Dekuyer; Secretary, Department of Families, Community Services and Indigenous Affairs
[2006] AATA 866
•9 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 866
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2006/162
| GENERAL ADMINISTRATIVE DIVISION | ) | ||
| Re | SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS | ||
Applicant
| And | EDUARD DEKUYER |
Respondent
DECISION
| Tribunal | Deputy President D G Jarvis |
Date 9 October 2006
Place Adelaide
| Decision | 1. The tribunal affirms the decision under review insofar as it was decided to raise debts to the Commonwealth against the respondent for the payments of family tax benefit for each of the financial years ended 30 June 2002 to 30 June 2005 inclusive and for the period 1 July 2005 to 23 February 2006 inclusive. 2. Subject to paragraph 1, the tribunal sets aside the decision under review, and decides instead that: (a) debts be raised against the respondent for payments of family allowance or family tax benefit received by him in the period from 30 January 1999 to 30 June 2000, and in the financial year ended 30 June 2001; (b) the debts raised or to be raised in consequence of this decision against the respondent for payments of family allowance or family tax benefit received by him in the period from 30 January 1999 to 30 June 1999 and in each of the financial years from the year ended 30 June 2000 and up to and including the financial year ended 30 June 2004 be waived; and (c) the debts raised against the respondent for payments of family tax benefit received by him in the year ended 30 June 2005 and for the period from 1 July 2005 to 23 February 2006 inclusive not be waived. |
D G Jarvis
(Signed)
Deputy President
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – family allowance – family tax benefit – overpayment – debts caused solely by administrative error – respondent received overpayments in good faith – meaning of “received in good faith” – no evidence of severe financial hardship – debts raised after 30 June 2004 not waived – debts raised in respect of income years up to and including year ended 30 June 2004 waived.
Social Security Act 1991 (Cth), s 1237A
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), subsections 97(2) and (3)
Haggerty v Secretary, Department of Education, Training and Youth Affairs (2000) 31 AAR 529
Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424
Jones v Gordon (1877) 2 App Cas 616
Lego Australia Pty Ltd v Paraggio (1993) 44 FCR 151
Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576
Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553
Secretary, Department of Employment, Education, Training and Youth Affairs v Prince (1997) 50 ALD 186
REASONS FOR DECISION
| 9 October 2006 | Deputy President D G Jarvis |
The respondent, Eduard Dekuyer, and his wife have two children, namely Clare Ellen Dekuyer born on 27 October 1997 and Patrick Joseph Dekuyer born on 30 January 1999. After their first child, Clare, was born, Mr Dekuyer completed a claim form claiming family allowance. He then received family allowance in respect of Clare, and (after the introduction of new legislation operative from 1 July 2000) family tax benefit. After Patrick was born, Mr Dekuyer’s wife completed a form claiming family allowance in respect of Patrick. Mr Dekuyer and his wife each signed both forms.
Mr Dekuyer’s wife goes under her maiden name of O’Sullivan, and she used that surname on the form she completed. She filled in the information relevant to Patrick. In answer to a question in Item 24 of the form, reading:
“Do you have in your care any children aged between 26 weeks and 16 years of age?”
Ms O’Sullivan ticked the “Yes” box. She then completed the further information required by the form in consequence of that answer, namely Clare’s full name (showing her correct surname, Dekuyer), date of birth, sex, her relationship as Clare’s mother, and where Clare was living (i.e. “home”). Under Item 24 a further comment appears reading as follows:
“You must provide proof of the date of birth for any child you are now claiming for … You do not need to provide proof for children you are already being paid for” (emphasis added)
The Secretary did not suggest that Ms O’Sullivan had not provided any proof of the date of Clare’s birth, and I understand it is common ground that she did not do so.
