Cripps and Secretary, Department of Education, Employment and Workplace Relations
[2011] AATA 108
•18 February 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 108
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1575
GENERAL ADMINISTRATIVE DIVISION ) Re NICOLE MAREE CRIPPS Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal G. D. Friedman, Senior Member Date18 February 2011
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
...............[sgd]...............................
Senior Member
SOCIAL SECURITY – overpayment of sickness allowance and parenting payment – member of a couple – whether a marriage-like relationship – waiver of debt
Social Security Act 1991 ss 4(2), 4(3), 4(3A), 1223(1), 1236, 1237A, 1237AAD
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Lynam v Director-General of Social Security (1983) 1 AAR 197
Re Holmes and Secretary, Department of Employment and Workplace Relations [2007] AATA 1502
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
18 February 2011 G.D. Friedman, Senior Member
1.
In 2009 Centrelink decided that Nicole Cripps had commenced a marriage-like relationship with Mr B Costa in December 2005, so her entitlement to sickness allowance from 22 to 28 December 2005 and her parenting payment from
29 December 2005 to 17 March 2009 should be at the married rate, resulting in overpayments of $220.52 and $28,890.72 respectively.
2.
Ms Cripps maintains that she was not in a married-like relationship until
1 October 2008. The Social Security Appeals Tribunal found that Ms Cripps should be treated as a member of a couple from 7 December 2006 to 17 March 2009 and remitted the matter to Centrelink with a direction that the debt be re-calculated. This is the decision under review by the Tribunal.
ISSUES
3. The issues before the Tribunal are:
·Was Ms Cripps was a member of a couple for part or all of the period
22 December 2005 to 17 March 2009? If so,·Was there an overpayment of social security benefits resulting in a debt to the Commonwealth? If so,
·Should the debt be written off or waived?
LEGISLATION AND CASE LAW
4. Sections 4(2) and (3) of the Social Security Act 1991 provide:
4(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…
(b)all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a marriage‑like relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
…
4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day-to-day household expenses;
(b)the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii)the living arrangements of the people; and
(iii)the basis on which responsibility for housework is distributed;
(c)the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to each other; and
(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii)the basis on which the people make plans for, or engage in, joint social activities;
(d)any sexual relationship between the people;
(e)the nature of the people’s commitment to each other, including:
(i)the length of the relationship; and
(ii)the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship.
4(3A)The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
5. In Staunton‑Smith v Secretary, Department of Social Security (1991) 32 FCR 164, O’Loughlin J said at 170:
It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
6. In Lynam v Director‑General of Social Security (1983) 1 AAR 197, Fitzgerald J said at 200:
The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
7. In Re Holmes and Secretary, Department of Employment and Workplace Relations [2007] AATA 1502, the Tribunal stated at [18]:
…Families and those within them, the adult members and children, are all capable of the range of human emotions including the negative traits such as violence, hatred, selfishness and mental health disorders. The complexity of human behaviour and the capacity for some to withstand the stressors of life to a greater or lesser degree makes it complex and often unpredictable.
WAS MS CRIPPS A MEMBER OF A COUPLE FOR PART OF OR ALL OF THE PERIOD 22 DECEMBER 2005 TO 17 MARCH 2009?
8. Ms Cripps told the Tribunal that she was not in a marriage-like relationship until 1 October 2008. She stated that she was living with her parents when she met Mr Costa in November 2004 and became pregnant to him in March 2005. She said that they were not in a relationship at that time. She said she saw him a couple of times each week. The child was born in December 2005. Although Mr Costa did not pay child support, he provided payment for the child’s medical and other expenses.
