Dunford and Department of Family and Community Services
[2001] AATA 902
•24 October 2001
DECISION AND REASONS FOR DECISION [2001] AATA 902
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2001/18
GENERAL ADMINISTRATIVE DIVISION )
Re RODNEY DUNFORD
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr. D.W. Muller, Senior Member
Date24 October 2001
PlaceDarwin
Decision The Tribunal varies the decision under review and determines that: (1) RODNEY DUNFORD received, pursuant to the provisions of the Social Security Act 1991 (the Act), certain social security benefits between 6 July 1999 and 29 September 2000 to which he was not entitled, namely: (a) Parenting Payment Partnered of $7,637.83 between 17 June 1999 and 22 June 2000. (b) Parenting Payment Partnered of $2,250.09 between 6 July 2000 and 28 September 2000. (c) Family Allowance of $5,618.04 between 17 June 1999 and 29 June 2000. (d) Family Tax Benefit of $1,201.29 between 13 July 2000 and 21 September 2000. (2) The said social security payments constitute overpayments and a debt to the Commonwealth pursuant to the said Act. (3) The right of the Commonwealth to recover the said debt is waived in relation to any overpayment received by RODNEY DUNFORD after 17 April 2000, pursuant to s.1237A(1) of the said Act. (4) The decision under review is otherwise affirmed. (5) The matter is remitted to the respondent to calculate that portion of the debt which is recoverable from the applicant.
.............(Signed).................................
D.W. MULLER
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – Right to recover debt waived – administrative error
Social Security Act 1991: s.1237A(1)
REASONS FOR DECISION
Mr. D.W. Muller, Senior Member
This is an application to review a decision to raise and recover an overpayment of the following social security benefits:
(a)Parenting Payment Partnered of $7,637.83 between 17 June 1999 and 22 June 2000.
(b)Parenting Payment Partnered of $2,250.09 between 6 July 2000 and 28 September 2000.
(c)Family Allowance of $5,618.04 between 17 June 1999 and 29 June 2000.
(d)Family Tax Benefit of $1,201.29 between 13 July 2000 and 21 September 2000.
The Tribunal relies on the material in the section 37 statement, the Social Security Appeals Tribunal decision, plus a statement by a former employee of Centrelink who had extensive dealings with the applicant between January 2000 and June 2000. The Tribunal finds as follows:
(a)Orion Ryu Saito-Dunford (Orion) was born at Cairns Base Hospital on 11 April 1999. His mother Aya Saito is now, and was at all relevant times, a Japanese citizen. His father, the applicant, is an Australian citizen.
(b)On 13 April 1999 the applicant lodged with Centrelink an application for Family Allowance (FA), maternity allowance and family tax payment (FTP). The mother countersigned his application. In it he declared that he and the mother had been living together in a defacto relationship since 20 November 1998. Following this application Centrelink wrote to the applicant on the same day informing him that a maternity allowance payment of $750.00 had been sent to his account and that as from 22 April 1999 he would be paid $200.19 per fortnight made up as to $99.00 FA, $26.94 FTP and $74.25 as rent assistance. This letter also told the applicant that he must let them know within 14 days if any of certain events occurred. One such event was if one of his dependents stopped living with him or left Australia even for a short time.
(c)The next day, 14 April 1999, Mr. Dunford lodged with Centrelink an application for Parenting Payment Partnered (PPP). This was signed by him and countersigned by Aya, the mother, the previous day, 13 April 1999. In this form he declared that Orion was his dependent child and in his care. He further stated in his reply to question three that neither he nor his partner had lived outside Australia. The same day, 14 April 1999, Centrelink wrote and told the applicant he would be paid PPP at the rate of $293.80 per fortnight as from 22 April 1999. This letter also advised him that he must let Centrelink know within 14 days if he or any of his dependent children left Australia.
(d)On 7 June 1999, Aya Saito left Australia and took Orion with her to Japan. They stayed in Japan until 5 April 2000 when they came back to Australia. Aya Saito left the applicant and Australia in June 1999 because she was frightened of the applicant. He had behaved very badly towards her.
(e)Mr. Dunford lodged a parenting payment review form with Centrelink on 15 June 1999. Aya and himself had signed this on 14 May 1999. In their reply to the question "Have any of the details of your dependent children (under 16 years of age) changed? (e.g. child has left your care, child overseas". They ticked the 'No' box. He did not inform Centrelink that his partner and child had left Australia.
(f)During the absence of Aya Saito and Orion from Australia, the applicant regularly telephoned Aya Saito and eventually persuaded her to return to Australia. She returned with Orion on 5 April 2000. However, the applicant's behaviour towards her was not of sufficient improvement to entice her to stay. She left Australia with Orion and returned to Japan on 17 April 2000.
(g)On or about 17 April 2000, the applicant went to the Centrelink office in Cairns. He spoke to an officer there and told her the following:
(i)He had a Japanese partner and they had a child. (He may have shown her a photograph of the child.)
(ii)He had intended to go to court to stop his partner going overseas with his child. He had seen a solicitor for advice. He was going to the Family Court which was located three floors above the Centrelink office in the same building.
(iii)He later told the officer that his partner and child had just left for overseas. He had not obtained his order in time to prevent his partner leaving with his child. His partner had gone to the Cairns airport with a police escort.
(iv)He hoped to go to Japan to convince his partner to return to Australia.
(h)The Centrelink officer explained the portability provisions relating to the benefits and went on to say that Mr. Dunford would not receive payment for a child who was overseas for more than 26 weeks.
(i)Mr. Dunford continued to receive the benefits set out above, until they were cancelled on 29 September 2000.
The Tribunal is satisfied that the applicant received the benefits set out in paragraph 1 above and that he was not entitled to receive them because his partner and his son were not living in Australia during the periods for which the payments were made. He did not have the care and control of his son while his partner and his son were out of Australia. The brief stay of Aya Saito and Orion in Australia from 5 April 2000 to 17 April 2000 has been taken into account and allowed for in the calculations.
The Tribunal is satisfied that the payments were overpayments and constitute a debt to the Commonwealth.
The Tribunal is satisfied that on or about 17 April 2000 the applicant gave the full details of his situation to Centrelink and that he was given to understand that he would be entitled to receive the benefits for the first 26 weeks that his partner and son were living outside Australia.
The Tribunal is satisfied that the applicant continued to be paid benefits after 17 April 2000 due solely to administrative error and that the applicant received those benefits in good faith.
The Tribunal varies the decision under review by waiving the right of the Commonwealth to recover those overpayments which resulted from payments being made to the applicant after 17 April 2000, pursuant to section 1237A(1) of the Social Security Act 1991, which provides:
"1237A(1) Administrative error. Subject to subsection (1A), 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."
I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. D.W. Muller, Senior Member
Signed: .....................................................................................
B. Hitchcock, SecretaryDate/s of Hearing 24 October 2001
Date of Decision 24 October 2001
Applicant No appearance
Respondent Mr. P. Kanowski, departmental advocate
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