Fleming and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 907
•10 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 907
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/3960
GENERAL ADMINISTRATIVE DIVISION ) Re KELLY FLEMING Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date10 October 2008
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ...............[Sgd]...............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, Benefits & Allowances – parenting payment single – member of a couple – debt due to Commonwealth – whether debt should be waived or written off – no special circumstances – decision under review affirmed.
Social Security Act 1991 ss 4(1), 4(2), 4(3)
Pelka v Secretary, Department of Family Community Services (2006) 151 FCR 546
Auckland Harbour Board v R [1942] AC 318
Secretary, Department of Social Security v Hales (1998) 51 ALD 695
REASONS FOR DECISION
10 October 2008 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. From 1 January 2003 until 28 February 2007 (“the relevant period”) parenting payment had been made to Ms Kelly Fleming in the amount of $26,541.26. Centrelink have made a decision to raise and recover a parenting payment debt in the amount of $26,541.26. There are a number of issues that I have to consider in determining this application of Ms Fleming. I essentially have to consider whether during the relevant period Ms Fleming was a member of a couple under social security law: this requires me to consider the evidence before me and to form an opinion as to whether she was during that period in a marriage-like relationship with Mr Dean Hardie. I also have to decide whether Ms Fleming has been overpaid parenting payment for some or all of the relevant period and, if so, whether Ms Fleming owes a debt to the Commonwealth for the amount of that overpayment. If I consider that Ms Fleming does owe a debt to the Commonwealth, I must also decide whether it is appropriate for the debt to be written off or waived.
BACKGROUND
2. On 14 June 2000 Ms Fleming’s child was born.[1] Mr Hardie is not the father of the child. On 3 July 2000 she made a claim for Parenting Payment Single. On 13 July 2000, Centrelink granted Ms Fleming Parenting Payment Single and backdated payments of that benefit to when the child was born.
[1] To protect the privacy of the child, in these reasons I do not mention the name, sex or the actual address of the child.
3. On 20 August 2001, Ms Fleming moved to Coffs Harbour and purchased a property at Coffs Harbour. She informed Centrelink of her change in address and circumstances. On 1 June 2004, Centrelink received an anonymous call that Ms Fleming and Mr Dean Hardie were in a marriage-like relationship and were residing together at the Coffs Harbour property.
4. On 6 June 2004, Ms Fleming informed Centrelink that she had moved and now resided at a rented property at Christine Avenue, Burleigh Waters.
5. On 23 June 2004, Ms Fleming advised Centrelink that the Coffs Harbour property was being rented. A file note of that telephone call to Centrelink records that Ms Fleming advised Centrelink that the mortgage of the Coffs Harbour property was in the joint names of Mr Hardie and herself.
6. In April 2005, Ms Fleming sold the Coffs Harbour property and in or about 29 April 2005, Ms Fleming purchased and moved into a current property at the Gold Coast. Ms Fleming informed Centrelink of her change of address on 20 April 2005.
7. On 2 March 2007, the applicant completed an Assessment of Living Arrangements questionnaire in which she describes her relationship with Mr Hardie as a ‘friend’.
8. On 6 March 2007, Centrelink assessed Ms Fleming as being a member of a couple for social security purposes. That decision was confirmed on 17 April 2007. On 2 May 2007 an authorised review officer of Centrelink affirmed the decision that Ms Fleming was a member of a couple for social security purposes. Ms Fleming sought a review of this decision.
9. On 26 July 2007, the authorised review officer made a decision that Ms Fleming was overpaid Parenting Payment Single during the relevant period for $26, 541.26.
10. On 9 August 2007 the Social Security Appeals Tribunal affirmed the decision of the authorised review officer. Ms Fleming now seeks review of that decision by this Tribunal.
LEGISLATION
11. I have to decide whether Ms Fleming is a “member of a couple” under s 4(1) of the Social Security Act 1991 (“the Act”).
12. For Ms Fleming to be a “member of a couple” all of the conditions in s 4(2)(b) must be met. It is not in issue that conditions (ii), (iv) and (v) in s 4(2)(b) are met.
