce procedure (R102). This document appears to be issued by the Board of Imams, Victoria, and purports to relate to a religious divorce between Mr Aycha in respect of Ms F that took place on 6 December 2007.
An Islamic marriage certificate was lodged by Mr Aycha (R103), also appearing to be issued by the Board of Imams. This bears the date 5 December 2008 and is in respect of a religious marriage to Ms S, albeit the document bears the injunction that it does not represent a legal marriage event.
Mr Aycha also lodged a bundle of Child Support Assessments appearing to be official records from the Child Support Agency (CSA) (R110). The numerous records bear dates between mid-2008 to late-2018, and also early-2018 to late-2023. They uniformly report
Mr Aycha as having 0% of care, and all indicate assessments in favour of Ms F, in varying amounts.
Mr Aycha provided responses to a schedule of account transactions prepared by Centrelink (T111). The Applicant provided a response to each of the very numerous cash or cheque deposits, describing them as, variously: ‘from my pension’; ‘from a friend’; ‘from mortgage’’ ‘rent’; ‘kids money’; and, occasionally larger sums are attributed to sale proceeds of properties.
Records from Centrelink in November 2015 note a tip-off report as to the possibility that
Mr Aycha was a member of a couple (R59). In May 2016 another more comprehensive tip-off was reported (R61) including that: the Applicant is a member of a couple; has been living at Roxburgh Park for 3-6 years; and, despite claiming to be unfit for work, has been running a family day care service at this address.
The Respondent lodged material (R75) confirming that Mr Aycha and Ms F provided childcare services from Roxburgh Park on behalf of the provider ‘In Loving Hands Family Day Care’. It does not appear they were involved in the management of the business, but substantial fees were paid across the years 2014-2015 for sessions of care provided by them.
Material lodged by Mr Aycha also includes a Family Violence Intervention Order issued on 22 August 2019 in respect of Ms F (R109). The matter was later heard in a Magistrates’ Court on 24 October 2019 and the material describes Ms F as Mr Aycha’s ‘spouse’. The outline of the incident states, relevantly:
(a)the Applicant and Ms F do not live together, have been married 22 years, and this is the first recorded FV incident;
(b)on the day in question Ms F attended a relative’s house to discuss a possible divorce from Mr Aycha, as she ‘believes [the Applicant] has had an affair with another party’;
(c)Mr Aycha arrived at the address and a verbal argument started, leading to pushing and police were called; and
(d)the parties involved did not support police inquiries and declined to provide statements, although Ms F appeared emotional and fearful of the Applicant.
A health summary from a treating doctor apparently from late 2018 (R64) describes Mr Aycha as ‘married lives with wife with 4 kids’, and identifies the Applicant’s address as Property 2 Meadow Heights. It records that in 2018 Mr Aycha was prescribed an antidepressant.
I also note a brief observation from a medical report dated 23 October 2017 (T77) that refers to Mr Aycha as ‘single and lives in a backroom with another lady, who serves as carer …’. This consultation was described as preceding an overseas trip later that year. This report is from Mr Aycha’s psychiatrist who describes the Applicant as a ‘very bad historian’. While it notes the diagnosis of a schizoaffective disorder, the writer could ‘not elicit any thought disorder’, but noted: ‘He appears to have poor mentation. He said he uses his citizenship to get people into business and they pay him commission, which made ATO charge him’.
Immigration movement records included in material lodged (T165, R52) indicate that Mr Aycha and the children appear to have departed Australia on 28 November 2015, Ms F then departing on 15 December, and all returning together on 28 January 2016. Passenger receipt tickets for the trip in 2015-2016 (R51) indicate that the tickets were all issued on the same day in October 2015. Mr Aycha’s records indicate he travelled overseas for approximately five weeks in 2009.

