Haddara and Secretary, Department of Social Services and (Social services second review)
[2023] AATA 2316
•2 August 2023
Haddara and Secretary, Department of Social Services and (Social services second review) [2023] AATA 2316 (2 August 2023)
Secretary, Department of Education, Skills and Employment
Division:GENERAL DIVISION
File Number:2020/4367-80, 2020/4412-14
Re:Hanan Haddara
APPLICANT
AndSecretary, Department of Social Services
Secretary, Department of Education, Skills and Employment[1]
[1] The Secretary, Department of Education, Skills and Employment is the named Respondent in Matters 2020/4380, 4412-4414, and the Secretary, Department of Social Services is the named Respondent in the other matters.
RESPONDENT
DECISION
Tribunal:Member R West
Date:2 August 2023
Place:Melbourne
Matter 2020/4367
The decision under review is affirmed.
Matter 2020/4368
The decision under review is varied to provide that the Applicant was overpaid Parenting Payments during the period 31 July 2012 to 22 August 2019 in the amount of $78,804.60, which is a debt due to the Commonwealth pursuant to s 1223(1) of the Social Security Act 1991 (Cth) and must be repaid in full.
Matter 2020/4369
The decision under review is varied to provide that the Applicant was overpaid Carer Payments during the period 21 February 2011 to 30 July 2012 in the amount of $6,863.38 which is a debt due to the Commonwealth pursuant to s 1223(1) of the Social Security Act 1991 (Cth) and must be repaid in full.
Matter 2020/4370
The decision under review is set aside and, subject to a direction that the Applicant has a Family Tax Benefit debt for the period 1 July 2011 to 30 June 2012 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for the recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4371
The decision under review is affirmed.
Matter 2020/4372
The decision under review is set aside and, subject to a direction that the Applicant has a Family Tax Benefit debt for the period 1 July 2018 to 30 June 2019 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4373
The decision under review is set aside and, subject to a direction that the Applicant had a Family Tax Benefit debt for the period 1 July 2012 to 30 June 2013 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4374
The decision under review is set aside and, subject to a direction that the Applicant has a Family Tax Benefit debt for the period 1 July 2013 to 30 June 2014 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4375
The decision under review is set aside and, subject to a direction that the Applicant has a Family Tax Benefit debt for the period 1 July 2014 to 30 June 2015 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4376
The decision under review is set aside and, subject to a direction that the Applicant has a Family Tax Benefit debt for the period 1 July 2015 to 30 June 2016 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4377
The decision under review is affirmed.
Matter 2020/4378
The decision under review is set aside and, subject to a direction that the Applicant has a Family Tax Benefit debt for the period 1 July 2017 to 30 June 2018 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4379
The decision under review is set aside and, subject to a direction that the Applicant had a Family Tax Benefit debt for the period 1 July 2016 to 30 June 2017 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4380
The decision under review is set aside and, subject to a direction that the Applicant had a Child Care Benefit debt for the period 4 July 2016 to 2 July 2017 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4412
The decision under review is set aside and, subject to a direction that the Applicant had a Child Care Benefit debt for the period 6 July 2015 to 3 July 2016 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4413
The decision under review is set aside and, subject to a direction that the Applicant had a Child Care Subsidy debt for the period 8 July 2018 to 30 June 2019 due to the Commonwealth pursuant to s 71C(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4414
The decision under review is set aside and, subject to a direction that the Applicant had a Child Care Benefit debt for the period 3 July 2017 to 1 July 2018 due to the Commonwealth pursuant to s 71(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
................................[SGD]........................................ Member R West
Catchwords
SOCIAL SECURITY – review of multiple decisions – overpayment of social security benefits – associated application – joint hearing – common issue whether member of a couple – recalculation of overpayments – debts owed to the Commonwealth – no waiver or write off – decisions affirmed, varied, and set aside and remitted with directions
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)
Family Law Act 1975 (Cth)Cases
Barnes and Secretary, Department of Social Services [2014] AATA 786
Beadle and Director-General of Social Security (1984) 6 ALD 1
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Bozdag and Secretary, Department of Social Services [2016] AATA 76
Crabtree v Crabtree (1963) 5 FLR 307
Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114
Douglas and Secretary, Department of Families, Community Services and Indigenous Affairs & Anor [2007] AATA 1072
Fairbairn v Radecki [2022] HCA 18
Gilson and Secretary, Department of Employment and Workplace Relations [2007] AATA 1361
Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor [2011] AATA 162
Jones and Secretary, Department of Family and Community Services [2003] AATA 62
Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Kothe and Secretary, Department of Social Services [2020] AATA 3195
L and Department of Social Security [1995] AATA 159
Lambe v Director-General of Social Services (1981) 4 ALD 362
Melvin v Secretary, Department of Social Security [2016] FCA 375
Micallef and Secretary, Department of Family and Community Services [2004] AATA 485
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Pelka v Secretary, Department of Social Security (2006) 151 FCR 546
Re Lumsden and Secretary Department of Social Security [1986] AATA 228
Secretary, Department of Family and Community Services and Birgden [2003] AATA 67
Secretary, Department of Social Security v Hales (1998) 82 FCR 154
Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Stubbs and Secretary Department of Families and Community Services [2003] AATA 729
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1
Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 284VBH and Anor and Secretary, Department of Family and Community Services [2006] AATA 1
Secondary Materials
Department of Social Services, Social Security Guide (version 1.295, released 1 July 2022)
REASONS FOR DECISION
Member R West
2 August 2023
BACKGROUND
This matter concerns an appeal by the Applicant of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 8 July 2020, affirming seventeen separate decisions of an authorised review officer (ARO) dated 18 September 2019 and 27 March 2020 that the Applicant had been overpaid various social security benefits at the single rate when she was a member of a couple at the relevant times.
Relevant History - Matters 2020/4367-4380, 2020/4412-4414
The Applicant commenced receiving payment of various social security and family assistance payments calculated at the single rate, as follows:
a.Carer Payment from 13 April 2010 to 31 July 2012;[2]
b.Parenting Payment (single) from 31 July 2012 to 30 September 2019;[3]
c.Family Tax Benefit from 26 December 2011 to 22 August 2019 (and ongoing);[4]
d.Child Care Benefit from 11 April 2016 to 30 June 2018;[5]
e.Child Care Subsidy from 1 July 2018 to 30 June 2019;[6] and
f.Parenting Payment (single) advanced payment of $500 on 29 June 2019;[7] and
g.Family Tax Benefit advanced payment of $600 on 29 June 2019.[8]
[2] HHT 111 at p.315.
[3] Ibid.
[4] HHT 177 at p. 1865.
[5] HHT 178 and 180 at pp. 2008 and 2311, considered ongoing at 27 February 2023.
[6] HHT 182 at p.2765.
[7] TB1088.
[8] Ibid.