It appears that following receipt of the form completed by Ms O’Sullivan, and unknown to Mr Dekuyer or Ms O’Sullivan, the Department of Social Security (“DSS”) wrongly recorded that Ms O’Sullivan had Patrick Dekuyer and another child whom they recorded as “Claire O’Sullivan” in her care. DSS then made payments of family allowance to Ms O’Sullivan, and later Centrelink paid family tax benefit to her on that basis. DSS and subsequently Centrelink continued to make payments of family allowance, and later Centrelink made payments of family tax benefit, to Mr Dekuyer for Clare Dekuyer. This led to overpayments in respect of the period from 30 January 1999 until 23 February 2006. By then Centrelink had discovered the error originally made by DSS when it processed the form completed by Ms O’Sullivan following Patrick’s birth. Centrelink accordingly raised debts against Mr Dekuyer in respect of the payments made in each of the years ended 30 June 2002, 30 June 2003, 30 June 2004 and 30 June 2005, and in respect of the period from 1 July 2005 to 23 February 2006. Centrelink also raised a debt in respect of the period from 1 July 2000 to 30 June 2001, but waived the right to recover that debt. Centrelink also noted that Mr Dekuyer had been overpaid from 30 January 1999 to 30 June 2000, but did not raise any debt in respect of that period.
The decisions to raise and recover the debts were reviewed by an Authorised Review Officer (“ARO”). The ARO decided to waive the whole of the debts in respect of the years ended 30 June 2002 and 30 June 2003, and to waive all but $801.90 of the debt raised in respect of the year ended 30 June 2004. However, the ARO did not waive the debt in respect of the year ended 30 June 2005, or the debt raised in the period from 1 July 2005 to 23 February 2006. The amounts of those debts are $1,715.50 and $742.56 respectively.
Mr Dekuyer applied to the Social Security Appeals Tribunal (“SSAT”) for review of the decision of the ARO. The SSAT decided to vary the ARO’s decision so as to affirm the decision to raise five debts (being the debts commencing with the debt raised in respect of payments received in the financial year ended 30 June 2002, and for each year thereafter up to and including the financial year ended 30 June 2006), but to substitute a new decision to waive recovery of all of those five debts. The Secretary, Department of Families, Community Services and Indigenous Affairs has applied to this tribunal for review of the decision of the SSAT.
Issues
The issues before me are as follows:
(a)whether Centrelink should have raised debts in respect to the periods from 30 January 1999 to 30 June 1999, and 1 July 1999 to 30 June 2000; and
(b)whether the debts in respect of payments received in the financial years ended 30 June 2001 to 30 June 2004 inclusive should be waived, on the grounds that the payments were received by Mr Dekuyer in good faith.
At the hearing before me, the Secretary conceded that the payments to Mr Dekuyer following Patrick’s birth and the resulting debts were attributable solely to an administrative error made by Centrelink.
Mr Dekuyer conceded that a failure to waive the debts incurred in the financial year ended 30 June 2005 and in the period from 1 July 2005 to 23 February 2006 would not result in his suffering severe financial hardship. It follows from the legislation to which I will refer below that in those circumstances, the debts in respect of those periods should not have been waived.
Mr B Harvey, the advocate who represented the Secretary, explained that Centrelink had waived the debt raised for the financial year ended 30 June 2001 by reference to the Family Assistance Estimate Tolerance (Transition) Determination 2001. He further explained that the criteria for waiver under this determination did not apply in the circumstances of the present matter. Mr Harvey’s explanation was supported by the papers before me, and the above matters were not disputed by Mr Dekuyer. However, Mr Dekuyer maintains that he received the payments in good faith, and that accordingly, the debt should be waived.
Background Facts
By a letter dated 11 March 1999 to Ms O’Sullivan, Centrelink advised that she would be paid “$47.40 for Clare and Patrick every second Thursday, starting on 25 March 1999”. The letter went on to refer to the payment of arrears and also to the payment of a one-off maternity allowance of $750.00 for Patrick, but said that maternity allowance could not be paid for Clare, because Ms O’Sullivan did not lodge her claim for maternity allowance within 26 weeks of Clare’s birth.
After that, DSS made payments of family allowance, and later Centrelink paid family tax benefit, and the payments were credited to a credit union account in the joint names of Mr Dekuyer and Ms O’Sullivan.
