Hazim and Department of Family and Community Services
[2001] AATA 204
•16 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 204
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V99/1144
GENERAL ADMINISTRATIVE DIVISION )
Re TRACEY HAZIM
Applicant
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member
Date16 March 2001
PlaceMelbourne
Decision The Tribunal varies the decision under review to provide that Ms Hazim was a member of a couple and therefore was not qualified to receive payment of sole parent pension or parenting payment between (i) 12 January 1994 and 4 September 1996 and (ii) 13 October 1997 and 16 February 1998.
(Sgd) Joan Dwyer
Senior Member
SOCIAL SECURITY – sole parent pension and parenting payment - whether living as a member of a couple – difficulty making findings as to circumstances of the relationship set out in s 4(3) of the Act when there are doubts about credibility of applicant and her alleged partner – role of s 4(4) of the Act – three children born of relationship which lasted over six years – examination of circumstances at different times – whether debt should be waived under s 24 of the Act – decision varied
PRACTICE AND PROCEDURE – need for a document showing the decision made, its date and notification of decision to the person affected
Social Security Act 1947 ss 3A, 53(1), 54
Social Security Act 1991 ss 4(2), (3), (4), (5), 24(2), 249(1), 1224(1)
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Secretary Department of Social Security and Le-Huray (1996) 138 ALR 533
REASONS FOR DECISION
16 March 2001 Mrs Joan Dwyer, Senior Member
This is an application for review of a decision of the Social Security Appeals Tribunal ("SSAT") made 7 July 1999 (T2). The SSAT did not identify the decision it was reviewing save to say that it was a decision by a delegate of the Secretary, Department of Family and Community Services, affirmed on 1 March 1999, to raise and recover "various debts" as a result of deciding that Ms Hazim and Mr Abdul were living in a marriage like relationship from 24 April 1993. The SSAT set aside the decision under review but sent the matter back to Centrelink for reconsideration in accordance with the following finding and directions: (T2 p3)
1 that a marriage like relationship existed from 12 January 1994
2 the amount of the debts be recalculated in accordance with this finding
3 that the debts be recovered.
Mr D Meadows of Counsel appeared for Ms Hazim. Mr R Frazzetto who was then in-house Counsel with the Australian Government Solicitor appeared for the Secretary. Ms Hazim appeared and gave evidence. Evidence on her behalf was also given by Ms Leonard a psychologist and by Mr Abdul with whom it is alleged she was living as a "member of a couple" during the relevant period. Evidence was also given by Mr Bhandari and Mr Omar who are friends of Mr Abdul. The respondent called Mr Rees, Mrs Rees and Ms Aldridge (all of whom worked with Mr Abdul), Ms Tunks and Mr Olek who are estate agents and Ms Stig an employee of Centrelink. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 together with the exhibits tendered by the applicant. A file from GIO was produced on a summons returnable on 31 July 2000, which was after the conclusion of the evidence and oral submissions in this matter. The Tribunal received written submissions from the parties regarding that file. The file was taken into evidence as exhibit A5.
The vague manner in which the SSAT referred to the original decision is explained by the material before the Tribunal. T111 p411 is a letter from Centrelink to Ms Hazim dated 11 May 1999. It starts with the sentence:
On 31 March 1998 you were advised in writing of a debt of sole parent pension and asked to repay $41,008.30.
However the documents before the Tribunal do not include a copy of any letter or advice dated 31 March 1998. T92 pp332–333 appears to be a printout from a computer screen relating to the calculation of overpayments. It contains a sentence which could have been included in a letter of advice but there is no advice of debt or request to repay in the material before the Tribunal. More significantly there is no decision to raise a debt included in the T documents.
The making of a decision on 31 March 1998 seems to have been inferred from the screen print outs at T92 pp332–333. The reason stated in the print out for raising an overpayment is as follows:
For the period 1/1/94 to 16/2/98 you received Sole Parent Pension which you were not entitled to as you were a member of a couple, as advised by you in your statement dated 13/3/98.
I have commented on the lack of an identifiable original decision in my last three Social Security decisions, Re Newton and Secretary, Department of Family and Community Services [2000] AATA 349 at paragraphs 36–41, Re Secker and Secretary, Department of Family and Community Services [2000] AATA 290 at paragraphs 1–18 and Re Secretary, Department of Family and Community Services and Wilson [2000] AATA 1077 at paragraphs 2–3. Senior Member Hallowes raised the same issue in Re Leslie and Department of Family and Community Services [2000] AATA 857 at paragraphs 1–2. We are increasingly seeing administrative action being taken to reduce a rate of payment or to raise and recover an alleged overpayment when the T documents do not include a copy of a decision that there has been an overpayment. Similarly material before the Tribunal does not include a copy of any letter notifying the person affected of the making of a decision and telling the person affected the effect of such a decision. This may have repercussions for Social Security recipients who do not know the basis or effect of a decision and therefore do not apply within three months to review that decision (see Re Butt and Department of Family Services [2000] AATA 623).
The issue of identification of the decision under review was not raised at the hearing. Ms Hazim clearly wants a review of the SSAT decision which affirmed the raising of an overpayment. Therefore the Tribunal will proceed to review that decision. I do however suggest that there is a real need for a return to procedures which pay more attention to the process of decision-making and notification. Accurate and efficient administrative review does call for careful identification of the original decision sought to be reviewed. It is a necessary step in ascertaining that the Tribunal does have jurisdiction.
The substantial issue is whether Ms Hazim was living with Mr Abdul as a "member of a couple" during all or any part of the relevant period.
the relevant legislative provisionsFrom 1 January 1994 (the first date in respect of which an overpayment has been raised) Ms Hazim was paid sole parent pension. From 20 March 1998 the name of "sole parent pension" changed to "parenting payment" but the qualifications, relevant to this matter remained the same (s 500(1)(d)(i)). The qualifications in s 249(1) of the 1991 Act for "sole parent pension" included:
(a)the person
(i) is not a member of a couple
The term "member of a couple" was defined in s 4(2) of the 1991 Act to include a person who was not legally married if:
(b)all of the following conditions are met:
(i)the person is living with a person of the opposite 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 subsection (3)), a marriage-like 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 for the purposes of section 23B of the Marriage Act 1961.
Subsections 4(3) and 4(4) of the 1991 Act as at 1 January 1993 provided as follows:
Member of a couple - criteria for forming opinion about relationship
4 (3) In forming an opinion about the relationship between 2 people for the purposes . . . of sub paragraph (2)(b)(iii) . . . 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.
(4) If:
(a) a person claims, or is receiving, sole parent pension; and
(b)a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c)the claimant or recipient is not legally married to the other person; and
(d) at least one of the following subparagraphs is satisfied:
(i) a child of both the people also lives in the residence;
(ii) the people have joint ownership of the residence;
(iii)the people are joint lessees of the residence and the original duration of the lease was at least 10 years;
(iv)the people have joint assets with a total value of more than $4,000;
(v)the people have joint liabilities totalling more than $1,000;
(vi)the people have at any time been members of the same couple;
(vii)the people have at any time shared another residence with each other;
the Secretary must not form the opinion that the claimant or recipient is not living with the other person in a marriage-like relationship unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is not living in a marriage-like relationship with the other person.
From 29 September 1995 the definition of "member of a couple" in s 4(2)(b)(i) of the Act was amended by omitting "is living" and substituting "has a relationship" (s 14(c) of the Social Security Act (Non-Budget Measures) Legislation Amendment Act 1995 (No 105, 1995)). Prior to 29 September 1995 the definition of member of a couple required in 2(b)(i):
(i)the person is living with a person of the opposite sex (in this paragraph called the "partner")
. . .
After 29 September 1995 subparagraph 2(b)(i) no longer required that the person be living with the "partner" but read:
(i)the person has a relationship with a person of the opposite sex (in this paragraph called the "partner");
The name of the person with whom it is alleged Ms Hazim has been living as "a member of a couple" is usually written as Abdul Karim. However he said in evidence (trans. p22), that his family name is Abdul. He is therefore referred to as Mr Abdul in these reasons.
In order to assist in following the detailed evidence I have compiled the following timetable. I am satisfied as to each of the facts set out in the timetable. The names used are those in the relevant documents:
TIMETABLE
April 1993 Abdul Karim and Tracey Dremel sign 6 months lease for flat at 12/18 Campbell Street, Punchbowl (T8B p36)
21 September 1993 Abdul Karim gives notice of intention to vacate (R2).
5 October 1993 Abdul Karim returns keys for Punchbowl flat (trans p.525).
12 January 1994 Centrelink aware of new address 13 Birch Place Macquarie Fields (T11 p39).
7 February 1994 Abdul Hazim advises Department of Immigration of new address 13 Birch Place Macquarie Fields (R4 p29).
29 September 1994 Donna Karim born Birth Certificate shows both parents address as 13 Birch Place Macquarie Fields (T7 p32).
11 July 1995 Donna hospitalised for fits (A3).
17 December 1995 Tracey Hazim and Abdul Karim travel to Pakistan with four children including Donna (T71 pp243-248).
27 January 1996 Tracey Hazim and Abdul Karim return to Australia (R71 pp243-248).
2-9 February 1996 Donna hospitalised with febrile convulsions (A3).