On 6 September 2019 Centrelink determined, on the basis of the evidence then available, that the Applicant and Mr Ghazi Haddara were to be treated as a couple from 21 February 2011 to 22 August 2019 and as a consequence determined to:
a.cancel the Applicant’s Parenting Payment (PP) (single) from 6 September 2019 (AAT application no 2020/4367); and
b.raise and recover debts in the sum of:
i.$118,662.80 in PP (single) for the period 31 July 2012 to 22 August 2019 (2020/4368).
ii.$9,343.30 in Carer Payment (CP) for the period 21 February 2011 to 30 July 2012 (2020/4369).
iii.$68.12 in Family Tax Benefit (FTB) payments for the period 1 July 2011 to 30 June 2012 (2020/4370).
iv.$369.00 for an FTB Advance payment on 13 November 2019 (2020/4371).
v.$6,354.65 in FTB payments for the period 1 July 2018 to 30 June 2019 (2020/4372).
vi.$2,099.97 in FTB payments for the period 1 July 2012 to 30 June 2013 (2020/4373).
vii.$2,562.30 in FTB payments for the period 1 July 2013 to 30 June 2014 (2020/4374).
viii.$1,663.47 in FTB payments for the period 1 July 2014 to 30 June 2015 (2020/4375).
ix.$7,235.82 in FTB payments for the period 1 July 2015 to 30 June 2016 (2020/4376).
x.$346 for a PP Single Advanced payment on 27 September 2019 (2020/4377).
xi.$3,539.14 in FTB payments for the period 1 July 2017 to 30 June 2018 (2020/4378).
xii.$4,171.95 in FTB payments for the period 1 July 2016 to 30 June 2017 (2020/4379).
xiii.$2,661.45 in Child Care Benefit (CCB) payments for the period 4 July 2016 to 2 July 2017 (2020/4380).
xiv.$1,108.38 in CCB payments for the period 6 July 2015 to 3 July 2016 (2020/4412).
xv.$1,814.97 in Child Care Subsidy (CCS) payments for the period 8 July 2018 to 30 June 2019 (2020/4413).
xvi.$2,475.48 in CCB payments for the period 3 July 2017 to 1 July 2018 (2020/4414).
(Original Decisions)
By decisions dated 18 September 2019 and 27 March 2020 an authorised review officer (ARO) affirmed the Original Decisions (ARO Decisions).
On 8 July 2020, the Administrative Appeals Tribunal (Social Services and Child Support Division) affirmed the ARO Decisions[9] (AAT1 Decision).
[9] GHT3 at pp.8-16.
On 19 July 2020, the Applicant applied to the Administrative Appeals Tribunal (General Division) seeking review of the AAT1 Decision[10] (Applicant’s Second Tier Review).
[10] GHT2 at pp.4-7.
Related Proceeding – Matter 2020/4532
On 6 September 2019 as a consequence of its determination that the Applicant and Mr Ghazi Haddara were to be treated as a couple from 21 February 2011 to 22 August 2019 Centrelink determined to raise a debt against Mr Ghazi Haddara (Mr Haddara) in relation to the overpayment of the Newstart Allowance at the single rate for the period 21 February 2011 to 2 September 2015, totalling $20,149.71. This decision was affirmed by an authorised review officer (ARO) and on 8 July 2020, the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) affirmed the decision of the ARO.
On 27 July 2020 Mr Haddara applied to the Administrative Appeals Tribunal (General Division) seeking review of the AAT1 decision (Related Application).
Joint Hearing
Prior to the hearing of this matter, the Tribunal accepted that the Applicant’s Second Tier Review and the Related Application involved the common issue of whether the Applicant and Mr Haddara were in a couple relationship at the relevant times. The Tribunal determined that it would facilitate the efficient determination of both matters for a joint hearing to be conducted. Accordingly, the Tribunal directed, pursuant to s 33 of the AAT Act, that the matters be heard jointly, with each application to be determined on the basis of common evidence.
HEARING
A hearing in relation to the Applicant’s Second Tier Review and the Related Application was held on 22 and 23 May 2023. The Applicants were self-represented and the Respondents were represented by Mr Pietro Nacion, a solicitor with Sparke Helmore.
In conducting the review in both matters, the Tribunal has had regard to:
a. the documents produced by the Respondent pursuant to ss 37 and 38AA of the AAT Act (T Documents);
b. the consolidated documents included in the Tribunal Book lodged by the Respondents as an agreed collection of relevant documents from the T Documents and those tendered by the Applicant and Mr Haddara in relation to the Applicant’s Second Tier Review and the Related Application;[11]
[11]In referring to these documents in this decision the Tribunal has applied the letters TB and the page number in the paginated Tribunal Book or used the letters GHT or HHT to denote T documents related to either the Applicant’s matters (HHT) or Mr Haddara’s matter (GHT).
c. the Secretary’s Statement Regarding Debt Amount – Exhibit R1; and
d. the oral evidence[12] of:
i.the Applicant;
ii.Ghazi Haddara;
iii.Abass Rahmatulah; and
iv.Haitham ‘Sam’ Elbelli
[12] Ghazi Haddara appeared in person, the Applicant appeared by videoconference and the other witnesses by telephone.
LEGISLATION
The Tribunal has had regard to the following relevant legislation in making its decision:
·Social Security Act 1991 (Act);
·Social Security (Administration) Act 1999 (Administration Act);
·A New Tax System (Family Assistance) (Administration) Act 1999 (FA Administration Act); and
·Administrative Appeals Tribunal Act 1975 (AAT Act).
EVIDENCE
The Applicant
The Applicant gave evidence and made oral submissions at the hearing. The Applicant stated:
a. She and Mr Haddara were cousins. They knew each other through their families and were encouraged to establish a relationship by their families. They became boyfriend and girlfriend in March/April 2011 when on a holiday in Thailand. She denied that she and Mr Haddara had ever married.
b. Shortly after getting together with Mr Haddara in 2011 she became pregnant and now has four children with Mr Haddara, aged 11, 8, 7 and 2. She said her first child was born while she and Mr Haddara were separated but Mr Haddara attended the birth at the hospital and was involved in the care of the baby whenever she needed help.
c. She described their relationship as chaotic. She said that Mr Haddara was a bad alcoholic and they broke up frequently because of his drinking. She said that she would exclude him from her home when he started drinking for extended periods but she would allow him to return occasionally when he promised to be good but this would only last for two or three weeks before he began drinking again and she would ask him to leave her home.
d. In her written statement of 15 November 2022[13] she gave the following history of this on-again-off-again relationship.
[13] Exhibit A4 at TB1139-1140.
After the 24th November 2011 Mr Haddara and I ceased our relationship. On 9 December 2013 Mr Haddara and I had rejoined and he was my boyfriend once again. However, on 7 April 2014 Mr Haddara and I separated. On 16 January 2015, myself and Mr Haddara were once again together. On 24 April 2015, I and Mr Haddara decided to take a break from our relationship. Since 15 August 2020 Mr Haddara and I have rejoined as boyfriend and girlfriend.