Prior to the birth of Patrick, and for a little over a year after that, DSS also paid parenting payments to Ms O’Sullivan, and these were also credited to the same joint credit union account.
From time to time, DSS and later Centrelink sent letters to Mr Dekuyer or Ms O’Sullivan about the payments being made to them of family allowance or later family tax benefit. The letters were addressed separately either to Mr Dekuyer or to “Mrs”, rather than “Ms”, O’Sullivan. From computer printouts of these letters included in the T Documents (exhibit A1) it appears that six letters were sent out to Mr Dekuyer during the period from 24 December 1999 to 1 July 2005, and ten letters were sent out to “Mrs” O’Sullivan. In three cases the letters bore the same date, namely 24 December 1999, 18 June 2000 and 15 April 2004. The dates of the other letters were quite disparate.
As far as I can tell from the printouts, each of the communications sent to Mr Dekuyer showed the child’s name “Clare”, and each of the communications sent to Ms O’Sullivan showed the children’s names “Patrick” and “Clare”.
Mr Dekuyer said that he would have read the letters sent to him by DSS or Centrelink. He said that if a letter asked him to do something he would do it, but otherwise he would take it that the letter was an information letter and after reading the letter he would file it.
Mr Dekuyer said that he very rarely discussed with his wife the letters that Centrelink had sent to her, and he could not recall reading any letters sent to her by Centrelink. He became aware in about February 2000 of an overpayment from Centrelink, which was in respect of the parenting payments made to Ms O’Sullivan, and he made arrangements by telephone with a Centrelink officer that the overpayments could be deducted from future benefit payments.
On another occasion, in April 2000, he became aware that Centrelink had no record of Clare having been immunised. He discussed this matter with his wife, and later took to a Centrelink office their children’s immunisation records, together with his Medicare card and Ms O’Sullivan’s Medicare card. Mr Dekuyer’s Medicare card included his name only. Ms O’Sullivan’s Medicare card showed three names, namely her name and the names “Clare E Dekuyer” and “Patrick J Dekuyer”.
In the period prior to Patrick’s birth two payments from DSS continued to be credited each fortnight to the joint credit union account, and at a date after the DSS had processed the claim for family allowance completed by Ms O’Sullivan in respect of Patrick, a third payment was credited each fortnight to the joint account. In a letter dated 2 March 2006 from Mr Dekuyer to Centrelink after he had been informed of the overpayments and the debts that had been raised against him, Mr Dekuyer advised that according to the credit union statements, amounts of $65.20 and $23.40 were being credited to the account each fortnight prior to Patrick’s birth. He further advised that from statements he could find from April 1999 and subsequently, payments of $23.70, $47.40 and $66.00 were credited each fortnight until about March 2000. He said that he assumed that the third fortnightly payment related to the family allowance for Patrick. Mr Dekuyer further said that the amounts credited to the account varied over that period, and he understood that this was because of the adjustment resulting from the overpayment to which I referred above.
Mr Dekuyer said that after March 2000, only two payments per fortnight were received. It appears from the records tendered by the Secretary that the parenting payments ceased as from March 2000, because Mr Dekuyer’s and Ms O’Sullivan’s combined income had reached a level where they were no longer entitled to those benefits.
Legislative Provisions
Subsection 847A(1) of the Social Security Act 1991 (Cth) (“SS Act”) provides in effect that if one member of a couple is receiving family allowance in respect of a child, family allowance is not payable to the other member of the couple in respect of the same child. As from 1 July 2000, family allowance was replaced by family tax benefit, which is provided for in “A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)” (the “FA Administration Act”). Under s 26 of the FA Administration Act, only one member of a couple is eligible for family tax benefit. As a result of the administrative error by the DSS to which I have referred above, family allowance and later family tax benefit was paid to both Mr Dekuyer and Ms O’Sullivan. The payments to Mr Dekuyer were in respect of their daughter Clare Dekuyer. The payments to Ms O’Sullivan were being made in respect of a third child whom DSS had (unknown to Mr Dekuyer or Ms O’Sullivan), recorded as “Clare O’Sullivan”.