Mr Aycha provided information (R53) purporting to substantiate a relationship with a woman in Morocco, including a photocopy of a passport, as well as other material being a page in Arabic script, and screenshots apparently from a dating site. A translation of this material (R53) indicates that a woman in Egypt appears to have written to the Applicant in relation to an Australian visa application, and in which she expresses some affection for him.
Copies of Health Care Cards have also been lodged in this matter (R101) in the names of Ms S and Mr Aycha. The cards are mutually cross referenced, and the Applicant’s was first issued in mid-2019 and was current to mid-2021. The card for Ms S commenced twenty years prior, and expired in mid-2018. The cards reference Property 2 Coburg North. Mr Aycha also lodged Westpac correspondence dated 3 July 2019 indicating that he had opened a new account with Ms S, listing their address as Campbellfield (Exhibit A1).
The bundle also includes material relating to steps taken by the Sheriff’s Office Victoria in respect to an alleged debt of just under $75,000 owed by Mr Aycha, leading to a notice of auction in respect of Roxburgh Park scheduled in November 2017.
In the Mod S Separation details form dated 26 June 2008 (T171) lodged by Ms F, the Applicant’s address is given as Property 3 Meadow Heights and a gentleman named
Mustafa Ali is one of the named referees. In a July 2011 application for Carer Payment in respect of one of her children (R80, 3378), Ms F describes herself as ‘single mum’. A 2015 tax return lodged by Ms F (R76) indicates that in the prior financial year she received Parenting Payment Single.
SUBMISSIONS
Applicant
The original Outline, later ASFIC, and CS are broadly consistent. The date of separation is described in the former as ‘mid-late 2008’, noting there was no agreement between Mr Aycha and Ms F about the date ([4]). It is stated in the ASFIC that the relationship broke down in 2007, and that the Applicant believes this occurred on or about
6 December 2007 ([3.1]). It is maintained that no sexual relationship remained.
It is contended that the couple underwent an Islamic divorce, and mistakenly assumed the sheik responsible would formalise this (ASFIC [3.1.1]). It is noted in CS that a certificate was issued to substantiate the religious divorce (R102). It is specifically contended (CS [4.1.2]) that consideration be given to ‘religious and cultural practices’ with respect to the changed circumstances of the relationship. It is said to be common that a religious divorce is not documented until one party requests such ‘for one reason or another’ (CS [4.1.2.1]). Witness statements provided in support of the Applicant are said to support the contention that family and friends knew that the relationship between Mr Aycha and Ms F broke down in 2007 (CS [4.1.3.3]).
It is also contended that Mr Aycha sought to reconcile at times, but was rejected. Ultimately, Roxburgh Park was purchased in order for the Applicant to be close to his children, but he lived in a separate part at the rear, with no internal connection to the main property (CS [3.3], [3.11]). It is submitted that Ms F paid the mortgage on this property from her own income.
It is further contended that Mr Aycha married Ms S on or about 5 December 2008. The Applicant is said to have separated from her on or about 1 February 2021, and the relationship had broken down (ASFIC [3.5]; CS [3.5]).
It is acknowledged that Mr Aycha travelled with Ms F and their children to Lebanon on or about 15 December 2015, but that the itinerary demonstrates that their travel was in fact partly separate (CS [3.8]).
It is further acknowledged that Mr Aycha lived in NSW (at an address in Sydney) for approximately four years ‘from about 2013 to 2016’ (CS [3.14]).
In respect of finances, it is stated in the Outline that a property settlement with Ms F was not concluded, but an in-principle agreement was reached with respect to assets and bank accounts ([9]). It is also submitted that while bank accounts remained in joint names, each account was used individually after separation, and ‘Mr Aycha has never used the National bank and ANZ accounts’ (ASFIC [3.7]). It is contended that an instance of an apparent joint loan application was mistaken, as the Applicant did not intend to convey that he was still married to Ms F ([3.7.1]). It is also contended that Mr Aycha and Ms F did not continue to share finances except for the purposes of caring for their children (CS [4.1.3.1]).
In respect of the Applicant’s personal income, it is submitted that unexplained deposits in Mr Aycha’s bank accounts ‘can be attributed to money he borrowed from family and friends which he is to pay back over time’ (CS [3.13]).
With respect to other properties, it is submitted: Campbellfield was purchased by the Applicant in 2014 in order to live separately from Ms F and the children (CS [3.11]); and Property 2 Coburg North was purchased in early 2013 by a group of investors in Mr Aycha’s name on the understanding he could live there rent free, however issues arose leading to a dispute. While the Applicant is currently living in this property, the mortgage is paid by Mr El Houli (CS [3.12]).
Reliance is placed on authorities including Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, in particular, for the proposition that residing at the same address should not be a determinative factor. Further, there is evidence of an estrangement or breakdown in the relationship. It is contended that:
(a)the Applicant was not a member of a couple with Ms F at the relevant time, and therefore her income and assets are not pertinent to calculation of benefits;
(a)the property ‘purchased on behalf of his friends as trustee’ should not be taken into account (CS [4.7]);
(b)Mr Aycha did not declare earnings from family day care during 2014-2015 and may therefore have been overpaid benefits (CS [4.8]);
(c)the unexplained deposits reflect loans which presently total approximately $600,000 which should not be taken into account in determining his benefits (CS [4.9]); and
(d)the debt should be waived or substantially reduced on the basis of financial hardship as Mr Aycha does not have the funds nor the ability to raise the funds (CS [4.9]).
It is also contended that there are special circumstances that justify waiver of the debt. This is on the basis of ‘schizodepression’ or a ‘schizoaffective disorder’ which is said to be substantiated by the long-term care provided by a named psychiatrist (CS [4.12] and following). This condition is said to give rise to a range of symptoms including depression and it is contended that it affects a very small percentage of the population globally, placing Mr Aycha in a unique position. A previous cancer condition is also said to have caused the Applicant substantial stress (CS [4.20]-[4.21]).
Finally, it is submitted that Mr Aycha’s mental health condition results in memory deficits and that this should be taken into account with respect to credibility issues raised by the Respondent (CS). It is also contended several times in writing that Mr Aycha presents as a difficult client to interview due to his mental health, and lack of proficiency in English.
Respondent
The Respondent acknowledges that a separation date of 6 December 2007 has been asserted (T92; ST7/2019), including in the purported certificate of Islamic divorce (RSFIC [5.2]; FS [4.1]). However, contends that there is evidence indicating the contrary, including Mr Aycha’s evidence before AAT1, and medical and financial records. The RSFIC details a number of specific transactions in financial records ([5.5.1]) and the joint purchase of tickets for the visit to Lebanon in 2015.
