Hogan v Secretary, Department of Employment, Education and Workplace Relations

[2011] AATA 162

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 162

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          2010/1065      
  )          2010/1066
  )          2010/1067

GENERAL ADMINISTRATIVE DIVISION		)
Re		KRILEEN HOGAN

Applicant

And

SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND WORKPLACE RELATIONS

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondents

DECISION

Tribunal Mr S. Webb, Member

Date11 March 2011

PlaceCanberra

Decision The decisions under review are affirmed.

.....................[sgd].........................

Mr S. Webb, Member

CATCHWORDS

SOCIAL SECURITY - Parenting Payment – Family Tax Benefit – Childcare Benefit - Applicant paid at the single rate - conflict and domestic disharmony – temporary periods of separation - unreliable evidence – marriage-like relationship - member of a couple – not living separately and apart – overpayments - debts  – recovery not precluded by earlier bankruptcy – circumstances not special - decisions affirmed

Social Security Act 1991 ss 4, 1223, 1236, 1237A, 1237AAD

Social Security (Administration) Act 1999 s 68

A New Tax System (Family Assistance) Act 1999

A New Tax System (Family Assistance)(Administration) Act 1999 ss 97, 101  

Bankruptcy Act 1966 ss 58(3), 153

Beadle v Director-General of Social Security (1985) 7 ALD 670

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

Lambe v Director‑General of Social Services (1981) 57 FLR 262
Main v Main (1949) 78 CLR 636
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

REASONS FOR DECISION

11 March 2011 Mr S. Webb, Member         

1.      Krileen Hogan claimed and was paid Parenting Payment, Family Tax Benefit and Childcare Benefit at the single rate at various times from 1997. She is married and has three children. R, her husband, is father of two of those children. Following a tip-off, Centrelink determined that Ms Hogan was a member of a couple, not living separately and apart from her husband, and that she had been overpaid. Debts were raised against her. Ms Hogan sought review. The Social Security Appeals Tribunal (SSAT) reduced the period in which she was found to be a member of a couple. Ms Hogan is unhappy with that decision.

2.      Even though issues of entitlement, payment rate, debt and recovery of debt in respect of Parenting Payment (previously Sole Parent Pension), Family Tax Benefit and Childcare Benefit arise under separate sections under the Social Security Act 1991 (the Social Security Act), the Social Security (Administration) Act 1999 (the Administration Act), the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) and the A New Tax System (Family Assistance)(Administration) Act 1999 (the FA Administration Act), the first and central issue to be decided is whether Ms Hogan was a member of a couple under section 4 of the Social Security Act (as amended). Secondary issues concerning the issuing of notices, and the raising and recovery of overpayment debts under the applicable enactments also arise.

3.      I was informed by the parties that there is no issue about the amounts Ms Hogan was paid, at the single rate, during all relevant periods. It is not necessary for me to consider issues concerning the calculation of overpayment amounts. Furthermore, as I understand the Secretary’s case, the period in issue is that determined by the SSAT, being from 26 November 1999 to 12 December 2008.

4.      Ms Hogan asserts that she lived with her husband as a member of a couple for a short period of months following their marriage in August 2000. She says that they separated in October of that year. By her account she and R shared accommodation as cousins from 1997, but R discovered that he was adopted as a child and the nature of their relationship changed. Ms Hogan gave evidence that her relationship with R was volatile, and she asserts that in 1998 she and R stopped sharing accommodation. On her evidence, as I understand it, her relationship with R continued on a friendly “on again, off again” basis thereafter. Ms Hogan informed me that her marriage to R was a matter of convenience, as she wanted to have another child and asked R to donate sperm; she did not want to have another child out of wedlock as she had promised her Catholic mother that she would not, so she asked R to marry her. R agreed and the arrangement extended to include his participation in the in vitro fertilisation (IVF) program at Westmead Hospital. Following these procedures, Ms Hogan gave birth to her second child. She informed me that, a number of years later, she decided to attempt a third child and, again, approached R to donate sperm. Again, he agreed and participated in the IVF program at Westmead Hospital. Subsequently, Ms Hogan gave birth to her third child. Ms Hogan maintains that over the course of these events, R did not live with her and they were not members of a couple. By her account, R was very committed to his children and played an active part in their up-bringing, visiting Ms Hogan’s house on a frequent and regular basis over an extended period. Ms Hogan explained that R would arrive after work and look after the children, leaving later in the evening via the back gate to ride to his home. She informed me that R would leave his car at her house overnight in order to create the impression that she was not alone in the house. This was done, she says, for her own protection as she had been the target of abusive behaviour. Ms Hogan’s evidence is that she would not resume a domestic relationship with R during this period from 2000 to 2008 because he was a drug user, addicted to amphetamines, and she did not want her children exposed to behaviours of that kind. Furthermore, she asserts that R used her address for postal purposes because there were issues with him receiving mail at the house where he was living. She relies on the evidence of Dean Hart and other witnesses concerning R’s residential address from time to time.

5.      The following background facts arise from the documents and the evidence presented at hearing, and are established on the balance of probabilities:

(a)on 6 February 1997 Ms Hogan claimed Sole Parent Pension (T4), giving an address at Clifford Street, Goulburn[1] and citing R as a friend who could attest to her separation from a former partner[2];

[1] T4 folio 64.

[2] T4 folio 73.

(b)on 1 August 1997 R notified Centrelink that he and Ms Hogan and her son shared the house at Clifford Street, Goulburn (T6 folio 87 and T7 folio 91);

(c)at that time and subsequently Centrelink was informed that R was Ms Hogan’s cousin (see T7 folio 91, T12 folio 101, T13 folio 102 and T14 folio 103, for example);

(d)on 1 August 1997 R informed Centrelink that he was living at an address in Bruce Street, Goulburn (T8 folio 93);

(e)Ms Hogan gave oral evidence that she and R moved from the house at Clifford Street into the house at Bruce Street on 8 August 1998[3];

[3] T86 folio 1331.