13. The only conditions in s s 4(2)(b) that are in issue in this application are conditions (i) and (iii). These conditions are whether Ms Fleming ‘has a relationship with a person of the opposite sex’ (s 4(2)(b)(i)) and whether ‘the relationship … is, in the Secretary’s opinion … a marriage-like relationship’ (s 4(2)(b)(iii)).
14. Section 4(3) of the Act state that, when forming an opinion as to whether the applicant was in a marriage-like relationship, the Secretary is to have regard to all the circumstances of the relationship, including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship.
15. I have to decide whether during the relevant period Ms Fleming was in a marriage-like relationship with Mr Hardie.
CONSIDERATION
16. There are a number of Tribunal decisions on the application of the marriage-like relationship provisions. However, in considering this application I am conscious of the importance of having regard to the terms of s 4(2) and s 4(3) of the Act. The Federal Court of Australia has recently remarked that “the actual words of the legislation should provide the primary point of reference”.[2]This accords with the observations of French J in Pelka v Secretary, Department of Family Community Services[3] that it would “be multiplying discussion of various factual situations to canvass their decisions”.[4]
[2] Australian Securities and Investments Commission v PTLZ [2008] FCAFC 164 at [34] per North and Downes JJ. See also Shi v Migration Agents Registration Authority (2008) 82 ALJR 1147 at 1163, [92]; [2008] HCA 31 at [92] per Hayne and Heydon JJ.
[3] (2006) 151 FCR 546.
[4] (2006) 151 FCR 546 at 555.
17. I will set out the evidence that I consider to be relevant in the consideration of the individual headings in s 4(3) of the Act. I have also considered the various factors listed under each heading in s 4(3) of the Act. I will then state my conclusion on the matters that I must consider under s 4(2) of the Act.
FINANCIAL ASPECTS OF THE RELATIONSHIP
18. I am required under s 4(3)(a) of the Act to consider the “financial aspects of the relationship”. I consider that the financial aspects of the relationship points strongly towards the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
19. There is evidence before me that Mr Hardie pays monthly repayments of $1,320 per month in respect of a mortgage over Ms Fleming’s home.[5] This is important to consider in evaluating the financial aspects of the relationship between the parties as also is the fact that Mr Hardie paid for the applicant to complete a Real Estate Training Course.[6] I consider that these payments are of significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[5] Exhibit A: T35, fols 132-133.
[6] Exhibit A: T 52, fol 237.
20. There is also evidence before me that Ms Fleming guaranteed a loan for Mr Hardie which he is unable to repay.[7] I am of the opinion that this guarantee comes within the ambit of s4 (3)(a)(iii) of the Act being a legal obligation owed by one person in respect of the other person. I regard this guarantee to be of significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[7] Exhibit A: T35, fols 135-136.
21. The Secretary has contended that Ms Fleming and Mr Hardie are also joint owners of a car. Ms Fleming in a questionnaire has estimated that the vehicle was worth $5000. [8] In view of the value of the vehicle I decline to find that the vehicle is a “major asset” within the meaning of s 4(3)(a)(i) of the Act.
[8] Exhibit A: T35, fol 134.
22. Ms Fleming and Mr Hardie made joint loan applications on 8 November 2003 and 1 February 2004.[9] Ms Fleming’s home was security under the loans. Ms Fleming informed the Social Security Appeals Tribunal that the 2004 loan was made for the purpose of purchasing vehicles for Mr Hardie and herself.[10] I regard these loan applications to be of significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[9] Exhibit A: T43 fol 174 and 188.
[10] Exhibit A: T2, fol 6.
23. The Secretary contended that the applicant’s responses to the questionnaire indicate a joint pooling of finances. Any “significant pooling of financial resources” is a matter that I must certainly have regard to under s 4(3)(a)(ii) of the Act. At the hearing I expressed the view that there was no evidence before me of any such pooling of resources and I gave the Secretary leave to make further submissions in respect of this issue. The Secretary in written submissions has, quite properly, acknowledged that some facts of the cases are more indicative of a household barter system rather than a system of pooling.