She confirmed in her oral evidence that she and Mr Haddara had re-established a couple relationship on 15 August 2020 and it had continued up to the time of the hearing.
e. She said that she hid the nature of her relationship with Mr Haddara from her family and they thought everything was okay. She said she didn’t want her family to know about the problems in their relationship and she hid things from them. She said that socially she kept up the pretence that she and Mr Haddara were a couple, although her sister knew bits and pieces and some friends suspected that she was maintaining a pretence.
f. She said that when Mr Haddara was excluded from her home she did not know where he lived, but he continued to have contact with her in order to see their children and to demonstrate to others that they were still together. She said that Mr Haddara sometimes stayed at her home.
g. She said that her children were not aware that she and Mr Haddara were not together. She said that Mr Haddara attended the children’s’ sport but was not involved in their schooling.
h. She said that she owned the house in which she lived and that Mr Haddara had contributed to mortgage repayments throughout the period since 2011 as an informal form of child support. She confirmed that when she renegotiated her mortgage in 2019 Mr Haddara insisted on being a co-mortgagee so that he could prove he was contributing to the mortgage in case he was queried in relation to child support.
i. She said that Mr Haddara had purchased a Range Rover vehicle which was kept at her house and was available for her use.
j. She said that she had not worked since 2011 and relied on social security payments for her financial support.
k. She acknowledged that in June 2013 she attended hospital for treatment of a medical condition associated with a failed pregnancy and confirmed that she was with Mr Haddara in March/April 2013 when she fell pregnant. She confirmed that she and Mr Haddara were together between 9 December 2013 and 6 April 2014.
l. In June 2014 she went overseas to Thailand with Mr Haddara for a holiday with their son and they stayed together in the same hotel room. In August 2016 she again went overseas to Bali with Mr Haddra and two of their children for a holiday and they stayed together in the same accommodation. The youngest third child stayed with her mother in Australia. She again travelled overseas in September 2017 for a six-week holiday to Lebanon with Mr Haddara and their three children and they lived together with Mr Haddara’s sister. She acknowledged that she and Mr Haddara did their best to give the impression to the sister and her family that they were in a stable relationship.
m. She confirmed that from 2011 she did not have any relationship with anyone other than Mr Haddara and she was not aware of Mr Haddara having any other relationships.
Ghazi Haddara
Mr Haddara gave evidence and made oral submissions at the hearing. He stated:
a.He and the Applicant were cousins and met through their family. They began dating in 2011 as boyfriend/girlfriend and commenced living together in that year. He denied they had ever married.
b.He said that the Applicant did not tolerate alcohol because of her religion and that she equated any consumption of alcohol to alcoholism. He said that he consumed alcohol at the pub after work and socially. He said that the Applicant first realised he drank alcohol when they travelled together to Thailand in 2011 and he promised her to cease using alcohol when they returned but he was unable to do so. Mr Haddara gave evidence that when the Applicant smelled alcohol on his breath she told him to ‘get out’. He said he then slept in his car outside his place of employment for three or four weeks and after undertaking not to drink alcohol he was able to sleep in the car in the driveway of the Applicant’s house and to use the shower. He said that after a few weeks he moved back into the house, but this did not last and he was kicked out due to his drinking.
c.He said that when excluded from the Applicant’s house he slept in his car or his truck and took showers and ate meals at a local service station. He said that at one stage he purchased a swag and slept in a park near the Applicant’s house.
d.He said he had a good relationship with his four children and had continuing contact with them, but the children were never told that he and the Applicant were separated at any stage. He said that he was present at the birth of his first child and took an active role in supporting the Applicant for the first six months after the birth even though he and the Applicant were separated.
e.Mr Haddara identified a period in 2017 when he returned to live at the Applicant’s house because he said the Applicant was afraid of the Apex gang which was active in the area at the time. He said that he lived in a separate room in the house during this time, although if he smelt of alcohol the Applicant would make him sleep in the car outside.
f.He confirmed the Applicant’s evidence regarding their overseas travel in 2014, 2016 and 2017. He also confirmed that he and the Applicant presented to their family and friends as a couple and noted that the Applicant’s father was unaware that they had any issues in their relationship.
g.Mr Haddara confirmed that he did not establish any serious relationship with anyone else during the period from 2011 to 2020.
Abass Rahmatulah
Mr Rahmatulah provided a brief statement in the form of a letter dated 12 November 2022[14] and was called by both Mr Haddara and the Applicant and gave evidence by video link. He gave oral evidence as follows:
a.He had known Mr Haddara since about 2011 through the Yarraville Soccer Club.
b.He confirmed that Mr Haddara had problems with alcohol and that there were issues in his relationship with the Applicant.
c.He said that Mr Haddara would often stay with him when he was excluded from the Applicant’s house.
d.In cross examination Mr Rahmatulah described the relationship between the Applicant and Mr Haddara as beginning as an arranged marriage, although he was not sure if they were in fact legally married. He said he thought them to be married because they had lived together and raised four children, although he had never actually been to the Applicant’s house. He agreed that their relationship could be described as an on and off relationship and that people in their circle tried to get them back together when they had separated.
[14] TB1137.
Haitham ‘Sam’ Elbelli
Mr Elbelli provided a brief statement in the form of a letter dated 14 November 2022[15] and was called by both Mr Haddara and the Applicant and gave evidence. He affirmed his statement and gave oral evidence as follows:
a.He runs a car dealership and has known Mr Haddara through family friends since 2011.
b.He confirmed that Mr Haddara was a heavy drinker and he often found him sleeping in his car. He said he was aware this affected his relationship with the Applicant, who was a practising Muslim.
c.He said he helped Mr Haddara find employment in 2013-14.
d.He said that he had only visited the Applicant’s house ‘rarely’ and mainly saw Mr Haddara at ‘mate’s places’.
e.He said that since 2020 Mr Haddara had changed ‘180 degrees’ and that since then he was responsible and had given up alcohol. He said that Mr Haddara had always been good with his four children.
[15] TB1138.
The Respondents relied on extensive documentation obtained in the course of their initial investigations and obtained under summons in the Tribunal’s proceedings.
ISSUES
The primary issues for consideration in the Second Tier Review are whether the Applicant was a member of a couple with Mr Ghazi Haddara in the period 21 February 2011 to 22 August 2019, and if so:
a.whether and in what amount the Applicant is indebted to the Commonwealth as a result of benefits having been paid to her at the single rate; and
b.whether any resultant debts should be written off or waived pursuant to ss 1236, 1237A or 1237AAD of the Act, or ss 95 or 98 of the Administration Act.
Issue 1 – Was the Applicant a member of a couple with Mr Ghazi Haddara in the period 21 February 2011 to 22 August 2019?