(f)on 2 November 1998, Ms Hogan informed Centrelink that she was living in a house at Yarrowlow Street, Goulburn and that she did not share this accommodation with anyone other than her young son (T11 folio 96);

(g)on 16 February 1999 Centrelink received a tip-off that Ms Hogan and R were living as a couple at Ms Hogan’s address in Yarrowlow Street, Goulburn[4];

[4] T85 folio 1309.

(h)on 25 February 1999 Ms Hogan stated that R is her cousin and he was using her address at Yarrowlow Street for postal purposes as there was no mailbox at his “current address” (T12 folio 101), purportedly an address in Joshua Street, Goulburn (T13 folio 102);

(i)on 12 August 2000 Ms Hogan married R and adopted his surname[5], these facts were communicated to Centrelink on 16 August 2000[6];

[5] Prior to 12 August 2000 Ms Hogan went by the name Krileen Harrison, and previously Krileen Gray.

[6] T86 folio 1330.

(j)on 23 October 2000 Ms Hogan notified Centrelink that she and R had separated on 20 October 2000 and R had moved to an address in Grafton Street, Goulburn[7];

[7] T85 folio 1298.

(k)on 30 December 2000 Centrelink correspondence to R at the address in Grafton Street, Goulburn was returned as R was not known at that address[8];

[8] T85 folio 1245.

(l)subsequently in 2001, 2004 and 2006 Ms Hogan and her husband were referred to the Westmead Fertility Program[9] – Ms Hogan gave birth to two children as a result, in 2002[10] and 2007[11], but miscarried following IVF treatment in 2004;

[9] T76.

[10] T18 folio 141.

[11] T25 folios 169 and 170.

(m)on 22 October 2003 Centrelink received a tip-off that Ms Hogan and R were living together at Ms Hogan’s address[12] – certain investigations were undertaken but no further action was taken[13];

[12] T19 folios 156-157.

[13] T20 to T24.

(n)on 4 May 2007 Centrelink received a tip-off that Ms Hogan and R were living together at her address[14] – certain investigations were undertaken[15];

[14] T26 folios 171-172

[15] T27 to T55.

(o)on 11 December 2008 Centrelink determined to raise and recover overpayment debts from Ms Hogan as follows:

(i)in the period from 7 July 1997 to 19 March 1998 overpayment of Sole Parent Pension - $5,926.96[16],

[16] T56, T57 and T58.

(ii)in the period from 2 April 1998 to 2 January 2001 overpayment of Parenting Payment Single - $4,841.20[17],

[17] T56, T59 and T60.

(iii)in the period from 1 March 2002 to 9 December 2008 overpayment of Parenting Payment Single - $74,400.89[18],

[18] T56, T61 and T62.

(iv)in the period from 1 July 2005 to 30 June 2008 overpayment of Family Tax Benefit - $14,700.91,

(v)in the period from 5 April 2004 to 25 December 2005 overpayment of Childcare Benefit - $4,298.74, and

(vi)in the period from 3 July 2006 to 6 July 2008 overpayment of Childcare Benefit - $1,238.77;

(p)Centrelink received additional information[19] and conducted a review of the decision, whereby the debt for the period from 2 April 1998 to 2 January 2001 was reduced to $2,785.57, but otherwise the decision was affirmed[20];

(q)on 5 February 2010 the SSAT decided to set aside the decision, deciding instead that:

(i)Ms Hogan and R were members of a couple from 26 November 1999 to 9 December 2008;

(ii)there is a debt owing in respect of Parenting Payment Single in the period from 29 November 1999 and 15 August 2000 that is to be recalculated and recovered in full; and

(iii)there are debts (as previously decided) concerning overpayment of Parenting Payment Single in the period from 1 March 2002 to 9 December 2008 and overpayments of Family Tax Benefit and Childcare Benefit that are to be recovered in full.

[19] T64, T65, T67 to T76.

[20] T77.

6.      Ms Hogan asserts that these decisions are incorrect. In her submission, even though she shared accommodation with R and later married and had two children with him, they did not live together or hold themselves out as a couple; they did not pool resources or jointly own any assets; they lived separately and apart but maintained a casual sexual relationship from time to time; they shared some responsibilities in relation to their children, but only in a manner that is consistent with reasonable parenting in the particular circumstances; during the times when they were together they did not share household duties such as cooking, cleaning and washing clothes; and despite Ms Hogan’s hopes that R would “get off the drugs”, he did not. Ms Hogan alleges that she and R had intimate relationships with other people. Ms Hogan relies on documentary evidence provided to Centrelink and the oral evidence of Ms Mitchell and Ms Elliott, who were her neighbours in Yarrowlow Street at various times. Ms Hogan did not call other witnesses, such as R, who may have assisted the Tribunal with relevant information, and she informed me repeatedly that she did not want the Tribunal to summons these people. By her account R refused to give evidence in support of her case and she experienced difficulties in her relationship with him.

7.      At this point it is convenient to note that Ms Hogan was provided with many opportunities to call witnesses to give evidence in support of her assertions. The hearing was resumed on two occasions for this purpose. In particular, Ms Hogan informed me that she would lead evidence from Dean Hart. Mr Hart was not available to give evidence at either of the resumed hearings. Ms Hogan explained that she “did not have his telephone number” and that Mr Hart “works in a mine, underground, in Western Australia” and she could not contact him. Nevertheless, despite these purported difficulties, on 18 February 2011, Ms Hogan filed a statutory declaration from Mr Hart that was declared at Goulburn on 16 February 2011.[21] During the resumed hearings, Ms Hogan tendered additional documents and gave evidence on oath concerning an alleged assault on her by R, in relation to which Court orders have been issued.

[21] Exhibit C.

8.      In Ms Hogan’s submission, she was correctly paid Parenting Payment, Family Tax benefit and Childcare Benefit at the single rate. She says that she informed Centrelink of changes in her circumstances, as required. On this basis, Ms Hogan says that no debt should have been raised against her and the decision under review should be set aside.