9. Ms Cripps stated that in February 2007 she again became pregnant to
Mr Costa and spent varying periods of up to three weeks at a time with him at his home when her parents were overseas, because she needed assistance with the first child, who had serious had medical issues. The second child was born in November 2007, and also had medical issues. Ms Cripps said that at this time she was aware that Mr Costa was seeing other women, but she was in constant contact with him because of the needs of both children. She explained that in October 2008 she became pregnant again to Mr Costa. She said that their relationship had improved to the extent that she moved into his house and the relationship has continued since then. The third child was born in June 2009.10. Under cross-examination Ms Cripps agreed that her relationship with
Mr Costa has been volatile from the beginning, but that her contact with him prior to October 2008 had been mainly in relation to the children. She acknowledged that he has an abrupt manner, and said that he makes comments in the heat of the moment that are not always accurate.Financial relationship
11. Ms Cripps said that she and Mr Costa do not have joint wills, superannuation or private insurance policies or bank accounts. The only joint account is a Myer retail store card. Mr Costa is the sole proprietor of his home which he purchased in 2005. She stated that in December 2006 Mr Costa allowed her to have access to his business bank accounts and listed his residence as her home address, but that this was for contingencies, and that she has not used the account at any time. She agreed that she has used a mobile telephone which was purchased on Mr Costa’s account after the birth of the first child, and said that this was because she had experienced problems contacting him using her prepaid telephone. She said that she had reimbursed him for mobile telephone accounts.
12. Ms Cripps agreed that she opened a bank account in 2006 for the oldest child and that the address she gave was Mr Costa’s. She explained that this was to demonstrate to Mr Costa that she was depositing money into the account as she had promised. She agreed that her name was added to Mr Costa’s Medicare card from
8 August 2005, and each child’s name has been added since birth. Ms Cripps explained that this was done on advice from Medicare to facilitate payment of medical expenses for the children, and that she was not aware of the possibility of separate cards. She also agreed that since August 2006 her address in relation to her own bank account has been listed as Mr Costa’s residence.13. Mr Costa told the Tribunal that household expenses were shared, and that in 2007 some accounts such as electricity and gas were placed solely in Ms Cripps’ name because she was eligible for the concessional rate as she was a social security recipient. He said that he paid her mobile telephone account.
14. The Tribunal considers that there has been a degree of dependency by
Ms Cripps on Mr Costa for financial assistance that goes beyond the level that might be expected of him in relation to his obligations to the children. This is evident particularly since December 2006 when Mr Costa allowed Ms Cripps access to the business bank accounts. This, together with the joint Myer card, the arrangement for the shared payment of bills and the addition of her name on Mr Costa’s Medicare card, leads the Tribunal to conclude that since December 2006 Ms Cripps has had significant financial links to Mr Costa as a member of a couple.Nature of the household
15. Ms Cripps told the Tribunal that she was living with her parents at their Ferntree Gully home when the first child was born in December 2005, and did not move into Mr Costa’s house after the birth because of her volatile relationship with him, although she agreed that the child’s birth certificate lists her address as
Mr Costa’s residence. She said that she saw him several times each week in relation to the child, and that she remained living with her parents. Ms Cripps agreed that in August 2007 she informed VicRoads that her address was Mr Costa’s residence, but explained that she had expected to move in with him at the time, and did not change the address when her application for a learner’s permit was refused on medical grounds. She also agreed that the second child’s address in medical and health records is Mr Costa’s. Ms Cripps maintained that she lived with her parents until 1 October 2008.16. Mr Costa told the Tribunal that he has never lived with Ms Cripps at her parents’ home. He said that Ms Cripps had moved in with him on a number of occasions, including a period of three months from about November 2005, before they began to reside together in October 2008. He described the relationship before 2008 as on/off and casual.