19 April 1996 Nazeerah Karim born Birth Certificate (lodged November 1996) gives Melbourne address for Tracey Dremel and Mascot address for Abdul Karim (T7 p33).
4 September 1996 Ms Hazim withdraws money in Preston and starts Melbourne withdrawals (R3)
12 September 1996 Centrelink letter to Ms Hazim in Melbourne acknowledging advice of change of address and rent details with move to Melbourne (T46 pp164-166)
November 1996 Abdul Karim moves to Melbourne (T76 p263)
28 January 1997 Abdul Karim returns to employment in Sydney (T76 p263).
7 February 1997 Tracey Hazim back in Sydney Letter sent to her by Centrelink at 22 Langtry Ave Auburn (T51 pp178-180)
18 April 1997 Centrelink letter to Tracey Hazim at 12 Risdoni Way Macquarie Fields (T54 pp187-188).
approx July 1997 Abdul Karim commences period on compensation which he said was continuing as at date of hearing (trans. p304).
13 October 1997 Tracey Hazim advises of change of address to 23 Berrigan Cres Macquarie Fields (T65 pp223)
16 February 1998 Interview and statement made by Tracey Hazim to Helen Stig (T77 p266-267).
13 March 1998 Further interview and statement made by Tracey Hazim to Helen Stig (T84 pp307-309) includes concession that she had lived with Abdul Karim since beginning of 1994 until 16 February 1998.
19 October 1998 Advice by Tracey Hazim and Abdul Karim of becoming partnered (T6 pp27-28).
8 March 1999 Musrat Karim born.
the evidence
There is much relevant evidence which is not in dispute. Ms Hazim has never tried to hide the fact that Mr Abdul is the father of 3 of her children:
Donna born 29 September 1994
Nazeerah born 19 April 1996
Musrat born 8 March 1999
On the birth certificates of Donna and Nazeerah (T7 pp32 and 33) Mr Abdul's name is written in the Pakistan style as Abdul Karim rather than Karim Abdul. Ms Hazim has three older children, Nadia, Miriam and Abdou Hazim. Their father died on 13 March 1992 (T77 p267).
Ms Hazim has not denied that she and Mr Abdul jointly rented a flat at Punchbowl for six months from April 1993. The lease is at T83 p26. But they both say Mr Abdul moved out after three or four weeks. I will return to consider the evidence as to that tenancy later in these reasons. Further Ms Hazim and Mr Abdul both say that on one occasion, he says on two occasions, when his oldest daughter Donna had been in hospital, Mr Abdul lived with Ms Hazim and the children at 13 Birch Place Macquarie Fields for a period after Donna's discharge from hospital, in order to help look after her. Mr Abdul said at trans p287 and 288, that he thought the first time was "about a month, a month and a half" and the second time "a few months, I think a month and a half". Ms Hazim and Mr Abdul do not deny that on occasions Mr Abdul has slept at Ms Hazim's place. There is also no dispute about the fact that Ms Hazim and her 4 children travelled to Pakistan with Mr Abdul to show Donna to his parents from 17 December 1995 to 27 January 1996. At that time Ms Hazim was expecting Nazeerah who was born on 19 April 1996. The evidence establishes further, that when Ms Hazim came to Melbourne for five months, from approximately 10 September 1996 to 3 February 1997 (T77 p266), Mr Abdul also came to Melbourne. He left his employment in Sydney in November 1996 and did not return until 28 January 1997. After they both returned to Sydney, Mr Abdul looked after his children when Ms Hazim attended a TAFE Literacy and Numeracy Pre Vocational course from 12 noon to 3 pm on Tuesdays and Thursdays. Ms Hazim first enrolled on 8 August 1997, and continued the course in 1998 and 1999. Mr Abdul was able to do that child minding as he started on long term compensation in July 1997. He said in evidence that he is still on compensation (trans. p304).
The respondent points to a number of inconsistencies in the evidence of Ms Hazim, and between her evidence and that of Mr Abdul and other witnesses for the applicant and submits that her evidence is not reliable. The respondent also relies on Ms Hazim's statement of 13 March 1998 (T84 pp307–309) which Ms Hazim signed. It makes conflicting admissions. On the one hand it states at p307:
I lived with Abdul Karim from about June 1994 until about 3 days before Christmas, when I went on holiday to Melbourne. Abdul Karim was present at the birth of our daughter Donna. I have not lived with Abdul Karim since that time. Abdul Karim was present at the birth of our 2nd daughter Nazeerah. Abdul Karim looks after the children on all Tuesdays and Thursdays, while I go to T.A.F.E. Abudul Karim will also stay 1 night every 2nd or third week, when he arrives too drunk to drive home. I did phone his work on Fridays.
But at p309 it states:
I now concede that I have lived with Abdul Karim since beginning of 1994. We have lived together the whole time, but when he needs his freedom he walks out and then comes back. He lived with me up until the visit by the Department on 16 February 1998. Since 16 February 1998 Abdul Karim has resided at 111B Elizabeth Drive, Liverpool. Abdul Karim still watches my children when I am at TAFE.
That final statement is significantly different from a statement of 16 February 1998 (T77) in which Ms Hazim first said that she and Mr Abdul "lived together for about three months but I do not know when" and later said:
I now say that we lived together from about April 1994 till about July 1994.
I find that in saying that she had lived with Mr Abdul from the beginning of 1994 Ms Hazim was telling the truth, but she was also telling the truth when she said "But when he needs his freedom he walks out and then comes back." I find that Ms Hazim did not consider whether there may be some periods during which she and Mr Abdul were not in fact living as a couple. I accept Mr Meadows' submission that because the circumstances in which Ms Hazim lived changed from time to time, it is appropriate to make findings about those circumstances in respect of different periods, rather than to make one "global finding".
It is clear that at all relevant times Ms Hazim and Mr Abdul have had a relationship with each other. But at all relevant times s 4(2)(b)(iii) has required that the relationship between the person and the partner be, in the Secretary's opinion formed as mentioned in subsection 4(3), "a marriage-like relationship".
punchbowlIt is not denied that for some weeks, from 23 April 1993 to approximately the end of May 1993 Ms Hazim and Mr Abdul did live together in the flat at Punchbowl. But they said that the relationship between them was not "a marriage-like" relationship.
The circumstances in which Ms Hazim and Mr Abdul came to rent the Punchbowl flat together were explained by both of them, but their stories were not the same. According to Ms Hazim the arrangement was made when she was living in Sydney and had difficulty getting a place because she was a single mother with three children. She said Mr Abdul suggested that they rent a place together (trans. p20). She said they had met only three times, twice at a nightclub and on one other occasion before they agreed to share a place (trans. p72). She said they presented themselves to the agent as just sharing, rather than as a couple.
That evidence is not supported by the agent's receipt for the first week's rent which is in the names "Karim and Tracey Abdul", although the lease is in the names Karim Abdul and Tracey Dremel both of 28/22 Remembrance Avenue, Warwick Farm. The fact that they both gave the same Warwick Farm address was not relied on by the Secretary.
Mr Abdul said at trans. p228:
Our circumstances was that she ring me up from Melbourne, or wherever, I don't know, and she told me that I am in Melbourne and I want to come to Sydney, and if you like to share a place together. And I said all right, not a problem, because I was living by myself and the rent was too high, and I said all right, I will do it.
Now, how many times had you spoken with her before this, before she rang you?---Once, twice maybe.There is something rather unlikely in two people who hardly know each other agreeing to share accommodation, particularly when Ms Hazim already had three children. However Ms Hazim and Mr Abdul both say that he moved out after about 20 days. Once again there is some difference in their accounts of why he moved out so soon when the lease was for six months. Ms Hazim said it was because Mr Abdul was an illegal immigrant and did not want to see or be seen by anybody (trans. pp22 and 75). He did not want her brother and his friends coming around.
When Mr Abdul gave evidence he said he left because he "never liked it". He said "I told her I make bad mistake, so I just left her" (trans. p229). He explained (trans. p229):
Because she was bringing couple of friends over there which was the white boys and her brothers, you know, and a couple of other friends, and I was illegal immigrant on that time and I was just scared, and I said I don't want to live here, you know. I mean, maybe some day a fight break out or something, you know, and I just got out.
Okay?---I told her before – I told her before, don't let them come there, you know. And she said no, they're my brothers or friends, no, and I can't stop them. And then I said all right, I will go. So I just left.The fact that Mr Abdul was in Australia was well known to the immigration authorities because he had lodged an application for refugee status as early as 24 December 1991 (ex R4). He had also lodged an application for permission to engage in employment in Australia which was approved from 16 June 1993. When Mr Frazzetto put to him that it was no secret that he was here he agreed. He explained that his fear was that if he got into a fight the work permit could be cancelled. He said he was concerned about getting "into trouble with the other people by drinking and smoking and some other crimes" (trans. p314).
Both Ms Hazim and Mr Abdul said that while they lived together in Punchbowl she cooked and cleaned for herself and the children and cleaned the living room and Mr Abdul mainly ate out. They said they had separate bedrooms and no sexual relationship.