9.      I do not agree.

10. Under the Social Security Act a person is a member of a couple if the person is legally married to another person, or has a marriage-like relationship with a member of the opposite sex to whom they are not legally married, and is not living separately and apart from the other person on a permanent or indefinite basis.[22] 

[22] Section 4(2)(b).

11.     It appears to me, having carefully reviewed all of the evidence, that Ms Hogan was in a marriage-like relationship with R prior to their marriage and that, even though there may be periods in which their relationship was volatile and they may have lived in separate accommodation from time to time, they did not live separately and apart on a permanent or indefinite basis during the periods that are presently in dispute.

Credit

12.     It is appropriate at this stage to make some observations about issues of credit. 

13.     Even though Ms Elliott and Ms Mitchell gave oral evidence, Ms Hogan’s case rises, largely, on her own evidence.

14.     I have very grave concerns about the reliability of her evidence.

15.     There are significant and numerous inconsistencies in the information Ms Hogan gave to Centrelink under caution[23], the information she provided to the SSAT at hearing[24] and in her sworn evidence in these proceedings[25]. For example, Ms Hogan gave evidence in these proceedings that in 1997 her relationship with R was purely familial, as they believed that they were cousins[26]. She told Centrelink, however, that she and R were “friends with benefits” prior to her previous marriage to G in or about 1996[27]. On the evidence of Ms Mitchell, the term “friends with benefits” refers to a casual sexual relationship between two people. Ms Hogan omitted to mention this aspect of her relationship with R in proceedings before the SSAT and this Tribunal.

[23] T55.

[24] T2.

[25] Transcript of Proceedings, 9 November 2010.

[26] Transcript, 9 November 2010, pp9-10.

[27] T55 folio 798.

16.     Furthermore, for example, in her evidence in these proceedings Ms Hogan made repeated allegations and references to R’s drug use as the main reason that she would not live with him. But she made no reference to R being a drug user in the earlier proceedings and the formal interview with Centrelink. She informed Centrelink that the reason she and R separated on 20 October 2000 was “’Cause we can’t live together…I’m a – put it bluntly, I’m a right bitch… I’m real picky, he’s a slob…”[28]. Ms Hogan’s evidence before the SSAT was that R visited her house less often in 2004 as “he was often under the influence of drugs. She did not want to see him in this state as her 14-year old son [D] had noticed a change in his behaviour”[29].  In support of her evidence on this subject in these proceedings, Ms Hogan filed a record concerning R’s attendance at the Liver Clinic of The Canberra Hospital on 29 November 2007.[30] This document establishes that R attended the Clinic for “initial counselling” on that day, that he contracted Hepatitis C by intra-venous drug use 10 to 20 years previously (between 1987 and 1997) and the disease was diagnosed in 2004. This material does not establish any drug use or pattern of drug use during the period in issue, however. Furthermore, the document records R’s address as “Yarrow Street Goulburn” (with the same house number as Ms Hogan) and includes the following information “Home: lives iwht [sic] his wife and their 3 children, the youngest is 9 months”.

[28] T55 folios 801-802.

[29] T2 folio 15.

[30] Exhibit D.

17.     I do not intend to itemise all of the inconsistencies in Ms Hogan’s accounts over time that are plainly apparent on evidence before me. I am reasonably satisfied that the inconsistencies cannot simply be attributed to lapses of memory as it appears to me that Ms Hogan’s evidence in these proceedings contained elements of detail that she had not previously provided. For example, Ms Hogan gave evidence in these proceedings that she and R first moved into a house in Clifford Street, Goulburn in February 1997, but she omitted to mention this in her evidence before the SSAT and the formal interview with Centrelink.

18.     To my mind, Ms Hogan has tailored and embellished her evidence to suit her purpose. This is unfortunate because any kernels of truth are less readily identified. Lapses of memory, which almost inevitably arise when dealing with details that occurred many years ago, simply exacerbate the difficulty. For example, R’s car was observed overnight at Ms Hogan’s residence in Yarrowlow Street; Ms Hogan’s explanation is that R was committed to his children and would drive to her house after completing his shift, he would stay until the children were in bed and then he would leave at night by the back gate to cycle home, only to return again on his bicycle the next morning to collect his car and drive to work to commence his shift at 4:00am. I note the maps Ms Hogan provided in Exhibit A. She explained that R would leave his car at her house because she was afraid at night and wanted people to think that R was present and, furthermore, R needed to ride his bicycle because he had been advised to do so by a doctor because he has a back problem. Ms Hogan stated that R would not enter the house in the mornings on his way to work and she explained evidence of lights being switched on in her house soon after 3:00am by stating that she always left a light on. Even though Ms Hogan gave similar evidence to the SSAT and at the Centrelink interview under caution, in part at least, there are significant discrepancies: in the earlier account R was a fitness fanatic who plays football – he  was training in the off-season and thought that he was fat, whereas in the later account R had to ride the bicycle as treatment for a back complaint[31]; in the earlier account R drove Ms Hogan’s car to work, whereas in the later account he drove his own car to work. To my mind, without reliable corroborating evidence, her account is simply inconceivable and implausible.

[31] Exhibit B.

19.     For these reasons I will treat Ms Hogan’s evidence with caution and I will not accept her evidence concerning key elements in dispute without reliable corroborating evidence.

20.     There are difficulties with the evidence of other witnesses called by Ms Hogan: Ms Mitchell and Ms Elliott. Perhaps most importantly, Ms Elliott’s evidence is not consistent with Ms Mitchell’s evidence, and separately or in combination their evidence does not corroborate Ms Hogan’s evidence concerning key elements of the case. For example, Ms Elliott stated that she had seen Ms Hogan and R going out socially sometimes; Ms Mitchell stated that she had seen Ms Hogan and R going out as a family, for picnics or to the movies. Ms Hogan denied that she and R went out socially together or as a family.

