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

[2021] AATA 3507

Dubroja and Secretary, Department of Social Services (Social services second review) [2021] AATA 3507 (30 September 2021)

Division:GENERAL DIVISION

File Number(s):      2019/5366, 2019/5367, 2019/5368 and 2019/5369

Re:Viktorija Dubroja

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:30 September 2021

Place:Sydney

Application No. 2019/5366

The Tribunal sets aside the decision under review and, in substitution, decides that:

·Ms Viktorija Dubroja has been a member of a couple with Mr Boris Dubroja pursuant to subsection 4(2) of the Social Security Act 1991 (Cth) from 28 February 2012 to the present.

·Ms Viktorija Dubroja has a parenting payment single debt in the amount of $16,003.12 for the period from 28 February 2012 to 28 November 2013, which is to be repaid to the Commonwealth in accordance with section 1223 of the Social Security Act 1991 (Cth).

Application No. 2019/5367

The Tribunal affirms the decision under review.

Application No. 2019/5368

The Tribunal affirms the decision under review.

Application No. 2019/5369

The Tribunal affirms the decision under review.

............................[SGD]...............................

Dr L Bygrave, Member

CATCHWORDS

SOCIAL SECURITY – multiple applications for review – whether applicant was a member of a couple – not married – financial aspects of the relationship – nature of household – social aspects of relationship – sexual relationship – nature of commitment to each other – rate of payment – parenting payment – carer payment – family tax benefit – whether there is a debt – whether debt should be recovered – waiver of debt in special circumstances – waiver of debt arising from sole administrative error – writing off debt

LEGISLATION

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 25, 71, 95, 97, 101

A New Tax System (Family Assistance) Act 1999 (Cth) sch 1

Social Security (Administration) Act 1999 (Cth) ss 68, 72

Social Security Act 1991 (Cth) ss 4, 24, 1064, 1068A, 1068B, 1184K, 1223, 1236, 1237A, 1237AAD

CASES

Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25

Dranichnikov v Centrelink [2003] FCAFC 133

REASONS FOR DECISION

Dr L Bygrave, Member

30 September 2021

INTRODUCTION

1. Ms Viktorija Dubroja and Mr Boris Dubroja have made applications to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of seven separate matters. These matters relate to decisions made by the Department of Human Services (now Services Australia)[1] (Centrelink), both initially and on review, that were subsequently affirmed by the Social Services and Child Support Division of the Tribunal.

   [1] On 26 May 2019, the Prime Minister announced the establishment of Services Australia and, on 1 February 2020, it became an executive agency in the Social Services portfolio.

2. This decision relates to the four applications made by Ms Dubroja. While many of the facts and the evidence regarding Ms Dubroja and Mr Dubroja’s circumstances overlap, I note the applications and issues for determination are distinct and so I have written separate decisions in relation to Ms Dubroja’s applications and Mr Dubroja’s applications.

3. The following applications made by Ms Dubroja are for determination by the Tribunal:

   Application No. 2019/5366

   Review of decision that Ms Dubroja was a member of a couple with Mr Dubroja from 28 February 2012 to at least 30 June 2017 and, consequently, has a parenting payment single debt in the amount of $23,270.15 for the period from 28 February 2012 to 29 November 2013.

   Application No. 2019/5367

   Review of decision that Ms Dubroja was a member of a couple with Mr Dubroja from 28 February 2012 to at least 30 June 2017 and, consequently, has a carer payment debt in the amount of $22,798.37 for the period from 29 November 2013 to 31 October 2017.

   Application No. 2019/5368

   Review of decision that Ms Dubroja was a member of a couple with Mr Dubroja from 28 February 2012 to at least 30 June 2017 and, consequently, has a family tax benefit debt in the amount of $6,609.92 for the period from 1 July 2015 to 30 June 2016.

   Application No. 2019/5369

   Review of decision that Ms Dubroja was a member of a couple with Mr Dubroja from 28 February 2012 to at least 30 June 2017 and, consequently, has a family tax benefit debt in the amount of $7,170.87 for the period from 1 July 2016 to 30 June 2017.

4. For reference, I note the following applications were also made by Mr Dubroja:

   Application No. 2020/2512

   Review of decision that Mr Dubroja did not satisfy the qualification criteria for disability support pension in relation to his claim lodged on 17 June 2019.

   Application No. 2020/3635

   Review of decision that Mr Dubroja has a disability support pension debt in the amount of $7,217.43 for the period from 14 September 2007 to 7 October 2010.

   Application No. 2020/3671

   Review of decision that Mr Dubroja was a member of a couple with Ms Dubroja in the period from 28 February 2012 to 12 June 2014 and, consequently, has a disability support pension debt in the amount of $2,190.91.

5. These seven applications were heard together by the Tribunal on 11 and 12 August 2021. Ms Dubroja and Mr Dubroja were self-represented at the hearing; they participated in the hearing and gave oral evidence by videoconference, and Mr Dubroja was assisted by an interpreter of the Serbian language. The Secretary had legal representation at the hearing.

