Blackwell and Department of Family and Community Services - [2000] AATA 716

DECISION AND REASONS FOR DECISION [2000] AATA 716

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1677

GENERAL ADMINISTRATIVE DIVISION )

Re STELLA BLACKWELL
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Dr J D Campbell, Member
Date 18 August 2000

PlaceSydney

Decision The decision under review is set aside and in substitution therefor the Tribunal determines that: (a) The Applicant has debt due and payable for overpayment of family payments during the periods: (i) 31 July 1997 – 31 December 1997; (ii) 3 February 1998 – 26 March 1998. (b) The matter is remitted to the Respondent for calculation of the quantum of overpayment for these two periods.

[Sgd] Dr J D Campbell
Member
CATCHWORDS
Social Security – Family Allowance – Notifiable Event – Rate Recalculation – Overpayment – Waiver – Special Circumstances

Social Security Act 1991, sections 24, 872, 886, 1069-H, 1223, 1237AAD

Re Secretary, Department of Social Security and Le-Huray (1995) 36 ALD 682
Re Secretary, Department of Social Security and Archer (1996) 41 ALD 184
Department of Social Security v Le-Huray (1996) 138 ALR 533
Re Secretary, Department of Family and Community Services and Blackberry (1998) 53 ALD 112
Re Stuart and Secretary, Department of Social Security (1998) 54 ALD 241
Re Secretary, Secretary, Department of Family and Community Services and Morgan (1999) 57 ALD 187
Re Secretary, Department of Family and Community Services and Butt [2000] AATA 623
Re Secretary, Department of Family and Community Services and Gale [2000] AATA 193
Re Secretary, Department of Social Security and Dyson [2000] AATA 306

REASONS FOR DECISION

18 August 2000 Dr J D Campbell, Member

Mrs Blackwell ("the Applicant") in this matter seeks a review of the decision of the Social Security Appeals Tribunal dated 22 September 1999 which set aside the decision of the delegate of the Secretary of the Department of Family and Community Services ("the Respondent") dated 9 April 1999, which in turn had been affirmed by an authorised review officer in a decision dated 27 May 1999. The decision of the respondent dated 3 March 1999 found that the Applicant had a debt of $1406.10 owing to the Commonwealth arising from an overpayment of family allowance during the period 3 July 1997 to 26 March 1998. This decision was varied to the extent that the debt was reduced to $1265.70 by the authorised review officer. In setting aside this decision, the Social Security Appeals Tribunal found that the debt existed for the period 31 July 1997 to 31 December 1997 and for the period 3 February 1998 until 26 March 1998, with no debt existing for the period 1 January 1998 to 2 February 1998.
A hearing was held before the Tribunal in Newcastle on 22 March 2000, at which the self-represented Applicant presented oral evidence. The Respondent was represented by Mr Kenny, an advocate from the administrative law section of Centrelink.

The following written material was placed in evidence before the Tribunal:
Section 37 documents compiled pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T22) "T Documents"
Applicant's Statement of Facts and Contentions dated 14 March 2000 Exhibit A1
Respondent's Statement of Facts and Contentions dated 7 March 2000 Exhibit R1