21.     Secondly, there are internal difficulties with the evidence of Ms Elliott and Ms Mitchell. Ms Elliott, for example, gave evidence that she saw R leaving by the back gate at night, but she could not explain how she saw this and was able to identify R in the dark at night. When asked whether R had a bicycle when she allegedly saw him leaving by the back gate at night, she could not remember. Ms Mitchell gave evidence that R did not stay overnight at Ms Hogan’s house and that on most nights Ms Hogan’s car, a green/blue Ford with gold wheel rims, was the only car present - this was parked at the rear of the house, out of sight from the road. Later in her evidence Ms Mitchell explained that on most days R would leave his car at Ms Hogan’s house after work and he would walk to a friend’s house for exercise, although she did not see him doing this herself.

22.     Finally with respect to the evidence of Ms Elliott and Ms Mitchell, both witnesses had difficulty recalling the details of events that took place many years ago. It is quite understandable that memories fade with the effluxion of time. Nevertheless, this and the previous difficulties to which I have referred raise questions about the reliability of the evidence given. For this reason I will treat the uncorroborated evidence of Ms Elliott and Ms Mitchell with caution.

23.     Centrelink urged me to find that both these witnesses, being friends of Ms Hogan’s, had been coached in their evidence. I do not have sufficient evidence to make any such finding, nor is it necessary to do so.

24.     It is necessary to say some things about the evidence of other people who have provided written statements or information. Mr Hart, for example, states in a statutory declaration that R was residing at an address in Henry Street, Goulburn from March 2004 to February 2009.[32] This evidence could not be tested because Mr Hart was purportedly not available to give evidence, either in person or by telephone, for the reasons stated by Ms Hogan. These explanations are far from compelling.

[32] Exhibit C.

25.     In any event, the weight to be given to Mr Hart’s statement is a matter for consideration. His statement is not supported by the information provided by Tamar Saumaitoga concerning her living arrangements at the house in Henry Street, Goulburn, which she shared with Mr Hart from in or about May 2006 to February 2009.[33] By her account R did not live at the house with her during this period from 2006. Ms Saumaitoga was not available to give evidence, so her evidence, too, could not be tested. Furthermore, Mr Hart’s statement is not consistent with the numerous documents that record R’s address to be Ms Hogan’s house at Yarrowlow Street, Goulburn. These documents include records of the Roads and Traffic Authority, Veda Advantage records, records of the Goulburn Base Hospital, Centrelink records, Baycorp Advantage records and, most recently, documents provided by Ms Hogan in Exhibits D and E.

[33] T75 folios 948-952.

26.     In Ms Hogan’s submission the document in Exhibit E “proves” her account of why R’s mail was sent to her address – purportedly, R had a telephone account debt and a bad credit rating because either he did not receive mail at the house at Henry Street, or because his mail was sent to Ms Hogan’s address when he was not living there. The proposition that the document in Exhibit E is evidence of either of these accounts is not made out. The document is dated 17 November 2006 and establishes that R had a Telstra telephone account debt in the amount of $143.00, the debt was paid in full and Baycorp Advantage was to be notified that the matter was closed. The Baycorp Advantage records before me do not record any such debt. Furthermore, the document records Mr Hogan’s address to be Ms Hogan’s residence at Yarrowlow Street, Goulburn.

27.     The evidence of other people who provided information but who were not called and whose evidence could not, therefore, be tested must also be considered.[34] This untested evidence tends to support Ms Hogan’s account in general terms at various times. Mrs Fermor, Ms Hogan’s mother, for example,[35] stated on 18 December 2008 that Ms Hogan and R have not lived together as a married couple “for at least 10 years”, but “[R] does spend time with his children on weekends”, “they have been talking about getting back together in the New Year if they can work it out” and “[R] has not been at the house when I gone down for a visit & I do stay a few days at a time”. In general terms this evidence is supportive of Ms Hogan’s case. But to my mind it is far from compelling when the whole of the evidence is considered. Mrs Fermor resides in Cowra and it is not clear how often she visited her daughter. By Ms Hogan’s own account she maintained an intimate relationship with R throughout the 10 year period to which Mrs Fermor refers and R was very frequently and regularly in attendance at her house. Furthermore it is not disputed that Ms Hogan and R married and had two children during this period.  As can be seen, Ms Fermor’s evidence creates a general impression that is not consistent with the detailed evidence provided by Ms Hogan. Untested general evidence of this kind can be given little weight.

[34] See T67, T68, T69, T70, T71, T72, T73 and T74, for example.

[35] T64 folios 925-926.

28.     Evaluating these conflicted and untested accounts, I prefer the documentary evidence in the form of contemporaneous records, many of which arose from information provided by Ms Hogan and R to third parties, business and government agencies.

member of a couple

29.     When determining whether or not a person is a member of a couple it is necessary to consider all of the circumstances of the relationship,[36] including:

(a)the financial aspects of the relationship;

(b)the nature of the household;

(c)the social aspects of the relationship;

(d)any sexual relationship;

(e)the nature of their commitment to each other; and

(f)any other relevant matter.

[36] Sections 4(3) and 4(3A) of the Social Security Act.

The overall picture of the relationship must be considered.[37]  Each factor must be considered in the context of the evidence as a whole and a determination made concerning the relationship thus revealed.  These are matters on which reasonable minds may differ on the same facts.  Nevertheless, they must be decided to the reasonable satisfaction standard of proof, on the balance of probabilities.  Mere suspicion or possibility is not sufficient. 

[37] Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22 at 27 at [24]; Lambe v Director‑General of Social Services (1981) 57 FLR 262 at [200].

30.     As will appear, and it is not surprising, there are factors that suggest Ms Hogan and R were members of a couple during the period in issue and there are factors weighing against it. 