24. I do not consider that there is any “significant pooling of financial resources” in the terms of s 4(3)(a)(ii) of the Act. I have been guided by the observations of French J in Pelka v Secretary, Department of Family Community Services[11] that the ordinary dictionary meaning of the word “pool” is to put resources into a common stock or fund”.[12] His Honour thought that pooling “plainly involves something more than financial cooperation or separate contributions to different elements of household expense”.[13] I also mention that the Act requires me to consider whether pooling applies “especially in relation to major financial commitments”. In my view there is no such major financial commitment which comes within the spirit of the Act.
[11] (2006) 151 FCR 546.
[12] (2006) 151 FCR 546 at 556.
[13] Pelka v Secretary, Department of Family Community Services (2006) 151 FCR 546 at 556.
25. I am also, under s 4(3)(a)(iv), of the Act required to consider “the basis of any sharing of day-to-day household expenses”. There is evidence before me that Ms Fleming and Mr Hardie do in fact share the household expenses. Ms Fleming pays the electricity and home telephone. Mr Hardie does assist in the payment of some bills if he has “money left over”.[14] Ms Fleming informed the Social Security Appeals Tribunal that Mr Hardie will pay for groceries. There is in my view evidence that there is the “sharing of day-to-day household expenses”. I regard this sharing of day-to-day household expenses to be of significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[14] Exhibit A: T35, fol 136.
NATURE OF THE HOUSEHOLD
26. I am required under s 4(3)(b) of the Act to consider the “nature of the household”. I do not consider that the nature of the household indicates the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
27. One matter that I have to consider under s 4(3)(b)(i) of the Act is “any joint responsibility for providing care or support of children”. There is evidence before me that Mr Hardie has forged a loving relationship with Ms Fleming’s child. Ms Fleming has stated that her child “loves Dean like a father”.[15] Ms Fleming has also stated that ‘Dean will pick [name of child deleted] up from school & drop him off occasionally.’[16] Whilst these remarks are evidence that Mr Hardie does provide assistance and support to the child, I do not place great weight upon those remarks in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[15] Exhibit A: T38, fol 157.
[16] Exhibit A: T35, fol 139.
28. One matter that I have to consider under s 4(3)(b)(ii) of the Act is “the living arrangements of the people”. Ms Fleming in her evidence stated that she does not share a bedroom with Mr Hardie. She stated that she sleeps on a futon bed in the living room and that Mr Hardie slept in the master bedroom. Ms Fleming has been consistent in her contention that she and Mr Hardie do not share a bedroom. The Secretary has submitted that I should not accept Ms Fleming’s claim that she continues to sleep on a futon in the living room indefinitely, when there is a spare room available in the home. I am, however, prepared to accept the evidence that Ms Fleming gave at the hearing before me that the gym equipment is in the spare room. This explanation is consistent with her earlier statement in a questionnaire that the “Spare room is cluttered with stuff & exercise stuff”.[17] I do not consider that the living arrangements indicate the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[17] Exhibit A: T35 fol 132.
SOCIAL ASPECTS OF THE RELATIONSHIP
29. I must under s 4(3)(c) of the Act consider the “social aspects of the relationship”. I consider that the social aspects of the relationship points strongly towards the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
De facto relationship
30. In considering the application of s 4(3)(c) of the Act I have had regard to whether the parties hold themselves out to be in a de facto relationship. I have taken the view that this is a matter to be considered under this paragraph.
31. In respect of s 4(3)(c) of the Act I have had regard to the fact that in 2005 Ms Fleming and Mr Hardie both executed a cohabitation agreement: in that agreement it states that the parties have “commenced cohabitation as a defacto couple in 2002.”[18] That agreement also contains the statement that the parties “do not intend to marry at this time and intend to reside as a defacto couple”.[19] I regard it significant that the cohabitation agreement is in the form of a deed which is indicative of the solemnity of the agreement. I regard the cohabitation agreement to be of great significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[18] Exhibit A: T36 fol 141.