Under s 1223 of the SS Act, if an amount has been paid to a person by way of social security payment and the amount was not payable to the person, the amount so paid is a debt due to the Commonwealth. Similarly, s 71 of the FA Administration Act provides in effect that a payment of family tax benefit to a recipient who was not entitled to that benefit is a debt due to the Commonwealth by the recipient.
By virtue of the above provisions, the payments of family allowance and family tax benefit to either Mr Dekuyer or Ms O’Sullivan in respect of Clare were incorrect.
After Centrelink had realised the error which gave rise to the overpayments of family allowance and family tax benefit, it decided to regard the amount for Clare that had been paid to Mr Dekuyer as the incorrectly made payments of family tax benefit, and also decided that the family allowance paid to Mr Dekuyer be held to be the incorrectly paid payment. As a result of those decisions Centrelink raised debts against Mr Dekuyer, rather than Ms O’Sullivan, both for the family tax benefit paid to him and the family allowance paid to him in respect of the period from 30 January 1999 to 30 June 2000. That position was not questioned by Mr Dekuyer at the hearing before me after Mr Harvey explained the ramifications of the alternative possibility of having debts against Ms O’Sullivan, and the determinations made by the ARO and the SSAT and the proceedings in this tribunal all proceeded on the basis that the debts had been appropriately raised against Mr Dekuyer rather than Ms O’Sullivan.
Both the SS Act and the FA Administration Act contain provisions requiring the Secretary to waive debts arising by virtue of the above ss 1223 and 71 of the Acts.
In the case of the SS Act, subsection 1237A(1) provides relevantly that:
“… the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.”
In the case of the FA Administration Act, where a debt arises from (as the subsection applies in the circumstances of this case) payments made to the debtor after the end of the financial year ended 30 June 2004, the Secretary must waive the debt if:
“(a)the debtor received in good faith the payment or payments that gave rise to the … debt; and
(b) the person would suffer severe financial hardship if it were not waived.”
However, in the case of payments of family tax benefit made (in this case) up to and including the year ended 30 June 2004, the Secretary is required to waive the debt if “the debtor received in good faith a payment or payments that gave rise to the … debt” (subsection 97(3)), and there is no requirement that a failure to waive the debt would cause severe financial hardship to the debtor.
Consideration
By virtue of subsection 847A(1) of the SS Act, family allowance should not have been paid both to Mr Dekuyer and Ms O’Sullivan in respect of their daughter Clare, and by virtue of s 1223 of the SS Act, a debt should have been raised against one or other of them in respect of the duplicated payments resulting from the administrative error. As mentioned above, there was no dispute about the determination to raise the debt against Mr Dekuyer rather than Ms O’Sullivan, or about the inapplicability, in the circumstances of this matter, of the Family Assistance Estimate Tolerance (Transition) Determination 2001.
I accordingly consider that debts should have been raised against Mr Dekuyer for the payments of family allowance received by him in respect of the period from 30 January 1999 to 30 June 1999, and also in the financial year ended 30 June 2000.
Meaning of “in good faith”
The expression “in good faith” is not defined in either the SS Act or the FA Administration Act, but has been interpreted in a number of cases.
In Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 50 ALD 186, Finn J, when referring to the expression “good faith” in the context of a section providing for the waiver of debts arising solely because of administrative error in the administration of student assistance where amounts had been received in “good faith”, made the following comments when considering the meaning of those words:
“The section asks that a quite specific question be addressed: was the payment received in good faith? It is quite unconcerned, for example, with whether, after 22 December, Mr Prince acted in good faith toward DEETYA. Its sole concern is with whether a particular state of affairs exists at the time a payment (or payments) is received.