31. Applying section 4(2) of the Social Security Act, it is necessary to consider the different tests that apply prior to and after Ms Hogan’s marriage to R.

financial aspects of the relationship

32.     There is only scant evidence concerning financial aspects of Ms Hogan’s relationship with R. Nevertheless, this evidence suggests some cost-sharing prior to and after their marriage. Ms Hogan’s evidence to Centrelink at interview is that she and R shared costs when sharing accommodation together in 1997 and 1998. There is evidence that they shared the cost of IVF treatments in 2001, 2004 and 2006. Ms Hogan denied any such sharing of costs between them in these proceedings.

33.     There is evidence that suggests some pooling of resources: Ms Hogan was observed to drive R’s car, and R drove Ms Hogan’s car. It appears that R’s insurance policy provided cover for Ms Hogan to drive his car. Furthermore, it appears likely that there was some pooling in relation to an Austar account in R’s name that was connected to Ms Hogan’s address in Yarrowlow Street, Goulburn.

34.     Ms Hogan gave oral evidence that R would make child support payments of $50 in cash each week, or he would purchase necessary items. She informed Centrelink at interview that he paid an amount of $80 per week.[38]

[38] T55 folio 803.

35.     These factors weigh in favour of the existence of a marriage-like or member of a couple relationship.

36.     On the other hand, there is no evidence that Ms Hogan and R jointly own any assets or accounts together, or that they are jointly liable for any debts. There is no evidence that any utilities or services were in their joint names. These factors weigh against the existence of a marriage-like or member of a couple relationship.

nature of household

37.     Ms Hogan gave evidence that her relationship with R, prior to and after their marriage, was one best described as “on again, off again”, or “friends with benefits”. She also gave evidence that their relationship from February 1997, at least, to 1999 was as cousins. This evidence is far from compelling. There is no corroboration of Ms Hogan’s account, even though such corroboration could easily have been obtained and adduced. Furthermore, the information she provided to Centrelink at interview, concerning the commencement of a “friends with benefits” style relationship with R prior to her marriage to G in 1996, stands contrary to her later accounts before the SSAT and in these proceedings. To my mind, Ms Hogan’s evidence on this point is not reliable and, in all likelihood, when one considers the whole of the evidence, her account is a concoction that is intended to disguise the true nature of her relationship with R at that time. Whether her account has any element of truth I cannot say.

38.     It is clear enough that from February 1997 Ms Hogan and R shared rental accommodation at Clifford Street and from August 1997 they shared accommodation at Bruce Street. There is evidence to suggest that R resided in rental accommodation in Yarrowlow Street with Ms Hogan, at least from 12 May 1999[39]. The evidence establishes that Ms Hogan, her eldest son and R were the only tenants in each of these premises, and by Ms Hogan’s own account to Centrelink, when sharing accommodation, they shared living expenses. Even though there is only scant evidence concerning the nature of these households, the present evidence suggests the existence of a marriage-like relationship from at least February 1997.

[39] T34 folio 214.

39.     It is true that there is some evidence that R informed Centrelink that he was residing at an address in Joshua Street, Goulburn. But this evidence, alone, without corroboration or testing, is far from compelling when considered in relation to other evidence that strongly suggests that R continued in a “defacto” relationship with Ms Hogan at Bruce Street until August 1998[40].

[40] See T34 folios 212 and 213, for example.

40.     With regard to the period from 1999 to 2000, there is scant evidence concerning Ms Hogan’s household at Yarrowlow Street, Goulburn. There is some evidence that suggests R was resident at that address, contrary to Ms Hogan’s assertions - the Goulburn Base Hospital records in T34, for example. This evidence suggests that Ms Hogan and R continued to co-habit during this period.

41.     On Ms Hogan’s evidence R is very committed to his children and she took care to facilitate a good relationship between her eldest son and R. For this reason R would attend the house at Yarrowlow Street on a frequent and regular, often daily, basis. Ms Hogan informed Centrelink at interview that R would stay at the house for two nights each week, on weekends; although she denied this in her evidence in these proceedings.

42.     Ms Hogan informed me that when in attendance, R would not undertake any domestic chores, and she would not cook for him or do his washing. She conceded, however, that R would mow the lawns and undertake maintenance tasks outside the house from time to time.

43.     These household factors suggest that Ms Hogan and R may have been members of a couple after their marriage.

44.     The evidence of Ms Hogan, Ms Mitchell and Ms Elliott concerning domestic disharmony, fighting and general volatility in the relationship between Ms Hogan and R suggests that the relationship persisted, despite apparent volatility and periods of separation. This is consistent with the characterisation of their relationship as “on again, off again” or “friends with benefits”.

social aspects

45.     There is very little evidence concerning the social aspects of Ms Hogan’s relationship with R prior to 1999. The Goulburn Base Hospital records cite R as Ms Hogan’s “defacto” on 5 May 1998, 28 August 1998 and 12 May 1999, and as her husband on 28 July 2002 and subsequently[41]. The medical records suggest that R informed the Westmead Fertility Clinic that he and Ms Hogan had been trying to conceive from 1997[42].

[41] T34.

[42] T76 folio 964.

46.     On 16 October 2000 R informed his employer that Ms Hogan was to be contacted in an emergency and that he had been residing at her address in Yarrowlow Street, Goulburn for 18 months[43]. He also nominated her as a referee in respect of his previous employment, albeit using her maiden name[44].

[43] T53 folio 705.

[44] T53 folio 707.

47.     The evidence of Ms Mitchell and Ms Elliott, Ms Hogan’s neighbours at Yarrowlow Street at various times from 1999 suggests that Ms Hogan and R socialised together only rarely. Ms Elliott stated that she moved to Yarrowlow Street in 1999, but she knew Ms Hogan and R previously. She described R as Ms Hogan’s boyfriend, even though their relationship was “rocky”. Ms Elliott informed me that Ms Hogan and R would go out socially “sometimes”. Ms Mitchell stated she moved to Yarrowlow Street in 2000 and that Ms Hogan and R did not get together until 2001. Ms Mitchell gave evidence that she and R and others would attend parties at Ms Hogan’s house at Yarrowlow Street. She also stated that she had seen Ms Hogan and R and the children going out for family picnics or to the movies.