17. In a statutory declaration dated 9 January 2011 Ms N Davison, Ms Cripps’ cousin, stated that she and Ms Cripps have a close relationship. She said that
Ms Cripps was living at the family home in Ferntree Gully with her parents until moving into Mr Costa’s residence in late 2008. Under cross-examination she stated that, between 2005 and 2008, she visited Ms Cripps about once or twice each month at the Ferntree Gully address, and she had no reason to doubt that Ms Cripps lived there during that period. She said that Mr Costa was present occasionally.18. In a statutory declaration dated 28 December 2010 Ms J Murdoch, Ms Cripps’ maternal aunt, stated that she lives in Western Australia but visits her relatives in Victoria once or twice each year. She said that between 2005 and 2008 she visited the Ferntree Gully home where she observed Ms Cripps living with her parents, siblings and children. Under cross-examination Ms Murdoch said that she saw
Mr Costa only once or twice during her visits and is aware that he and Ms Cripps are now living together.19. The Tribunal takes into account the evidence of Ms Davison and Ms Murdoch but notes that Ms Davison saw Ms Cripps only once or twice each month and
Ms Murdoch saw her once or twice each year during the relevant period, although there was more frequent telephone contact.The Tribunal also gave ample opportunity for Ms Cripps to obtain written or oral evidence from her parents, but she told the Tribunal that she did not wish to pursue that course of action as her mother has been fully occupied with family issues and caring for Mr Cripps’ father who has serious health concerns.20. The Tribunal considers that there has been a degree of enmeshment in the household between Ms Cripps and Mr Costa since 2005. Ms Cripps listed her name and at least one of the children as living at Mr Costa’s address on various documents, and there has been a high degree of contact between Ms Cripps and
Mr Costa, despite a volatile relationship, that goes beyond the contact that would be expected with shared children. This is supported by the evidence from Mr Costa. Although there have been varying degrees of contact since 2005, the Tribunal concludes that since about December 2006 Ms Cripps has had significant links to
Mr Costa as a member of a couple in respect of the nature of the household.Social aspects of the relationship
21. In a maternity health questionnaire completed on 8 June 2005 Ms Cripps ticked the box yes to the personal circumstances statement I have a partner
but did not give details. However she listed her parents’ home address as her address and listed Mr Costa as the contact person rather than her parents, naming him as her boyfriend. She explained that she did not consider this term to mean that they were partners. In a further maternity health questionnaire, completed on 25 July 2007,
Ms Cripps again ticked the box yes to the personal circumstances statement I have a partner, whom she described as Ben. Boyfriend (Father of Baby). She listed
Mr Costa’s residence as her address, and again nominated him as the contact person.
22. Ms Cripps agreed that she and Mr Costa have socialised together with friends and family, but emphasised that this was so that the children would be able to spend time with both sides of the family on significant occasions. Mr Costa agreed that they have spent time together socially for birthdays and other special occasions involving the children.
23. The Tribunal accepts that Ms Cripps and Mr Costa have socialised together with friends and relatives on a number of occasions, but does not accept that these joint occasions could be explained necessarily by the need to be together merely because of the children. The Tribunal is satisfied that Ms Cripps has described
Mr Costa on various documents as her partner, and the context of her use of the word boyfriend as a contact person, rather than her parents, suggests that she has considered him to be her partner since 2005 or 2006. In respect of the social aspects of the relationship, the Tribunal concludes that since 7 December 2006
Ms Cripps and Mr Costa have held themselves to be in a situation that is similar to that of a married couple.
Sexual relationship
24. There is no dispute that Ms Cripps and Mr Costa have had a sexual relationship since at least March 2005, as they have three children born in December 2005, November 2007 and June 2009 respectively, although Ms Cripps stated that there were constant arguments between them and that is why she did not move in with him until 2008. Mr Costa told the Tribunal that since they met in 2005 the relationship has been on and off and volatile. He said that Ms Cripps moved in with him on …a fair few occasions including a three-month period from November 2005, although he said that he considered the relationship to be …casual, not de facto after she moved back to her parents’ home in 2006. He suggested that the sexual relationship became somewhat regular in early 2007 and she moved in with him again in late 2007, and stated that Ms Cripps stayed with him whenever her parents travelled overseas.
25. In view of the birth of the three children between 2005 and 2009, and after considering the evidence from Ms Cripps and Mr Costa, the Tribunal is satisfied that they have had a sexual relationship since March 2005.