LEGISLATION

The relevant legislation in this matter is the Social Security Act 1991 ("the Act") and in particular sections 24, 872, 886, 1069-H6, 1069-H18, 1223(3), 1237AAD.
ISSUES
The relevant issues in this matter are:
(a)      whether the Applicant was properly notified of a notifiable event;
(b) whether the notifiable event was a notifiable event pursuant to the Act;
(c)       whether the Applicant, if a notifiable event was found to exist and was properly notified as such, had received an overpayment of family allowance for the period 31 July 1997 to 26 March 1998;
(d)      whether, if such overpayment was found to exist, was there a debt due and owing to the Commonwealth by the Applicant; and
(e)      whether, if such a debt is found to exist are there special circumstances or other circumstances which would allow waiver of the debt.
BACKGROUND
On 15 December 1996, the Respondent advised the Applicant that the rate of family payment had been calculated using the combined rate of income of $61,102, and further stated that, pursuant to section 872 of the Act, the Applicant must notify the Respondent within 14 days, if either she or her partner 'start work or recommence work, change jobs, or start self-employment or; are self-employed and [their] combined income exceeds $67,212.20' (T4, p 23).
On 29 July 1997 the Applicant ceased her former part-time job and commenced a full time job on a six month contract. The Applicant did not notify the Respondent of the change in job because of difficulty in providing an estimate for a full year at that point in time, when her job was for a contract period of six months ceasing in January 1998 and also for privacy reasons (T1, p 8).
On 28 November 1997, the Respondent advised the Applicant of family payment arrangements for 1998, which included a requirement for the Applicant to advise the Respondent with 14 days if she changed jobs or if the combined annual income exceeded $72,537 (assuming 3 children in care) (T5, pp 25-26).
In January 1998 the Applicant ceased work at the end of the contract period. On 2 February 1998 the Applicant notified Centrelink of a change in employment, which she commenced on 3 February 1998. A change to your income and assets form was completed by the Applicant and her partner on 26 February 1998 and lodged with the Respondent on 3 March 1998. In completing the form the Applicant stated that she had changed jobs on 29 July 1997 and 3 February 1998 (T6, p 31) and that the estimated combined taxable income for financial year 1997/98 was $83,000, plus a net property loss of $3000 (T6, pp 33, 34).
On 24 March 1998, the Applicant advised the Respondent of actual combined taxable income for financial year 1996/97 of $62,500 (T7, p 38).
On 26 March 1998 the Respondent cancelled the payment of family allowance as there had been a notifiable event and the estimated income for financial year 1997/98 ($83,000) was more than 110% of the taxable income for financial year 1996/97 ($62,500).
On 11 January 1999 the Respondent received advice from the Australian Taxation Office that the combined taxable income for the Applicant and her partner for financial year 1997/98 was $84,693 (T9, T10).
The Respondent calculated a debt of $1406.10 owed to the Commonwealth by the Applicant arising from overpayment of family allowance in the period 3 July 1997 to 26 March 1998 (T12). This decision was varied to the extent that the quantum of debt was reduced to $1,265.70 with the commencement of the overpayment period being 31 July 1997 by the authorised review officer in her decision of 27 May 1999 (T18, p 63). On 22 September 1999 the Social Security Appeals Tribunal varied the decision with a finding that no overpayment occurred during the period 1 January 1998 to 2 February 1998 (T2, P13).
APPLICANT'S EVIDENCE
The Applicant informed the Tribunal that she was in general agreement with the Respondent on all the factual issues in this matter. Her main concerns, as related to the Tribunal, were to do with how she was treated in a different manner by the various government departments with which she was involved, and in particular their general understanding of issues such as her own. The Applicant was also concerned about the quality and quantity of information that is provided to customers of these departments, particularly as regards rights and obligations of both parties and their slowness in provision of responses. In this matter the Applicant wished to state that at no stage was there an intention on her behalf to defraud.
The Applicant stated that she was qualified and practised as an applied psychologist, having attained a master's degree from the University of Newcastle. The Applicant stated that she was employed in the Commonwealth Public Service from 1977 until 1995, when she ceased work with the Department of Education, Employment, Training and Youth Affairs in May 1995. After this she stated she undertook casual work, while continuing further studies during the period 1995-1997. In April 1996 she stated that she was undertaking rehabilitation work for eight hours a week, and in July 1997 she commenced a period of six months contract work. At this time the Applicant stated that there was an increased motivation to work as there was a need to contribute to mortgage payments. The Applicant stated that as the period of contract work drew to an end she commenced looking for work, and after cessation of her period of contract work in January 1998, she remained unemployed in February prior to commencing work in early March 1998.
The Applicant acknowledged that she received both letters (namely the letter of 15 December 1996 (T4) and the letter of 28 November 1997 (T5)) from the Respondent. In relation to the children, the Applicant indicated that the previous wife had access every second weekend and school holidays and she exercised such access four to six times a year. In relation to the child of her daughter, which she has adopted, the Applicant stated that despite having a good relationship with her daughter, any visitation by her daughter is very sporadic. Further the Applicant stated that when she was applying for family allowance, Centrelink did not tell her why she had to tell them about any job change, and as such she did not pay particular attention to this issue, as it was not clear to the Applicant as to why they would need to know where she worked, and hence no reason to think it relevant. Further when the Applicant's future work intentions became clear in February 1998 she stated that she informed them of an annual income increase which she estimated would, and which in turn resulted in, cancellation of payment of family allowance in March 1998.