48.     The evidence of Ms Hogan, Ms Elliott and Ms Mitchell, and the untested documentary evidence of witnesses that were not called, suggests that there may have been periods in which Ms Hogan and R fought and went their separate ways. This evidence weighs against the existence of a marriage-like or member of a couple relationship at various times. To my mind, however, there are two further things to say about this: the evidence is unreliable or untested, and even it if it is accepted as true, it suggests that there may have been periods in which Ms Hogan and R lived in separate houses from time to time but their relationship continued and endured, nevertheless.

49.     In sum, the social aspects of the relationship between Ms Hogan and R weigh in favour of the existence of a marriage-like relationship from 1997, albeit rocky, and that Ms Hogan and R were members of a couple after their marriage.

sexual relationship

50.     By Ms Hogan’s account in her evidence before me and previously, she and R maintained a casual sexual relationship throughout the period in issue, albeit with breaks following incidents or periods of conflict between them.

51.     There is conflicting evidence concerning the commencement of their sexual relationship. To my mind, it is likely that the sexual relationship commenced well before the period in issue. By her own account to Centrelink under caution, the sexual relationship commenced prior to her previous marriage to G in 1996.

52.     I note the medical evidence concerning R’s assertion that he and Ms Hogan had been trying to conceive from 1997.

53.     Ms Hogan asserted that she and R engaged in sexual relations with other people during the period in issue. This evidence lacks corroboration. I am unable to determine the veracity of these accounts but note that Ms Hogan was provided with ample opportunity and assistance to adduce evidence on this point from other parties. She declined to do so even though assurances were given that the privacy of those concerned would be protected.

54.     In sum these factors weigh in favour of the existence of a marriage-like or member of a couple relationship during the relevant period.

commitment

55.     The relationship between Ms Hogan and R has endured over a long period. They have conceived and are raising two children. They have gone through very difficult circumstances in their efforts to conceive; circumstances in which each has provided emotional support to the other. Even if one accepts that their relationship may be attended by conflict and volatility from time to time, the fact that they have continued to manage and maintain their relationship points to a depth of commitment to each other. The oral evidence of Ms Hogan, Ms Elliott, Ms Mitchell and the documentary evidence of others who were not called that goes to points of conflict and separation between Ms Hogan and R adds weight to this point. Ms Mitchell gave evidence that R was Ms Hogan’s “main man” after their marriage.

56.     In these proceedings and previously Ms Hogan gave evidence about the depth of R’s commitment to his children. It is clear enough that he was in attendance at her house on a very frequent and regular basis. If one accepts Ms Hogan’s account, R would go to extreme lengths to support his family – attending on his children after work each day, leaving his car parked at Ms Hogan’s house for her protection, riding his bicycle home only after the children had gone to bed (having eaten no food at Ms Hogan’s house), returning on his bicycle the next morning to collect his car and drive to work in time to start his shift at 4:00am. Even though I do not accept this version of events as credible, I accept that R was a frequent and regular carer of his children after work, when Ms Hogan was at work.

57.     I am satisfied that Ms Hogan and R held themselves out as members of a couple from time to time and they were perceived by others in that way. Words such as “defacto”, “boyfriend/girlfriend”, “main man”, “friends with benefits”, “husband” and ”wife” appear throughout the documents and the oral evidence. As it appears to me, on Ms Hogan’s evidence, she relied on R for support and he would provide support in the event of any crisis or accident. I am not able to ascertain the extent of R’s reliance on Ms Hogan without the opportunity to take evidence from him.

58.     In sum these factors weigh in favour of the existence of a marriage-like or member of a couple relationship from at least 1997.

living separately and apart

59.     The test to be applied for present purposes is not simply whether two people live together in the same house, or whether they are living in separate premises. There are many examples of married couples who spend periods of time living in different places without disturbing the marriage-like nature of their relationship. I can accept that, from time to time, Ms Hogan and R may have lived in separate abodes for short periods from February 1997 to December 2008. But that is not the end of the matter.

60.     The concept of “separately and apart” was discussed by the High Court in Main v Main[45] and by the Federal Court in Staunton-Smith v Secretary, Department of Social Security[46].  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. Sections 4(2) and 4(3A) require both elements to be established before it can be said that a marriage-like or member of a couple relationship has ceased to exist. These are matters of fact and degree.

[45] (1949) 78 CLR 636 at 641.

[46] (1991) 32 FCR 164 at 175.

61.     I note that the period in dispute following the SSAT decision is from 26 November 1999 to 12 December 2008. It is this period that the Secretary refers to in the Respondent’s Statement of Facts and Contentions and it was in relation to this period that the case was conducted. Thus, even though it appears to me likely that Ms Hogan and R were in a marriage-like relationship prior to 26 November 1999, I will make no finding in that regard.

62. When the overall picture of the relationship between Ms Hogan and R is considered, and all of the criteria set out in section 4(3) of the Social Security Act are taken into account and are considered together, the character of the relationship between them during the relevant period can be seen. I am reasonably satisfied that the vital relationship between Ms Hogan and R was forged before 26 November 1999 and in all likelihood prior to 6 February 1997 when, by Ms Hogan’s sworn evidence, they moved, together, to live at the rental property in Clifford Street, Goulburn. I am reasonably satisfied that, even though there have been difficulties and some volatility, they have remained committed to each other and the essential force of their relationship as a couple has not broken down from then until the present day.

63.     I am reasonably satisfied that during the periods when they may have lived in different places (the dates of which I am unable to determine with any accuracy on the present evidence), R was a frequent and regular visitor to Ms Hogan’s house, and that such periods of physical separation were peppered with and shortly followed by resumed intimacy and reconciliation, indicating an enduring commitment and the continuation of the essential nature of their relationship as a couple during these periods of temporary separation.