Nature of commitment to each other
26. Ms Cripps confirmed that since meeting Mr Costa he has assisted her financially with the needs of the three children. She said that the main reason for moving into his house when her parents were away was so that he could help her with the children’s care, although she said that she did not want Mr Costa to move in with her during these absences because she and her parents had preferred not to involve Mr Costa’s mother in caring for the children at her parents’ home. She told the Tribunal that before 2008 Mr Costa was not sufficiently reliable, and had not demonstrated sufficient affection for her, to consider that there was a commitment by him to the relationship. However she said that she needed his help in meeting the significant health needs of the children. This involved jointly taking the children to medical and other appointments since the birth of the first child. Mr Costa stated that before 2008 he had supported Ms Cripps financially and in other ways because of the children.
27. The Tribunal takes into account that since the birth of the first child Mr Costa has been a constant presence in Ms Cripps’ life. He has provided financial support to her, paid some of her bills and has been nominated by her as the contact person on official documents, even when she said she was living with her parents. He made her a signatory to his business bank accounts and the couple are listed on the same Medicare card. The sexual relationship has been ongoing and there have been numerous joint social outings. The Tribunal concludes that, despite the evidence of a volatile relationship, since the birth of the first child in December 2005 Ms Cripps has looked to Mr Costa for continued support that is not confined to the children’s needs. The Tribunal finds that the couple have demonstrated an ongoing commitment to each other since then.
Conclusion
28. After assessing the totality of the evidence, the Tribunal concludes that an objective assessment of the relationship with Mr Costa as a whole shows that, for the reasons given, Ms Cripps has been in a relationship to varying degrees with
Mr Costa since the birth of the first child on 22 December 2005. However, because of its findings about the nature of the household and the financial arrangements, together with a temporary cessation of the relationship in 2006, the Tribunal concludes that Ms Cripps was a member of a couple, for the purposes of the legislation, from 7 December 2006 to 17 March 2009.
WAS THERE AN OVERPAYMENT OF SOCIAL SECURITY BENEFITS RESULTING IN A DEBT TO THE COMMONWEALTH?
29. In view of its conclusion the Tribunal finds that Ms Cripps received benefits at the single rate from 7 December 2006 to 17 March 2009 while she was a member of a couple. Therefore she was not entitled to be paid benefits at the single rate during this period, and she has been overpaid benefits, and the amount of overpayment is a debt to the Commonwealth under s 1223(1) of the Act.
SHOULD THE DEBT BE WRITTEN OFF OR WAIVED?
30. Section 1236 of the Act provides for write-off of a debt to the Commonwealth in certain circumstances. In the current application the Tribunal finds that there are no grounds to write off the debt.
31. Section 1237A of the Act provides for waiver of a debt to the Commonwealth arising from sole administrative error by the Commonwealth, if the payment was received by the debtor in good faith. The Tribunal finds that the debt was not attributable solely to administrative error by the Commonwealth, so the debt cannot be waived on this ground.
32. Section 1237AAD of the Act provides for waiver of a debt in certain other circumstances:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a)the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii)failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c)it is more appropriate to waive than to write off the debt or part of the debt.
33. In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25, Besanko J stated, in respect of special circumstances (at paragraph 33):
… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances… It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case…there must be something that distinguishes the case from the ordinary or usual case ….
34. The Tribunal accepts that Ms Cripps’ children have medical issues that require significant attention, and takes into account that Ms Cripps and Mr Costa are in a committed relationship and Ms Cripps receives ongoing support from him and from family members. Mr Costa is a self-employed electrician. However, these are not matters that make Ms Cripps’ situation out of the ordinary or unusual. The Tribunal is not satisfied that her circumstances constitute special circumstances. Therefore, the waiver provisions of s 1237AAD of the Act do not apply.
DECISION
35. The Tribunal affirms the decision under review.
I certify that the thirty-five [35] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
……………………[sgd]……………………………………..
Kate Conners
Associate
Dates of hearing: 13 December 2010, 15 February 2011
Date of decision: 18 February 2011
Advocate for applicant: Self-represented
Advocate for respondent: Ms P Heffernan
Solicitor for respondent: Australian Government Solicitor
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