6. After the hearing, the Tribunal directed the Secretary to file further evidence regarding the calculation of the debts for Application No. 2019/5366 and Application No. 2020/3671; this evidence was provided by 16 September 2021, and Mr Dubroja and Ms Dubroja filed written submissions in response on 24 September 2021.

   ISSUES

7. The issues for determination by the Tribunal are:

   A.whether Ms Dubroja and Mr Dubroja are members of a couple and, if so, for what period; and

   B.resulting from issue (A), whether Ms Dubroja has debts from the overpayment of parenting payment single, carer payment and family tax benefit and, if so, whether there are any grounds for writing off or waiving all or part of the debts.

   ISSUE A: ARE MS DUBROJA AND MR DUBROJA MEMBERS OF A COUPLE AND, IF SO, FOR WHAT PERIOD?

   Background

8. Ms Dubroja (then named Ms Nives Cvencek) and Mr Dubroja commenced a relationship in 2005, when Ms Dubroja was at high school and Mr Dubroja was about 27 or 28 years old. Ms Dubroja and Mr Dubroja are the biological parents of five daughters who were born in January 2007, May 2008, March 2015, August 2016 and July 2018.

9. Ms Dubroja and Mr Dubroja assert that they separated in 2006, have ‘never married’ and are not currently members of a couple; however, they both accept they ‘tried’ to be partners for a period between about October 2017 and March 2018 for the sake of their children.[2]

   [2] Oral evidence of Ms Viktorija Dubroja on 11 August 2021 and Mr Boris Dubroja on 12 August 2021.

10. Ms Dubroja received parenting payment single from 6 January 2007 to 28 November 2013. On 12 February 2007, Mr Dubroja was injured in a motor vehicle accident and Ms Dubroja subsequently received carer allowance from 12 May 2011 (to the present) and carer payment from 29 November 2013 (to the present) in her capacity as Mr Dubroja’s carer.

11. Centrelink assessed the relationship status of Ms Dubroja and Mr Dubroja in 2007, 2008, 2013, 2014 and 2015 and, based on the available information, determined they were not members of a couple. In March 2017, Centrelink commenced a further review and, on 8 November 2017, determined Ms Dubroja and Mr Dubroja were members of a couple from 10 January 2007. On review, an authorised review officer of Centrelink decided the date Ms Dubroja and Mr Dubroja became members of a couple was 28 February 2012. This decision was affirmed by the Social Services and Child Support Division of the Tribunal on 21 August 2019.

    Relevant legislation

12. Subsection 4(2) of the Social Security Act 1991 (Cth) (the Act) provides 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.

13. Pursuant to subsection 4(3) of the Act, when forming a view on whether a person is living separately and apart from the other person on a permanent or indefinite basis, all the circumstances of the relationship are to be considered including:

    (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.

    Evidence and findings – financial aspects of the relationship

14. Residential tenancy agreements dated 20 June 2008, 28 July 2015 and 12 April 2016 show Ms Dubroja and Mr Dubroja signed these agreements as ‘joint tenants’.[3] However, the oral evidence of Ms Dubroja and Mr Dubroja is that Mr Dubroja signed the residential tenancy agreement on 20 June 2008 as ‘a guarantor’ and he did not live with her and their children. They both said that, in the period up to February 2012, Mr Dubroja lived with his parents.

    [3] Exhibit TA [24 September 2019], pages 159, 287 and 275.

15. Ms Dubroja and Mr Dubroja do not dispute that they have lived at the same address from 28 February 2012. In a Centrelink ‘Relationship Details’ form submitted by Ms Dubroja on 11 February 2013, she declared Mr Dubroja commenced living with her on ‘approximately’ 28 February 2012 after his ‘father passed away’ and ‘his family went overseas’.[4] She further declared in this form that she paid the rent, telephone, utilities and her food and household items, while Mr Dubroja gave what money ‘he can’ to the children and paid for his food and household items.[5] Ms Dubroja also declared that she owned a car registered in her name, but it was driven by Mr Dubroja as she does not ‘have a licence’.[6]

    [4] Exhibit TA [24 September 2019], page 156.

    [5] Exhibit TA [24 September 2019], page 159.

    [6] Exhibit TA [24 September 2019], page 162.

16. On 28 November 2013, Ms Dubroja completed a Centrelink ‘Relationship Details – Separated under one roof’ form in which she stated the car was owned by Mr Dubroja but they do not ‘share use of the car’ because ‘he drives’.[7] She also noted that she pays the rent and Mr Dubroja ‘helps with bills and food’ and they both pay for ‘food and housekeeping items’.[8]

    [7] Exhibit TA [24 September 2019], page 176.

    [8] Exhibit TA [24 September 2019], pages 171-172, 175.

17. Ms Dubroja and Mr Dubroja completed further Centrelink forms in 2017:

    ·In a ‘Mod P – Partner details’ form dated 9 November 2017, Mr Dubroja declared he had $0.09 in his bank account and he ‘has claimed’ but not been paid compensation.[9]

    ·In a ‘Relationship Details – Separated under one roof’ form dated 22 November 2017, Ms Dubroja declared she pays for ‘everything’ as Mr Dubroja ‘doesn’t have money’.[10]

    [9] Exhibit TA [24 September 2019], page 319.