64.     Ms Hogan asserts that at all relevant times she was living separately and apart from R on a permanent or indefinite basis, and their relationship was no more than “friends with benefits”.

65.     As it appears to me the abundant weight of present evidence does not support that conclusion. As it appears to me, when all of the evidence and circumstances are considered, the weight of the evidence, including RTA records for example[47], supports a finding that Ms Hogan and R were not living separately on a permanent or indefinite basis. Furthermore, the weight of the evidence, including and perhaps especially the evidence of Ms Hogan and Ms Mitchell, supports a finding that Ms Hogan and R were not living apart on a permanent or indefinite basis at any time since 26 November 1999.

[47] T86.

66.     On that basis I am satisfied that the relationship thus revealed is not one that can be characterised as two people living separately and apart on a permanent or indefinite basis at any time from 26 November 1999.  The contrary is established as a matter of probability, and I so find.

marriage-like relationship

67.     Doing my best with the available evidence, considering all the relevant factors and the overall picture of the interpersonal relationship between Ms Hogan and R, I am reasonably satisfied that their relationship was marriage-like from at least 26 November 1999 to 11 August 2000, and that from 12 August 2000 to 12 December 2008 they were members of a couple. As I have said, I am satisfied that Ms Hogan and R did not live separately and apart on a permanent or indefinite basis at any time during this overall period.

68.     In this case, like many, even though much of the evidence is ambiguous and open to different interpretation, and being mindful that circumstances change, I am satisfied that sufficient signs of a marriage-like or couple relationship arise from the evidence to conclude that such a relationship existed at all relevant times. 

debts

69.     Ms Hogan was paid Parenting Payment at the single rate from 29 November 1999 to 15 August 2000 and from 1 March 2002 to 9 December 2008. She was paid Family Tax benefit at the single rate during the 2005-06, 2006-07 and 2007-08 tax years. She was paid Childcare Benefit at the single rate from 5 April 2004 to 25 December 2005 and from 3 July 2006 to 6 July 2008. During these periods Ms Hogan was a member of a couple and she was not entitled to payments at the single rate; her husband’s income should have been taken into account. It follows that Ms Hogan has been overpaid amounts of Parenting Payment, Family Tax Benefit and Childcare Benefit to which she was not entitled.

70.     The overpayments are as follows:

(a)Parenting Payment:

(i)29 November 1999 to 15 August 2000: $2,785.57;

(ii)1 March 2002 to 9 December 2008: $74,400.89;

(b)Family Tax Benefit:

(i)2005-06: $7,803.70;

(ii)2006-07: $3,095.79;

(iii)2007-08: $3,801.42;

(c)Childcare Benefit:

(i)5 April 2004 to 4 July 2004: $634.54

(ii)5 July 2004 to 3 July 2005: $2,658.98;

(iii)4 July 2005 to 25 December 2005: $1,005.22;

(iv)3 July 2006 to 1 July 2007: $546.24; and

(v)2 July 2007 to 6 July 2008: $692.53.

71. I have carefully reviewed all of the abundant notices that were sent to Ms Hogan pursuant to section 68 of the Administration Act concerning her obligations to notify Centrelink of changes in her circumstances[48]. There is no apparent dispute about those notices being properly constructed in terms.  Nor it is disputed that they were received by Ms Hogan. I am satisfied that they were. The notices set out the basis on which the particular payment or benefit is calculated and require Ms Hogan to notify Centrelink of any change in her circumstances[49].

[48] See Supplementary ‘T’ documents.

[49] See ST1, ST28, ST42 and ST47 for example.

72.     I have carefully reviewed the documents concerning the raising of the various debts under the applicable legislation that was in force. I am reasonably satisfied that the debts were correctly raised under the applicable legislation that was in force during the relevant periods.

73.     As I have said, on the advice of the parties there is no issue concerning the quantum.

74. It follows that Ms Hogan is liable to repay overpayments debts in the amounts calculated and specified above at [70].

recovery

75. I have carefully considered issues relating to the Commonwealth’s recovery of the debts from Ms Hogan. I am satisfied that there are no grounds to write off the debts, in whole or in part, under section 1236 of the Social Security Act. I am satisfied that the debts do not arise solely from any administrative error of the Commonwealth – no evidence of any error has been raised or adduced in these proceedings. If follows that the debts cannot be waived under section 1237A of the Social Security Act or section 97 of the FA Administration Act.

76. Under section 1237AAD of the Social Security Act and section 101 of the FA Administration Act, the Commonwealth’s right to recover a debt may be waived if special circumstances exist that render it desirable to do so. Such waiver is only available, however, if the debtor did not knowingly make a false statement or false representation, or fail or omit to comply with a provision of either Act. The word “knowingly” in this context refers to actual knowledge[50].

[50] Re Secretary, Department of Family and Community Services and Jonauskas (2001) 65 ALD 553 at 565; Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 at 445.

77.     On the present evidence, and having heard Ms Hogan and other witnesses, to my mind it is probable that Ms Hogan knew she was making false statements and false representations concerning her relationship with R at all relevant times. It is clear that she knew she was co-habiting with R in an intimate relationship that was marriage-like before their marriage and that after the marriage their relationship was as a couple, albeit with some volatility and possible periods in which they lived separately from time to time. And yet Ms Hogan continued to represent herself as single during the periods in issue.

78. It is not disputed that many notices were issued to Ms Hogan under section 68 of the Administration Act; nor is it disputed that Ms Hogan received such notices. Whether she read and understood the contents of these notices is less clear. But that is not determinative. As a recipient of public money she was obliged to inform herself properly about her obligations, and she was obliged to ensure that she provided necessary information about her particular circumstances from time to time to Centrelink to ensure that she was qualified and entitled to receive the payments being made to her. She did not do so and, to my mind, her failures and omissions were done with the knowledge of her obligation to inform Centrelink of such changes.