The SSAT noted a discrepancy in the evidence about the returning of the key for that flat. Ms Hazim said she had no contact with Mr Abdul after he moved out, and just left the key in a letter box for him to return. The agent said it was Mr Abdul who gave notice to vacate and who returned the key (trans. p525). That does give rise to a question as to whether he had stayed on in the flat with Ms Hazim. However the T documents, at T9 p37, include a note of a telephone call from Mr Donovan, a personnel officer at Mr Abdul's work on 6 June 1993. Mr Donovan said that he knew Mr Abdul had left the Punchbowl address 5 to 10 days earlier and could "guarantee that".
I have some doubts about the evidence of Ms Hazim and Mr Abdul on this issue. But there is no conflicting evidence, and some supporting evidence, namely the statement of Mr Donovan. On that basis I accept the evidence of Ms Hazim and Mr Abdul. Section 4(4) of the Act has no relevance to the period as on the evidence of Ms Hazim and Mr Abdul, which is supported by Mr Donovan, Mr Abdul stayed in the Punchbowl flat for less than 8 weeks. Further there is no evidence that in 1993 any of the subparagraphs in s 4(4)(d) were satisfied. The only evidence before me as to the living arrangements while Ms Hazim and Mr Abdul were living together at Punchbowl is that they were not living in a marriage-like relationship. I do not find that Ms Hazim was a member of a couple while she lived at Punchbowl.
ermingtonMs Hazim said that after she and her children left Punchbowl they moved to a flat above a Commonwealth bank in Ermington. She had no proof of that tenancy but her bank statements do show withdrawals from Punchbowl until 16 September 1993 and from Ermington after 30 September 1993. I find that Ms Hazim left the Punchbowl flat about 21 September 1993, which was when the notice of intention to vacate was given (R2). There is no evidence to suggest that Mr Abdul lived with Ms Hazim at the Ermington flat.
13 birch place macquarie fieldsIn January 1994 Ms Hazim moved to 13 Birch Place Macquarie Fields. That was a Department of Housing Flat. There is no evidence as to the date of commencement of the lease but that address appears in a review form issued by Centrelink on 12 January 1994 (T11 pp39).
Ms Hazim said she lived at Birch Place with her children only. She said she invited Mr Abdul to a house warming party and from then on there was an occasional sexual relationship. She said he just showed up once a fortnight, he was terribly drunk every time and he would collapse and stay the night on the couch, but a couple of times he came to her room (trans. p26). She said they never went out socially, and he never helped with the household chores or contributed to the household expenses.
Mr Abdul said he was living at Cabramatta with his friend Shahid Omar throughout 1994. He agreed in general terms with the description of their relationship given by Ms Hazim. Their first child Donna was born on 29 September 1994. Ms Hazim said Donna was born late (trans. p27). Therefore some sort of sexual relationship must have been in existence prior to or as soon as Ms Hazim moved to Macquarie Fields.
On 7 February 1994, Mr Abdul sent a letter to the Department of Immigration and Ethnic Affairs in relation to his application for permanent residence. It reads as follows (R4 p29):
Mr Abdul Karim
File No A92/062035
13 Birch Place
MACQUARIE FIELDS 2564
N.S.WTO WHOM IT MAY CONCERN,
I Abdul Karim is no longer residing at 4/1 Drumone Street Warwick Farm. For I am now residing at the above address, and wish for all correspondence in the future to be sent to the above address shown above.Yours sincerely
Abdul KarimMs Hazim and Mr Abdul denied that they ever lived as a couple before October 1998. Mr Abdul explained his use of Ms Hazim's address saying he was living with Mr Omar at 2/12 Levuka Street Cabramatta from the time he left Punchbowl in mid 1993 until the end of 1994, but he could not give that address as mail was so unreliable in Cabramatta (trans. pp283 and 377). I do not accept that evidence. Mr Omar in his evidence said that he had no trouble receiving his own mail and he said Mr Abdul also received mail when he was staying with him.
Nor do I accept the evidence of Mr Abdul and Mr Omar that Mr Abdul lived with Mr Omar through 1994. Mr Omar said he did not know Mr Abdul had a daughter born in 1994. Donna was born on 29 September 1994. Mr Abdul's evidence was that after she was born he just fell in love with his daughter (trans. p240). I find it very unlikely that the person with whom Mr Abdul was living at the time of Donna's birth, would be unaware of the birth. The transcript reads p211:
What about when his baby Donna was born, do you remember that?---I can't remember, no. I wasn't – I don't remember then when she was born.
You don't?---No, I don't.
Well, she was born in September '94. He was supposed to be living with you at that time, that's what you say?---Because I didn't even knew that he had a daughter or something.
So he didn't even tell you that he had just become a father?---No, he didn't.
His first child?---He didn't – it never – no, it never got mentioned to me. I found out after that he have like, he said he got a daughter and stuff, but not when she was born, I knew nothing about it.
Even though he was supposed to be living with you and you saw him every two or three days?---Yes.In view of the evidence that Mr Abdul was present at Donna's birth and fell in love with her after her birth, I do not accept that he would not have shared the happy news with his flat mate at that time.
There is other evidence which conflicts with the evidence of Ms Hazim and Mr Abdul as to their living arrangements while Ms Hazim lived at Birch Place Macquarie Fields. In June 1994 Mr Abdul used the 13 Birch Place Macquarie Fields address on a number of important documents which he lodged with the Department of Immigration. They consist of his application for permanent residence with accompanying documentation, his medical records in support of the application and his police check. Whenever any form requested an address for return correspondence, in respect of that important application, Mr Abdul gave his address as 13 Birch Place Macquarie Fields. The Department of Immigration file (R4) contains a number of letters to Mr Abdul from the Department of Immigration addressed to 13 Birch Place Macquarie Fields. Mr Abdul was advised by letter to that address dated 11 April 1995 that his application for permanent residence was successful (R4 p67). Thus he must have responded appropriately to mail sent to him. I find that Ms Hazim's evidence that she never received mail for Mr Abdul (trans. p105) was not correct.
Further Mr Abdul used the 13 Birch Place Macquarie Fields address and telephone number when he applied for employment with Theatre Equipment Pty Ltd on or about 4 July 1994 (T14 p53).
In addition, on Donna's birth certificate (T7 p.32) registered in 23 November 1994, Mr Abdul and Ms Hazim are shown as having the same address, 13 Birch Place [misspelled] Macquarie Fields.
That evidence raises considerable doubt about the evidence of Ms Hazim and Mr Abdul that they had only a casual sexual relationship in 1994. It also contradicts Mr Abdul's evidence that during 1994 he lived with his friend Mr Omar at Cabramatta. Another matter which raises doubts about the evidence of Ms Hazim and Mr Abdul is the concession in Ms Hazim's statement of 13 March 1998 (T84 p309) that she had lived with Mr Abdul from the beginning of 1994.
Mr Meadows relied on the evidence of Ms Leonard that Ms Hazim's results on psychological testing (A1 p3) indicate that she is illiterate and of a moderate to mild level of intellectual disability. I accept that evidence and note that it is supported by a letter from Macquarie Fields College of TAFE where Ms Hazim attended her courses in Literacy and Numeracy Pre Vocational. I accept that Ms Hazim could not have read the statement at T84 pp307-309 to herself, but I find that Ms Stig did write down what Ms Hazim told her.
In so far as Ms Hazim said she made the statement as a result of threats, or of statements she perceived as threats made by Ms Stig, I do not accept that Ms Stig's statements were intended as threats. Nor do I accept Ms Hazim's evidence that she simply said what she did because it was what she believed Ms Stig wanted to hear.
I find that although Ms Hazim has a mild to moderate intellectual disability, she can still function as an adult. She seems to be able to look after her six children perfectly satisfactorily and to organise their daily routines. I find that she understood that the evidence Ms Stig had gathered and discussed with her did challenge the account she was giving and that she changed her story for that reason.
There was a considerable amount of evidence given by people from Mr Abdul's workplace to the effect that he was known to live with Ms Hazim, who they called Tracey, and to live at Macquarie Fields, although his official address on their records (apart from the job application) was 1/183 King Street Mascot. That evidence covered the whole period of Mr Abdul's employment with Theatre Equipment Pty Ltd and its successor Da-Lite (Aust) Pty Limited from July 1994.
Mr Rees, who is an engineer, started Theatre Equipment Pty Ltd in 1985 with his wife Carol Rees. In 1995 the company was sold and Mr Rees stayed on as Managing Director on a three year contract. On 9 December 1997 the company name was changed to Da-Lite (Aust) Pty Limited.
Mr Rees said he first met Mr Abdul in 1990 when his company took over another company, Australux, for which Mr Abdul was then working. He said Mr Abdul was a very good worker and was hounded by the opposition to go and work for them. He did so, but returned to Theatre Equipment in mid 1994.
Mr Rees said he had contact with Mr Abdul every day at work. He said it was a small company and he himself was on the workshop floor every day, rather than in an office. He said he understood that Mr Abdul was living with Tracey Hazim. He also said that she came to pick him up on Friday afternoons when the factory was at Botany, trans. p496:
[A]s you can imagine, in a small company everyone talks amongst themselves, and – who are you married to, how many kids you've got, where you live, all that is sort of everyday chat; you know, it's not as if people lay it out in writing for you, it just comes up in conversation.
Do you know whether Tracey Hazim was in any way connected to Mr Karim?---Well, I know that she had two children by him and basically that they were living together out in Macquarie Fields; that was my understanding. I mean, she used to come and meet him at work on Friday afternoons when we had the factory at Botany.