    [10] Exhibit TA [24 September 2019], pages 330-331.

18. In view of written declarations by Ms Dubroja and Mr Dubroja and their oral evidence that Mr Dubroja ‘can’t afford to live by himself’ and has been and continues to be financially reliant on Ms Dubroja,[11] I set out the following evidence regarding Mr Dubroja’s receipt of social security and compensation payments:

    [11] For example, see Exhibit TA [24 September 2019], page 167.

    ·Mr Dubroja was in receipt of periodic compensation payments due to injuries he sustained in the motor vehicle accident on 12 February 2007 as follows:

    o12 September 2007 – 11 April 2008: $1,116.62 per month;

    o12 April 2008 – 11 April 2009: $1,163.51 per month;

    o12 April 2009 – 11 April 2010: $1,192.60 per month;

    o12 April 2010 – 23 September 2010: $1,227.19 per month;

    o24 September 2010 – 10 January 2012: $1,227.00 per month;

    o11 January 2012 – 2 February 2014: $1,260.32 per month;

    o3 February 2014 – 15 May 2014: $1,310.00 per month; and

    o16 May 2014 – 11 June 2014: $1,350.56 per month.[12]

    ·Mr Dubroja was also in receipt of disability support pension paid at the single rate and a reduced rate based on his reported compensation payments in the period from 14 September 2007 to 13 June 2014.[13]

    ·Mr Dubroja was paid a lump sum compensation payment in the amount of $925,000 on 28 March 2014.[14] As a result of this lump sum compensation payment, Centrelink notified Mr Dubroja on 17 June 2014 that he was subject to a compensation preclusion period from 12 June 2014 to 24 January 2024 and cancelled his disability support pension.

    ·An amount of ‘$80,181.10’ was deposited into Mr Dubroja’s St George bank account on 15 April 2015.[15]

    ·On 4 June 2019, the Social Services and Child Support Division of the Tribunal made a decision to waive part of Mr Dubroja’s compensation preclusion period from 4 June 2019 under section 1184K of the Act due to his ‘special circumstances’.[16] This decision explained Mr Dubroja’s receipt and expenditure of his compensation payment as follows: ‘a total of $327,000 was made available to Mr Dubroja’ and he ‘spent $30,000 on the purchase of a new car, $30,000 to visit his family living overseas, $10,000 to purchase new furniture and a washing machine’, and ‘directed $201,000’ to a person presenting as a ‘healer’ who convinced Mr Dubroja that he was patenting a device to alleviate back pain and then absconded from Australia.[17]

    ·Mr Dubroja has been paid newstart allowance from 24 June 2019.[18]

    [12] Exhibit TC [14 July 2020], page 489.

    [13] Exhibit TC [14 July 2020], page 484.

    [14] Exhibit TC [14 July 2020], page 185.

    [15] Exhibit TA [24 September 2019], page 269.

    [16] Exhibit R1.

    [17] Exhibit R1.

    [18] Exhibit TC [14 July 2020], page 769.

19. In his oral evidence to the Tribunal, Mr Dubroja variously stated that he had received ‘no compensation’, ‘only received $30,000’ and then, when directed to his bank statement, he acknowledged he had received about $80,000. It appeared Mr Dubroja believes that he has not received his compensation payment because his lawyer claimed a substantial amount for costs and the ‘healer’ to whom he gave $201,000 has absconded from Australia.

20. Mr Dubroja and Ms Dubroja have separate Medicare cards and there is no evidence that they hold joint bank accounts or joint credit cards. However, documents from St George Bank show that, as at 4 August 2017, Mr Dubroja had a bank account that was opened in 2003 and lists Ms Dubroja as a ‘signatory’.[19] In their oral evidence to the Tribunal, neither Mr Dubroja nor Ms Dubroja could identify when this signatory arrangement commenced and Ms Dubroja questioned whether she had access to Mr Dubroja’s account. Ms Dubroja said that she and Mr Dubroja always went to the bank together and he transferred money to her account: she said she only received money from Mr Dubroja in her capacity as ‘his carer’ to pay for his medical and pharmaceutical expenses.[20]

    [19] Exhibit TA [24 September 2019], page 299.

    [20] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.

21. Based on the evidence, I make the following findings of fact regarding the financial aspects of the relationship between Ms Dubroja and Mr Dubroja:

    ·There is no evidence that Ms Dubroja and Mr Dubroja have ever jointly owned real estate or any other assets, or have ever held joint bank accounts or credit cards.

    ·Ms Dubroja has independent access to Mr Dubroja’s bank account as a signatory to his account.

    ·Ms Dubroja and Mr Dubroja have been joint tenants of rental properties since 20 June 2008 and therefore, have had shared legal obligations and liabilities in respect of each other since this date.