In respect to the arrangements at Roxburgh Park, the Respondent submits that a range of records indicate that Mr Aycha and Ms F resided together in this jointly owned property (RSFIC [5.5.2]). The Respondent also contends that Mr Aycha provided contradictory evidence before AAT1 as to his use of the property (FS [4.2]). It is similarly contended that Mr Aycha and Ms F resided together at Property 1 Coburg North during the debt period (RSFIC [5.5.2]), which is supported by various pieces of independent evidence.
The Respondent also submits that the social aspects of the relationship with Ms F support the view that they were married (RSFIC (5.5.3)). This is said to be substantiated by information found in a range of material, including financial records, medical records, an anonymous tip-off, AFP interview records, and records provided by Ms F’s employer.
The Respondent notes that Mr Aycha’s marriage to Ms S is not referred to in the Applicant’s Outline (including the precis of witness statements) (FS [4.5]), and that Mr Aycha first referred to this marriage only during the course of this application, notifying the Department on 2 July 2019 (FS [4.5], Attachment B). The Respondent acknowledges the certificate of Islamic marriage dated 5 December 2008, however notes that the Applicant gave evidence before AAT1 and provided material to the Department (T104) about a relationship with a different person whom he apparently met in Morocco in 2009 (FS [4.4]-[4.5]).
The Respondent further submits that (FS [4.7]-[4.15]): there is evidence of a number of transactions involving joint accounts of Mr Aycha and Ms F; that it is not accurate for him to claim a mortgage broker was confused about his marital status when completing a loan application; Mr Aycha previously gave evidence that the joint trip to Lebanon involved an attempt to reconcile; Campbellfield was not purchased as a residence for Mr Aycha; there is no evidence Mr Aycha has attempted to transfer his interest in Property 2 Coburg North to his purported partners; and, the explanations provided about unexplained bank transactions are open to question.
In the course of the various written submissions, the Respondent referred to a range of authorities, many being prior decisions of the Tribunal. I note, however, the reference to Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92 (Pelka), at [30] with respect to the importance of considering the factors identified in s 4(3), with a focus on ‘the nature of the commitment of two people to each other’. In summary, the Respondent contends that a finding should be made that Mr Aycha was a member of a couple during the debt period (RSFIC [5.6]).
The Respondent also contends that in the face of inconsistent evidence, greater reliance should be placed upon independent material before the Tribunal (FS [5.3]-[5.4]). It is contended that Mr Aycha’s credibility is in issue, further reinforcing the importance of relying upon contemporary documentary material (FS [5.5]-[5.8]).
The Respondent addresses the authorities in relation to whether a special reason exists to treat the Applicant and Ms F as not being members of a couple (RSFIC [5.7]-[5.21]). These include Re Boscolo v Secretary, Department of Social Security [1999] FCA 106 (Boscolo), and Kazmierczak. In short, it is contended that no such special reasons exist in this case. Rather, Mr Aycha is the owner of significant financial assets and is able to take steps to liquidate one or more properties (RSFIC [5.21]).
Finally, it is contended that any debt should not be waived as Mr Aycha had knowledge of his reporting obligations, and no special circumstances warrant exercise of the discretion to waive (RSFIC [5.50]-[5.51]). While the Respondent acknowledges there may be different cultural expectations with respect to marriage and separation, it is contended that these are not so unusual as to be exceptional (RSFIC [5.52]).
The Respondent’s oral submissions in closing addressed at length evidence said to show inconsistencies in the presentation of the nature of the relationship between the Applicant and Ms F. This evidence was said to support the contention that Mr Aycha’s credibility should be doubted, and that he has been untruthful. It was further contended that a number of pieces of evidence raise questions about Mr Aycha’s marriage to Ms S, to the extent that it was submitted there is insubstantial supporting evidence about this relationship.
It was contended that Mr Aycha stood to benefit from representations made about his relationship status, and that the Tribunal should exercise extreme caution about his reliability as a witness. Indeed, the recent report of a police officer associated with the IVO indicated that there was a long-term marriage. It was also submitted that while the CSA agreements appeared on their face to indicate marital separation, they were inconsistent in their detail, and were not supported by evidence of actual payments to Ms F.
I note the following further written submissions (FCS):
(a)information obtained from Ms F in the IVO process indicates she was seeking advice from family about a divorce from Mr Aycha in 2019 ([2.1]);
(b)no evidence was advanced supporting the proper interpretation of the Islamic divorce and marriage documents lodged, nor was the substantial delay between the purported divorce in 2007 and issuing of the certificate explained. Accordingly, minimal weight should be afforded this material, particularly given the inability of Mr Aycha to explain why this material had not been previously provided ([2.2], [2.12]-[2.13]);
(c)evidence of a joint account with Ms S appears to post-date the debt period ([2.4]);
(d)no evidence was advanced to substantiate alleged private debts owed by Mr Aycha ([2.5]); and
(e)there is limited and equivocal evidence about Mr Aycha’s mental health condition ([2.7]-[2.8]).
CONSIDERATION
The Full Court in Pelka emphasised the central importance of forming an opinion about the nature of two person’s commitment to each other, in the context of considering the factors identified in s 4(3) of the SS Act. I note also the observations of French J in his earlier decision in Pelka v Secretary, Department of Family & Community Services [2006] FCA 735 about the importance of considering the total picture of the relationship created by the factors identified in the legislation, noting that they represent a non-exhaustive list, and that consideration must be given to weighing those factors that stand for and against a marriage-like relationship ([46]). I also note His Honour’s reflection upon various authorities and on the purpose of the statutory criterion, being intended to ensure there is ‘no unfair discrimination in the payment of benefits as between those who are married and those who enjoy the benefits of marriage without its formalities’ ([62]).
It is a particular feature of this matter that I have not had the benefit of direct evidence from either Ms F or Ms S, who, aside from Mr Aycha, are the two individuals best placed to speak to the nature of their relationships with him. There is, nonetheless, a reasonable amount of information about Ms F’s circumstances that can contribute to the exercise.
The Respondent correctly notes the Applicant’s somewhat ambivalent approach to the implications of the religious procedures he has apparently undertaken. In his evidence at the hearing Mr Aycha at times played down the significance of his purported union with