SUBMISSIONS
The Applicant contended that her change of job was not a notifiable event, in that the change of job in July 1997 did not meet the requirements of subsection 872(1) of the Act, in that as a result of the change in job her combined taxable income for financial year 1997/98 would not have exceeded the combined taxable income by 110% for either of the two previous financial years, and hence there was no effect on the payment of family allowance.
Further the Applicant contended that the notice provided did not constitute the event (ie. the job change) as a notifiable event as it was not constructed in conformity with the requirements of subsection 1069-H6 of the Act in that the notice failed to state that the event (change of jobs) is a notifiable event for the purposes of this module. The Applicant relies upon the findings constructed by Deputy President Blow in Re Secretary, Department of Family and Community Services and Blackberry [1998] AATA 13253, (1998) 53 ALD 112.
It is the Applicant's contention that as there was no notifiable event, and that even if there were a requirement on the Applicant to notify the Respondent of a job change, such a requirement was not a notifiable event for the purposes of subsection 1069-H6. As a consequence the Respondent was error in undertaking a recalculation under section 886 of the Act, and therefore the Applicant has no debt owing to the Commonwealth.
In dealing with the factual circumstances, the Applicant argued that until she knew of her further employment obligations in February 1998, she was in no position to provide an estimate as to whether or not the combined taxable earnings for financial year 1997/98 would exceed the previous financial year's combined taxable income by 110% or that it would exceed the threshold of $72,537 for three children. The Applicant again confirmed that as soon as she had knowledge that the combined income was to exceed the nominated amounts, she notified the Respondent, completed a change of circumstances form on 26 February 1998 and lodged it with the Respondent on 3 March 1998, estimating income at $83,000 for financial year 1997/98. This resulted in the cancellation of payment on 26 March 1998. In support of her contention the Applicant relied upon the matter of Re Secretary, Department of Social Security and Archer [1996] AATA 10721, (1996) 41 ALD 184, in which it was argued that you could only notify an increase in income when you have actual knowledge to support the notification of an increased income.
The Applicant in a separate submission stated that the particulars of the sole custody and guardianship arrangements of her husband and herself in relation to the three children, and the nature of the financial rights and obligations that flow from such arrangements created particular circumstances for her and her husband. Nevertheless the Applicant contends that any financial obligations as a result of family allowance overpayments is hers and not that of the natural parents, which in turn is contrary to the financial responsibility which is found to rest with the natural parents when issues of child support payments are considered. Further the Applicant argued that factual and legal custody care and control of the three children rests with the Applicant and her husband and that this should be recognised. Finally the Applicant, in relying upon the findings in the matter of Re Secretary, Department of Social Security and Le-Huray [1995] AATA 10070, (1995) 36 ALD 682, (1995) 21 AAR 231, submitted that it was appropriate for her and her husband, in the circumstances, to be treated as not being members of a couple in accordance with subsection 24(1) of the Act.
The Respondent submitted that:
(a) Subsection 872(1) of the Act requires notification of specified changes of circumstances. Subsection 872(2) only requires that the event must be one which might affect payment of family allowance. In essence the test for valid events in notices is whether they are members of a class of occurrences which might affect payment. A change of job is one of a class of occurrences which might affect payment.
(b) In placing reliance upon the decision in the matter of Re Secretary, Secretary, Department of Family and Community Services and Morgan [1999] AATA 390; (1999) 57 ALD 187, the Respondent argued that the requirements nominated in subsection 1069-H6 of the Act were discretionary and that failure to nominate in a notice that an event described in the notice is a notifiable event for the purposes of the module did not necessarily remove the characters of notifiable events for those nominated in the section 872 notice.
(c) If the Applicant had notified of the job change in July 1997 she would have been informed that the rate of family payment would have been recalculated on combined income for the current financial year (1997/98), if that income exceeded the base year level by 110%. Further the rate payable in calendar year 1998, up to the date at which it was cancelled would have been recalculated in accordance with subsection 1069-H18 of the Act.
(d) That there are no circumstances which would constitute special circumstances and allow the debt to be waived under subsection 1237AAD(1) of the Act.
(e) That it was not an appropriate matter for the application of section 24 of the Act to treat the Applicant and her husband as not a couple, as the circumstances were not consistent with the objectives and purposes of the section. The Respondent also noted that the decision relied upon by the Applicant in her submission, Re Le-Huray (supra) was set aside by the Federal Court in Department of Social Security v Le-Huray (1996) 2 SSR 55, (1996) 138 ALR 533; (1996) 23 AAR 297.
CONSIDERATION AND FINDINGS
The facts in this matter are essentially not in dispute between the parties and accordingly the Tribunal finds the following essential facts.
(a) Income for the Applicant and her husband in the following financial years was:
1995/96$61,102
1996/97$62,500
1997/98$84,693