    ·Ms Dubroja and Mr Dubroja have received separate social security payments on the basis that they are single. Mr Dubroja received periodic and lump sum compensation payments in the period from 12 September 2007 to 11 June 2014.

    ·Ms Dubroja and Mr Dubroja have shared day-to-day household expenses. In particular, they have pooled their finances and shared costs associated with their rent, groceries, utilities, household items and furniture, a car and their children since at least 28 February 2012.

22. On balance, I am satisfied these findings show that Ms Dubroja and Mr Dubroja have pooled their financial resources, including their separate social security payments and Mr Dubroja’s periodic and lump sum compensation payments, and have shared day-to-day household expenses since at least 28 February 2012.

23. I am satisfied that this factor weighs for Ms Dubroja and Mr Dubroja being members of a couple from at least 28 February 2012 to the present.

    Evidence and findings – nature of the household

24. In a carer allowance claim lodged on 19 May 2011, Ms Dubroja declared that she had provided care ‘7 days a week’ for Mr Dubroja since 12 February 2007.[21] Ms Dubroja and Mr Dubroja accept that they have resided in the same home with their children since 28 February 2012.

    [21] Exhibit TA [24 September 2019], page 148.

25. Both in documents filed with Centrelink and in their oral evidence to the Tribunal, Ms Dubroja and Mr Dubroja have consistently declared that they sleep in separate bedrooms and use separate bathrooms. Ms Dubroja has stated that the nature of her activities in the household (which involves her cooking for Mr Dubroja, cleaning the house, doing the laundry and attending medical appointments with Mr Dubroja) solely reflects her role as ‘his carer’.[22]

    [22] For example, see Exhibit TA [24 September 2019], page 327.

26. Ms Dubroja stated in a ‘Relationship Details – Separated under one roof’ form completed on 22 November 2017 that Mr Dubroja drives the children to school and they both decide ‘matters about the education and development of the children’.[23] In their oral evidence to the Tribunal, Ms Dubroja and Mr Dubroja both confirmed that he drives the children to school or the park and drives Ms Dubroja to the shops.

    [23] Exhibit TA [24 September 2019], page 333.

27. Based on the evidence before the Tribunal, I make the following findings of fact regarding the nature of Ms Dubroja and Mr Dubroja’s household:

    ·While Ms Dubroja has stated she provided daily care to Mr Dubroja from 12 February 2007 (the date of Mr Dubroja’s motor vehicle accident), there is no objective evidence that they resided together or shared a household prior to 28 February 2012.

    ·Ms Dubroja and Mr Dubroja sleep in separate bedrooms and use separate bathrooms, but otherwise share a house and share responsibilities for their five children.

    ·Ms Dubroja and Mr Dubroja have joint responsibility for making decisions about and providing support to their five children.

    ·Ms Dubroja is responsible for housework including cooking, cleaning and laundry, and Mr Dubroja is responsible for driving. It is not possible to distinguish whether these separate tasks are undertaken on the basis of the nature of their family/household, Ms Dubroja undertaking paid caring responsibilities for Mr Dubroja, or their competencies (for example, only Mr Dubroja has a driver’s licence).

1. On balance, I am satisfied these findings show that Ms Dubroja and Mr Dubroja have resided as a family with their children since 28 February 2012. I find this factor regarding the nature of the household weighs for Ms Dubroja and Mr Dubroja being in a member of a couple relationship from 28 February 2012 to the present.  

   Evidence and findings – social aspects of the relationship

2. Ms Dubroja and Mr Dubroja commenced a relationship in 2005 and separated in 2006. They told the Tribunal they have ‘never married’ and do not consider that they are ‘partners’ or in a relationship with each other.[24]

   [24] Oral evidence of Ms Viktorija Dubroja on 11 August 2021 and Mr Boris Dubroja on 12 August 2021.

3. At the hearing, Ms Dubroja said she and Mr Dubroja did not live together until 28 February 2012 after his father passed away and his mother returned to Serbia. She said Mr Dubroja lived with his parents following his motor vehicle accident in February 2007; she confirmed that she saw him every day between 2007 and 2012 either because she went to his parent’s house to provide care for him or he came to her house to see their children.

4. Ms Dubroja has received carer allowance from 12 May 2011 and carer payment from 29 November 2013 to the present for the daily care she has provided to Mr Dubroja. She has been Mr Dubroja’s correspondence nominee for Centrelink since 11 December 2012, and she also received carer allowance and was the Centrelink correspondence nominee for Mr Dubroja’s aunt for a period in 2013.[25]

   [25] Exhibit TA [24 September 2019], pages 374, 1580 and 1612.

5. In their oral evidence, both Ms Dubroja and Mr Dubroja had difficulty with describing their relationship. Ms Dubroja agreed that she has described Mr Dubroja to Centrelink as a ‘family friend (father of my children)’[26] and their relationship as ‘friends with benefits’.[27] However, Ms Dubroja repeatedly said that she is Mr Dubroja’s ‘carer’ and the ‘mother of his children’,[28] and Mr Dubroja said Ms Dubroja is his ‘friend’ and they have ‘never been married’ but ‘we said that we would be together [in 2017], whatever that is called in that relationship’.[29] They gave limited information about how their families or any friends view their relationship: Ms Dubroja refused to discuss her relationship with her family at the hearing and said Mr Dubroja’s family accept she is ‘his carer’ and the ‘mother of his children’.[30]

   [26] Exhibit TA [24 September 2019], page 148.