Ms S, while maintaining the divorce from Ms F as valid. The deeper implications were not pursued in submissions, but a finding, for example, that Mr Aycha had a marriage-like relationship with Ms S might fundamentally change the basis of debt calculations.
The parties clearly differ on the weight to be given to the evidence provided by the Applicant of the religious divorce and marriage, but neither party advanced independent evidence about such procedures. I have also not identified any relevant judicial authority, nor was I referred to any by the parties. It may well be that when issues relating to Islamic religious practices arise in family law cases that they are dealt with as matters relating to lifestyle, culture and traditions within a consideration of the best interests of the child (Family Law Act 1975 (Cth), s 60CC(g)). Equally, in this legislative context, the framework of considerations means that any normative value to be given to religious procedures is not necessarily of determinative weight.
A substantial critique of Mr Aycha’s credibility was mounted by the Respondent, particularly in closing submissions at the hearing. The thrust of this submission was, ultimately, that more reliance should be placed upon independent, objective material than the evidence of the Applicant. This is consistent with the fundamental task of the Tribunal which is to determine the correct or preferable decision having weighed all probative evidence. I am uncertain of the value of making an overarching finding on credibility, particularly given the sheer volume of material, concerning a very large number of communications and transactions, much of which is contradictory.
In contrast, the Applicant’s representatives drew attention to the difficulty in obtaining instructions from Mr Aycha, his mental health, and difficulty with English. I accept the evidence given that Mr Aycha has low, or no, effective literacy in English. I do not consider the medical evidence about his mental health to be particularly robust.
Fundamentally, the obligation to form an opinion as to whether or not Mr Aycha and Ms F were legally married and were (or were not) living separately and apart on a permanent or indefinite basis requires me to make findings of fact based on rationally probative evidence. Where matters are in real dispute, this is to be determined upon a state of satisfaction reached on the balance of probabilities (see for example Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85). I am specifically required to take into account the factors identified in s 4(3), and I will consider specific matters raised by the Respondent’s submissions where appropriate.
Accordingly, I will adopt the elements identified in s 4(3) as subheadings in these reasons, noting again the requirement of me as decision-maker to form an opinion about the relationship between Mr Aycha and Ms F having regard to all the circumstances of that relationship. There is no evidence, and no submissions made, in this matter as to a sexual relationship between Mr Aycha and Ms F (s 4(3)(d)).
Financial aspects of the relationship
I accept from the material lodged that Mr Aycha and Ms F were at the relevant times joint proprietors of Roxburgh Park, purchased with a joint mortgage in 2010. Some years later, when lodging a Mod R Real estate details form with Centrelink, dated 27 August 2017 (R11), Ms F describes the ownership to be 50/50, and the purchase to have been made with her ‘ex partner’. Mr Aycha made similar assertions in a Mod R form dated 31 August 2017 (R12). These declarations alone, and in the absence of any other evidence, are not sufficient to displace the primary finding with respect to joint proprietorship.
There is a very large amount of material in this matter and extensive written and oral submissions (primarily from the Respondent) that go to the pooling of financial resources and to the nature of major financial commitments in general. I note the additional observations of French J in Pelka in which His Honour relied on a definition of pooling that, in part, emphasises combining resources for common benefit (as opposed to mere financial cooperation) ([52]).
I summarise here some of the key issues arising, drawing in particular on the matters enumerated in the Respondent’s oral closing and SFIC:
(a)in January 2009 Ms F authorised Mr Aycha to operate an ANZ bank account in her name, and in February 2009 a large transfer was made into this account from one of his bank accounts (RSFIC [5.5.1(a) and (b)];
(b)a large sum was transferred from the Roxburgh Park mortgage account to a joint NAB account (RSFIC [5.5.1(e)] based on the joint instructions of Mr Aycha and Ms F in August 2010;
(c)Roxburgh Park was used as security for the purchase of Property 2 Coburg North, Campbellfield and Heathcote;
(d)a large sum was deposited into a joint NAB account in February 2013 described by Mr Aycha as the proceeds of sale of a property by Ms F (RSFIC [5.5.1(f)];
(e)Mr Aycha and Ms F provided sessions of family day care at Roxburgh Park in 2014-2015 and in his evidence the Applicant acknowledged the income so derived;
(f)Commonwealth Bank records from 2016 indicate Ms F to have been an additional card holder to two credit card accounts in Mr Aycha’s name (RSFIC [5.5.1(i)]; and
(g)in December 2015 a very large sum was transferred between two joint NAB accounts (RSFIC [5.5.1(h)].