What sort of occasions were Friday afternoons, what was the feature of those?---Well, she would wait for him, sometimes with children, at the factory gate really or the roller shutter, to make sure that he went home and didn't get sidetracked into the club across the road.Mr Rees said that Mr Abdul was a gambler. That was agreed to by Mr Abdul, Ms Hazim, Mr Omar and Mr Bhandari. Mr Rees explained that when the factory was at Botany, work stopped at 1.00pm on Fridays, staff were paid in cash and the RSL with its poker machines was right across the road. He said the company moved from Botany to Summerhill in August 1995.
Mr Rees spoke of Mr Abdul's friendship with Mr Bhandari. He said Mr Abdul was given lifts by Mr Bhandari every day when the factory was at Botany as their premises were not near a railway station. Mr Bhandari, who lived at Auburn, would pick Mr Abdul up from Auburn railway station in the mornings and would drop him off at Auburn station after work. He said Auburn station was on the line from Macquarie Fields to Botany.
In cross-examination, Mr Rees said that he had seen Mr Abdul and Mr Bhandari getting in and out of the car together. He said they told him that Mr Bhandari dropped Mr Abdul off at Auburn station. Mr Meadows cross-examined Mr Rees as to the basis of his belief that Mr Bhandari was picking Mr Abdul up and dropping him off at Auburn station. Mr Rees said that he knew that Mr Bhandari was picking Mr Abdul up and dropping him off at Auburn station from what they told him in discussions and conversation on the shop floor. He also said it was an everyday occurrence, not just day specific.
Mr Abdul and Mr Bhandari both denied that there was any arrangement whereby Mr Bhandari picked up and dropped Mr Abdul at Auburn station. They also suggested that Auburn would not have been on Mr Abdul's way if he was coming to work from Macquarie Fields. Mr Rees said that the train from Macquarie Fields goes through Auburn. I find that is correct as is apparent from the City Rail Suburban Network map (R7).
Mr Rees said it was very difficult to get an address from Mr Abdul. He knew that the official address on the company records was at Mascot, but he also knew that Mr Abdul was not living at the Mascot address.
Mr Rees said that Mr Abdul in conversation would refer to Tracey (Ms Hazim) as his wife even though they were not married. Mr Rees could not remember any particular conversations but he said: (trans. p498)
I knew that the lady in question was a widow and had three children from her previous husband – her deceased husband, and I knew that Karim had two more children with her.
Mr Rees said Ms Hazim came into the factory pregnant while it was in Botany. That would have had to be in 1994, before Donna was born, because the business moved from Botany in August 1995. Ms Hazim would not have appeared pregnant with Nazeerah who was born on 19 April 1996 in August 1995.
Mr Rees commented at trans. p506:
I would say so as everyone in the workshop [knew] that he'd had kids and he was living with a – with a widow who had three kids of her own, because – and that made five children. Quite a handful.
When Mr Meadows put to Mr Rees that people could have been wrong in drawing conclusions that Mr Abdul and Ms Hazim were in a relationship, Mr Rees replied:
Well, if the lady in question comes to the factory and she's pregnant and she's there to make sure that he doesn't spend his money, I guess that sort of bolsters what you're saying – that they are in a relationship, otherwise she wouldn't be there.
That seems to me to be a valid comment. Mr Rees added that he also had it first hand from Mr Abdul and Mr Bhandari who sometimes discussed personal matters in conversation at work over the five years Mr Abdul worked with Mr Rees.
Although Mr Rees did express some scepticism about Mr Abdul's long term workers' compensation claim, he said that he is "a very likeable guy" (trans. p514). He emphasised that he was a very good worker. The Department of Immigration file (R4) includes a letter Mr Rees wrote to the Department of Immigration on 8 December 1994, in support of Mr Abdul's claim for permanent resident status. Further Mr Rees said that in 1998 Mr Abdul and Mr Bhandari visited him seeking advice and maybe a financial contribution, when they were considering setting up their own screen fitting business. Mr Rees said he advised them against it because of the difficulties competing with established companies (trans. p498). I find that Mr Rees was giving truthful evidence and was not actuated by malice towards Mr Abdul.
Mrs Rees also worked in the business. She too gave evidence of Ms Hazim coming to pick Mr Abdul up on Fridays (trans. p486-487). She said that sometimes, when she did not have the children with her, Ms Hazim would come up to the office and talk. She said Ms Hazim regularly picked Mr Abdul up on Fridays to make sure he did not spend all his wages at the club. Mrs Rees said that Ms Hazim said to her that if Mr Abdul did not stop gambling she would leave him. Mrs Rees added, "But she wouldn't" (trans. p487). Mrs Rees said Ms Hazim picked Mr Abdul up every Friday when they were in Botany but only every second or third week after the move to Summerhill.
Mrs Rees said that sometimes Mr Abdul would have a cooked lunch and she would ask who made it and the answer would be that it was Tracey who had made it.
Mrs Rees explained that she remembered giving Ms Hazim and Mr Abdul a lounge suite for their place at Macquarie Fields. She said Mr Bhandari came and helped Mr Abdul pick it up and Ms Hazim telephoned to thank her (trans. p490).
Mrs Rees also described occasions when Ms Hazim had rung her to ask whether Mr Abdul was working overtime, because he was not home yet. She said that was another reason why she knew they were living together.
Mrs Rees also recalled an occasion when she and Mr Rees, and Mr and Mrs Bhandari and Mr Abdul and Ms Hazim went to an engagement party for a girl who worked in the business.
Mrs Rees was aware of the arrangements for Mr Bhandari to pick Mr Abdul up from and drive him to the station. Mrs Rees also said that she knew that Mr Abdul liked to gamble. She said: (trans. p491)
I know he used to borrow money from Tony, because he used to go to Tony's place at night to borrow the money. So he wouldn't go home, because Tracey would kill him if he had no wages.
Ms Aldridge who was the accounts clerk at Theatre Equipment Pty Ltd from about February 1996, and then an administrative officer with Da-Lite, advised Ms Stig over the telephone on 10 March 1998 that although 1/183 King Street Mascot was Mr Abdul's official address, "they know he lives at Macquarie Fields with Tracey and contact him there" (T76 p264).
In evidence Ms Aldridge said that the telephone number she had for Mr Abdul was Ms Hazim's phone number. She said when she used that number she spoke to Mr Abdul sometimes and to Ms Hazim on a couple of occasions. Sometimes the calls were at about 8.00 am, when Mr Abdul had not come into work, and sometimes about worker's compensation certificates. Those calls could have been later in the day.
Ms Aldridge also explained that on one occasion she had found herself on the train with Mr Abdul and had asked him where he was going on that train as it was heading west which was not towards Mascot. He said he was going home to Macquarie Fields (trans. p401).
Ms Aldridge also said that on a number of occasions she had spoken to Mr Abdul in general conversation and he had spoken about what he had been doing over the weekend and had mentioned Ms Hazim and the kids, speaking of her as his partner. Ms Aldridge denied that Mr Abdul had said anything about visiting his kids. Ms Aldridge said when she found that the telephone number she had was not for the address Mr Abdul had given at Mascot, she asked Mr Abdul for a telephone number at Mascot, but he said he did not have one. Ms Aldridge also said that on a couple of occasions she had seen Tracey in the car park when she had driven to pick Mr Abdul up.
I find on the basis of the evidence of Mr and Mrs Rees that between mid 1994 and August 1995 when the business moved from Botany, Mr Bhandari was regularly picking Mr Abdul up from Auburn station and dropping him off there at night. I find that Mr Bhandari and Mr Abdul were not truthful when they both denied that arrangement.
I find that Mr Abdul did live with Ms Hazim at 13 Birch Place Macquarie Fields as his principal home from 7 February 1994 until about 4 September 1996 when Ms Hazim moved to Melbourne. I make that finding on the basis of documentary evidence of addresses he gave to the Department of Immigration (R4) and to his employer and Ms Hazim's statement (T84 p309) and on the basis of the evidence of Mr and Mrs Rees and as to the period after February 1996, Ms Aldridge. I reject Mr Abdul's evidence and that of Mr Omar that during 1994 his principal home was at Cabramatta with Mr Omar. I find that if that were so Mr Omar would have been fully informed of the birth of Donna and Mr Abdul would have given that mailing address to the Department of Immigration. After that period Mr Abdul claimed that his principal home was with Fehra and Seif Hussein at 1/183 King Street Mascot. But the description Mr Abdul gave of a lifestyle where he simply "crashed" at the home of one friend or another and had no possessions (trans pp 293-294,] is an improbable scenario for a 43 year old man in good employment. I do not accept that evidence, but even if I did, it would not point to a principal home at Mascot. Further, Ms Stig noted that Mrs Hussein told her (T89 and trans p 419 & 451).
[F]or the past 3 years he has been residing with them for only one or two nights per week. She advised that she does not know where he stays other nights, but thinks it may be with his girlfriend at Macquarie Fields.