   [27] Exhibit TA [24 September 2019], page 349.

   [28] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.

   [29] Oral evidence of Mr Boris Dubroja on 12 August 2021.

   [30] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.

6. This oral evidence contrasts with documentary evidence before the Tribunal that shows Ms Dubroja and Mr Dubroja declared they:

   ·present to their children that they are in a relationship;[31]

   [31] Exhibit TA [24 September 2019], page 333.

   ·present to their children’s school as members of a couple;[32]

   ·present to treating medical practitioners as a couple; for example, Dr Gregory Natale (Mr Dubroja’s general practitioner since 2007) has referred to Ms Dubroja as Mr Dubroja’s ‘wife’ in medical reports, and Dr WGD Patrick (medico-legal specialist) referred to Ms Dubroja as Mr Dubroja’s ‘partner’ and reported ‘they have been together from 2012, but subsequently separated and living under the same roof’;[33]

   ·have presented to the Social Services and Child Support Division of the Tribunal as married; for example, the decision made in relation to Mr Dubroja in the Social Services and Child Support Division dated 4 June 2019 stated:

   oMr Dubroja ‘lives with his wife and their five daughters’;

   o‘Mr Dubroja’s own and his wife’s parents did not approve of their marriage… [and his] wife is estranged from her family as a consequence of their marriage’; and

   oMr Dubroja used part of his lump sum compensation payment to pay for him, Ms Dubroja and their children to travel to Serbia to visit his mother and family in 2014;[34]

   ·have referred to each other as ‘spouse’ in forms completed and filed with the Social Services and Child Support Division of the Tribunal;[35] and

   ·have used the same email address and mobile phone contact for their separate applications to the General Division of the Tribunal.

   [32] Exhibit TA [24 September 2019], page 333.

   [33] Exhibit A10, 27 August 2020 and Exhibit A8.

   [34] Exhibit R1.

   [35] Exhibit TB [18 May 2020], page 281.

7. The oral evidence of Ms Dubroja and Mr Dubroja that they have been separated since 2006 also contrasts with Ms Dubroja changing her name with the NSW Registry of Births, Deaths and Marriages from ‘Nives Cvencek’ to ‘Viktorija Dubroja’ on 13 November 2013.[36] Ms Dubroja told the Tribunal she changed her name because she does not ‘have contact with her family’ and wanted to have ‘the same surname as her children’.[37]

   [36] Exhibit TA [24 September 2019], page 183.

   [37] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.

8. Based on the evidence, I make the following findings of fact regarding the social aspects of the relationship between Ms Dubroja and Mr Dubroja:

   ·Ms Dubroja and Mr Dubroja have presented as being married or in a de facto relationship with each other to their children, their children’s school, medical practitioners, the Social Services and Child Support Division and the General Division of the Tribunal.

   ·Ms Dubroja legally changed her surname in 2013 to be the same surname as Mr Dubroja and their five children.

   ·There is no objective evidence from any friends, associates, family members or community members that describe the social aspects of the relationship between Ms Dubroja and Mr Dubroja.

   ·There is no objective evidence to show that Ms Dubroja and Mr Dubroja do not engage in joint social activities, to the extent that they make plans for any social activities.

9. Weighing the relevant evidence, I am satisfied the social aspects of their relationship show Ms Dubroja and Mr Dubroja have been members of a couple since at least 28 February 2012 to the present.

   Evidence and findings – any sexual relationship between the people

10. Ms Dubroja and Mr Dubroja have five children born between January 2007 and July 2018.

11. Despite these circumstances, Ms Dubroja and Mr Dubroja dispute that they have, or have had a sexual relationship. They separately told the Tribunal that they only had sexual intercourse on five occasions, which resulted in Ms Dubroja becoming pregnant. I find this oral evidence highly improbable, particularly in view of Ms Dubroja’s description of their relationship to Centrelink in 2019 as ‘friends with benefits’.[38]

    [38] Exhibit TA [24 September 2019], page 349.

12. I am satisfied this factor weighs in support of Ms Dubroja and Mr Dubroja being members of a couple from prior to the birth of their first child in January 2007 to the present.

    Evidence and findings – the nature of the people's commitment to each other

13. In their oral evidence to the Tribunal, neither Ms Dubroja nor Mr Dubroja gave any indication that they have been in extended relationships with other people. Ms Dubroja said she was involved in a relationship with another person for two to three months in 2008, but the relationship ‘ended badly’.[39] She also said that she does not see herself meeting or being in a relationship with anyone else until their ‘children are teenagers’.[40] Ms Dubroja said her idea of a partner was someone with whom she would ‘share a bedroom, love and care for, and share emotions’, and said she only shares a house with Mr Dubroja because she is ‘his carer’ and it is part of her ‘religious beliefs’ to look after the father of her children.[41]

    [39] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.