Overall, I do not consider the Applicant to have raised substantive or effective challenges to the above instances which I consider to constitute evidence of significant pooling of financial resources, especially in relation to major financial transactions. Several of the sums transferred are in the tens and hundreds of thousands of dollars, and several land transactions relied upon the security of the single, jointly owned property.
There is minimal evidence for or against the sharing of day-to-day household expenses, although Mr Aycha stated in evidence that he and Ms F shared other finances. This specific element is also clouded by the varied evidence as to the nature of the household, which will be addressed below.
The Applicant gave some evidence about providing for the children of the marriage, and he stated more than once that an account card was held by his daughter. His explanations for account transactions refer frequently to certain amounts being for the children, in respect of his own bank accounts. Mr Aycha also described certain transactions as being school fees, and gave evidence that Ms F repaid the mortgage.
Overall, I consider that I am not able to make a specific finding about day-to-day expenses. However, the evidence indicates that Mr Aycha did make contributions to the costs of raising the children, including school fees.
I am unable to make a finding with respect to any specific legal obligations owed as between Mr Aycha and Ms F. However, I consider it reasonable, given my findings as to financial matters, to assume that through the various loans and property transactions identified, Mr Aycha and Ms F in fact bore certain mutual legal obligations.
Nature of the household
As with the evidence as to household finances, there is limited evidence as to the responsibility for care or support to the children. Mr Aycha stated that there was an informal agreement between them that they share care of the children 50/50. This stands in contrast to the CSA statements that describe Ms F as having 100% care. I have no material before me that would assist in making a finding about the distribution of household tasks as such. On balance, therefore, I am unable to make a specific finding about these sub-considerations.
Determining a position on living arrangements in this matter is clouded by contradictions in the evidence and wider material. The material indicates that Mr Aycha has reported a range of residential addresses over many years, including an address interstate at two times during the debt period. Referring to the materials, I note that the Applicant never reported to Centrelink that he lived in Sydney, but did report Roxburgh Park as his address during the debt period, with one brief report of Property 2 Meadow Heights (T159). He did not report Roxburgh Park at any time to VicRoads, rather reporting Property 3 Meadow Heights and the Sydney address (T76). Immediately prior to the debt period, and at a time postdating the claimed separation from Ms F, Mr Aycha reported his address to VicRoads as Property 1 Coburg North.
Mr Aycha’s own statements about arrangements at Roxburgh Park have also varied over time and include that he slept downstairs (AAT1) and stayed in a granny flat or the shed. The Respondent lodged photographs of the property that suggest only the latter could be correct (Exhibit R1).
The evidence provided by witnesses at the hearing was highly equivocal. Evidence was given that Mr Aycha lived for a period in a granny flat at Property 2 Meadow Heights. There was also evidence that he possibly lived there with Ms S, although the Applicant’s own evidence appeared to be that he did not cohabit with her. The Health Care cards lodged by Mr Aycha that might demonstrate cohabitation post-dated the debt period.
The RSFIC notes other material, some of which I have canvassed, that point to Mr Aycha living at Roxburgh Park (RSFIC [5.5.2]). This includes the tip-off records and the Applicant’s own statement to the AFP, as well as health care and electoral registration (T150, 2171), and bank statements.
There is a range of written and oral evidence that indicates that Mr Aycha and Ms F cohabited at Property 1 Coburg North prior to the purchase of Roxburgh Park and I consider a fair reading of the material overall permits me to find that during the debt period Mr Aycha cohabited with Ms F at these properties.
Social aspects of the relationship
In the absence of any substantive submissions about the origins and nature of the certificates of divorce and marriage lodged by the Applicant, I have limited information upon which to attempt a definitive finding about their status. The Respondent did not specifically invite me to find that they are fraudulent.
I have considered published sources[1] that attest to the phenomenon of ‘limping divorce’ in the Muslim community, being the condition arising from the different priority parties to an Islamic marriage may afford respectively to religious and civil divorce procedures. In addition, it may be that there are inconsistent approaches to the certification of divorce depending upon the particular needs of the parties but, consistent with the Applicant’s submission, there can be delays in any certification.
[1] Ann Black and Kerrie Sadiq, ‘Good and Bad Sharia: Australia’s Mixed Response to Islamic Law’, (2011) 34(1) UNSW Law Journal; Ann Black, ‘Adaptations of Islamic family law for the Australian context’ (2016)30 Australian Journal of Family Law; Anisa Buckley, Not ‘Completely’ Divorced: Muslim Women in Australia Navigating Muslim Family Laws (Melbourne University Press, 2019).
It is apparent from the website of the Board of Imams Victoria that this organisation provides services of the kind described in evidence in this matter, and I am satisfied from the sources noted above that certification of divorce does in fact take place. Self-evidently, the certificate is not a contemporary record of the divorce, and it must be assumed from the content that it was issued primarily upon information provided by Mr Aycha. Curiously, the certificate describes Mr Aycha as having been married in Melbourne, Australia, on 15 January 1997 when the Applicant gave evidence that he was married in Lebanon, and immigration records confirm that he was not in Australia on this date (T165). The certificate carries a serial number that includes the numbers ‘2007’ which may or may not be a reference to a procedure in the year 2007.