(b) On 15 December 1996 the Respondent advised the Applicant that the rate of family payment had been calculated using the combined rate of income of $61,102. Further the Applicant was requested that pursuant to section 872 of the Act she must notify the Respondent within 14 days, if either she or her partner started work or recommenced work, changed jobs, started self-employment or if their combined income exceeded $67,212.20.
(c) On 28 November 1997 the Respondent advised the Applicant of annual income limits for family payment for calendar year 1998 and again stated that the Applicant must inform the Respondent of the following events, being notifiable events within fourteen days pursuant to section 872 of the Act:

(i) if combined taxable income for either financial year 1997/98 or 1998/99 will be more than the relevant income limit nominated in the table;
(ii) if the Applicant and/or her partner changes jobs, starts work or recommences work.

(d) That the Applicant changed jobs on 29 July 1997 and she did not notify the Respondent when she commenced a six month period of contract employment.
(e) That the Applicant did change jobs on 3 February 1998, and that as a result of her notification of this change on 2 February 1998 a 'changes to income and assets' form was forwarded to her which she completed on 26 February 1998 and lodged with the Respondent on 3 March 1998. An estimate of combined taxable income of $83,000 for financial year 1997/98 was nominated by the Applicant in this form lodged 3 March 1998. On 26 March 1998 the family allowance was cancelled as a notifiable event had occurred and estimated combined taxable income for financial year 1997/98 of $83,000 was more than 110% of combined taxable income for the Applicant and her partner for financial year 1996/97.

The Tribunal notes the following relevant sections of the Act which provide:
872(1)The secretary may give a recipient of family allowance a notice that requires the recipient to inform the Department if:
(a)a specified event or change of circumstances occurs; or
(b)the recipient becomes aware that a specified event or change of circumstances is likely to occur.
872(2)An event or change of circumstances is not to be specified in a notice under subsection (1) unless the occurrence of the event or change of circumstances might affect the payment of the family allowance.
886If:
(a)       a notifiable event occurs in relation to a person; and
(b)the person fails to notify the notifiable event in accordance with section 872; and
(d)       the person's income for that year exceeds 110% of:
(i)the person's income for the tax year that is, when the event occurs, the person's base tax year; and
(ii)the person's income free area at that time;
the person's family allowance rate is to be recalculated on the basis that the person's appropriate tax year is the tax year in which the notifiable event occurred.
Module H
1069-H6If the Secretary gives a person a notice under subsection 872(1) relating to the payment of family payment to the person, the Secretary may state in the notice that an event described in the notice is a notifiable event for the purposes of this Module.
1069-H18 If:
(a)a notifiable event occurs in relation to a person; and
(b)the person's income for the tax year in which the notifiable event occurs exceeds:
(i)     110% of the person's income for the base tax year; and
(ii)    110% of the person's income free area;
the appropriate tax year, for the purpose of applying this Module to the person for the remainder of the family allowance period, is the tax year in which the notifiable event occurs.
1223(3) Subject to subsection (4), if:
(a)an amount (the 'received amount') has been paid to a person by way of family allowance; and
(b)the person's rate of family allowance is recalculated under:
(i)        section 884 (amendment of assessable income); or
(ii)       section 885 (underestimate of income); or
(iii)      section 886 (failure to notify of notifiable event); or
(iv)section 886A (overestimate of child maintenance expenditure); and
(c)the received amount is more than the amount (the 'correct amount') of the family allowance payable to the person;
the difference between the amount and the correct amount is a debt due to the Commonwealth.

