Huynh; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1846
•8 October 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1846
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W200600014
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
JENNY HUYNH
Respondent
DECISION
Tribunal Ms L R Tovey, Member Date 8 October 2007
PlacePerth
Decision The Tribunal sets aside the decision of the Social Security Appeals Tribunal made on 16 December 2005 and substitutes a decision that the decision of the Applicant, to raise and recover overpayments of parenting payments of $43,065.10, is affirmed.
……….(sgd. L Tovey)……….
Member
CATCHWORDS
SOCIAL SECURITY – parenting payment – whether Respondent was living separately and apart from her husband on a permanent or indefinite basis
Social Security Act 1991 (Cth), s. 4(2), 4(3).
Lambe v Director-General of Social Services (1981) 57 FLR 262.
Lynam v Director of Social Security (1983) 52 ALR 128; (1983) 1 AAR 197.
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
Re Secretary, Department Of Families, Community Services and Indigenous Affairs and Foxley-Deschamps (2006) 92 ALD 767.
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164.
REASONS FOR DECISION
8 October 2007 Ms LR Tovey, Member BACKGROUND
1. This is an application by the Secretary, Department of Employment and Workplace Relations ("the Applicant") for a review of a decision of the Social Security Appeals Tribunal ("SSAT") made on 16 December 2005 in relation to the recovery of parenting payments made to Ms Jenny Huynh ("the Respondent").
2. All of the witnesses called in this matter and the Respondent's three children share a common surname. This is because the Respondent and her husband had common surnames before their marriage. For ease of reference, after indicating their first name and relationship to the Respondent for the first time, I will simply refer to the Respondent's family by their first names.
Common Ground
3. The following matters were common ground as disclosed in the parties' statements of facts and contentions.
4. The Respondent married Duoc Huynh on 30 May 2005. They are still married. There are two children of the relationship, Stephanie Huynh born on 14 April 1995 and Stephen Huynh born on 23 August 1997. The Respondent had a third child, Steffie Huynh, born on 9 October 2003.
5. On 31 October 1995 the Respondent applied for parenting allowance as a member of a couple. However, on 16 November 1995 the Respondent advised Centrelink that she had separated from Duoc and commenced receiving a sole parent pension. At that time the Respondent and Duoc had only one child, Stephanie.
6. The Respondent and Duoc resumed a brief sexual relationship in 1996, during which time their second child, Stephen, was conceived.
7. On 21 April 2005 the Respondent attended the Mirrabooka office of Centrelink, and was interviewed by two Centrelink officers. Towards the conclusion of that interview the Respondent was advised that she was to be assessed as the partner of Duoc and the assessment was to be backdated for a considerable time. She was also advised that, as a result, her entitlement to parenting payment would cease immediately. She was subsequently advised in writing of the decision to that effect.
8. On 21 April 2005 a Centrelink officer decided that the Respondent had been overpaid parenting payments of $43,065.10 for the period 8 December 2000 to 18 April 2005. That decision of the Centrelink officer was made on the basis that the Respondent had been a member of a couple during that period and was only entitled to be paid at the partnered rate. The Respondent had received parenting payments at the single rate during the relevant period.
9. An Authorised Review Officer of the Applicant confirmed the decision of the Centrelink officer on 13 May 2005. The Respondent sought a review of that decision of the Authorised Review Officer by the SSAT.
10. On 16 December 2005 the SSAT decided to set aside the decision under its review and substitute its decision that the Respondent was not a member of a couple during the period of 8 December 2000 to 18 April 2005 and was entitled to parenting payments at the single rate during that period. The SSAT directed that any monies already recovered from the Respondent were to be refunded to her.
11. The Applicant now seeks a further review of that decision by this Tribunal.
ISSUES AND LEGISLATION
12. The statements of facts and contentions of both the Applicant and the Respondent identify the issue on which my decision turns as whether the Respondent was living in a marriage-like relationship during the relevant period. I do not consider that this is the issue which I am required to determine.
13. The critical issue for me to consider is whether or not, in my opinion, the Respondent and Duoc were, between 8 December 2000 and 18 April 2005, living separately and apart from each other on a permanent or indefinite basis. That is essentially the manner in which the Applicant identified the issue in the Applicant's Closing Submissions. It is appropriate to note the legislative context in which that issue arises.