The definition of a ‘member of a couple’ for the purposes of the Act is set out in s 4 of the Act. There are separate definitions for persons who are not married[16] and for those in a ‘registered relationship’ prescribed for the purposes of s 2E of the Acts Interpretation Act 1901.[17]
[16] s 4(2)(b).
[17] s 4(2)(aa).
There is no evidence that the Applicant and Mr Haddara have ever been legally married. Accordingly, the relevant provision to determine whether the Respondent is considered a member of a couple is section s 4(2)(b) of the Act.
Section 4(2)(b) provides that a person is a member of a couple if all of the following conditions are met:
(i) the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
The Tribunal is satisfied that the Applicant and Mr Haddara have had a relationship since March 2011, they are not, and have never been legally married[18] and each was over the age of consent in Victoria at all relevant times.[19] Their relationship is not a prohibited relationship as defined in ss 4(12)–(13) of the Act. Accordingly, the issue for the Tribunal to determine is whether the relationship between the Applicant and Mr Haddara was a de facto relationship for the purpose of s 4(2)(b)(iii).
[18] GHT62 at p.226.
[19] The age of consent in Victoria is 16.
Subsection 4(3A) provides that the Tribunal must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
The concept of Living separately and apart requires the Tribunal to consider both physical and mental elements, where the mental element is independent of whether the parties live in the same house. The fact that the parties may have physically lived together or apart from time to time is not of itself determinative.[20]
[20] Melvin v Secretary, Department of Social Security [2016] FCA 375, [83]-[84] citing the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1, [43]-[58].
The Social Security Guide at Instruction 2.2.5.30 also provides that, if a couple claim to be separated, they must establish that they are living apart either permanently or indefinitely, and there has been an estrangement or breakdown in their relationship. The Guide notes that generally a physical separation as well as an emotional separation between the couple is required.
In forming an opinion about the relationship between two people under s 4(2)(b)(iii) of the Act, the Secretary, and in these proceedings the Tribunal, is required by s 4(3) to have regard to all the circumstances of the relationship including 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, 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.
As the Federal Court made clear in Staunton-Smith v Secretary, Department of Social Security,[21] the matters included in this list are merely indicators and not exhaustive. The Tribunal must make its assessment having regard to the totality of the evidence and material before it.
[21] (1991) 32 FCR 164; See also Pelka v Secretary, Department of Social Security (2006) 151 FCR 546
In considering all the circumstances of the relationship, the Tribunal is required to make an objective assessment based on the evidence. The opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances.[22] However, the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.[23]
[22] VBH and Anor and Secretary, Department of Family and Community Services [2006] AATA 1, [94].
[23] Boskoski and Secretary, Department of Social Services [2014] AATA 915, [63].
A consideration of these factors follows.
Financial Aspects
The Applicant and Mr Haddara maintained separate bank savings accounts throughout the relevant period.
There is no evidence of any joint ownership of real estate or other major assets. The Applicant’s house was at all times owned solely by the Applicant and until 2017 she was the sole mortgagee. In 2017 when her loan was renegotiated Mr Haddara insisted on being included as a co-mortgagee because he wanted proof that he had made contributions if he were to be pressed for child support. The Applicant and Mr Haddara were clear in their evidence that Mr Haddara made regular contributions prior to 2017 to meet the mortgage repayments on the Applicant’s house and had even borrowed money at times to be able to do so. The Applicant’s bank records confirm this arrangement. The Applicant maintained a Credit Union Australia (CUA) savings account in her own name from which she made regular mortgage repayments to the National Australia Bank (NAB). The CUA statements confirm regular deposits from March 2013 to July 2017 by Mr Haddara of amounts equivalent to the mortgage repayments[24]. After the loan was renegotiated in 2017[25] a joint bank account was opened in the names of the Applicant and Mr Haddara for the purpose of repayments[26].
[24] TB689-713.
[25] TB214.
[26] TB261.
Mr Haddara also purchased a Range Rover vehicle in 2015[27] which he made available to the Applicant for her exclusive use. Mr Haddara also maintained insurance for the vehicle throughout the period from 5 November 2015 to the present.[28]
[27] TB312.
[28] TB305.
For her part the Applicant took primary responsibility for the household expenses. However, bank statements of the Applicant and Mr Haddara indicate payments were made for gas and electricity by both of them from their individual bank accounts.[29] The evidence also confirms that Mr Haddara made ad hoc contributions for the children and he paid for the airfares[30] and accommodation for their three overseas trips.
[29] HHT158 at pp. 577-872; GHT63 at p. 279 and GHT74 at p. 480.
[30] TB196.
These financial arrangements continued throughout the relevant period.
On the basis of this evidence the Tribunal finds that there was a degree of financial interdependence maintained by the Applicant and Mr Haddara over the relevant period. Mr Haddara expressed a sense of obligation that he maintain his contribution to the mortgage and the Applicant expressed an expectation that he would do so. Both parties shared the expectation that the Applicant would meet the household expenses, but in the context that the Applicant could have the benefit of the vehicle provided by Mr Haddara.
The Courts and the Tribunal have recognised, in the context of the exercise of the special reasons exclusion in s 24 of the Act, that the ability of a couple to pool their financial resources is at the heart of the reason why a higher rate of benefit is paid to single recipients than to those in a couple.[31] The Full Court of the Federal Court recognised in Lambe v Director-General of Social Services[32] that mutual financial support is an important factor in determining whether a person is in a couple relationship.
[31] See, eg, Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) FCA 1084, [37]-[42] and the cases there cited.
[32] (1981) 4 ALD 362, 369.
Nature of the Household
The Tribunal generally accepts the description given by the Applicant and Mr Haddara of the nature of their living arrangements over the relevant period. In giving their evidence they were broadly consistent and in the main answered questions candidly. The broad picture they each painted was one in which they were encouraged to get together by their family. In 2011 they established a home in the house owned by the Applicant and began to start a family but very early on Mr Haddara’s drinking proved to be a problem between them and it led to periods of separation where Mr Haddara was compelled to leave the house and live in temporary accommodation, mainly in his car, often for extended periods. The Applicant and Mr Haddara described these periods of separation as having broken up or ceasing to be boyfriend and girlfriend. The Tribunal is satisfied that they genuinely perceived themselves not to be in a couple relationship during these periods.
However, it is clear that throughout the relevant period from 2011 to 2019 they continued to have an ongoing relationship. This is evident from their continuing financial arrangements, from their several periods of reconciliation, from their shared involvement in the lives of their children, from the fact that the Applicant was asked to return to the house to protect the Applicant and the children amidst growing concern about the Apex gang and from their three family holidays overseas.
While the Tribunal accepts that during the relevant period there were extended periods of physical separation where the Applicant and Mr Haddara lived apart in circumstances of some animus, it does not accept that this separation necessarily compels a conclusion that the Applicant and Mr Haddara had ceased to be in a de facto relationship during those times.