The Tribunal notes the first element of the Applicant's submission that in essence, a notice to inform only has effect when the event which has to be notified might affect the payment of the family allowance. In her particular circumstances, the Applicant submits, the change of job in July 1997 did not affect her payment of family allowance as the contract period of employment was for a six months period only. With the remainder of the financial year being an unknown as to terms of employment and future income, the Applicant further submits, the actual income received during the period of contract employment would not alter the payment of family allowance. It therefore followed that the notice issued could not constitute a valid notice pursuant to section 872 of the Act.
The Tribunal, while noting the contention of the Applicant, observes, that while the issuing of a notice pursuant to subsection 872(1) of the Act is qualified by subsection 872(2) of the Act, the qualification is limited to events or changes of circumstance which might affect the payment of family allowance. It is clear to the Tribunal that the operative word in the qualification is 'might' and further that the qualifier (subsection 872(2)) operates at the time the notice is issued. The test of validity of the notice is whether at the time it was issued, the circumstances or events nominated might have an affect on the rate of family payment, the test being an objective evaluation at the time of issuance. In essence the Tribunal concludes that the merits of such a notice must be adjudged at the time the notice was issued in an objective evaluation of whether the circumstance or event nominated might have an affect on the payment of family allowance. It follows, in the Tribunal's view, that when such a nominated circumstance or event happens, the event or circumstance has to be notified, irrespective of whether it does or does not actually have an affect on family payment.
In dealing with the specifics of this matter, the notice issued pursuant to section 872 of the Act detailed that the Applicant must notify the Respondent within fourteen days if she were, amongst other circumstances, to change jobs. It is clear to the Tribunal that such a request of the Respondent is a valid notice issued pursuant to section 872 of the Act, in that at the time of issuance it was an objective evaluation of what was required to be notified, ie. a change of job, was an event which might at the time of the notice of issue affect the payment of family allowance. Again the fact that at the time of the occurrence of the nominated event, an evaluation determines that there is no affect on family payment is, in the Tribunal's opinion, an irrelevant issue in determining whether the notice is a valid notice. It is the Tribunal's finding that a valid notice was issued to the Applicant pursuant to section 872 of the Act on 15 December 1996 and again on 28 November 1997 and that the Applicant's submission on this issue is not sustainable.
The Tribunal, in turning to the next issue of whether the notice was a notifiable event for the purpose of subsection 1069-H6. The notices with which the Tribunal are concerned are the notices contained within the correspondence from the Respondent to the Applicant dated 15 December 1996 and 28 November 1997. The Tribunal has already established that these two letters constituted proper notification notices issued pursuant to section 872 of the Act, having considered each subsection of section 872. It has been further established that the Applicant received these two notices and, in relation to change of job on 29 July 1997, there is agreement between the parties that she did not notify the Respondent as required of this change in job. The issue that remains is whether there was a requirement on the Respondent pursuant to subsection 1069-H6 for the Respondent to state within the notice that an event described in the notice is a notifiable event for the purposes of Module H.
In preliminary comment the Tribunal observes that subsection 1069-H6 at the relevant time provided the Secretary with a discretion as to whether he states in the notice that an event described in the notice is a notifiable event for the purpose of the module. It is not in contention between the parties that neither notice detailed that events nominated were notifiable events for the purpose of this module. The following earlier cases having given consideration to this issue, namely a failure to specify in accordance with subsection 1069-H6 have been examined by the Tribunal. Their outcomes have been divergent.
(a) In Re Blackberry (supra), Deputy President Blow considered that the meaning of a notifiable event in section 886 in the absence of any specific definition in the Act had to be determined by reference to subsection 1069-H4 (the equivalent of subsection 1069-H6 in this matter). As there was no specification as required by the wording of subsection 1069-H4, Deputy President Blow concluded that there was not a notifiable event for the purposes of Module H and as a consequence subsection 860(b) of the Act has no application.
(b) In Re Morgan (supra) Senior Member Hotop, in disagreeing with the approach taken in Re Blackberry (supra), concluded, in the context of the relevant legislation taken at that time, that as the wording of subsection 1069-H6 was permissive rather than mandatory in relation to a section 872(1) notice containing specific wording, and that there was no definition of the phrase "notifiable event", it was open to the Tribunal to find that notices given could be regarded as notifiable events for the purposes of section 886 of the Act.

