DTDJ and Secretary, Department of Social Services (Social services second review)
[2019] AATA 4295
•23 October 2019
DTDJ and Secretary, Department of Social Services (Social services second review) [2019] AATA 4295 (23 October 2019)
Division:GENERAL DIVISION
File Number: 2019/2283
Re:DTDJ
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Dr L Bygrave, Member
Date:23 October 2019
Place:Sydney
The decision under review is set aside and the Tribunal remits this matter to the Secretary, Department of Social Services with the direction that DTDJ is not a member of a couple pursuant to the Social Security Act 1991 (Cth). The Tribunal further directs that DTDJ was not overpaid parenting payment for the period from 12 September 2013 to 2 August 2018 and so does not have a debt to the Commonwealth in the amount of $51,689.14. Any monies recovered must be repaid to DTDJ.
............................[SGD]............................................
Dr L Bygrave, Member
CATCHWORDS
SOCIAL SECURITY – parenting payment – debt – whether applicant was a member of a couple – where joint tenants on rental agreements – where financial cooperation not pooling of resources – where financial aspects of the relationship otherwise limited – where no shared household – where no social relationship – where acknowledged sexual relationship – where no objective evidence of commitment to each other – decision set aside and remitted
LEGISLATION
Social Security Act 1991 (Cth) ss 4, 500, 1068A, 1068B, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth) ss 68, 72CASES
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Pelka and Secretary, Department of Family and Community Services [2006] FCA 735REASONS FOR DECISION
Dr L Bygrave, Member
23 October 2019
INTRODUCTION
On 8 August 2018, the Department of Human Services (Centrelink) decided the applicant, DTDJ, was a member of a couple and raised a parenting payment debt in the amount of $51,689.14 for the period from 12 September 2013 to 2 August 2018. This decision was affirmed by an authorised review officer of Centrelink on 29 October 2018.
The applicant applied to the Social Services and Child Support Division (SSCSD) of the Administrative Appeals Tribunal (the Tribunal) for review and, on 24 April 2019, the SSCSD affirmed the decision of Centrelink.
On 26 April 2019, the applicant made an application for review to the General Division of the Tribunal.
The matter was heard in Sydney on 2 October 2019. The applicant attended the hearing and provided oral evidence to the Tribunal by conference telephone.
The issues for determination by the Tribunal are:
·whether the applicant is a member of a couple;
·whether the applicant was overpaid parenting payment in the amount of $51,689.14 for the period from 12 September 2013 to 2 August 2018; and
·if so, whether there are any grounds for waiving all or part of the debt.
RELEVANT LEGISLATION
The qualification criteria for parenting payment are set out at section 500 of the Social Security Act 1991 (the Act). If a person is not a member of a couple, the rate of parenting payment is calculated in accordance with section 1068A of the Act; and, if a person is a member of a couple, their parenting payment is calculated under section 1068B of the Act.
Relevant to this matter, subsection 4(2) of the Act states that a person is a member of a couple if they are legally married or in a relationship with another person and they are not living separately or apart from each other on a permanent or indefinite basis. Pursuant to subsection 4(3) of the Act, all the circumstances of the relationship are to be considered, in particular:
(a) the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii)whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
Section 1223 of the Act states that an overpayment of a social security payment is a debt to the Commonwealth. Provisions to write off or waive a debt are set out in sections 1236, 1237A and 1237AAD of the Act.
Sections 68 and 72 of the Social Security (Administration) Act 1999 (Cth) require a person to inform Centrelink about any changes to their circumstances within 14 days.
EVIDENCE
The applicant is 37 years old and the mother of four children aged 17 years, 13 years, eight years and two years. The biological father of her two youngest children is Mr “G”, who is 34 years old.
The Secretary submits that the applicant was a member of a couple with Mr “G” from 12 September 2013 to 2 August 2018.
The evidence before the Tribunal comprises:
·Centrelink documents regarding the applicant and Mr “G”;
·a written statement and oral evidence given by Mr “G” at the Tribunal hearing on 2 October 2019; and
·the oral evidence of the applicant provided to the Tribunal on 2 October 2019.
Evidence – Centrelink documentation
The Secretary’s submission that the applicant is a member of a couple with Mr “G” relies on the following documents:
·Residential tenancy application forms for a property at “V” Ave that appear to be completed by the applicant and Mr “G” in 2013 and listed their relationship to each other as ‘defacto’ and ‘partner’, although these forms are not signed or dated.[1]
[1] Exhibit T-T11, pages 259-262.