79. That being so it is not strictly necessary to consider whether or not special circumstances exist that would make it desirable to waive recovery of Ms Hogan’s debts. It is possible, however, that Ms Hogan may have been uncertain about whether her relationship with R was “marriage-like” or whether they were “members of a couple” for the purposes of the Social Security Act and the FA Administration Act. On the present evidence, it appears that their relationship was highly volatile and attended by frequent conflict, having an “on again, off again” character over many years. On that basis, Ms Hogan may not knowingly have made false statements and false representations about their relationship, and she may not knowingly have failed or omitted to comply with the provisions of either Act.

80.     Against that possibility and for completeness, I will briefly address issues relating to special circumstances.

81.     Ms Hogan informed me about her financial circumstances and circumstances concerning the health of herself and her children, who suffer from asthma. She complained that Centrelink were recovering monies from her at a rate that makes it difficult for her. She informed me that her circumstances had recently changed - she and R were experiencing further difficulties in their relationship as a result of these proceedings and R has moved out of her house, forcing her out of employment in order to care for her children. She informed me at a resumed hearing that R assaulted her and court proceedings were on foot. She gave evidence that she is obtaining support from an agency in Queanbeyan and from a “girlfriend” who visits her each day. She said that she intends to seek a referral from her doctor for counselling support, but had not yet done so. Ms Hogan explained that the house in which she lives is in a poor state, with a leaking roof and a broken shower, as a result of which she is in dispute with the Housing Commission and Tenancy Tribunal proceedings are on foot.

82.     To my mind these circumstances are not “special circumstances” that would render it desirable to waive recovery of all or part of Ms Hogan’s debts even though I accept that they are difficult circumstances for her and her children. “Special circumstances” are circumstances that are out of the ordinary course, that are unusual, uncommon or exceptional, or in which something unfair or unintended has occurred as a result of the provisions of the particular enactment[51]. The meaning of the term is not subject to precise limits or rules; it provides a broad discretion to respond to a wide variety of circumstances.

[51] See for example Beadle v Director-General of Social Security (1985) 7 ALD 670; Groth v Secretary, Department of Social Security (1995) 40 ALD 541.

83.     Ms Hogan’s financial circumstances are somewhat straitened. Her children may suffer from asthma, but there is no evidence that this condition is especially severe or problematic for either child. Ms Hogan lives in stable accommodation, albeit that certain repairs are required and she is in dispute with the Housing Commission. She is taking steps to rectify the problems and the dispute, but at this time these actions have not yet been concluded. Ms Hogan has been employed and earning a weekly wage. Presently, however, as a result of her changed circumstances, she has applied for and been granted Parenting Payment and Family Tax Benefit at the single rate, and she has obtained a crisis payment from Centrelink.

84.     Ms Hogan complained that she felt depressed and distraught at times as a result of her difficulties with Centrelink and R. But no evidence of a medical or psychological nature was brought forward. Of course, one must proceed very carefully when dealing with such matters. As it appears to me, Ms Hogan has friends and a support network, including family members (albeit in Cowra), and she is obtaining support from a domestic violence support service. On the present evidence I am unable to make any findings about Ms Hogan’s psychological health or any risk of harm.

85. Thus, in sum, as I have said, even though the circumstances are difficult for Ms Hogan, I am not persuaded that taken separately or in combination they are uncommon, unusual or out of the usual course to the extent that they render it appropriate to waive all or part of Ms Hogan’s debts. I am reasonably satisfied that Ms Hogan’s circumstances are not “special circumstances” and there are no grounds to waive recovery of any part of her debts under sections 1237AAD of the Social Security Act or section 101 of the FA Administration Act.

bankruptcy

86.     There is one final issue to deal with. Were Ms Hogan’s overpayment debts discharged by her release from bankruptcy on 25 July 2005?

87.     Ms Hogan entered bankruptcy on 24 July 2002. The bankruptcy was discharged on 25 July 2005.[52] Ms Hogan says that any overpayment debt prior to the discharge is not recoverable. But that submission is not made out.

[52] T29.

88. It is true that section 58(3) of the Bankruptcy Act 1966 provides that a creditor may not competently enforce any remedy against a bankrupt in respect of a provable debt, and section 153 provides for release from provable debts in the bankruptcy on discharge.

89.     The debts that lie at the heart of the dispute in these proceedings were not raised until 11 December 2008[53]. At the time Ms Hogan’s bankruptcy was in force, no overpayment debt had been raised against her by Centrelink. Even though the alleged overpayments are said to have occurred in the period from 1997 to 2008, overlapping the period of bankruptcy, it does not follow, presently, that any overpayments that are determined to have accrued prior to the bankruptcy discharge on 25 July 2005 are subject to release under section 153. There are three reasons for this. First, the debts had not been raised at the time Ms Hogan was discharged from bankruptcy. Second, the debts were not proved in the bankruptcy during the period of its currency. Third, even though the alleged overpayments to Ms Hogan occurred prior to, during and after her bankruptcy, no debt existed at the time. It is true that section 1223(1) of the Social Security Act provides that if a person obtains a payment to which they were not entitled, the amount of the payment is a debt due to the Commonwealth and the debt arises when the person obtained the payment. Plainly enough, for a debt to be raised, the overpayment must first be established as a fact. This had not occurred prior to discharge of the bankruptcy. Finally on this point I note that section 153 of the Bankruptcy Act does not provide release from provable debts in all cases – release does not extend to debts incurred by fraud or by fraudulent breach of trust. But for that exclusion from release to be enlivened, fraud must first be established.

[53] T56 folio 840.

90.     Thus it follows that no part of Ms Hogan’s present debts is affected by her previous bankruptcy or is subject to release, and recovery of those debts is not precluded.

conclusion

91.     In each of Ms Hogan’s applications the decision under review is affirmed.

I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member

Signed:         ..............................[sgd]..................................................
           H. Choi (Associate)

Date/s of Hearing       9 November 2010, 8 and

25 February 2011

Date of Decision  11 March 2011
Representative for the Applicant               Self Represented
Representative for the Respondent          Raewyn Harlock