[19] Exhibit A: T36 fol 141.
32. Ms Fleming has herself admitted that she has claimed to be in a de facto relationship “for loan agreements and co-habitation agreement”.[20] Ms Fleming also asserts that she did this because she was otherwise unable to obtain these agreements. I do not accept this assertion and accept the submission of the Secretary that the fact she has entrusted the care of her only child to Mr Hardie in the event of her death to be indicative of the existence of a de facto relationship.
[20] Exhibit A: T35 fol 138.
33. There is also evidence that Ms Fleming has described Mr Hardie in her will as “my de-facto spouse”.[21] A will is a solemn document: and I place some weight upon her description of Mr Hardie as being evidence of the existence of a de facto relationship.
[21] Exhibit A: T37 fol 152.
34. I have considered whether Ms Fleming and Mr Hardie have presented themselves out as a couple to real estate agents. The property manager informed Centrelink: “I thought that they were a couple”.[22] However, I have not given the comment by the property manager much weight. This is because the Social Security Appeals Tribunal was informed that the property manager who responded to Centrelink did not arrange the tenancy and did not know Ms Fleming and Mr Hardie.[23]
[22] Exhibit A: T33, fol 116.
[23] Exhibit A: T2, fol 9.
Whether the people hold themselves out as married to each other
35. I am required under s 4(3)(c)(i) of the Act to consider “whether the people hold themselves out as married to each other”. There is also evidence that Ms Fleming has described Mr Hardie in her will as “my de-facto spouse”.[24] Mr Hardie has also described Ms Fleming as his “spouse” when he nominated her as the sole beneficiary of his superannuation fund.[25] Mr Hardie was not called to give evidence to explain this nomination. Ms Fleming had informed the Social Security Appeals Tribunal that she completed the nomination form in which she was described as a “spouse”. At the hearing before me she stated that this description of herself as a “spouse” was false. However, I regard this description to be of significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[24] Exhibit A: T37 fol 152.
[25] Exhibit A: T45 fol 205.
36. I also do not place much weight on a statement from a lender that he assumed that Ms Fleming and Mr Hardie were a couple.[26] This is because the basis of his assumption does not appear in his statement.
[26] Exhibit A: T55, fol 241.
Joint social activities
37. I have also, pursuant to s 4(3)(c) (iii), considered “the basis on which the people make plans for, or engage in, joint social activities”. Ms Fleming gave evidence that she and Mr Hardie travel together to Coffs Harbour about once a year to visit family. This evidence is consistent with her earlier statement in a questionnaire.[27] I regard such travel to be of significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[27] Exhibit A: T35 fol 137.
Sexual Relationship
38. I am required under s 4(3)(d) of the Act to consider any “sexual relationship” between the people. There is no direct evidence that Ms Fleming and Mr Hardie had a sexual relationship during the relevant period. I should mention that I do not accept the assertion of Ms Fleming that she has never had a sexual relationship with Mr Hardie. I consider this is inconsistent with the fact that she has signed a cohabitation agreement with Mr Hardie in which they disclosed that they “commenced cohabitation as a defacto couple in 2002”.[28] I also observe that Mr Hardie was not called to give evidence before me. I am, however, conscious that I can only make a finding on the basis of evidence that is before me. I am not prepared on the state of the evidence before me to make a finding that the parties have a sexual relationship.
[28] Exhibit A: T36 fol 141.
COMMITMENT TO EACH OTHER
39. I am required under s 4(3)(e) of the Act to consider “[t]he nature of the people’s commitment to each other”. I have come to the conclusion that Ms Fleming and Mr Hardie do have a commitment to each other. I consider that the commitment of Ms Fleming and Mr Hardy to each other points strongly towards the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
40. There is evidence before me that Mr Hardie has a commitment to Ms Fleming because he informed the Social Security Appeals Tribunal that Ms Fleming is the beneficiary of his estate under his will.[29] Mr Hardie has also nominated Ms Fleming as the sole beneficiary under his superannuation fund.[30]
[29] Exhibit A: T2 fol 12.