·Residential tenancy agreements for a property at “V” Ave made on 20 September 2013, 28 March 2014, 18 April 2015 and 18 October 2016, which set out the applicant and Mr “G” are joint tenants and live at the property with three children.[2]
[2] Exhibit T-T11, pages 271-322.
·Mr “G”’s 2013-2014 income tax return that shows he stated “V” Ave was his address.[3]
[3] Exhibit T-T9, page 239.
·A loan application by Mr “G” on 29 May 2017 that shows he stated “V” Ave was his address. He also noted on this application that his marital status was ‘single’ and he was ‘living with relatives’.[4]
·A car insurance policy form completed by Mr “G” for the period of 30 May 2017 to 30 May 2018 that stated “V” Ave was his postal address.[5]
·A loan application by Mr “G”’ on 29 January 2018 that shows he stated “V” Ave was his address.[6]
·Bank statements of Mr “G” for the period 1 January 2016 to 5 June 2018 that state his address is “V” Ave.[7]
·Payroll advice for Mr “G” from employers stating that Mr “G” named the applicant as his ‘wife’ and ‘emergency contact’.[8]
·Centrelink customer records for Mr “G” that state his address from 23 October 2012 to 11 September 2013 was “R” Street and his address from 12 September 2013 was “V” Ave.[9]
·A letter of employment termination dated 26 July 2016 stating Mr “G”’s address is “V” Ave.[10]
·An employment separation certificate dated 11 October 2017, stating that Mr “G” was employed for the period from 24 April 2017 to 10 October 2017 and his address was “V” Ave.[11]
·Photocopies of Centrelink letters dated 7 April 2014, 30 June 2014, 19 March 2015, 28 June 2016, 3 May 2017 and 1 June 2017 that are addressed to Mr “G” at “R” Street.[12]
·Centrelink address history for the applicant, which records her address from 20 September 2013 to 19 October 2018 as “V” Ave.[13]
[4] Exhibit T-T11, page 331.
[5] Exhibit T-T11, pages 337-339.
[6] Exhibit T-T11, pages 323-325.
[7] Exhibit T-T11, pages 374-404.
[8] Exhibit T-T11, pages 343-373.
[9] Exhibit T-ST4, page 1024.
[10] Exhibit T-ST4, page 1028.
[11] Exhibit T-ST4, page 1029.
[12] Exhibit T-T12, pages 405-406.
[13] Exhibit T-T21, page 513.
Evidence of Mr “G”
Mr “G” provided a written statement dated 23 June 2019 that described the history of his relationship with the applicant as follows:
[The applicant] and I were close friends whilst [the applicant] was involved in an abusive relationship.
When her relationship ended, [the applicant] and I spent a lot of time together as good friends and went on a handful of dates towards the end of 2009 but neither of us want to pursue another relationship so we remained good friends.
[The applicant] and I tried to date again in mid 2010 and did enjoy each other’s company.
In September 2010 [the applicant] advised me that she was pregnant with my child [their now eight years old child].
I took care of responsibility and help where I could. We continued dating until late February, earlier April where [the applicant] ended us dating because [she] had found out that I had been using illicit substances and didn’t wish to have that around the kids [the applicant] had or our new born to be.
We have always remained amicable for [their eight years old child’s] sake…
We have maintained our friendship and had a mutual agreement in regards to child support.
In the start of 2013 [the applicant] approached me and asked if I could assist her in securing better accommodation for herself and the kids.
I agreed to do so and applied for a few houses with [the applicant] on the arrangement that I could use the address for mailing purposes as I had no fixed address and was still using substances on a regular basis.
…
[The applicant] gave me permission to list her as an emergency contact with a few employers…
I visited [our now eight years old child] on a regular basis and [the applicant] encouraged me to stay sober for [our child] and for the chance to secure a better job. I stayed with [the applicant] and the kids a handful of times in 2016, nothing was to eventuate. [The applicant] and I did have physical contact on 3-4 occasions and conceived [their now two years old child].
[The applicant] informed me that she was pregnant in March 2017 as we had not seen one another for several months. In May 2017 I applied for a car and used [the applicant] as a reference, without her permission or knowledge.
…
In April 2017 [the applicant] informed me that her father was terminally ill and had to go for treatment around the same time [she] was to give birth to [their now two years old child].