Mr and Mrs Hussein did not give evidence. Ms Stig said in evidence that Mrs Hussein told her that Mr Abdul had never lived at the Mascot address (trans. p419). There is a question whether staying regularly with friends is the same as living at their address. Mr Abdul himself told Ms Stig and the Tribunal that he stayed one or two nights a week with various friends, rather than that he had a principal home anywhere. I do not accept his evidence. I find that from 7 February 1994 until September 1996 his principal home was with Ms Hazim at 13 Birch Place Macquarie Fields and he used the Mascot address in an attempt to hide that fact.
This matter demonstrates the difficulty in deciding whether or not a person is "a member of a couple", if the Tribunal finds that the person and his or her partner are not giving truthful evidence as to their circumstances. There is no one else who can give evidence as to many of the circumstances to which the Tribunal must have regard. That is no doubt why s 4(4) was inserted in the Act. As set out in paragraph 9 of these reasons it provides:
(4) If:
(a) a person claims, or is receiving, sole parent pension; and
(b)a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c)the claimant or recipient is not legally married to the other person; and
(d) at least one of the following subparagraphs is satisfied:
(i) a child of both the people also lives in the residence;
(ii) the people have joint ownership of the residence;
(iii)the people are joint lessees of the residence and the original duration of the lease was at least 10 years;
(iv)the people have joint assets with a total value of more than $4,000;
(v)the people have joint liabilities totalling more than $1,000;
(vi)the people have at any time been members of the same couple;
(vii)the people have at any time shared another residence with each other;
the Secretary must not form the opinion that the claimant or recipient is not living with the other person in a marriage-like relationship unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is not living in a marriage-like relationship with the other person.
Mr Meadows submitted that s 4(4) had no application when the issue was one of recovery of an overpayment. He submitted that it was only relevant to deciding issues as to qualification for payment. As the overpayment in this matter arises because it is alleged Ms Hazim received payments for which she was not qualified as she was a "member of a couple", I consider that s 4(4) is applicable. The Tribunal is considering whether Ms Hazim was qualified to receive the payments of sole parent pension which she was receiving. If she was not so qualified those amounts will be an overpayment.
I find that s 4(4) is applicable:
(a) at the relevant time Ms Hazim was receiving sole parent pension.
(b)13 Birch Place Macquarie Fields was for a period of at least 8 weeks from 7 February 1994 the principal home of both her and Mr Abdul.
(c)Ms Hazim and Mr Abdul are not legally married to each other.
(d)(i) from September 1994 a child of both the people also lived in the residence.
(vii)the people had from 19 April 1993 shared another residence with each other.
Where any one of paragraphs (d)(i) to (vii) is satisfied, s 4(4) of the Act requires that I not form the opinion that Ms Hazim is not living in a marriage-like relationship with Mr Abdul unless, having regard to all of the matters referred to in s 4(3), the weight of the evidence supports the formation of an opinion that Ms Hazim is not living in a marriage-like relationship with Mr Abdul. It is therefore necessary to consider the circumstances set out in s 4(3) of the Act.
(a)the financial aspects of the relationship
(i)any joint ownership of real estate or other major assets and any joint liabilities
There is no evidence of any joint ownership of real estate or other major assets or of any joint liabilities at any time.
(ii)any significant pooling of financial resources especially in relation to major financial commitments
There is no evidence of any significant pooling of financial resources in relation to major financial commitments but there is evidence of pooling of financial resources for household expenses. I accept the evidence of Mr and Mrs Rees about Ms Hazim driving to pick Mr Abdul up at Botany when work finished on a Friday at 1.00pm to stop him gambling his pay, which was then paid in cash, at the RSL Club across the road from the factory. On that evidence I find that Mr Abdul's pay was used for the support of the household which consisted of Ms Hazim, Mr Abdul and four children including Donna. I also accept the evidence of Mrs Rees (trans. p487) that Ms Hazim said she would leave Mr Abdul if he did not stop gambling. That too shows that his pay was important to the payment of household expenses for Ms Hazim and the children. I do not accept the evidence of Ms Hazim and Mr Abdul that he did not pay her anything and did not contribute to her household expenses. I find that evidence was not truthful.
(iii)any legal obligations owed by one person in respect of the other person
There is one very relevant financial circumstance which indicates that the relationship was not marriage-like. That is the fact that right from the time of Donna's birth the Child Support Agency required Mr Abdul's employer to deduct maintenance from his pay in respect of Donna and later also in respect of Nazeerah. Document T61 p210 shows that the weekly deductions increased from $137.83 to $185.23 from 11 July 1997. It was about that time that Mr Abdul ceased working and went onto compensation. The payments continued until October 1998 when Ms Hazim and Mr Abdul advised that they were living as partners.
As Mr Meadows pointed out it was a requirement of the Child Support Assessment Act 1989 s 25(1)(b) that the person claiming payments not be living with the person from whom payment of child support is sought as the spouse of that person on a genuine domestic basis.
(iv)the basis of any sharing of day-to-day household expenses
Mr Abdul said he paid nothing towards the household expenses, "No, not even a dollar, a single dollar" (trans. p240). At trans. p303 he said he made no payment towards household expenses and never bought anything for Ms Hazim other than the fares to Pakistan. He claimed if he did so he would be treating her like a prostitute. If it were true that Mr Abdul made no financial contribution to household expenses there would be no explanation for Ms Hazim driving across Sydney to pick Mr Abdul up from the factory at Botany on Fridays.
It is difficult to reconcile the finding that Mr Abdul did contribute to household expenses, with the established fact that he paid child support for Donna and later for Nazeerah by deduction from his earnings. The fact that in order to qualify for Child Support Ms Hazim would have needed to claim that she did not live with Mr Abdul, and he must have not challenged that claim, does not necessarily indicate that it was true that Ms Hazim and Mr Abdul did not live together. Mr Abdul says he has frequently given false addresses. That is how he explains giving the Birch Place Macquarie Fields address to the Department of Immigration from 7 February 1994, and to Theatre Equipment Pty Ltd in July 1994. If the evidence of Ms Hazim and Mr Abdul is true, when they say that they did not live together before they entered into the lease of the Punchbowl flat, then the address they gave for them both at that time, 28/22 Remembrance Avenue Warwick Farm, was also incorrect. Further Mr Abdul said at trans. p375, that he gave Ms Hazim the wrong date of his birth. I find that he has no problem with giving people false information if that is convenient to him.
Mr Abdul did not claim for Ms Hazim as a dependent in his tax return but he did claim a spouse deduction for Sultana Karim in the year 1996/1997 (T87 p317). The evidence did not satisfy me that she was a real person. Mr Abdul said she was not his wife and he did not live with her but just visited her casually as he did Ms Hazim. That does not explain why he claimed her as a defacto spouse. He said that it was purely a coincidence that Sultana Karim had the surname Karim which he used as his own surname for tax purposes. He said he did pay some expenses for Sultana Karim as she was an illegal immigrant, but none for Ms Hazim who was the mother of his children. The evidence is clear that Mr Abdul came to Melbourne from November 1996 to late January 1997 because Ms Hazim and his children were here. I do not accept that Sultana Karim was his dependent spouse that year.
(b) the nature of the household
(i)any joint responsibility for providing care or support of children
I find that Ms Hazim and Mr Abdul did have joint responsibility for providing care and support for their children Donna and Nazeerah. That was not denied by Mr Abdul. He said at trans. p240:
. . . after Donna born, so I fall in love with the kids, you know, and I just started going more often to see her, see my little girl.
And how long after that?---Every weekend, maybe twice a week or maybe once a fortnight, you know. It's whenever I get the time, you know, I just go there and see her.As well as going around more often to see Ms Hazim and Donna after Donna's birth, Mr Abdul also paid for Ms Hazim, her three older children and Donna to go with him to Pakistan from December 1995 to January 1996. He said he did that to show Donna to his parents.
There is no doubt that when Donna was sick, Mr Abdul did everything he could to support her and Ms Hazim. He gave evidence that Donna was sick and hospitalised shortly after her birth. She was born on 29 September 1994. From ex. A3 it appears that she was first admitted to hospital with convulsions on 11 July 1995. Mr Abdul gave evidence about that admission: (trans. p286-7)
One day I got phone call to fetch me, that your daughter is having some kind of bad fits and she is in the hospital. And I just left the job and same place and I just went.
Yes?---To my daughter and she was in the hospital and then I told Tracey, are you going to stay with her, she said, no, I have to take care of the other kids at home. I can't stay. So I said, al right, I will stay all hours, the days she will stay in the hospital, I will stay there. So I was sitting all the time with her, a couple of nights when she was in the hospital and when she came back and I didn't trust anybody and I said, all right you all go to Department of Social Security, you can go and tell them that I am staying here, you know, but I am going to stay here until daughter will get well. So I stayed there.
How long?---Sorry?
How long did you stay. You were about to say, sorry, I cut you off?---I think about a month, a month and a half. I don't remember exactly how long I stayed.
And how old was Donna?---May be four months, five months. Something like that. Six months. I don't know.When Ms Hazim and Mr Abdul were staying with his parents in Pakistan Donna took sick again. Ms Hazim described the situation at trans. p29:
She was fine one minute, the next minute she went blue and she wasn't breathing. So he grabbed the motorbike, somebody on a motorbike and took her somewhere and I didn't know where he took her - - -.
Mr Abdul brought Donna back after a couple of hours and as soon as seats were available Ms Hazim, Mr Abdul and the four children returned to Sydney.