The Respondent has correctly noted the substantial delay in the production of the certificate. There are other important anomalies in the evidence, being that neither the purported date of divorce nor the production of the certificate sit easily within the wider evidence. I noted above the variety of dates attributed to the separation of Mr Aycha and Ms F, none of which align with the divorce. The divorce certificate was issued just over a month prior to the incident leading to the issuing of the IVO, which may or may not validate to some extent the reference in police records to a dispute about divorce.
The primary issue raised by the Respondent with the marriage certificate is also that of delay. I note that the certificate bears a different name to other identity documents lodged in respect of Ms S, but the matter has proceeded on the basis that she is the person named. Not only was Centrelink not informed about the union until more than ten years had elapsed, but neither the divorce nor marriage were raised before AAT1. Indeed, Mr Aycha’s evidence before the Tribunal on that occasion is very much at odds with the documentation.
On balance, I consider that only very limited weight can be given to the records of religious divorce and marriage. In the case of the divorce certificate, this is due to the accumulated inconsistencies in dates that I have previously set out. In the case of the marriage certificate this is due to the complete absence of any other contemporary report of the union. I also take into account here Mr Aycha’s own evidence about other relationships. This evidence is somewhat insubstantial, save that there appears to be evidence that he travelled overseas in 2009. I also take into account here the equivocal evidence about living arrangements which, on balance, I consider indicates that Mr Aycha did not cohabit for any substantial period with Ms S, if at all.
There are numerous records or reports indicating that Mr Aycha and Ms F were identified either by themselves, or by others acting in official capacities, as married. These include a range of banking documents, Ms F’s employment record, the AFP report of their encounter with Mr Aycha, and the police report relating to the IVO. The few medical records in the materials are somewhat more equivocal. The GP record contains contradictory information, being that the Applicant is married and living with his wife and four children, but not at Roxburgh Park. The earlier specialist’s report appears to corelate with some of the oral evidence, being that Mr Aycha lived in a granny flat (which may be Property 2 Meadow Heights) but does not identify the ‘carer’ who attended with him.
One witness spoke with some conviction about marital problems witnessed at Property 1 Coburg North. This evidence however potentially clashes with the police report at the time of the IVO that states the parties had no prior recorded history of family violence. All witnesses called by Mr Aycha appeared to broadly substantiate a perspective that the Applicant led a separate life to that of Ms F. However, much detail and nuance was lacking. While her motivations are unclear, Ms F herself informed Centrelink about separation. I have noted the relatively long record of CSA assessments. The gap in reported years was not explained in submissions or evidence and I note the Respondent’s submissions as to anomalies between this body of material and other records. However, that aside, these documents represent the most substantive independent marker of formal separation.
The evidence demonstrates that the family group conducted a joint visit to Lebanon on one occasion in 2015. Mr Aycha appeared in his evidence to suggest that the trip was somewhat clouded by fears of abduction. This stands in contrast to the documentary evidence that indicates the separate departure dates for himself and Ms F were planned in advance. That said, a single unequivocal instance of an overseas trip does not represent a substantive indicator of the kind of relationship pursued by Mr Aycha and Ms F. There is no other substantive evidence before me about more routine social activities among the family and the basis upon which they may have been conducted.
Nature of commitment
It is challenging to speculate as to the length of the relationship between Mr Aycha and Ms F as this involves some judgment as to the nature or value of the relationship, which is essentially the wider question sought in this legislative framework. However, at all relevant times, there is evidence that they remained in a functioning and seemingly cooperative relationship. This is evidenced by the mutual financial commitments addressed above, including the co-ownership of property, conduct of a business together, and travel history. It is certainly the case that the Applicant and Ms F have not legally divorced under Australian law, and Mr Aycha’s purported union with Ms S was not a legal marriage.
I have not been able to discount entirely the possibility that Mr Aycha may have indeed conducted religious divorce and marriage procedures. While these may appear to be tangible indicators of a lack of companionship and emotional support to Ms F, their very limited weight must also apply consistently to their significance under this specific consideration.
I noted above steps taken by Ms F to clarify her relationship status, or in which she can be presumed to have participated, being notification of her status as single, and the CSA assessments. These could be read as indicative of her level of commitment to the personal relationship between herself and Mr Aycha, being that there was no longer a marriage-like commitment. There is, otherwise, quite limited information about exactly how others who may have known them better viewed their relationship.
The Respondent has put some emphasis on the police report accompanying the IVO. This report itself could be argued to be somewhat contradictory as it contains some important and specific details, yet also records that the parties and others involved refused to engage with police. This might raise questions as to the basis upon which the critical observations about ongoing marriage and the dispute over divorce were made.
On the other hand, the incident in question raises the important question why, if Mr Aycha and Ms F were not only long separated but also potentially religiously divorced, would the dispute have arisen at all. I cannot discount the details provided in the report as I consider it appropriate to assume they were derived from information provided or inquiries made at the time, particularly since the report indicates that there had been no prior police intervention for family violence.
Summary finding