I agreed to help any way I could and told [the applicant] to put my details down for emergency contact with the hospital as her father couldn’t be there…
[I] have not really spoken to [the applicant] since September 2018.[14]
[14] Exhibit A8.
Mr “G” also gave oral evidence to the Tribunal on 2 October 2019. He confirmed that he co-signed residential tenancy agreements with the applicant from 2013 to 2016, as they were advised by a property manager that it would be better if the applicant presented as a family rather than a single mother. Mr “G” said that he and the applicant made an agreement that he could use the property at “V” Ave as a postal address. They also agreed that he would pay $400 per fortnight towards the rent of “V” Ave (paid by BPAY directly to the property manager) rather than pay the applicant child support.
Mr “G” told the Tribunal that he used the property at “V” Ave as his postal address, although he also used the address of the applicant’s aunt at “R” Street. He said that he only stayed at “V” Ave for several days in 2017 when the applicant went to hospital to give birth to their (now) two years old child and the applicant’s father was unable to care for the children because he was undergoing medical treatment.
Mr “G” provided detailed evidence about his long-term history of substance abuse. He said that the applicant did not allow him to stay at “V” Ave because of his use of illicit substances; he had no fixed address for the period from September 2013 to October 2018 and either slept in his car or on lounges of people he ‘associated with’ during this period. Mr “G”’s evidence indicated that he has been through periods where he has sought help for his illicit substance abuse and his relationship with the applicant and children has improved, and periods where he has relapsed and has not seen the applicant and children. He explained that he viewed his relationship with the applicant as ‘amicable’ and he has some hope that he, the applicant and the four children can become a family in the future if he stays sober.
Evidence of DTDJ
The applicant provided extensive oral evidence to the Tribunal on 2 October 2019 regarding her relationship with Mr “G”. In summary, she acknowledges that Mr “G” is the father of her two youngest children, aged eight years and two years, but says that they have never lived together at “V” Ave and they were not a couple for the period from 12 September 2013 to 2 August 2018.
The applicant confirmed she approached Mr “G” in 2013 to assist her to rent a property as she was advised by the property manager that it would be better if she presented as part of a family. She acknowledged that she made a verbal agreement with Mr “G” that he could use the address at “V” Ave for his driver’s licence and he would pay $400 per fortnight in rent as child support. She said that she had not previously rented a property and did not realise that she could remove Mr “G”’s name from later residential tenancy agreements.
At the Tribunal hearing, the applicant provided detailed and credible evidence about the nature of her relationship with Mr “G”. She accepted that they had a sexual relationship for two brief periods that resulted in the birth of their children who are now eight years old and two years old. However, she said that while all of her children viewed Mr “G” as their father, he did not live at “V” Ave and did not regularly see the children due to his long-standing illicit substance abuse.
The applicant said that she and Mr “G” did not present socially as a couple and she did not view Mr “G” as her partner – either for the period from 12 September 2013 to 2 August 2018 or in the future. She explained two incidents in which Mr “G” displayed violent behaviour: the first was when she was pregnant in 2011; and the second, more recent, incident has led to a Provisional Order – Apprehended Domestic Violence Order in relation to Mr “G” and is currently before the courts.
The applicant stated unequivocally that she did not view herself as a member of a couple with Mr “G” for the period from 12 September 2013 to 2 August 2018. She said that they held no joint assets, bank accounts or loans; the only financial aspect of their relationship was that they were listed as joint tenants for the “V” Ave property and Mr “G” paid $400 fortnightly rent for the “V” Ave property as his contribution towards child support. She noted that utilities for the “V” Ave property were in her name.
CONSIDERATION
Issue – Was the applicant a member of a couple?
I now consider whether the applicant was a member of a couple in accordance with the factors set out in subsection 4(3) of the Act. In considering these relevant factors, I have regard to previous decisions made by the Tribunal that emphasise the requirement to take an objective view of the facts.[15] However, I am also mindful that relationships are complex and that, even within a relationship, the subjective perceptions and hopes of one member may be contrary to the other.
[15] For example, see Boskoski and Secretary, Department of Social Services [2014] AATA 915.
The financial aspects of the relationship
There is no evidence before the Tribunal that the applicant and Mr “G” hold (or have ever held) any joint assets, bank accounts or loans.
Based on the evidence before the Tribunal, I am satisfied that the only financial aspect of the relationship between the applicant and Mr “G” is that they were named as joint tenants of the property at “V” Ave from 2013 to 2016 and, as per paragraph 4(3)(a)(iii) of the Act, they had legal obligations to each other as joint tenants. I am further satisfied that Mr “G” contributed $400 per fortnight in rent in lieu of paying child support to the applicant.