In this regard it is significant that the Applicant and Mr Haddara acknowledged that throughout this period their children were not aware that they had broken up and they had not wanted to make them aware. It is also significant that Mr Haddara did not seek to establish himself in any permanent accommodation when excluded from the Applicant’s house, but chose to sleep rough living predominantly in his car, often outside the Applicant’s house or in the general area. Neither the Applicant not Mr Haddara established any other relationship and by 2019, when Mr Haddara addressed his drinking issues, they reconciled and have lived together as a couple since.
The Court recognised in Melvin v Secretary, Department of Social Security[33] that where a couple live together from time to time, it is not determinative of the question whether they are living separately or apart. The Court noted that:
There is both a physical and mental element involved and the mental element is independent of whether the parties lived in the same house.
[33] [2016] FCA 375, [83]-[84].
The Tribunal in Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor[34] expressed the relevance of this issue to the question at hand as follows:
What must be considered is not only whether the parties live separately, in physical terms, but also whether the marital relationship (the consortium vitae) has not been forged or has broken down. The two limbs of the test are conjunctive.
[34] [2011] AATA 162, [60].
The High Court in Fairbairn v Radecki[35] considered the question of whether a de facto relationship had broken down in the context of s 90SM of the Family Law Act 1975 (Cth). The Court recognised that the question of whether a de facto or married relationship had broken down is not simply a matter of whether the parties had ceased to live at the same property. The Court recognised that a couple may live under the same roof and yet be separated[36] or may be in a couple relationship even where they live at different locations.[37]
[35] [2022] HCA 18.
[36] Ibid [36] citing Crabtree v Crabtree (1963) 5 FLR 307.
[37] Ibid [42].
It is also significant that the Applicant kept their relationship difficulties from their family, and this was supported by Mr Haddara who acknowledged that they presented as a married couple while staying with his sister in Lebanon. Both the Applicant and Mr Haddara acknowledged that they made efforts to present socially as a couple, including on social media.[38] People including Mr Rahmatulah regarded them as a married couple.
[38] TB138, TB148 and TB164.
There is much objective evidence that the Applicant and Mr Haddara routinely presented themselves as a married couple in a social context irrespective of whether they were living together or living separately. This included:
a.Mr Haddara advising his doctor in April 2011 that he had just got married;[39]
b.The Applicant listing Mr Haddara as her husband on a hospital admission record in June 2013;[40]
c.The Applicant referring to Mr Haddara as her partner and to her title as Mrs and status as Married on a Patient Information form dated March 2013[41] and in a claim for paid parental leave dated September 2014;[42]
d.Mr Haddara referred to the Applicant as his spouse and claimed to be Married in a finance application form in November 2016;[43]
e.The Applicant and Mr Haddara claimed to be married in a joint application for a loan with NAB in May 2017;[44]
f.An RACV account issued in November 2017 referred to Mrs H Haddara and Mr G Haddara;[45]
g.A hospital emergency department patient form for the Applicant dated February 2018 referred to her as Married;[46]
h.The Applicant advising NAB in June 2018 that her marital status was de facto;[47]
i.Mr Hadarra referred to the Applicant as his next of kin and giving his status as Married in employment forms in August 2018;[48]
j.A patient history taken by Mr Haddara’s doctor in March 2020 states that Mr Haddara got married 9 years ago and things have gone down hill since then, got forced to get married, only 20, married first cousin, they were scared to say anything … sleeps at home with 3 kids … he feels sorry for her because it was not her fault, they are doing thing normal because of their kids, no sexual relations between them any more.[49]
[39] TB18.
[40] TB88.
[41] TB100.
[42] TB122.
[43] TB171.
[44] TB214.
[45] TB247.
[46] TB254.
[47] TB63.
[48] TB298.
[49] TB358.
The Applicant and Mr Haddara were each questioned about these documents. Their responses were evasive and unconvincing. Other than denying the correctness of the statements referred to they made no genuine effort to recall information and gave no cogent explanation for how that information came to be recorded.
By way of contrast the Respondents were able to identify numerous instances where the Applicant had claimed to be single in communications with Centrelink during the relevant periods.
Mr Haddara regularly gave the Applicant’s house as his place of residence throughout the relevant period in immigration forms,[50] his children’s’ birth certificates,[51] employment records,[52] insurance records,[53] VicRoads documents[54] and in loan applications and other bank documents.[55] His explanation for these references was that he had no alternative address because he was living in his car or his truck. The Tribunal accepts that this explanation is plausible given Mr Haddara’s lack of alternate accommodation. However, the mere absence of any alternative address suggests that Mr Haddara oriented his affairs around the Applicant’s house even when not living there. It was the home of his children and the Applicant and it appears that it was central in his life. In this regard the Tribunal notes that Mr Haddara was also served with warning notices by the Wyndham Council at the Applicant’s address regarding his dog[56] in December 2014 and March 2016 and he reported the non-collection of bins at the address in January 2019.[57]
[50] TB111-113, TB115-118 and TB235-237.
[51] TB137, TB175.
[52] TB166.
[53] TB305.
[54] TB302-304.
[55] TB214 see also TB261.
[56] TB373.
[57] TB376.
Sexual Relationship
The Applicant and Mr Haddara gave generally consistent but imprecise evidence regarding their sexual relationship. In general terms they acknowledged that there were periods where they engaged in sexual relations and there were periods where they did not.
The Applicant confirmed that they were boyfriend/girlfriend in the period March to November 2011 and this period is associated with the birth of their first child in December 2011. Similarly, the Applicant identified the period from December 2013 to April 2014 as a period when they were boyfriend/girlfriend and the Applicant attended hospital for an unsuccessful pregnancy in June 2013 and their second child was born in September 2014. The Applicant also identified the period between January 2015 and April 2015 as a time when they were boyfriend/girlfriend and their third child was born in October 2015. Both parties acknowledged that they resumed a boyfriend/girlfriend relationship in August 2020 which resulted in the birth of their fourth child in 2021. The Tribunal concludes from these facts that the Applicant and Mr Haddara had a sexual relationship at least during these periods.
In addition, the Applicant gave evidence that they travelled overseas as a couple and stayed together as a couple on three occasions in 2014, 2016 and 2017. On the last occasion they lived together for 6 weeks and presented to their family in Lebanon that they were a married couple. The Applicant and Mr Haddara acknowledged that there were other occasions that Mr Haddara stayed at the Applicant’s house overnight, although they each claimed that they slept in separate rooms.
On the basis of the evidence as a whole the Tribunal is satisfied that the Applicant and Mr Haddara had an ongoing sexual relationship throughout the relevant period which was interrupted by frequent and sometimes long periods where they did not engage in sexual activity.
While the existence of a sexual relationship is not determinative, the fact that a couple have an ongoing sexual relationship, albeit punctuated by periods of abstinence, is a factor which weighs in favour of a de facto relationship.