Ms Hazim described what happened after the family returned at trans. p30:
Well, she took another fit on the plane and we gave her the tablets that they gave her in Pakistan and then we went home and she just got bad, and we called an ambulance and the ambulance rushed her to the hospital and they said she had typhoid as well. So she was in isolation for two weeks.
And did anyone stay with her while she was in hospital?---Yes.
Who was that?---Abdul Karim.
. . .
And what happened after she was discharged from hospital?---He came back to my place and stayed for a while just to make sure there was no more fits and she wasn't getting more sick.
Okay. And where did he – and how long did he stay?---About three months.
And was his reason for being there to be with Donna- - -?---Yes.Mr Abdul agreed with that evidence (trans. p288). He did not know whether he stayed with Ms Hazim for a few months or a month and a half.
I find that Mr Abdul at all relevant times has had a strong paternal attachment to his children, especially Donna. I find his feelings for his daughters are as strong as they would be if the relationship between him and Ms Hazim was marriage-like.
(ii)the living arrangements of the people
There is great difficulty making any findings as to the living arrangements of the people. Ms Hazim and Mr Abdul have denied that they lived together at the relevant period. Thus they have given no evidence as to their living arrangements. I do not accept their evidence that they did not live together. However, other people who have not lived in the household can not give evidence as to the living arrangements of the people.
(iii)the basis on which responsibility for housework is distributed
There is no evidence to suggest that Mr Abdul shared any of the housework. There is evidence from Mrs Rees that Ms Hazim prepared his lunch to take to work.
(c) the social aspects of the relationship
(i)whether the people hold themselves out as married to each other
Ms Hazim and Mr Abdul denied that they ever held themselves out as married to each other. There is no evidence that they did, other than one estate agent's receipt, regarding the Punchbowl Flat in the names Karim and Tracey Abdul (T8A p35) and hospital records (T81 p303) describing Mr Abdul as Ms Hazim's husband in relation to Donna's birth and as her partner in relation to Nazeerah's birth. The lease and the itemised account in respect of the Punchbowl flat are in the names Karim Abdul and Tracey Dremel which was Ms Hazim's maiden name.
(ii) the assessment of friends and regular associates
From the evidence of Ms Aldridge and Mr and Mrs Rees I find that work associates regarded Ms Hazim and Mr Abdul as a couple who were living together in a defacto marriage relationship. Ms Hazim and Mr Abdul said they never held themselves out as a couple, and Mr Bhandari and Mr Omar supported that evidence.
(iii)the basis on which the people make plans for or engage in joint social activities
The evidence is that Mr Abdul and Ms Hazim and the four children travelled together to stay with his parents in Pakistan from 17 December 1995 to 27 January 1996. At that time Ms Hazim was pregnant with Nazeerah. The trip was paid for by Mr Abdul, or according to Mr Rees by his relatives in Pakistan
Mr Abdul and Ms Hazim told the Tribunal that Mr Abdul's family did not treat Ms Hazim and Mr Abdul as a couple. But Ms Stig has recorded at T89 p320 that Ms Hazim told her that Mr Abdul's parents did consider them to be a couple. I must say I find that more probable than the evidence Ms Hazim and Mr Abdul gave to the Tribunal. They said that Ms Hazim was simply introduced as "Donna's mother" and then ignored. In making my finding on this matter I have taken into account Mr Abdul's evidence that he could not marry Ms Hazim without his father's permission. If he was so concerned about his father's approval it seems to me improbable that he would bring Ms Hazim to stay with his family on the basis that she was just a casual sexual partner who happened to be the mother of his daughter and was expecting his next child.
There was also evidence from Mr and Mrs Rees that Mr Abdul frequently spoke of things he had done with Ms Hazim and the children over the weekend. Further Mr and Mrs Rees gave evidence of one engagement party they and Mr Abdul and Ms Hazim had attended together. Of course people take a partner to a party even if they do not live as a couple. The troublesome aspect is that Mr Abdul and Ms Hazim did not even admit that they went to the party together. (trans p347 and p108)
Ms Hazim did say that she once invited Mr Abdul to a housewarming party when she had just moved into 13 Birch Place Macquarie Fields.
Ms Hazim also said that she had given Mr Abdul a surprise 40th birthday party. She said (at trans. p152) that it was when they were living together but she did not say when. Ms Hazim said, at trans. p152,:
Well, I invited a couple of his friends for his 40th, yes
MRS DWYER: For his what?---40th
MR FRAZZETTO: You invited them?---Yes, I did. It was a surprise party.
Right. And who were they, who did you invite?---Just Tony, just Debbie, Shar, and that was it, my sister.From the context in which that evidence was given it would seem that Ms Hazim was referring to the party being some time after October 1998. But in fact Mr Abdul turned 40 on 26 October 1993. His date of birth 26 October 1953 is given on his application for permanent residence and in a number of other documents including a copy birth certificate in the Department of Immigration file (R4). If the birthday party was at the time of the birthday it would have been after Ms Hazim and Mr Abdul had moved out of the Punchbowl flat and so far as the evidence reveals they were not living together.
Mr Omar said he had gone to a surprise birthday party for Mr Abdul in Macquarie Fields. He said he thought it was in 1998 but he did not know what birthday it was. Mr Omar said he went to the party with Seif or Shane. He said he did not see Ms Hazim at the birthday party so he cannot say whether they were living together or not. He said Mr Abdul had never mentioned Ms Hazim to him. However Mr Omar said he thought the party was at Birch Place Macquarie Fields (trans. p215). He said it was Karim (Mr Abdul's) party and he was living there.
Mr Bhandari's evidence about the party was that he was invited to a surprise birthday party for Mr Abdul by Ms Hazim about two years ago, but he did not know if it was a 40th birthday party. At one stage (trans. p187) Mr Bhandari said that he first met Ms Hazim at the birthday party and that it was before Ms Hazim came to stay with him in February 1997, but then he changed his evidence to say the party was after she stayed with him.
Mr Abdul's evidence about the birthday party was intentionally vague. The transcript reads (p374-375):
Do you recall a birthday party, a surprise birthday party that Tracey gave for you? She said it was your 40th birthday party?---She doesn't even know my date of birth properly. How she think that's a 40th birthday party?
Well, do you recall a birthday party where Omar Shalid and Tony Bhandari came and other friends came?---Yes, there's a couple of people came.
Do you recall when that was?---I don't know, sir.
How many years ago?---I don't know, sir.
Was it your 40th birthday party?---I said she doesn't even know what is my real birth date is so how she knows that was my 40th birthday party?
MRS DWYER: But you were just asked the question was it your 40th birthday party?---Your Honour, it wasn't my 40th birthday party because she doesn't know – I even told her my date of birth is wrong. I haven't even told her my right date of birth. I doesn't even gave her my right date of birth. I gave her the wrong date of birth. That much I got a relation with her that I doesn't even give her the right date of birth.
MR FRAZZETTO: But you definitely cannot remember how many years ago this birthday party was?---Only I know it was in Macquarie Fields.
(d) any sexual relationship between the peopleThere is no dispute about the fact that at all relevant times there has been a sexual relationship between Ms Hazim and Mr Abdul.
(e)the nature of the people's commitment to each other
I find that some sort of a relationship between Ms Hazim and Mr Abdul lasted at least from sometime before 24 April 1993 when they rented the Punchbowl flat together until Ms Hazim moved to Melbourne in late 1999. Mr Abdul gave evidence that he had twice asked his father for permission to marry Ms Hazim. This shows considerable commitment (trans. p386):
Did you ever ask your father when you were in Pakistan whether he would approve you marrying Tracey?---I tried to put him. I said, listen, I got a kid now, what do you think about that, you know, and he said, listen, I'm not going to go for a white woman, if you want to do it, up to you, I don't care. So I don't want to make him angry too. I said, all right. I didn't say much about it and in the middle of that time Donna got sick and we didn't have time to talk about these things because she used to have fits over there too and you have to put the first priority there and I put her first priority there, take Donna to the doctors and look after her and things like this and that's it. But when I went second time I asked him again too. I said, what do you think. Especially I went for that reason in Pakistan on that time, I ask him what do you think, now I got two daughters, so come on, I know you are Muslims and maybe later on Tracey will become the Muslim, all right, let's do it. He said no, no way, I 'm not going to give – you want to do it, you go ahead, do it.
(ii) the nature of any companionship and emotional support that the people provide to each other
There must be some level of companionship or support to keep a relationship alive from 1993 to 1999. Ms Hazim and Mr Abdul suggested in their evidence that they gave no companionship or emotional support to each other except when Mr Abdul looked after his children. Two examples were mentioned. The first was when he shared in the care of Donna once or twice by staying with her at the hospital and living in the flat with Ms Hazim to look after her at night for some weeks or maybe three months after discharge from hospital. The second was the regular child minding when Ms Hazim attended her TAFE course. As I do not accept that they were giving a truthful account of their relationship, I do not place much weight on their evidence on the issue. I find that they did offer emotional support to each other.
(iii)whether the people consider the relationship is likely to continue indefinitely
When Ms Hazim and Mr Abdul told Ms Stig in October 1998 that they were about to become a couple that was an indication that they did at that time consider the relationship was likely to continue indefinitely. If, as Ms Stig wrote, Mr Abdul told her (T82 p304) that he intended to return to Pakistan to ask for permission to marry, then at that time, 13 March 1998, Ms Hazim and Mr Abdul presumably considered the relationship was likely to continue indefinitely.