The Federal Court decision in the matter of Pelka and Secretary, Department of Family and Community Services stated that the ‘pooling’ of financial resources ‘plainly involves something more than financial cooperation…’[16] On balance, I find there was a limited financial relationship between the applicant and Mr “G” during the period from 12 September 2013 to 2 August 2018, which could be characterised as ‘financial cooperation’ comprising them making separate contributions to the rent for their mutual benefit. In the case of Mr “G”, these contributions were in lieu of him paying child support.
[16] [2006] FCA 735 at [52].
The nature of the household
The only documentary evidence to support the assertion that the applicant and Mr “G” shared a household are the residential tenancy agreements from 2013 to 2016.
In view of this limited documentary evidence, I accept the oral evidence of both the applicant and Mr “G” that Mr “G” did not live at the property at “V” Ave during the period of 12 September 2013 to 2 August 2018. While there were some minor discrepancies between the applicant’s evidence and the evidence of Mr “G”, they were both clear and unequivocal in their evidence to the Tribunal that they did not ever live together from 12 September 2013 to 2 August 2018.
I also accept the explanations of the applicant and Mr “G” in relation to the documentation that shows Mr “G” being on the residential tenancy agreements and his use of the “V” Ave property as an address for the purposes of employment, bank accounts and loans. It is also apparent that, in contrast to Centrelink’s address records stating that Mr “G” lived at “V” Ave from 12 September 2013, Centrelink sent letters to Mr “G” at “R” Street from 7 April 2014 to 1 June 2017.
Based on the evidence, I am satisfied the applicant and Mr “G” did not share a household for the period from 12 September 2013 to 2 August 2018.
The social aspects of the relationship
The applicant stated to the Tribunal that she and Mr “G” did not have a relationship that was recognised socially and they did not present in the community as a couple in the period from 12 September 2013 to 2 August 2018. The applicant was clearly surprised by Mr “G”’s evidence that he named her as his ‘wife’ and ‘emergency contact’ for his place of employment; she said this was done without her knowledge or consent. The applicant believed that the only time they had presented as a couple was in the residential tenancy application forms in 2013 and subsequent residential tenancy agreements from 2013 to 2016.
The applicant’s evidence is that Mr “G” has never provided support for her or her children. She gave the example that her father has always been the person to take her or her children to medical appointments and that she attends any school events for her children. I also note that the applicant explained two serious incidents of violent behaviour by Mr “G”, but accept that both of these incidents occurred outside the period of time that Centrelink contend the applicant and Mr “G” were a couple.
On balance, the evidence before the Tribunal indicates that the applicant and Mr “G” did not have a social relationship during the period from 12 September 2013 to 2 August 2018.
Any sexual relationship between the people
Both the applicant and Mr “G” stated that their sexual relationship was limited to the period in 2010 to 2011, when their (now) eight years old child was conceived, and a brief period in 2016, when their (now) two years old child was conceived.
The nature of the people’s commitment to each other
While Mr “G” gave oral evidence that he hopes that he can be in a relationship with the applicant in the future, this was strongly rejected by the applicant in her oral evidence to the Tribunal. As I note in paragraph 23 above, this appears to be a situation where the hopes of Mr “G” are contrary to the intentions of the applicant.
There is no objective evidence before the Tribunal to indicate the applicant and Mr “G” have any current or future commitment to each other.
CONCLUSION
Weighing all the evidence available to the Tribunal, I find that the applicant was not a member of a couple with Mr “G” for the period from 12 September 2013 to 2 August 2018. This finding means that the applicant was not overpaid parenting payment for the period from 12 September 2013 to 2 August 2018 and therefore, she does not have a debt to the Commonwealth in accordance with section 1223 of the Act.
DECISION
The decision under review is set aside and the Tribunal remits this matter to the Secretary, Department of Social Services with the direction that DTDJ is not a member of a couple pursuant to the Social Security Act 1991 (Cth). The Tribunal further directs that DTDJ was not overpaid parenting payment for the period from 12 September 2013 to 2 August 2018 and so does not have a debt to the Commonwealth in the amount of $51,689.14. Any monies recovered must be repaid to DTDJ.
I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member
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Associate
Dated: 23 October 2019
Date(s) of hearing: 2 October 2019 Applicant: By telephone Solicitors for the Respondent: J Larcombe, Department of Human Services
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