[30] Exhibit A: T45 fol 205.
41. There is evidence before me that Ms Fleming has a commitment to Mr Hardie. Ms Fleming has appointed Mr Hardie as a substituted executor and trustee. The fact that Ms Fleming has appointed Mr Hardie in the position of trust as a substituted executor makes me come to the conclusion that I should not put much weight upon her assertion in a questionnaire, that she sees Mr Hardie as “a liar and a manipulator”.[31]
[31] Exhibit A: T35, fol 140.
42. In her will she has in the event of the death of her children divided her estate equally between her sister and Mr Hardie.[32] Ms Fleming has also appointed Mr Hardie as the sole guardian of her son.[33]
[32] Exhibit A: T37 fol 152.
[33] Exhibit A: T37 fol 153.
43. I regard the fact that Ms Fleming and Mr Hardie have nominated each other as beneficiaries under their wills as significant in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie. I also attach significance to the fact that in her will Ms Fleming has described Mr Hardie as “my de-facto spouse”.
Length of the relationship
44. One matter that I am required to consider under s 4(3)(e)(i) of the Act is the length of the relationship between Ms Fleming and Mr Hardie. There is some dispute as to whether Ms Fleming resided with Mr Hardie in Coffs Harbour. I cannot accept the assertion of Ms Fleming who has denied ever residing with Mr Hardie at Coffs Harbour. This is because on 1 February 2004 Ms Fleming and Mr Hardie in a loan application form had disclosed that they lived at the same Coffs Harbour address.[34] Perhaps more importantly in 2005 Ms Fleming and Mr Hardie executed a cohabitation agreement in which they disclosed that they “commenced cohabitation as a defacto couple in 2002”.[35]
[34] Exhibit A: T43 fol 186.
[35] Exhibit A: T36 fol 141.
45. In considering the length of the relationship between Ms Fleming and Mr Hardie I have also considered the anonymous call that was made to Centrelink on 1 June 2004. Ms Fleming has asserted that the call came from a member of Mr Hardie’s family. Whilst I would ordinarily place little weight on an anonymous telephone call, I should mention that the caller informed Centrelink that Ms Fleming and Mr Hardie had been living in a marriage like relationship for the last 2 years.[36] This call is some corroboration of the fact that the relationship commenced in about 2002. This, of course, is the same year that is mentioned in the cohabitation agreement as being when there was the commencement of cohabitation.
[36] Exhibit A: T24, fol 91.
46. It is important to observe that in 2008, some 6 years after 2002, Ms Fleming and Mr Hardie still live together. I regard this to be of significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
WHETHER THE APPLICANT IS IN A MARRIAGE-LIKE RELATIONSHIP
47. French J in Pelka v Secretary, Department of Family Community Services[37] has observed that I am required under s 4(3) of the Act to have regard to “all the circumstances of the relationship”. His Honour has also mentioned that I should have regard to the “total picture of the relationship”.
[37] (2006) 151 FCR 546.
48. Taking all aspects of Ms Fleming’s relationship with Mr Hardie, I have formed the opinion that Ms Fleming and Mr Hardie were in a marriage-like relationship during the relevant period. I gave my reasons for coming to that conclusion.
49. I consider that the financial aspects of the relationship points strongly towards the existence of a marriage-like relationship between Ms Fleming and Mr Hardie. I have already mentioned that I consider that it is significant that Mr Hardie pays monthly repayments of $1,320 per month in respect of a mortgage over Ms Fleming’s home; that Ms Fleming guaranteed a loan for Mr Hardie; that Ms Fleming and Mr Hardie made joint loan applications in 2003 and 2004, and that Ms Fleming and Mr Hardie share day-to-day household expenses.
50. I do not consider that the nature of the household indicates the existence of a marriage-like relationship between Ms Fleming and Mr Hardie. However, the nature of the household is not incompatible with such a relationship.