14. It is not in dispute that the Respondent was entitled to parenting payments, which are provided for by Part 2.10 of the Social Security Act 1991 (Cth) ("the Act"). Part 3.6A of the Act provides for the parenting payment rate calculators, with s.1068A of the Act applying where a person "is not a member of a couple". Section 1068B of the Act provides for the rate of parenting payment if a person "is a member of a couple".
15. It is common ground that the rate of parenting payments paid to the Respondent during the relevant period was calculated under s. 1068A, rather than s. 1068B, of the Act on the basis that the Respondent was not a member of a couple. The effect of the decision of the SSAT was that these payments were correctly made on that basis.
16. Subsections 4(2) and 4(3) of the Act define when a person is a member of a couple in the following terms:
"4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b) all of the following conditions are met:
(i) the person has a relationship 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 subsections (3) and (3A)), 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;
- the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.
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 paragraph (2)(a) or subparagraph (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
- whether the people consider that the relationship is likely to continue indefinitely; and
- whether the people see their relationship as a marriage-like relationship.
4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
17. In the present case it is common ground between the parties, and I find, that the Respondent and Duoc married on 30 May 1995 and had not divorced at the time of the hearing of this application. It follows that s. 4(2)(a), rather than s. 4(2)(b), of the Act is the applicable provision, on the basis that the Respondent and Duoc were legally married to one another for the whole of the relevant period.
18. On that basis, the issue raised by s. 4(2)(a) of the Act is whether, in my opinion, (formed as mentioned in subsection (3)), the Respondent was living separately and apart from Duoc on a permanent or indefinite basis during the period from 8 December 2000 to 18 April 2005. If she was, then the Respondent was not a "member of a couple" over the relevant period and the decision of the SSAT should be affirmed. Otherwise, the Respondent will be a "member of the couple" for the purposes of the Act and not entitled to parenting payments at the single rate over the relevant period.
19. The question of whether or not the Respondent was in a marriage-like relationship would only arise, under s. 4(2)(b)(iii) of the Act, in the event that she was not legally married to Mr Huynh: see s. 4(2)(b)(ii) of the Act. As they were married at all material times, it is the issue under s. 4(2)(a) of the Act that I am required to determine.
20. I note that there is no dispute as to the Applicant's calculation of the amount of the debt if I find that the Respondent was a member of a couple during the whole of the relevant period.
APPLICABLE PRINCIPLES
21. The considerations identified in s. 4(3) of the Act apply to the formation of both the opinion referred to in s. 4(2)(a) and that referred to in s. 4(2)(b)(iii) of the Act. Those considerations are to be taken into account, however, in asking the different questions posed by those two paragraphs of s. 4(2) of the Act. In the first case, the question is whether a person is living separately and apart from another person on a permanent or indefinite basis. In the second case it is whether two persons are in a "marriage-like relationship". As O'Loughlin J noted in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 167:
"Thus the task of the Tribunal, in its review of Mrs Staunton-Smith's circumstances, was, as it stated in par 6 of its reasons, to inquire whether she was living separately and apart from Mr Staunton-Smith; if the Tribunal was satisfied that she was not, then she did not classify as a "single person" and hence she was not entitled to a sole parent's pension. But the Tribunal went about its task by assessing the circumstances of Mrs Staunton-Smith as if she were allegedly living in a de facto relationship with Mr Staunton-Smith. Instead of inquiring whether Mrs Staunton-Smith was living separately and apart – looking for indicators that might have pointed in that direction – the Tribunal inquired whether she was living with Mr Staunton-Smith on a bona fide domestic basis. The Tribunal therefore looked for indicators that suggested a "living together" and so placed the wrong emphasis on its inquiry. In my opinion, the Tribunal erred by adopting a test or a standard that was reserved for couples who were allegedly living together in a de facto union. It is, of course, possible that, in a given situation, the facts that would establish that a man and a woman are not living separately and apart would also establish that they are living together as man and wife on a bona fide domestic basis. Nevertheless, the terms are not interchangeable."