Commitment to Each Other
The existence of mutuality in the commitment of people to a marriage-like relationship is a critical factor. The essence of marriage is commitment by both parties to a life together. While the nature of the commitment may vary from one couple to another it is the fact that the commitment is shared that is the hallmark of marriage and a marriage-like relationship.
The relationship between the Applicant and Mr Haddara has not been without significant discord. There have been many periods where Mr Haddara has not lived in the family home which they have each described as periods of separation. However, viewed objectively it is difficult to see even those periods as times of complete physical and emotional separation.
Both the Applicant and Mr Haddara acknowledged that the principal cause of animosity between them was Mr Haddara’s drinking rather than any general incompatibility. The Applicant was intolerant of alcohol because of her religious beliefs. Mr Haddara, who lacked such piety, was more accepting of it. Their evidence was that they got back together when Mr Haddara committed to not continue consuming alcohol and separated again when he failed to live up to that commitment. They each readily conceded that since August 2020 they have lived happily together because Mr Haddara had finally given up alcohol. The Tribunal assesses this evidence as indicating that there was an underlying affection or affinity between the Applicant and Mr Haddara which was disrupted by their opposing attitudes to alcohol. The underlying affinity gave rise to a level of mutual commitment which saw them repeatedly try to overcome the principal issue which had separated them in order to resume living under the one roof.
Children also played a central role in their relationship. The Tribunal accepts that the commitment of parents to their children does not necessarily show that they have a mutual commitment to each other,[58] but the fact that parents stay together for the benefit of their children can be a factor indicative of a de facto relationship.[59] In this case, while the Applicant had the primary role in caring for the children, Mr Haddara maintained a commitment to the children and the Applicant acknowledged his commitment even during periods that he was not living at the house. The Tribunal is satisfied that the Applicant and Mr Haddara had a shared commitment to care for their children and it was consistent throughout the relevant period and was a core component of their relationship.
[58] Gilson and Secretary, Department of Employment and Workplace Relations [2007] AATA 1361, [55]; Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 284, [41]
[59] Micallef and Secretary, Department of Family and Community Services [2004] AATA 485 at [27]; Bozdag and Secretary, Department of Social Services [2016] AATA 765, [46]-[47] ; Kothe and Secretary, Department of Social Services [2020] AATA 3195, [67].
Conclusion
The fact that the parties experienced difficulties in their relationship at times does not preclude a finding that a couple relationship existed. The Tribunal is not required to be satisfied that the relationship was happy or socially conventional. It does not require that there was a total commitment to a couple relationship by both parties at all times. It does not require a finding that there was a romantic relationship. The task for the Tribunal is to assess the true nature and character of the relationship between the parties having regard to the matters and factors specified in s 4(3) of the Act by weighing up the factors which point in favour of a de facto relationship and those that point against it.[60]
[60] See Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92.
In this case the evidence demonstrates that throughout the relevant period, notwithstanding periods where Mr Haddara did not live in the Applicant’s house, the parties had a continuing financial arrangement in which each contributed to the maintenance of the household, each shared a commitment to the care of their children, each represented themselves to their family, their children and in a variety of social settings as being married or in a de facto relationship and they had an ongoing if not continuous sexual relationship.
Having regard to the totality of the evidence and considering the ‘total picture of the relationship’[61] the Tribunal is satisfied that Mr Haddara was not living separately and apart from the Applicant on a permanent or indefinite basis during any of the relevant period and that the Applicant and Mr Haddara were at all times in a de facto relationship. The Tribunal therefore finds that the Applicant was a member of a couple with Mr Haddara in the period 21 February 2011 to 22 August 2019.
[61] Pelka v Secretary, Department of Social Security (2006) 151 FCR 546, [46].
Issue 2 – Is the Applicant indebted to the Commonwealth?
To the extent that the Applicant has received any social security payment assessed at the single rate during the relevant period in excess of the amount determined at the couples rate the Applicant has been overpaid. An overpayment is a debt owed to the Commonwealth pursuant to s 1223(1) of the Act.
In a document titled Secretary’s Statement Regarding Debt Amount[62] (SSRDA) lodged in the proceedings the Respondents documented the reassessment of the Applicant’s indebtedness in respect of overpayment of the Parenting Payment, Family Tax Benefit Advance, Parenting Payment Advance and Carer Payment in the total sum of $86,382.98. Those recalculations were set out in a table as follows:
[62] Identified as Exhibit R1.
Social Security payment
Original debt
Revised debt
Carer Payment (debt ID P5377204) 21 February 2011 to 30 July 2012
$9,343.30
$6,863.38
Parenting Payment (debt ID P5376807) (31 July 2012 to 22 August 2019)
$118,662.80
$78,804.60
Family Tax Benefit advance payment (debt ID P5383201)
$369.00
$369.00
Parenting Payment advance payment (debt ID P5379882)
$346.00
$346.00
TOTAL
$128,721.10
$86,382.98
The SSRDA states that the Applicant’s debts had been substantially reduced from previous estimates following submissions and evidence provided by the Applicant and Mr Haddara. At the hearing the Tribunal invited the Applicant and Mr Haddara to put any submissions regarding the calculation of these amounts but they indicated that they did not wish to do so and said they would raise no dispute with the calculations.
The Tribunal has examined the Respondents’ submissions regarding the calculation of these amounts and noting that the Applicant and Mr Haddara have had prior opportunity to provide submissions and evidence and do not now raise a dispute regarding the calculations, the Tribunal accepts the amounts identified in para [1.2] of the SSRDA in respect of each separate debt regarding the overpayment of the Parenting Payment, Family Tax Benefit Advance, Parenting Payment Advance and Carer Payment in the total sum of $86,382.98 and finds accordingly.
The SSRDA also identifies overpayment of Family Tax Benefit, Child Care Benefit and Child Care Subsidy in the total sum of $12,366.62.
The Statement referred to these amounts as provisional estimates and stated at [1.7]-[1.8] that:
The Secretary will not be in a position to provide any final debt amounts in relation to the Family Assistance overpayments until after the Tribunal makes findings in relation to the applicant’s and Mr Haddara’s member of a couple status for the period 21 February 2011 to 22 August 2019 (relevant period).
This is because the process of re-assessment and reconciliation is technically complex and time-consuming.