51. I consider that the social aspects of the relationship points strongly towards the existence of a marriage-like relationship between Ms Fleming and Mr Hardie. I have already mentioned that I have had regard to whether the parties hold themselves out to be in a de facto relationship. I have referred to the fact that Ms Fleming and Mr Hardie have executed a cohabitation agreement. In that agreement it states that the parties have “commenced cohabitation as a defacto couple in 2002”[38] and that the parties “do not intend to marry at this time and intend to reside as a defacto couple”.[39] I have placed considerable weight upon this cohabitation agreement as being evidence of the fact that the parties were in a marriage-like relationship during the relevant period.
[38] Exhibit A: T36 fol 141.
[39] Exhibit A: T36 fol 141.
52. I have also mentioned, that I regard it as significant that the only child of Ms Fleming has been entrusted to the care of Mr Hardie under the will of Ms Fleming.
53. In considering the social aspects of the relationship I have had regard to the fact that Ms Fleming has described Mr Hardie in her will as “my de-facto spouse”[40]and that Mr Hardie has also described Ms Fleming as his “spouse” when he nominated her as the sole beneficiary of his superannuation fund.[41] I have also placed some significance on the fact that Ms Fleming and Mr Hardie travel together to Coffs Harbour about once a year to visit family. This travel is of significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
[40]Exhibit A: T37 fol 152.
[41] Exhibit A: T45 fol 205.
54. I am required under the Act to consider any sexual relationship between the people. There is no direct evidence that Ms Fleming and Mr Hardie had a sexual relationship during the relevant period.
55. I have considered the nature of the commitment of Ms Fleming and Mr Hardie to each other. I consider that the commitment of Ms Fleming and Mr Hardie to each other points strongly towards the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
56. I regard as significant the fact that Ms Fleming and Mr Hardie have nominated each other as beneficiaries under their wills. In my view the nomination of each other as beneficiaries indicates a marriage-like relationship between Ms Fleming and Mr Hardie. The fact that Ms Fleming in her will has left half of her estate to Mr Hardie in the event of the death of her children is also significant.
57. I have already mentioned that the length of the relationship between Ms Fleming and Mr Hardie is relevant in considering the nature of the commitment of the parties to each other. I have already mentioned that the fact that Ms Fleming and Mr Hardie have lived together since 2002 is of significance in indicating the existence of a marriage-like relationship between Ms Fleming and Mr Hardie.
WHETHER THE APPLICANT WAS A MEMBER OF A COUPLE
58. I have mentioned that I have formed the opinion that Ms Fleming and Mr Hardie were in a marriage-like relationship during the relevant period. This conclusion necessarily means that I also find that Ms Fleming ‘has a relationship with a person of the opposite sex’ (s 4(2)(b)(i)).
59. I consider that all of the conditions in s 4(2)(b) are satisfied.
60. I find that during the relevant period (from 1 January 2003 until 28 February 2007), Ms Fleming was a “member of a couple” under s 4(1) of the Act.
WHETHER THE APPLICANT WAS OVERPAID PARENTING PAYMENT
61. The Act, in ss 1068A and 1068B, provides for different rates of parenting payment depending upon whether an applicant is single or a member of a couple.
62. Section 503 of the Act provides that a person’s rate of parenting payment is calculated according to the ‘PP (Single) Rate Calculator’ in s 1068A if the person is not a member of a couple and according to the ‘PP (Partnered) Rate Calculator’ s 1068B if the person is a member of a couple. The rate of payment for a person who is a member of a couple is calculated having regard to the income earned by the person’s partner[42].
[42] See s 1068B-D1 of the Act.
63. Ms Fleming was paid parenting payment throughout the relevant period without regard to Mr Hardie’s income. As I have found that Ms Fleming was during the relevant period a member of a couple under the Act, I consider that she was paid more parenting payment than she was entitled to.