The significance of the statutory context in which the formula is used is in the illumination it gives as to what is that required state of affairs. …
For my own part, I consider the burden of the formula in the s 289 setting to be obvious enough. Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received — ie is not entitled to use the moneys received as his or her own — that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith.” (at 188 -189)
In Haggerty v Department of Education, Training and Youth Affairs (2000) 31 AAR 529, French J referred to the observations of Finn J in Prince, and continued:
“[14] I do not take what his Honour said in that case as supporting the proposition that a person can be found to be receiving payments other than in good faith simply by reason of the fact that there are facts in existence which are known to the recipient sufficient to negative the recipient’s entitlement. In my opinion that is not a sufficient criterion. Knowledge of relevant facts is not enough to generate reason to know of the lack of entitlement.
[15] The criterion of receipt in good faith may be characterised as a positive one as counsel for the respondent submitted. That is not to say that a recipient of a mistaken payment must provide that he or she has considered the entitlement to the money and positively concluded that there is an entitlement. There is no question of an onus here to be met by the recipient who claims benefit of the mandatory waiver. Nor is there some twilight zone between good faith and want of good faith. A waiver can only, in my opinion, be declined where there has been a receipt, without good faith, of moneys mistakenly paid. This accords with the general approach taken by Finn J whose construction of the provision is related to the criteria for want of good faith.
[16] Consistently with what his Honour said in the Prince case, want of good faith will arise where there is a positive belief that the payment has been made by mistake. It will also arise where there is a suspicion held by the recipient that he or she may not be entitled to the payment made or a doubt as to the entitlement coupled with some objective basis for such suspicion or doubt. The provision does not, however, authorise the imputation of want of good faith in any of the senses above described simply because there are in existence objective facts which would raise a belief or a doubt or a suspicion of non-entitlement in the mind of some imaginary recipient. That proposition is quite consistent with the view that the existence of such facts may support an inference that the recipient disbelieved or doubted or was suspicious about his or her entitlement. “Reason to know” as Finn J used that term in Prince does not necessarily import a criterion of imputed as distinct from actual want of good faith as I have described it.”
In Jazazievska v Secretary, Department of Family and Community Services (2000) 65 ALD 424, Cooper J said, at [40] and [41]:
“…A lack of good faith does not mean that the recipient of the payment must be acting fraudulently when the payment is received and retained. It means that for whatever reason, the recipient acts without an honest belief that he or she was entitled to receive and retain the payment when he or she receives the payment and decides to exercise control over it by retaining it.
A person does not act in good faith where the person turns a blind eye to circumstances which raise doubt as to the entitlement of the person to receive and retain the payment or refuses to make reasonable inquiries where doubt exists.”
His Honour then quoted a colourfully expressed explanation provided by Lord Blackburn in Jones v Gordon (1877) 2 App Cas 616. His Lordship was considering whether a purchaser of bills of exchange for substantially less than their face value could be said to be acting bona fide, and in the passage quoted by Cooper J he said, at 629:
“If he was (if I may use the phrase) honestly blundering and careless, and so took a bill of exchange or a bank-note when he ought not to have taken it, still he would be entitled to recover. But if the facts and circumstances are such that the jury, or whoever has to try the question, came to the conclusion that he was not honestly blundering and careless, but that he must have had a suspicion that there was something wrong, and that he refrained from asking questions, not because he was an honest blunderer or a stupid man, but because he thought in his own secret mind — I suspect there is something wrong, and if I ask questions and make farther inquiry, it will no longer be my suspecting it, but my knowing it, and then I shall not be able to recover — I think that is dishonesty. I think, my Lords, that that is established, not only by good sense and reason, but by the authority of the cases themselves.”
At the conclusion of his address Mr Harvey handed up a list of five further authorities, but made no specific submissions as to their relevance. I have looked at each of these authorities. I note that in one of them, Lego Australia Pty Ltd v Paraggio (1993) 44 FCR 151, Wilcox J referred at page 171 to a number of earlier decisions on the meaning of “good faith” in s 121 of the Bankruptcy Act 1966 (Cth). His Honour contrasted wilful blindness, which he said is akin to fraud, with a failure to make more extensive inquiries, which he said amounts to negligence and is not inconsistent with good faith. Further, I note that other authorities to which his Honour also referred suggest that such a failure might give rise to dishonesty being inferred as a fact from the circumstance of that failure.