The provisional estimates are set out in a table as follows:
Family Assistance payment Original debt Provisional estimated debt FTB (ID P5376799): 1 July 2011 to 30 June 2012 $68.12 $68.12 FTB (ID P5377115): 1 July 2012 to 30 June 2013 $2,099.97 $1,698.47 FTB (ID P5377114): 1 July 2013 to 30 June 2014 $2,562.30 $584.00 FTB (ID P5377113): 1 July 2014 to 30 June 2015 $1,663.47 $1,663.47 FTB (ID P5377111): 1 July 2015 to 30 June 2016 $7,235.82 $752.64 FTB (ID P5378999): 1 July 2016 to 30 June 2017 $4,171.95 $2,912.86 FTB (ID P5380918): 1 July 2017 to 30 June 2018 $3,539.14 $0.00 FTB (ID P5376806): 1 July 2018 to 30 June 2019 $6,354.65 $653.35 CCB (ID P5377112): 6 July 2015 to 3 July 2016 $1,108.38 $290.61 CCB (ID P5311633): 4 July 2016 to 2 July 2017 $2,661.45 $1,782.51 CCB (ID P5376809): 3 July 2017 to 1 July 2018 $2,475.48 $145.62 CCS (ID P5381888) 8 July 2018 to 30 June 2019 $1,814.97 $1,814.97 (however minimal increase to debt likely) TOTAL $35,755.70 Approx. $12,366.62
The Tribunal is satisfied on the basis of these provisional estimates that the Applicant is indebted to the Commonwealth in respect of overpayment of the Family Tax Benefit, Child Care Benefit and Child Care Subsidy but makes no finding as to the exact amounts involved.
Issue 3 - Should the debt be recovered from the Applicant?
In the ordinary course, a person who has received public monies to which they were not entitled should be required to repay those monies to the Commonwealth, but this general position is subject to the limited exceptions offered by the provisions of the Act which allow for write off or waiver. As French J noted in Secretary, Department of Social Security v Hales:
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, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth. [63]
[63] Secretary, Department of Social Security v Hales (1998) 82 FCR 154.
Part 5.4 of Chapter 5 of the Administration Act sets out the relevant provisions relating to the writing off or waiver of debts in respect of Carer Payments and Parenting Payments. The relevant provisions are:
(a)Section 1236 - which allows for a debt to be written off if irrecoverable at law or where the debtor has no capacity to repay the debt;
(b)Section 1237A – which requires recovery of any part of the debt to be waived if it was solely due to administrative error; and
(c)Section 1237AAD - which allows recovery of any part of the debt to be waived on the basis of special circumstances.
Equivalent provisions relating to Family Tax benefits, Child Care Benefits and Child Care Subsidy debts are set out in ss 95, 97 and 101 of the FA Administration Act.
At the commencement of the proceedings and prior to final submissions the Tribunal explained to the Applicant the relevance of these provisions in the event that the Tribunal determined that the Applicant was a member of a couple during the relevant period. The Tribunal specifically invited the Applicant and Mr Haddara to provide evidence and make submissions in relation to these matters. Neither the Applicant nor Mr Haddara elected to do so.
Section 1236[64]
[64] Equivalent to s 95(2) of the FA Administration Act.
Section 1236 relevantly provides:
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or …Pursuant to s 1236(1B), and relevantly in this application, for the purpose of s 1236(1A)(a), a debt is taken to be irrecoverable at law if, and only if, there is no proof of the debt capable of sustaining legal proceedings for its recovery. That is not the case here and the Applicant did not dispute that the debt was recoverable at law.
For the purpose of s 1236(1A)(b), a debtor is taken to have capacity to repay a debt unless recovery by those means would result in the debtor being in severe financial hardship.
The term "severe financial hardship" is not defined in the Act, but the Tribunal[65] has previously considered the following issues relevant in assessing the term:
(a)the term must be seen in the context of the legislation and whether recovery would cause such personal hardship to the debtor as to run contrary to the beneficial nature of the legislation;
(b)recovery that causes some financial hardship, stress and inconvenience does not constitute severe financial hardship; and
(c)hardship must be financial suffering of a severe or extreme nature.
[65] Re Lumsden and Secretary Department of Social Security [1986] AATA 228; L and Department of Social Security [1995] AATA 159; Jones and Secretary, Department of Family and Community Services [2003] AATA 62; Secretary, Department of Family and Community Services and Birgden [2003] AATA 67; Stubbs and Secretary Department of Families and Community Services [2003] AATA 729; Douglas and Secretary, Department of Families, Community Services and Indigenous Affairs & Anor [2007] AATA 1072.
The Respondent contends that the Applicant has capacity to repay the debt, noting that the Applicant:
a.presently receives fortnightly payments of PP (partnered) at $616.80 and FTB at $758.90; and
b.owns her own house, subject to monthly mortgage repayments of $1,729.[66]
[66] As at 2 September 2019 – TB799.
The Tribunal is satisfied that the repayment of a debt of around $100,000 represents a significant financial burden for the Applicant who has four young children. However, the Applicant is now in a stable relationship with Mr Haddara who has addressed his problems with alcohol. He has a reasonable earning capacity in employment and, notwithstanding his own obligations to repay the Commonwealth, has the capacity to contribute to the household finances. The Applicant has owned her own home since 2011. Given the rise in property prices generally since that time it is reasonable to assume that the Applicant has accumulated equity in her home against which she can borrow. There are also options for recovery of the debt by fortnightly withholdings from her current benefits at a rate to be negotiated with the Respondent.
Having regard to these matters the Tribunal is not satisfied that repayment would cause the Applicant severe financial hardship or that the Applicant has no capacity to repay the debt and accordingly, there is not a proper basis to write off the debt under s 1236 of the Act.
Section 1237A[67]
[67] Equivalent to s 97 of the FA Administration Act.
Section 1237A(1) relevantly provides:
Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt[68] that is attributable solely[69] 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.
[68] For the purposes of this section, a proportion of a debt may be 100% of the debt – s 1237A(3).
[69] Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by
administrative error and partly by one or more other factors (such as error by the debtor).
Whether or not a debt is attributable solely to a particular administrative error requires an objective assessment of causation to determine whether the only cause that objectively can be ascribed to the relevant debt is an administrative error.[70] The concept of sole administrative error does not require that Centrelink made no mistakes, but that the debtor made no contribution to the error.[71]
[70] Sekhon v Secretary, Department of Family and Community Services [2003] FCAFC 190, [35].
[71] Barnes and Secretary, Department of Social Services [2014] AATA 786, [47].
Having examined the extensive documentation provided by the Respondent the Tribunal is satisfied that the Applicant received appropriate notice of her obligations to provide correct information to Centrelink and that the overpayments resulted from the Applicant and Mr Haddara incorrectly informing Centrelink that they were each living separately and not as a couple during the relevant periods. The debts were not attributable solely to an administrative error.
Inapplicable Provisions
Subsections 1237AA, 1237AAA, 1237AAB, 1237AAC, 1237AB, provide for waiver in specific circumstances which are not relevant to the Applicant’s case.
Waiver in Special Circumstances – s 1237AAD[72]
[72] Equivalent to s 101 of the FA Administration Act.
The final consideration is s 1237AAD of the Act, which provides:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
The Respondents submitted that it is open to the Tribunal to find that the Applicant’s debts resulted wholly or partly from the Applicant knowingly making false statements and/or failing to comply with a provision of the Act or the FA Administration Act.