The specific instances of what I have accepted to be financial pooling, represent a relatively small portion of the very substantial material about financial and property transactions amassed in this matter. However, it may not be appropriate to focus on a quantitative assessment when the objective of the inquiry appears to be to determine the nature and purpose of pooling for the purposes of the relationship. In this case, I consider the financial cooperation to be of a kind aimed at common benefit. I do not consider any evidence given as to the ultimate benefit that might fall to children of the marriage to change this situation. I consider this factor weighs strongly in favour of a marriage-like relationship.
The nature of the household is more difficult to determine, as it is a term that carries association with the operation of a family unit in a single abode. What the evidence points to may well be atypical or involve some inconsistency and absence on the part of Mr Aycha. However, on balance I am persuaded that this consideration points more in favour of a marriage-like relationship than against it, and accordingly weighs slightly in favour of this finding.
Similarly, there are aspects of the evidence that suggest that the relationship between Mr Aycha and Ms F may well have been ‘tumultuous’ (RSFIC [5.5.5(g)]. This much follows from the challenges arising from pinning down definitively the nature and workings of the ‘household’. I consider the evidence to be relatively finely balanced, however there are critical instances in which Mr Aycha and Ms F appear to have held themselves out to be in a marriage-like relationship or have been recorded as such (particularly state and federal police records). Further, there is a lack of consensus on the material overall as to how and when Mr Aycha and Ms F separated. This lack of certainty is not necessarily resolved, as I have discussed above, by reference to the documents lodged by Mr Aycha concerning religious divorce and marriage. Accordingly, I find that this consideration weighs in favour of a finding of a marriage-like relationship.
The decision of the Full Court in Pelka stresses the importance of understanding the nature of the commitment between two people. In doing so, the Full Court stated that it was not inappropriate to consider the nature of such a relationship compared to an applicant’s commitment to any other person. There is no evidence before me that Mr Aycha maintained, during the debt period, any other relationship that had a substantively stronger quality than I have found on the evidence to exist in his relationship with Ms F. While there is some limited tangible evidence about Ms S in this matter, Mr Aycha’s own evidence as to the actual nature of their commitment was weak.
What I find, rather, and considering the evidence as a whole, is that Mr Aycha maintained his relationship with Mr F at the relevant times. Not only can I assume they remained legally married, but the indicia of the relationship satisfy the statutory test. I have resisted fully endorsing the Respondent’s contentions as to the Applicant’s credit, but I do take particular account of the ongoing and enmeshed financial links between Mr Aycha and
Ms F. I consider this is significant when bearing in mind the observations of French J in Pelka as to the legislative context. That is, in this case, Mr Aycha clearly enjoyed the benefit of his ongoing relationship with Ms F in respect of the manner in which his entitlements were assessed.
Discretion under s 24
The treatment of this provision in the authorities indicates that consideration should be given to whether a special reason exists as to why a couple were not, at the relevant time, in a position to pool resources. The focus is principally upon consideration of economies of scale with a view to considering the financial need of the person receiving the benefit (see for example Kazmierczek [38], and Boscolo [19]).
In this case, I consider that my findings above preclude exercise of the discretion in this case. Notwithstanding some of the lack of detail attending an appreciation of the nuances of Mr Aycha’s lifestyle in the relevant period, I am satisfied on the basis of the evidence, particularly in respect of the intertwining of finances with Ms F and accommodation at Roxburgh Park, that the Applicant should be treated as a member of a couple.
Existence and nature of the debt
I understand the Respondent to have essentially put submissions in the alternative about Mr Aycha’s income and finances generally. The Applicant also gave evidence about, and made submissions with respect to, ownership arrangements of some properties. The findings I have made in respect to membership of a couple preclude any more detailed analysis of the debt. That is, the matter has been conducted principally on the issue of whether Mr Aycha was a member of a couple and whether the debt calculation was correct on that basis.
I note that Mr Aycha’s evidence and the submissions made on his behalf acknowledge the possibility that additional or further excess income arose from the operation of the family day care business at Roxburgh Park. The material lodged by the Respondent (R74) acknowledges services provided and indicates the level of service by fees charged and benefits paid to parents, but this does not function as an indication of income to either Mr Aycha or Ms F (albeit they both declared business income in the 2015 financial year (T109/T185)). In any event, any income arose in the period in which Mr Aycha was receiving DSP, and he has already been assessed as having a nil entitlement.
Accordingly, I am satisfied that there is a debt owed by the Applicant.
Waiver or write off
I am satisfied that there is no reason to believe that Mr Aycha has no capacity to pay the debt (s 1236), on the basis of his property ownership alone. I am also satisfied that there is no material, nor were any submissions made, to indicate that the debt arose from the sole administrative error of the agency (s 1237A).
As to the Applicant’s submissions regarding waiver due to special circumstances (s 1237AAD), I have already briefly considered the contention as to Mr Aycha’s medical condition. As noted, this material is slight and somewhat contradictory. Overall, I am unable to make any reasonably definitive finding as to the impact that this condition is said to have had on any of the accumulation of the debt, the Applicant’s capacity to provide instructions, or his capacity to pay (which I have already addressed), if this is indeed the import of the Applicant’s submissions. While I cannot discount the strong possibility that Mr Aycha has limited literacy in English, the sheer volume of accounts, financial transactions and properties that arise in this matter speaks to a degree of general competence that tends to contradict the import of this submission.