    [40] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.

    [41] Oral evidence of Ms Viktorija Dubroja on 11 August 2021.

14. While Ms Dubroja and Mr Dubroja state they are not married or in a de facto relationship, the inconsistent and contrary nature of their evidence creates difficulties in understanding and identifying the nature of their commitment to each other. Despite these difficulties, I am satisfied the evidence supports the following findings about the nature of their commitment:

    ·Ms Dubroja and Mr Dubroja have maintained a continuous relationship from 2005 to the present, which has involved raising five children together. Their five children were born over an 11-year-period and they have lived together in a house with their children since 28 February 2012.

    ·Ms Dubroja has provided care for Mr Dubroja since his motor vehicle accident on 12 February 2007. She has been paid carer allowance since 2011 and carer payment since 2012 in relation to the care she provides Mr Dubroja.

    ·There is no evidence that the relationship between Ms Dubroja and Mr Dubroja, such as the nature of their household and the financial and social aspects of their relationship, is expected to change in the near future.

15. Weighing the evidence, I am satisfied that the nature of commitment between Ms Dubroja and Mr Dubroja shows that they have been in a member of a couple relationship from at least 28 February 2012 to the present.

    Conclusion

16. Considering all the evidence before the Tribunal, I am satisfied that Ms Dubroja and Mr Dubroja have been members of a couple in accordance with the circumstances set out in subsection 4(3) of the Act from 28 February 2012 to the present.

17. In making this decision, I observe that the information in documents, written statements and Centrelink forms completed by Ms Dubroja and Mr Dubroja is contradictory and inconsistent. Further, despite Centrelink asking questions about their relationship since at least 2007, Ms Dubroja and Mr Dubroja have never provided any objective evidence, such as statements from family members or members of the community, to verify that they have not been in a relationship. Finally, I found the oral evidence of Ms Dubroja and Mr Dubroja to the Tribunal to be ambiguous, evasive and, at times, belligerent and implausible, and this raises significant questions about credibility of their evidence.

    Is there a reason to not treat Ms Dubroja and Mr Dubroja as members of a couple pursuant to section 24 of the Act?

18. For completeness, I note the provisions of subsection 24(1) of the Act state that a person may be treated as not being a member of a couple (as defined in subsection 4(2) of the Act) where:

    (a)  a person is legally married to another person; and

    (b)  the person is not living separately and apart from the other person on a permanent or indefinite basis; and

    (c)   the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple.

19. I am satisfied these provisions are not applicable to the circumstances of Ms Dubroja and Mr Dubroja because they have declared they are not legally married and, therefore, they cannot meet the mandatory requirement in paragraph 24(1)(a) of the Act.[42]

    ISSUE B: DOES MS DUBROJA HAVE PARENTING PAYMENT SINGLE, CARER PAYMENT AND FAMILY TAX BENEFIT DEBTS?

    [42] Oral evidence of Ms Viktorija Dubroja on 11 August 2021 and Mr Boris Dubroja on 12 August 2021.

    Background

20. Ms Dubroja received parenting payment single from 6 January 2007 to 28 November 2013 and was paid carer payment at the single rate from 29 November 2013 to 31 October 2017.

21. Ms Dubroja was paid family tax benefit in the 2015–2016 and 2016–2017 financial years based on meeting the reconciliation requirements as a single parent.

    Relevant legislation – parenting payment and carer payment

22. Statutory requirements relevant to the calculation of parenting payment and carer payment, the overpayment of a social security payment and reporting requirements are set out in the Act and the Social Security (Administration) Act 1999 (Cth) (the Administration Act).

23. The rate of parenting payment is calculated in accordance with section 1068A of the Act where a person is not a member of a couple (parenting payment single) and section 1068B of the Act where a person is a partnered (parenting payment partnered); while the rate of carer payment is calculated in accordance with the provisions in section 1064 of the Act. Relevantly, the partnered rate of parenting and carer payments is less than the single rate because it is expected members of a couple will pool their resources and share expenses.

24. Pursuant to section 1223 of the Act, 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.

25. The Administration Act stipulates the statutory reporting obligations of a person who is receiving a social security payment. Sections 68 and 72 of the Administration Act state that Centrelink can provide a person written notice that requires them to inform Centrelink if a specified event or change of circumstances occurs that may affect their payment.

    Relevant legislation – family tax benefit

26. The relevant legislation in relation to a person’s entitlement to family tax benefit is A New Tax System (Family Assistance) Act 1999 (Cth) (the Family Assistance Act) and A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (the Family Assistance Administration Act).

27. The rate a person is paid family tax benefit is calculated in accordance with Schedule 1 to the Family Assistance Act. Family tax benefit is calculated as an annual entitlement and paid on the basis of a person’s estimate of their adjusted taxable income – or their combined adjusted taxable income if they are a member of a couple – for the coming financial year. At the end of each financial year, Centrelink reconciles the estimated taxable income with a person’s actual taxable income as assessed by the Australian Taxation Office.