(c) In Re Stuart and Secretary, Department of Social Security [1998] AATA 12626, (1998) 54 ALD 241, Deputy President Forgie in dealing with the issue made the following comments at paragraphs 42 and 43 (at 251-252):

(42)Does the letter specify that any of the events described in the notice is a notifiable event for the purposes of Module H (ie for the purposes of the family payment income test in Module H) (point 1069-H4)? It states that it is a 'recipient notification notice'. This is a generic term defined in section 23 to cover a wide range of notices under various sections of the Act. It does not specifically refer to Module H or specifically state that the events described are notifiable events for the purposes of that Module.
(43)I do not think, however, that the notice must itself expressly state that it is specifying events for the purposes of Module H. The notice must be looked at as a whole to determine whether the events have been specified and it is clear that they have been specified for the purposes of Module H. Looked at in this fashion, I consider that the letter of 27 October, 1994 is a notice under sub-section 872(1) that specifies certain events for the purposes of calculating Ms Stuart's family payment i.e. for the purposes of Module H.

(d) In Re Secretary, Department of Family and Community Services and Gale [2000] AATA 193 at paragraph 17, Deputy President McDonald concluded "that an ordinary reading of the letters leads to a conclusion that each specifies a particular event…and consequently satisfies s. 1069-H6…and that letters constitute proper notice of a notifiable event."

In considering the particulars of the two notices sent to the Applicant, the Tribunal notes that the letter of 15 December 1996 was specific as to nominating particular events which upon their occurrence a duty rested with the Applicant to notify the Respondent within fourteen days. The letter of 28 November 1997 was more particular, that while nominating a number of specific events/circumstances, it clearly stated that the occurrence of these were notifiable events, which had to be notified within fourteen days.

In considering the issue, the Tribunal concludes that the ordinary meaning of these two letters were for the Applicant to be made aware that there were a number of specific events nominated, which if they were to occur, the Applicant had a duty to notify the Respondent within fourteen days of their occurrence for the very reason stated in the notices that the amount of family payment depends on your annual income and your family assets. In essence the Tribunal finds that these two letters constitute both valid notices of notifiable events to be notified by the Applicant to the Respondent and despite the absence of the specific phrase nominated in subsection 1069-H6, the content of the two letters individually, provide sufficient information to be classed as notifiable events for the purposes of section 886 of the Act, particularly when the requirement to notify the specific phrase 'for the purpose of the Module' is not a mandatory requirement (subsection 1069-H6). In summary the Tribunal finds that the notices issued pursuant to section 872 of the Act were valid notices, and that upon examination of the notices issued it is clear to the Tribunal that the notices issued do constitute notifiable events clearly specified for the purposes of Module H.

As a consequence of the Tribunal's two earlier findings, the Tribunal further finds that the failure of the Applicant to notify the Respondent of a notifiable event (that is the failure to notify the Respondent of change of job which occurred on 29 July 1997) leads to a recalculation of the family payment rate pursuant to section 886 of the Act.