It is hard to know what was the position earlier. Ms Hazim claimed on a sole parent pension review form completed on 17 June 1996 (T40 p145):
I wish to advise the department that I am not currently living in a married like relationship with Abdul Karim or any other male. I have asked Abdul to reconcile but he said he was not ready for a relationship just yet. Abdul comes over every weekend to see his children and sometimes he may sleep the night.
The use of the word "reconcile" suggests that there had earlier been a close relationship between Ms Hazim and Mr Abdul. Neither Ms Hazim nor Mr Abdul admitted at the hearing that there had ever been a close relationship of that sort. Mr Abdul did imply (at trans. p385) in answer to a question from the Tribunal as to why he preferred the lifestyle he claimed to live to that of a man living with his family, that he had previously lived as a couple with Tracey at Punchbowl.
(iv)whether the people see their relationship as a marriage-like relationship
In this matter I find that Ms Hazim and Mr Abdul did not give honest evidence as to how they saw their relationship. Mr Abdul either used false addresses or else denied the true addresses he had given. He took steps to try to hide the true nature of the relationship from the authorities. I find that Ms Hazim was very much influenced by him and by the difficult circumstances in which she now finds herself but that she did see them as a couple, although she would have preferred it if Mr Abdul had been prepared to acknowledge the relationship.
conclusionThe evidence before the Tribunal as to the circumstances to which the Tribunal must have regard, as set out in s 4(3) of the Act, is not satisfactory and makes it difficult for the Tribunal to make findings as to a number of those circumstances. However bearing in mind the requirements of s 4(4) I cannot find that the weight of the evidence supports the formation of an opinion that Ms Hazim was not living in a marriage-like relationship with Mr Abdul during the time that I have found that they lived together at 13 Birch Place Macquarie Fields. Thus I find that from 7 February 1994 to 4 September 1996 Ms Hazim was "a member of a couple" and accordingly not entitled to the payments of sole parent pension she received.
melbourneThe next period which requires consideration is the time after 12 September 1996 when Ms Hazim lived in Victoria. Ms Hazim said that Mr Abdul did not live with her at Gronn Place West Brunswick, but sometimes looked after the children. Mr Abdul said he lived with Richard Martolla at 51 Ross Street Coburg (trans. p292). Ms Hazim's bank statements show withdrawals in Melbourne from Brunswick, Preston and Coburg and also from Broadmeadows. The first Melbourne withdrawal seems to be on 4 September 1996 (except for one single one on 19 August followed by further Sydney withdrawals). Mr Abdul's bank statements show withdrawals in Melbourne at Brunswick but also at Preston, Moonee Ponds, Heidelberg, Coburg, Glen Waverley and Hampton. Those records do not provide any evidence on which the Tribunal could conclude that Ms Hazim and Mr Abdul were living as a couple in Melbourne.
Mr Rees did say that Mr Abdul had told him that he was moving to Melbourne to be with Ms Hazim. He said, trans. p498,:
Well, what he told me was that Tracey wanted to go to Melbourne because that's where her family was, that's where all her sisters were and her mother and things like that, and he was going to try and get work down there and maybe even set himself up in a garage somewhere and do some repair work on screens, and if I wanted to, you know, I could send screens to him to get repaired. I wasn't going to be sending stuff to Melbourne and then back again. So he left, but after about three months he came back. I took him back again for the second time because he was – he is and was good at what he does, a good worker. But I believe he couldn't get any work in Melbourne, that's why he came back.
That evidence of Mr Rees, which I accept as truthful, does raise a doubt about the truth of the evidence Ms Hazim and Mr Abdul gave as to their living arrangements during the time they were both in Melbourne, but it is not sufficient to allow me to find that they lived together.
Turning back to the definition of "member of a couple" in s 4(2)(b)(i) of the Act, after 29 September 1995, it required as the first condition only that a person has a relationship with a person of the opposite sex. Clearly Ms Hazim and Mr Abdul continued to have a relationship of some sort while they both lived in Melbourne. He came here to see his children on his own evidence. Thus they had a relationship through their children. The term "has a relationship" is not defined in the Act, so it is not clear whether it covers any sort of relationship at all or whether it is meant to be a sexual relationship only.
Leaving that question aside for the time being, the next condition is that the relationship between the person and "the partner" "is, in the Secretary's opinion (formed as mentioned in sub-sections (3)), a marriage-like relationship."
There is no evidence as to the circumstances set out in sub-section (3), during the period while Ms Hazim was in Melbourne, other than that of her and Mr Abdul. She and he both said they were not living in the same residence. There is no evidence to contradict their evidence. Nor is there any evidence on which I could find the facts which make s 4(4) applicable.
Thus s 4(4) has no application to that period. I find that between 4 September 1996 and 7 February 1997 Ms Hazim was not a member of a couple.
langtry avenue, auburnA similar situation arises in respect of the period when Ms Hazim was living with Mr Bhandari at 22 Langtry Avenue Auburn. There is no evidence that Mr Abdul was living there with her. The evidence is that the household was that of Mr and Mrs Bhandari, and Ms Hazim and her children were paying boarders.
I find that Ms Hazim was living with Mr and Mrs Bhandari at 22 Langtry Avenue Auburn from 7 February 1997to 18 April 1997. Ms Hazim's evidence that she lived at the Bhandari's home is consistent with information she gave to Centrelink at the time (T51 pp178-180). T54 p187-188 is the first Centrelink letter to a new address. I see that Ms Hazim's bank statements for the period 5 February 1997 to 22 May 1997 give a different address, 10 Windsor Street Macquarie Fields, but there was no evidence at all about that address. I do not find that Ms Hazim was living as a member of a couple from 7 February 1997 to 18 April 1997.
risdoni way, macquarie fieldsAccording to Centrelink correspondence Ms Hazim moved into 12 Risdoni Way on about 18 April 1997 (T54). She notified the Department on 13 October 1997 that she was moving to 23 Berrigan Crescent Macquarie Fields (T65 pp222).
The only evidence that Ms Hazim and Mr Abdul may have lived together at 12 Risdoni Way is the statement of Ms Hazim at T84 p309. That statement alone does not satisfy me of that fact. It is too general in that Ms Hazim did not exclude periods when she and Mr Abdul may not have been living together, for instance when she was in Melbourne, or when she was living at Mr Bhandari's house. It does not explain the reason for her many moves or whether Mr Abdul made each move with her. I do not find that Ms Hazim and Mr Abdul lived together in a marriage-like relationship while she lived at 12 Risdoni Way.
berrigan crescent, macquarie fieldsDuring the remaining period of 13 October 1997 to 16 February 1998 Ms Hazim lived at 23 Berrigan Crescent. Mr Abdul was no longer seeing Mr and Mrs Rees or Ms Aldridge as he was on long term compensation leave. Ms Hazim and Mr Abdul say they were not living as a couple. Mr Abdul said he was living in a garage he rented at 111 Elizabeth Drive Liverpool.
There is some evidence suggesting that Mr Abdul may have lived with Ms Hazim at 23 Berrigan Crescent and only pretended to live in the garage. It consists of the lease and the agent's evidence as to the lease of the garage. In addition there is Ms Hazim's statement (T84 p309), the fact that Ms Hazim had Mr Abdul's car on 16 February 1998 (T77 p267) when Ms Stig called and the fact that Mr Abdul regularly minded the children two days a week while Ms Hazim attended TAFE. There is also evidence that Ms Hazim lodged one or two workers' compensation certificates for Mr Abdul.
Ms Aldridge gave evidence about the period when Mr Abdul was on compensation leave. She said she had to chase up workers' compensation certificates, and on a couple of occasions the certificates were brought in by Ms Hazim. She said that sometimes she rang Mr Abdul's home number and spoke to either Mr Abdul or Ms Hazim. She said it was a Macquarie Fields telephone number.
Ms Hazim said, at trans. p101, that she only once took a workers' compensation certificate in to Mr Abdul's work. Her evidence and that of Mr Abdul did not agree on this issue. Ms Hazim said that on the occasion she took the certificate into work she picked it up from a letter box at a block of flats in King Street Mascot. She said Mr Abdul had phoned and asked her to take the certificate in but she did not see him when she picked it up. She said she found her way to the address with the help of a friend.
Mr Abdul said, at trans. p349, that on the one occasion Ms Hazim took his certificate to his work, he was at her place to see the children, having gone straight there from the doctor. She said she was going into the city so he asked her to drop the certificate off on the way.
Mr Abdul's story is more probable, but the fact that they gave different accounts suggests to me that they were making up stories to explain her delivering the certificate, rather than telling the truth.
Mr Abdul gave evidence that throughout the whole of the relevant period except when he leased the garage, he slept at different friends' places and did not have a home where he kept his possessions. He said that when he lived in the garage he showered at various friends places. I find that evidence very unlikely.