The Tribunal is conscious that its finding that the Applicant and Mr Haddara were a couple at relevant times is based on an objective assessment of the total evidence having regard to the relevant legislation. It is not a finding that necessitates a conclusion that the Applicant knowingly mis-stated her status in claiming benefits. In fact the Tribunal observes that the Applicant seemed genuine in expressing the view that she regarded herself as no longer in a boyfriend/girlfriend relationship at times when Mr Haddara was excluded from her home and that this meant she was single.
In any event it is unnecessary to make any findings regarding s 1237AAD(a) of the Act. The Tribunal is satisfied that the exception in s 1237AAD is not applicable because there is no evidence that the Applicant’s circumstances as a whole are sufficiently unusual, uncommon or exceptional[73] when considered in the context of other social security recipients[74] as would constitute special circumstances for the purpose of s 1237AAD(b) of the Act.
[73] Beadle and Director-General of Social Security (1984) 6 ALD 1, [12].
[74] Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114, [80].
For these reasons the Tribunal is satisfied that the Applicant’s debts should be recovered.
Decisions
There are seventeen separate decisions affecting the Applicant which were subject to review and in relation to which the essential determinative issue was whether or not the Applicant was the member of a couple at relevant times. The Tribunal affirms the central finding in each of these decisions that the Applicant was a member of a couple at relevant times. However, the resolution of these proceedings involves more than a simple affirmation of the decisions under review in all matters.
There are two matters[75] in which the amount of the resulting debt has been recalculated by the Respondent since the reviewable decision was made and the Tribunal has made findings that the revised amount is the correct assessment of the debt due. In respect of these matters the correct and preferable decision is to vary the reviewable decision under s 43(1)(b) of the AAT Act to include the revised amount.
[75] Matters 2020/4368 and 2020/4369.
There are twelve matters[76] in which the Respondent has indicated that the final assessment of the exact amount of the debt cannot be ascertained until after the determination of these proceedings. In respect of these matters it is appropriate that the Applicant’s indebtedness be confirmed with the Respondent being required to recalculate the amount of the debt. The Respondent asserts that this may be achieved by a decision to vary the reviewable decision and to remit the matter for recalculation. However, it is not clear that s 43(1)(a) or (b) of the AAT Act enable the Tribunal to affirm or vary the decisions and also remit the matter for reconsideration. Accordingly to avoid doubt, the correct and preferrable decision is to set aside the decisions under s 43(1)(c) and remit them to the Respondent with a direction that the amount of the debt is to be recalculated, having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple.
[76] Matters 2020/4370, 2020/4372, 2020/4373, 2020/4374, 2020/4375, 2020/4376, 2020/4378, 2020/4379, 2020/4380, 2020/4412, 2020/4413 and 2020/4414.
Specific Decisions
Matter 2020/4367
The decision under review is affirmed.
Matter 2020/4368,
The decision under review is varied to provide that the Applicant was overpaid PP during the period 31 July 2012 to 22 August 2019 in the amount of $78,804.60, which is a debt due to the Commonwealth pursuant to s 1223(1) of the SS Act and must be repaid in full.
Matter 2020/4369,
The decision under review is varied to provide that the Applicant was overpaid CP during the period 21 February 2011 to 30 July 2012 in the amount of $6,863.38 which is a debt due to the Commonwealth pursuant to s 1223(1) of the SS Act and must be repaid in full.
Matter 2020/4370
The decision under review is set aside and, subject to a direction that the Applicant has an FTB debt for the period 1 July 2011 to 30 June 2012 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for the recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4371
The decision under review is affirmed.
Matter 2020/4372
The decision under review is set aside and, subject to a direction that the Applicant has an FTB debt for the period 1 July 2018 to 30 June 2019 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4373
The decision under review is set aside and, subject to a direction that the Applicant has an FTB debt for the period 1 July 2012 to 30 June 2013 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4374
The decision under review is set aside and, subject to a direction the Applicant has an FTB debt for the period 1 July 2013 to 30 June 2014 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4375
The decision under review is set aside and, subject to a direction that the Applicant has an FTB debt for the period 1 July 2014 to 30 June 2015 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4376
The decision under review is set aside and, subject to a direction that the Applicant had an FTB debt for the period 1 July 2015 to 30 June 2016 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4377
The decision under review is affirmed.
Matter 2020/4378
The decision under review is set aside and, subject to a direction that the Applicant had an FTB debt for the period 1 July 2017 to 30 June 2018 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4379
The decision under review is set aside and, subject to a direction that the Applicant had an FTB debt for the period 1 July 2016 to 30 June 2017 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4380
The decision under review is set aside and, subject to a direction that the Applicant had a CCB debt for the period 4 July 2016 to 2 July 2017 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4412
The decision under review is set aside and, subject to a direction that the Applicant had a CCB debt for the period 6 July 2015 to 3 July 2016 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4413
The decision under review is set aside and, subject to a direction that the Applicant had a CCS debt for the period 8 July 2018 to 30 June 2019 due to the Commonwealth pursuant to s 71C(1) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
Matter 2020/4414
The decision under review is set aside and, subject to a direction that the Applicant had a CCB debt for the period 3 July 2017 to 1 July 2018 due to the Commonwealth pursuant to s 71(2) of the FA Administration Act that must be repaid in full, the matter is remitted to the Respondent for recalculation of the amount of the debt having regard to the Tribunal’s finding that during the relevant period the Applicant was a member of a couple with Mr Ghazi Haddara.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Member R West.
.............................[sgd]...........................................
Associate
Dated: 2 August 2023
Dates of hearing: 22 & 23 May 2023 Applicant: Self-represented Advocate for the Respondent: Pietro Nacion Solicitors for the Respondent: Sparke Helmore APPENDIX A
Exhibit Description of evidence A1 Ghazi Haddara's bundle of evidence paged 1-42 lodged 16 Nov 2022 A2 Hanan Haddara's bundle of evidence paged 1-32 lodged 24 Nov 2022 R1 Secretary's statement regarding debt amount – Hanan Haddara – 8 May 2023 R2 Respondent's amended SFIC for Hanan Haddara's matters – 27 Feb 2023 R3 Respondent's SFIC for Ghazi Haddara's matter – 17 Feb 2023 R4 New Tribunal Book (Tender Bundle) Paged 1-1188 lodged 16 May 2023 R5 Ghazi Haddara – T-documents lodged 25 August 2020 R6 Ghazi Haddara – Supplementary T-documents lodged 2 November 2020 R7 Hanan Haddara – T-documents paged 1-5024 lodged 21 August 2020 R8 Hanan Haddara – Supplementary T-documents paged 1-130 lodged 2 November 2020 R9 Letter regarding re-assessment of family assistance debts – Hanan Haddara – 7 March 2023
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