The Tribunal, in noting that the decisions of Re Secretary, Department of Social Security and Dyson [2000] AATA 306 and Re Secretary, Department of Family and Community Services and Butt [2000] AATA 623 limited the ambit of subsection 1069-H18 to the remainder of the family allowance period, having regard to the tax year in which the notifiable event occurred and, further, that there must be a further notifiable event in the next family allowance period before a further recalculation can be undertaken pursuant to subsection 1069-H18, concludes that recalculation of the rate should occur in the following manner:
(a) For the period 31 July 1997 until 31 December 1997, pursuant to section 886 and subsection 1069-H18 of the Act, on the basis of current year, namely financial year 1997/98 combined taxable income of $84,693, which was more than 110% of the base year combined taxable income of $61,102.
(b) For the period 1 January 1998 until 3 February 1998 calculations should be on the basis of the combined taxable income for the base year (1995/96) of $61,102.
(c) For the period 3 February 1998 until 26 March 1998 on the basis of current year combined taxable income, namely $84,693, as a further notifiable event occurred, and an estimate having been given of $83,000 for combined taxable income for financial year 1997/98 in the form lodged by the Applicant on 26 March 1998.
The Tribunal, in reaching the conclusions nominated above, is clearly of the view that because of the hindsight application of combined taxable income to a notifiable event circumstance in a particular year, the interpretation as to the use of subsection 1069-H18 must be construed strictly with what is nominated in the section.

As a consequence of the Tribunal's findings, the Applicant is found to have received overpayment of family payments for the periods of 31 July 1997 to 31 December 1997 and 3 February 1998 to 26 March 1998. The Tribunal finds that these overpayments are debts due and owing by the Applicant pursuant to subsections 1223(3) and (4) of the Act.

In considering the Applicant's submission in relation to subsection 24(1) of the Act (not to be treated as a member of a couple for the purposes of the Act), the Tribunal notes that the section nominates that the person is not living separately and apart from the other person on a permanent and indefinite basis and that the person should for a special reason in the particular not be treated as a member of a couple.

In the circumstances of this matter, the Tribunal observes that the Applicant and her husband, being the couple in question, are not living separately and indeed have entered voluntarily into a range of mutual obligations as regards childcare responsibilities as part of their domiciliary arrangements, after their marriage while retaining individual legal commitments for arrangements and responsibilities created prior to their marriage.

It is the Tribunal's finding that for the reasons nominated, the Applicant has not provided a special reason in this matter, so that she not be treated as a member of a couple. The Tribunal emphasises that the Applicant and her husband were aware or should have been aware of individual responsibilities for childcare and other related family issues prior to their marriage, with any further responsibilities added during their marriage, being supplementary to what already existed. In essence the Tribunal finds that the Applicant's submission in relation to section 24 of the Act is found wanting for lack of both applicability and merit.

The Tribunal, in considering whether any circumstances exist, which would allow waiver of the debt pursuant to section 1237AAD of the Act, has turned its mind to issues and circumstances surrounding the family unit as it now exists. That it exists and the roles and responsibilities within its existence that are carried out by the Applicant and her husband cannot in the Tribunal's view be considered unusual, uncommon or exceptional in the modern society. That it causes stress and difficulties in relationships is appreciated by the Tribunal. That it has the potential to create financial difficulties is not in issue. The Tribunals finds there were no factual circumstances placed before the Tribunal, which would allow the Tribunal to come to a finding of special circumstances. As a consequence, any waiver of debt by the Tribunal cannot be considered.
DETERMINATION
The Tribunal determines that the decision under review be set aside and substitution thereof determines that:
(a)      The Applicant has debt due and payable for overpayment of family payments during the periods:
(i)        31 July 1997 – 31 December 1997;
(ii)       3 February 1998 – 26 March 1998.

(b) The matter is remitted to the Respondent for calculation of the quantum of overpayment for these two periods.

I certify that the 40 preceding paragraphs are a true copy of the decision and reasons for decision herein of Dr J D Campbell, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  22 March 2000
Date of Decision  18 August 2000
Counsel for the Applicant        N/A
Solicitor for Applicant               N/A Applicant unrepresented
Counsel for the Respondent    N/A
Advocate for the Respondent Mr J Kenny