Mr Abdul said that his compensation leave started about 22 or 24 July 1997. From almost that precise date he leased a garage at 111 Elizabeth Drive Liverpool. Mr Abdul said that garage became his residence. The lease specified that the premises were to be used "only as storage, home industries". The agent said there was a sink area but no toilet or bathroom facilities. He understood Mr Abdul was going to use the premises for storage and to repair toys (trans. p527). The only available toilets were in a service station across the road and in the adjoining tenanted house by arrangement with the tenants.
The agent gave evidence. He said that the tenants of the house had told him that they did not see much of Mr Abdul. They said "most of the time he was late in the building and then he was leaving . . . . there could be one occasion when he was asking for the use of the toilet, but that's basically it." (trans. p529). I do not accept Mr Abdul's evidence that the garage was his principal home. I find he lived with Ms Hazim.
Once Mr Abdul started his compensation leave in July 1997 there was no evidence that he saw Mr and Mrs Rees or Ms Aldridge except for one occasion when he called in to see Mr Rees at work. In the statement at T77 p267 Ms Hazim, on 16 February 1998, stated to Helen Stig that she was not living with Mr Abdul in a marriage-like relationship but that she had his Commodore station wagon as her car had broken down and Mr Abdul had taken it for repair. The fact that he had taken her car for repair and left his with her is consistent with them living in a marriage-like relationship, but is not a strong indication of such a relationship.
I find that on 13 March 1998 Ms Hazim told Ms Stig that Mr Abdul had lived with her at Berrigan Crescent where she was then living, until Ms Stig's visit on 16 February 1998, but that since then he had resided at his garage in Liverpool. That statement seems to me to be probably true as to the period after Ms Hazim moved to Berrigan Crescent. It was not consistent with the evidence Ms Hazim and Mr Abdul gave at the hearing but I do not accept that evidence.
I found Mr Abdul not to be a credible witness. He did not seem to take giving evidence seriously. I had the impression he would say anything at all that would suit his convenience. His suggestion that he would be treating Ms Hazim as a prostitute if he paid her anything for household expenses, in addition to maintenance for his daughters, did not seem to be serious. The way he spoke of Sultana Karim was as if he hardly knew her, yet he claimed her as his defacto wife. I do not accept his evidence of a peripatetic lifestyle for something like six years. I find that he gave that evidence to disguise the fact that for much of the time he and Ms Hazim shared "a principal home." I place no reliance on the evidence of Mr Abdul.
I found Ms Hazim's evidence also to be unreliable. She has been placed in a very difficult situation. I find she would have preferred to tell the truth but at times she did not know what to do in the predicament in which she finds herself. There are inconsistencies between her evidence and her statements and between her evidence and that of Mr Abdul.
I did not accept Mr Omar and Mr Bhandari as honest witnesses. They seemed to me to deny matters which they clearly would have known simply as friends of Mr Abdul. Mr Omar denied knowing of the birth of Donna, Mr Bhandari denied any arrangement about picking Mr Abdul up at Auburn station. He also denied ever seeing Ms Hazim's car although her evidence was that she drove to Sydney and back and drove to Mr Bhandari's place on her return from Melbourne.
I find that Ms Hazim and Mr Abdul did live together at 23 Berrigan Crescent until 16 February 1998, as Ms Hazim admitted to Ms Stig on 13 March 1998.
The evidence of Ms Hazim and Mr Abdul says very little as to the circumstances of the relationship when I find they were living together at Berrigan Crescent. Their sexual relationship continued as did their joint commitment to their children. Ms Hazim assisted Mr Abdul with the lodging of at least one compensation certificate. He assisted her with child care and having her car serviced. But clearly their commitment to each other also continued. It was in mid 1998 that Mr Abdul made his second trip to Pakistan, as he said to again ask his father to approve his marriage to Ms Hazim.
I find that s 4(4) of the Act does again apply to the period where Ms Hazim and Mr Abdul lived together at 23 Berrigan Crescent Macquarie Fields from 13 October 1997 to 16 February 1998. That period was longer than eight weeks. Two children of the relationship lived with Ms Hazim and Mr Abdul.
Thus I must not find that Ms Hazim was not living with Mr Abdul in a marriage-like relationship unless having regard to the matters referred to in s 4(3) of the Act the weight of the evidence supports the formation of an opinion that Ms Hazim was not living in a marriage-like relationship with Mr Abdul. I do not find evidence of Ms Hazim and Mr Abdul as to their circumstances during this period to be reliable. The weight of evidence does not support the formation of an opinion that Ms Hazim was not living in a marriage-like relationship with Mr Abdul. Thus applying s 4(4) of the Act I find that she was living with Mr Abdul in a marriage-like relationship.
conclusionThe decision of the SSAT will be varied to provide that Ms Hazim was living as a member of a couple from 12 January 1994 to 12 September 1996 and from 13 October 1997 to 16 February 1998 and that accordingly she was not qualified to receive sole parent pension or parenting payment during those periods. Thus all payments received by her during those periods are overpayments.
waiver of debtMr Meadow's asked me to consider s 24(2) of the Act and the possibility of a waiver for special circumstances. That section provides as follows:
24 (2) Where:
(a)a person has a relationship with a person of the opposite sex (the partner); and
(b)the person is not legally married to the partner; and
(c)the relationship between the person and the partner is a marriage-like relationship; and
(d)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
Mr Meadows put forward as special circumstances the evidence that Mr Abdul was not supporting Ms Hazim financially, Ms Hazim's intellectual disability and the fact that she has six children.
I do not accept the evidence of Ms Hazim and Mr Abdul as to the financial arrangements in their household. As I do not have before me reliable evidence as to Ms Hazim's financial circumstances no case has been made and of special circumstances due to financial hardship.
Mr Meadows submitted that the fact that Mr Abdul did not accept financial responsibility for Ms Hazim's older three children, who are not his, was a special circumstance. There was evidence that Mr Abdul did pay maintenance for his two older children up until October 1998 through the Child Support Agency. But he said that he made no other financial contribution to the household. I have not accepted that evidence. Ms Stig said, at trans. p418, that Ms Hazim had explained her position to her as follows:
Tracey had advised that Abdul was a drinker, he was a gambler, that she needed to support her children and feed her children, that some of the children weren't his and he wouldn't support them and that she needed to claim payments on that basis.
I find that is probably an accurate description of the financial situation of Ms Hazim and Mr Abdul. That position has some similarity to the situation in Secretary Department of Social Security and Le-Huray (1996) 138 ALR 533 where Ms Le-Huray's partner did not contribute to the maintenance of her two children. They were maintained by their father. The Tribunal in that matter found that to be a special circumstance such that in respect of her claim for family payment for her two children, Ms Le-Huray should not be treated as a member of a couple for the purposes of the Act.
An appeal from the decision of the Tribunal was allowed. Jenkinson J said at p541:
Although s 1069-H2 [the relevant provision in that matter] was no doubt enacted in the expectation that the income of a partner will be available for application in support of the ''FP children", the disappointment of that expectation, in a particular case, cannot of itself constitute special reason for not treating the person having the care and control of the children as a member of a couple for the purposes of the Act, in my opinion.
His Honour continued at p542:
It is in my opinion clear that the ''scope and purpose" of s 24(2) is to enable the welfare of dependent children by family payment subvention to be advanced in circumstances where the application of s 1069-H2 would not advance, but would impair their welfare. The findings of the tribunal and the evidence preclude, in my opinion, a conclusion that the application of s 1069-H2 would impair the welfare of the respondent' s children at the present time. The actuating reason for the tribunal' s decision - as that reason was propounded by counsel for the respondent - is plainly outside the scope and purpose of the enactment.
The suggestion that a discretionary judgment is involved in the exercise of the power conferred by s 24(2) may be accepted, provided that the discretion is understood to be exercisable with regard to the purpose for which the power is given. Further, in considering the meaning of the phrase ''special reason", regard to what Toohey J said in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3 - that, to be ''special", circumstances ''must have a particular quality of unusualness" - should be tempered by an even more careful regard to what the Full Court of this court said on the appeal in those matters - that Bowen CJ, Fisher and Lockhart JJ would place less emphasis than did Toohey J on what is only one of the several meanings of the word ''special" which a dictionary affords: Beadle v Director-General of Social Security (1985) 7 ALD 670 at 675.
In this matter there was no evidence that the application of the section of the Act providing the qualifications for sole parent pension or parenting payment would impair the welfare of Ms Hazim's children. Nor was there evidence of circumstances which "have a particular quality of unusualness" as explained by Toohey J in Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at 3.
Although I accept Ms Leonard's evidence and find that Ms Hazim has some intellectual disability I do not consider it to be of such severity as to be unusual or to constitute a special circumstance. She has a licence and drives a car and she seems to be a competent mother. I find that she knew that if she was living with Mr Abdul she was not qualified for sole parent pension and that is the reason why she did not disclose her full circumstances in her review forms.
The fact that Ms Hazim has six children does not make her circumstances so unusual as to be described as special. I am not persuaded that the recovery of the overpayments of sole parent pension or parenting payment should be waived under s 24 of the Act.
I certify that the 148 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member
Signed: Anne O'Rourke
AssociateDate/s of Hearing 17-20 July 2000
Date of Decision 16 March 2001
Counsel for the Applicant Mr D Meadows
Solicitor for the Applicant Victoria Legal Aid
Counsel for the Respondent Mr R Frazzetto
Solicitor for the Respondent Australian Government Solicitor
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