28. Relevantly, a person who receives family tax benefit is required to lodge an income tax return or advise Centrelink if they and/or their partner are not required to lodge. If a person and/or their partner fails to either lodge an income tax return or inform Centrelink they are not required to lodge a tax return by the end of the lodgement year, a ‘non-lodger’ debt will be raised.

29. Section 25 of the Family Assistance Administration Act requires a person to inform Centrelink about matters that may affect their entitlement to family tax benefit.

30. Section 71 of the Family Assistance Administration Act states that an overpayment of family tax benefit is a debt to the Commonwealth. Provisions to write off or waive a debt are set out in sections 95, 97 and 101 of the Family Assistance Administration Act.

    Evidence and findings

31. Based on the evidence set out in the Centrelink records, I am satisfied that Ms Dubroja was paid:

    ·parenting payment single from 6 January 2007 to 28 November 2013; and

    ·carer payment at the single rate from 29 November 2013 to 31 October 2017.

32. For the reasons set out at paragraphs eight to 44 above, I find that Ms Dubroja was a member of a couple with Mr Dubroja from 28 February 2012 to the present.

33. I have had regard to debt calculations in relation to Ms Dubroja’s entitlement to parenting payment. Based on these calculations, I am satisfied that Ms Dubroja was paid parenting payment in the period from 28 February 2012 to 28 November 2013 at the single rate but, as a member of a couple, she was only entitled to be paid at the partnered rate.

34. Relevantly, the Secretary filed a ‘MultiCal – Centrelink Debt Calculator’ report on 8 September 2021 that showed Ms Dubroja was paid parenting payment in the amount of $31,696.55 but only entitled to $15,693.43 during the period from 28 February 2012 to 28 November 2013. This means that she was overpaid parenting payment in the amount of $16,003.12.[43]

    [43] Recalculation of debt 2019/5366: ‘MultiCal – Centrelink Debt Calculator’, 8 September 2021.

35. I find that Ms Dubroja was overpaid parenting payment in the amount of $16,003.12 for the period from 28 February 2012 to 28 November 2013, and this amount is a debt to the Commonwealth in accordance with section 1223 of the Act.

36. I have also had regard to debt calculations for Ms Dubroja’s carer payment. I am satisfied that Ms Dubroja was overpaid carer payment in the amount of $22,798.37 for the period from 29 November 2013 to 31 October 2017 because, as a member of a couple, she was not entitled to be paid at the single rate.[44] I find the amount of $22,798.37 is a debt to the Commonwealth in accordance with section 1223 of the Act.

    [44] Exhibit TA [24 September 2019], pages 720-734.

37. Records in the Centrelink files show the re-reconciliation of Ms Dubroja’s entitlement to family tax benefit for the 2015–2016 and 2016–2017 financial years on the basis that she was a member of a couple with Mr Dubroja and he did not inform Centrelink within the statutory timeframe about his income details. I have had regard to these re-reconciled calculations and am satisfied that Ms Dubroja was overpaid family tax benefit in the amounts of:

    ·$6,609.96 for the period from 1 July 2015 to 30 June 2016; and

    ·$7,170.97 for the period from 1 July 2016 to 30 June 2017.[45]

    [45] Exhibit TA [24 September 2019], pages 392-485.

38. I find these amounts are debts to the Commonwealth pursuant to section 71 of the Family Assistance Administration Act.

    Are there are any grounds for writing off or waiving all or part of the debts?

39. As a general rule, a person must repay a debt to the Commonwealth. However, in certain situations, the requirement to repay a debt may be written off, which means that repayment of the debt is postponed for a definite or indefinite period, or waived, meaning that the debt does not need to be repaid.

40. Section 1236 of the Act stipulates the circumstances for Ms Dubroja’s parenting payment single debt and carer payment debt to be written off: subsection 1236(1A) states that a debt may be written off if it is irrecoverable at law, the person has no capacity to repay it, the person’s whereabouts are unknown, or it is not cost-effective to try and recover the debt. Section 95 of the Family Assistance Administration Act sets out similar circumstances for writing off Ms Dubroja’s family tax benefit debts: subsection 95(2) states that a debt may be written off if it is irrecoverable at law, the person has no capacity to repay it or their whereabouts are unknown, or it is not cost-effective to recover the debt. These provisions further state that a person is taken to have capacity to repay a debt unless it would cause them to experience ‘severe financial hardship’.

41. There is no evidence before the Tribunal to show any of these circumstances exist and I find that Ms Dubroja’s debts should not be written off.

42. Section 1237A of the Act and section 97 of the Family Assistance Administration Act state that a debt can be waived if the overpayment is attributable solely to administrative error by the Commonwealth and the person received the payments in good faith. Section 97 of the Family Assistance Administration Act also requires consideration of whether repayment of the debt would cause the person ‘severe financial hardship’ in situations where the debt was raised within the current or subsequent financial year.