OVERPAID AMOUNT IS A DEBT DUE TO THE COMMONWEALTH
64. The amount of $26,541.26 which is the amount of the overpayment of parenting payment is a debt due to the Commonwealth under s 1223(1) of the Act. Even in the absence of statute the amount of the overpayment can be recovered under the principles laid down by the Privy Council in Auckland Harbour Board v R.[43]
[43] [1924] AC 318 at 327.
65. It is understandable in this case for the Secretary to recover the overpayment. As French J explained in Secretary, Department of Social Security v Hales:[44] “The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered”.
[44] (1998) 51 ALD 695 at 696.
RECOVERY OF OVERPAYMENT
66. I must now consider whether there are any reasons why the overpayment of parenting payment should not be recovered. Under the Act it is possible for an overpayment of parenting payment to be not recovered where the Secretary writes off the debt[45]; where the Secretary is required to waive the debt due to error (s 1237A(1)) or where the Secretary may waive the debt due to special circumstances (s 1237AAD). I will consider whether it is appropriate to write off or waive the debt.
[45] See s 1236 of the Act.
WRITE OFF DEBT
67. I will now consider whether it is appropriate to make a determination to write off the debt. The Secretary may write off the debt if the debtor has no capacity to repay the debt: s1236 (1A) (b).
68. The Act provides that if the debt can be deducted by deductions from social security payments, then the debtor is taken to have a capacity to repay the amount unless these deductions would result in severe financial hardship: s 1236(1C). There is no issue that Ms Fleming has capacity to repay her debt by way of deductions from her Parenting Payment Single. The only question that I have to resolve is whether payment of the debt would result in severe financial hardship.
69. I do not find that there is severe financial hardship in this case. I recognise that Ms Fleming gave evidence, which I accept, that she has difficulty in meeting her regular financial commitments. However, Ms Fleming has a substantial equity in a house property that has been placed on the market. She is also in part-time employment.
70. I do not consider that it is appropriate to write off the debt.
WAIVER OF DEBT
71. I have also considered whether it is appropriate to waive the right of the Commonwealth to recover the debt. I will consider whether the debt can be waived by reason of an administrative error or whether special circumstances are present.
SOLE ADMINISTRATIVE ERROR
72. The Secretary may waive a debt under s 1237A (1) of the Act where the debt arose solely due to an administrative error and the person received the payments that give rise to the debt in good faith. I am satisfied that s 1237A(1) of the Act has no application as there is no evidence before me that the debt did not arise due to any administrative error on the part of Centrelink.
SPECIAL CIRCUMSTANCES
73. A debt may be waived under s 1237AAD of the Act where the debtor did not knowingly make a false statement or representation or did not knowingly fail or omit to comply with a provision of the Act and there are ‘special circumstances’.
74. As I have taken the view that special circumstances are not present in this matter, it is not necessary for me to make any findings whether Ms Fleming did not knowingly make a false statement or representation or did not knowingly fail or omit to comply with a provision of the Act
75. The Act does not contain a definition of what constitutes ‘special circumstances’. The Federal Court of Australia has provided guidance on the meaning of that term. It has been held that ‘special circumstances’ are present where the circumstances are ‘unusual, uncommon or exceptional’[46] or where the “circumstances are such that takes the case out of the ordinary”.[47] After reviewing the material before me, I do not consider that special circumstances are present in this case.
[46] Re Beadle and Director-General of Social Security (1984) 6 ALD 1.
[47] Dranichnikov v Centrelink (2003) 75 ALD 134 at 148.
76. I am satisfied that s 1237AAD of the Act has no application.
COOPERATION OF APPLICANT
77. I wish to record that Ms Fleming made available to Centrelink all relevant documents in her possession.
DECISION
78.The Tribunal affirms the decision under review.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: ..........................[Sgd]......................................................
Elizabeth Young, Research AssociateDate/s of Hearing 25 August 2008
Decision Reserved 17 September 2008
Date of Decision 10 October 2008
For the Applicant The applicant was self-represented
For the Respondent Ms R Knight, departmental advocate
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