Mr Harvey’s list of further authorities also included a helpful analysis of Weinberg J in Pledger v Secretary, Department of Family and Community Services [2002] FCA 1576, where his Honour referred to the words “good faith” as:
“… normative, and not descriptive. In other words, they are value laden, and the values which they reflect must be the values of ordinary, decent members of the community.”
His Honour had earlier said, at [59], that the question of whether a pensioner had received a payment in good faith:
“… can only be determined after a careful consideration of the actual state of mind of the recipient of that payment. In that sense the test is entirely subjective, and not objective. However, plainly idiosyncratic views as to what might be regarded as an acceptable behaviour, including the standards of a ‘Robin Hood’, will not be regarded as amounting to ‘good faith’.”
Whilst the principles enunciated in the various further authorities provided by Mr Harvey are of assistance, the decisions reached ultimately depended on the circumstances of each case, and they are not determinative of the issue in the present matter of whether Mr Dekuyer received the relevant payments in good faith.
Were the payments received by Mr Dekuyer in good faith?
Mr Dekuyer gave evidence that, until he was notified earlier this year that he or his wife had received payments to which they were not entitled, he believed that he was entitled to the payments of family allowance and family tax benefit that he had received, and that he did not at any time suspect that Centrelink had made any error or that he was not entitled to the payments. He referred to a number of specific matters that he said were consistent with his position. These matters included the following.
(a)He believed that the claim forms which he and his wife had respectively completed in relation to Clare and Patrick were correctly completed, and he had no reason to think that DSS would not have correctly dealt with the claim forms, or that subsequent payments by Centrelink of family tax benefit would not be correct.
(b)He only rarely discussed communications from Centrelink to his wife, and did not at any stage prior to becoming aware that debts had been raised against him know that letters from Centrelink to his wife referred to Clare as well as to Patrick.
(c)The payments from Centrelink varied from time to time, and he assumed that this was because of the arrangements he had made for a debt for overpayments to be reduced by reductions from future payments (see paragraph 16 above).
(d)The payments received from Centrelink were not substantial amounts. Whilst he checked statements issued by the credit union in respect of the joint account, he did not check those statements against the payment advices or notices he had received from DSS or Centrelink. He said that if the amounts looked about right, he would not check any further.
(e)The period after Patrick’s birth was an extremely hectic and very tiring time for him and his wife, as they had taken possession of a newly purchased home just weeks before Patrick’s birth, and he carried out extensive renovations, and also experienced disruptive sleep patterns associated with his young baby and his shift work as a nurse.
(f)Neither he nor his wife had ever known or suspected the existence of a “Clare Ellen O’Sullivan”, and had never entertained the possibility that this “identity” existed.
(g)The responses to Item 24 of the original claim form filled in following Patrick’s birth (see paragraph 2 above), and his action in response to the query regarding Clare’s immunisation (see paragraph 17 above), reinforced his evidence that he had no reason to suspect that DSS was making payments to which he was not entitled, or that it had created in its records a third “fictional” child Clare Ellen O’Sullivan.
In the course of his cross-examination, Mr Dekuyer’s attention was directed to a letter to him dated 18 June 2000, a printout of which appears as T15 at pages 49 to 51 of exhibit A1. This letter referred to the child’s name as “Clare” and commenced by advising that as from 1 July 2000 family tax payment, basic parenting payment and family allowance had been replaced with family tax benefit. The letter continued:
“Your family’s combined entitlement to Family Tax Benefit is based on the number of children in your and your partner’s care. We can pay you 33.00% of your family’s combined entitlement. Your payment has been calculated using the number of children in your care. If you think this information is incorrect, please phone us for more information.”