43. Considering all the evidence, I am satisfied that Ms Dubroja’s parenting payment, carer payment and family tax benefit debts arose because she informed Centrelink that she was not a member of a couple with Mr Dubroja in the period from 28 February 2012 to 31 October 2017. I find no evidence to show that Ms Dubroja’s debts arose solely due to administrative error by Centrelink.

44. In making this decision, I note that Centrelink made assessments regarding the relationship between Ms Dubroja and Mr Dubroja in 2007, 2008, 2013, 2014 and 2015, and determined on each of these occasions that they were not in a member of a couple relationship on the basis of the information provided by Ms Dubroja and Mr Dubroja at the time. I am satisfied that, considering all the evidence before this Tribunal, the information provided by Ms Dubroja and Mr Dubroja to Centrelink has included inaccurate and misleading statements about the nature of their relationship.  

1. Consequently, I am satisfied there is no evidence to waive Ms Dubroja’s parenting payment and carer payment debts pursuant to section 1237A of the Act, or to waive Ms Dubroja’s family tax benefit debts under section 97 of the Family Assistance Administration Act.

2. Section 1237AAD of the Act and section 101 of the Family Assistance Administration Act provides that all or part of a debt may be waived in ‘special circumstances’. This waiver can only apply where:

   ·the debt did not result wholly or partly from a person ‘making a false statement or false representation’ or failing to comply with a provision of the Act; and

   ·there are circumstances ‘other than financial hardship alone’ that are deemed ‘special’ and make it desirable to waive the debt; and

   ·it is more appropriate to waive rather than write off the debt.

3. The term ‘special circumstances’ is not defined in the legislation; however, decisions by the Tribunal and the Federal Court have considered the issue of special circumstances on many occasions. In each case, the particular circumstances of the situation were examined to determine whether the circumstances were such that it would be unjust, unreasonable or inappropriate for the debt to be recovered. Therefore, the consideration of special circumstances requires deliberation as to whether there are circumstances in the particular case that suggest an exception should be made and the usual rule should not apply: see, for example, Dranichnikov v Centrelink [2003] FCAFC 133 at [65]-[66]; see also Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33].

4. Consistent with my observations at paragraphs 44 and 71 above, I have significant concerns about the integrity of the evidence presented by Ms Dubroja and Mr Dubroja to Centrelink and this Tribunal. I find the written statements and declarations by Ms Dubroja and Mr Dubroja over the period from 2007 to 2021 contained inconsistent and contradictory information, and their oral evidence to the Tribunal was ambiguous, evasive and, at times, implausible. I am satisfied that this finding raises a clear question about the extent to which Ms Dubroja’s debts resulted from her providing misinformation about the nature of her relationship with Mr Dubroja to Centrelink.

5. I further note that a debt can only be waived by reason of special circumstances where there are circumstances in addition to financial hardship; this means that financial hardship on its own is not sufficient to make a finding of special circumstances.

6. Ms Dubroja confirmed at the Tribunal hearing that she continues to receive carer payment, carer allowance and family tax benefit, and Mr Dubroja is in receipt of jobseeker payment; their combined social security payments total more than $2,700 per fortnight.

7. Ms Dubroja also told the Tribunal that she has experienced health issues with her thyroid and subsequently filed medical documents that showed she attended hospital for separate surgeries in December 2020 and May 2021. Ms Dubroja provided no other evidence about either her situation or the circumstances of her five children.

8. While I accept Ms Dubroja has recently experienced a difficult period with her health, I do not find these circumstances are to a level that the usual rule should not apply or that it is unreasonable for Centrelink to recover her debts. In particular, I find there is no evidence that Centrelink withholding minimum fortnightly payments from Ms Dubroja’s social security payments would cause her or her children financial hardship.

9. Weighing my findings in relation to all the evidence, I am satisfied there are no special circumstances that support waiving Ms Dubroja’s parenting payment and carer payment debts pursuant to section 1237AAD of the Act, or her family tax benefit debts in accordance with section 101 of the Family Assistance Administration Act.

   DECISIONS

   Application No. 2019/5366

10. The Tribunal sets aside the decision under review and, in substitution, decides that:

    ·Ms Viktorija Dubroja has been a member of a couple with Mr Boris Dubroja pursuant to subsection 4(2) of the Social Security Act 1991 (Cth) from 28 February 2012 to the present.

    ·Ms Viktorija Dubroja has a parenting payment single debt in the amount of $16,003.12 for the period from 28 February 2012 to 28 November 2013, which is to be repaid to the Commonwealth in accordance with section 1223 of the Social Security Act 1991 (Cth).

    Application No. 2019/5367

11. The Tribunal affirms the decision under review.

    Application No. 2019/5368

12. The Tribunal affirms the decision under review.

    Application No. 2019/5369

13. The Tribunal affirms the decision under review.
    

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

.............................[SGD]...................................

Associate

Dated: 30 September 2021

Date(s) of hearing:	11 and 12 August 2021
Date final submissions received:	24 September 2021
Applicant:	In person
Solicitors for the Respondent:	Dr Stephen Thompson, Sparke Helmore Lawyers