I note the Respondent raised briefly in submissions the notion of different expectations in respect of culture and traditions, contending that these alone are not unusual or exceptional in the sense intended by the legislation. I have given this element of the matter some, but very limited, weight in relation to other considerations and do so again here. More pertinently, it does not appear to me that Mr Aycha has experienced some exceptional circumstances such as a peculiar social vulnerability due to the purported religious procedures as a result of traditional attitudes to separation and divorce.
In conclusion, therefore, I find that the circumstances do not support a finding that special circumstances justify the waver.
DECISION
For the reasons given above, the Tribunal affirms the decision under review and decides that:
(a)the Applicant was a member of a couple during the debt period;
(b)the Applicant was overpaid Newstart Allowance between 7 January 2009 and 31 July 2012 and Disability Support Pension between 1 August 2012 and 7 November 2017, resulting in debts to the Commonwealth; and
(c)there is no basis for the debts to be written off or waived.

I certify that the preceding one hundred and fifty (150) paragraphs are a true copy of the written reasons for the decision herein of Senior Member Fenwick

.........................[sgd]...............................................
Associate
Dated: 6 April 2023

Date of hearing: 21, 22 & 23 November 2022

Counsel for the Applicant: Fatima Dennaoui

Solicitors for the Applicant:

Counsel for the Respondent:

Dennaoui Lawyers

Pietro Nacion

Solicitors for the Respondent: Sparke Helmore Lawyers

[2023] AATA 721

6 April 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Remedies

Date	Event	Reference
15/1/97	Applicant marries Ms Fin Lebanon	Evidence
6/12/07	Religious divorce (per later certificate)	R102
25/12/07	Separation as reported by Applicant (NSS application)	R81
23/3/08	Separation as reported by Ms F (MOD S form, 23/6/08)	T171
19/4/08	Separation as recorded by Centrelink	T160
25/7/08	Commencement of first recorded period of child support	R110
5/12/08	Religious marriage to Ms S	R103
22/3/18	AAT1 hearing	AAT1
3/7/19	Applicant reports marriage to Ms S	FS
18/7/19	Religious divorce formally certified	R102
22/8/19	Family violence intervention order re incident 21/8/19	R109
1/2/21	Separation from Ms S	ASFIC/CS

Date of hearing:	21, 22 & 23 November 2022
Counsel for the Applicant:	Fatima Dennaoui
Solicitors for the Applicant: Counsel for the Respondent:	Dennaoui Lawyers Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore Lawyers