The letter then proceeded to advise him to contact Centrelink in various circumstances, including changes in his family’s combined income, and advised the level at which increases or changes in the “secondary earner’s income” should be notified. The letter then proceeded to advise what he should do if he was a “sole parent”, and to deal with certain other eventualities, none of which were applicable to Mr Dekuyer. Further standard information was included under the headings “Your rights”, “Privacy”, “Complaints” and “Data Matching”.
Mr Dekuyer readily admitted that he would have read the letter of 18 June 2000, but said that he did not make anything of it at the time. In my view, it is necessary to consider this letter in the context of Mr Dekuyer’s then state of knowledge and all of the relevant preceding events, and it is inappropriate to focus on the portion of the letter which I have quoted above and to interpret that portion of the letter against the knowledge now available that DSS had created a fictional third child. I find that having regard to the payments Mr Dekuyer and Ms O’Sullivan had previously been receiving from Centrelink and to Mr Dekuyer’s prior communications with DSS and Centrelink, he did not know or suspect, from the terms of the letter, that Centrelink was making payments to him or his wife to which they were not entitled. Even if the letter might have raised a suspicion of non-entitlement in the mind of some imaginary recipient (and in the circumstances I doubt whether this would have been the effect of the letter) that would not of itself lead to an imputation of bad faith on the part of Mr Dekuyer: Haggerty (supra) at [16].
Ms O’Sullivan also gave evidence. She said that she could not remember ever discussing with her husband letters that she had received from Centrelink. She said that her practice was to collect the mail during the day after it had been delivered, and she would open and attend to letters addressed to her, but would leave letters addressed to her husband for him to open and deal with. She also said that until the debts were raised, she did not know that the Centrelink payments being received were incorrect, and had no reason to think that.
Mr Harvey cross-examined Mr Dekuyer carefully and at some length as to the state of his knowledge and belief at the relevant time, and in particular as to the letter referred to in paragraph 39 above. Whilst Mr Dekuyer conceded that with the benefit of hindsight some of the matters put to him should have raised questions in his mind, he was adamant that he neither knew nor suspected that he or his wife were not entitled to the amounts being paid into their joint account. I found Mr Dekuyer to be an impressive and honest witness, and I accept his evidence as truthful, including in particular his evidence as to his state of mind when he received the payments in question. Further I do not infer from his actions or any inactions on his part that he had been dishonest. I also note that there was no inconsistency between his evidence and that of Ms O’Sullivan, and I also found her to be a witness of truth.
On the evidence before me I am satisfied that Mr Dekuyer received the payments in question in good faith, as that concept has been explained in the cases to which I have referred above. This tribunal, standing in the shoes of the Secretary, must accordingly waive the debts incurred up to and including the financial year ended 30 June 2004, as required by s 1237A of the SS Act, and s 97 of the FA Administration Act.
Decision
The tribunal affirms the decision under review insofar as it was decided to raise debts to the Commonwealth against the respondent for the payments of family tax benefit for each of the financial years ended 30 June 2002 to 30 June 2005 inclusive and for the period 1 July 2005 to 23 February 2006 inclusive.
Subject to paragraph 44, the tribunal sets aside the decision under review, and decides instead that:
(a)debts also be raised against the respondent for payments of family allowance or family tax benefit received by him in the period from 30 January 1999 to 30 June 2000, and in the financial year ended 30 June 2001;
(b)the debts raised or to be raised in consequence of this decision against the respondent for payments of family allowance or family tax benefit received by him in the period from 30 January 1999 to 30 June 1999 and in each of the financial years from the year ended 30 June 2000 and up to and including the financial year ended 30 June 2004 be waived; and
(c)the debts raised against the respondent for payments of family tax benefit received by him in the year ended 30 June 2005 and for the period from 1 July 2005 to 23 February 2006 inclusive not be waived.
I certify that the 45 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G Jarvis
Signed: .....................................................................................
B. Bills Assistant
Date/s of Hearing 29 September 2006
Date of Decision 9 October 2006
Counsel for the Applicant Mr B Harvey
Solicitor for the Applicant Centrelink Legal Services Branch
Solicitor for the Respondent In person
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