22. The reference to two persons living together "on a bona fide domestic basis" reflected the language of the Act which had been repealed prior to the decision in Staunton-Smith. In that case the question was whether Mrs Staunton-Smith was "a married person who is living separately and apart from her spouse" for the purposes of s. 43(1)(c) of the Act as it then stood: see 32 FCR at 166. That wording reflects the wording of s. 4(2)(a) of the Act as it currently stands, although there was no reference to the persons living separately and apart "on a permanent or indefinite basis".
23. Also in Staunton-Smith, O'Loughlin J referred to a number of considerations to which regard should be had in making the assessment. Those considerations were similar in many respects to those which now appear in s. 4(3) of the Act. However, at 32 FCR 170, O'Loughlin J said of the factors which he identified:
"It should, of course, be clearly understood that no Tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the Tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the Tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based."
24. In the case of a statutory list of considerations the Tribunal is required to consider, in relation to each, whether there is any evidence going to the question. However, the task remains one of considering the composite picture in light of all of the evidence and not to adopt the approach of treating the list of factors as a determinative checklist.
25. While distinct questions are posed by s. 4(2)(a) and 4(2)(b) of the Act, s. 4(3A) of the Act suggests that the two provisions may cover some common ground. Section 4(3A) provides that the Secretary must not form an opinion that two persons are in a marriage-like relationship if they are living separately and apart from each other on a permanent or indefinite basis. However, the fact that two persons are not living separately and apart from each other on a permanent or indefinite basis is not of itself sufficient to conclude that they are in a "marriage-like relationship". The inquiry under s. 4(2)(a) of the Act is therefore narrower than that under s. 4(2)(b) of the Act.
26. Further, notwithstanding the comments of O'Loughlin J quoted above, the earlier authorities dealing with when two persons are living together "on a bona fide domestic basis" are not irrelevant to a consideration under the current provisions of the Act. In Staunton-Smith at 171 O'Loughlin J recognised that the earlier authorities are of assistance in considering s. 43 of the Act as it then stood. He further referred with approval to two passages of authorities decided under the previous legislation which he considered were relevant to that consideration.
27. The first passage was from the decision of the Full Court of the Federal Court in Lambe v Director-General of Social Services (1981) 57 FLR 262 at 271, that:
"We agree with the Tribunal that in order to determine whether the appellant was living with Foxwell as his wife `all facets of the interpersonal relationship' of the two persons need to be taken into account. We also agree that the question of the financial support which Foxwell provides is an important, although not necessarily crucial, consideration, but is only one of a number of relevant matters which the Tribunal should take into account in characterising, as required by the definition, the nature of the relationship between the appellant and Foxwell."
28. The second passage was from a decision of Fitzgerald J in Lynam v Director of Social Security (1983) 52 ALR 128 at 131; (1983) 1 AAR 197 at 200, that:
"Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test."
29. Both of the above passages were also referred to as relevant to a consideration of the question of whether two persons were in a "marriage-like relationship" for the purposes of s. 4(2)(b) of the Act in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 543-4, [37]-[38]. In that case, at page 544, [39], French J also endorsed the statement of O'Loughlin J in Staunton-Smith at 173 that:
"… it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship."
30. In Pelka at pages 556-7, [52] French J expressed the view that the reference to "pooling" in s. 4(3)(a)(iii) of the Act was to the putting of resources into a common stock or fund, sharing in common and combining for the common benefit. It involved something more than financial cooperation or separate contributions to different elements of household expense. In relation to cooperation, French J stated at 557, [53]:
"Cooperation is not identified as a specific factor in s 4(3) of the Act. That is not to say cooperative behaviour may not be taken into account for the matters listed in s 4(3) are not exhaustive. But cooperation of itself does not take a relationship very far down the path towards characterisation as 'marriage-like'. Cooperation is an indispensable feature of human society and of a multiplicity of different kinds of relationships within human society including the purely commercial. The same may be said of 'mutual benefit' which attaches to a large range of arrangements between people."
31. Later, French J stated at page 559, [61]:
"A decision-maker in applying the matters set out in s 4(3) should acknowledge that they are non-exhaustive and at least indicate that consideration has been given to whether there might be any other factors relevant to the difficult judgment of whether a 'marriage-like' relationship exists. Each of the individual matters listed in s 4(3) is accompanied by a non-exhaustive list of factors. Again, the decision-maker in each case should consider whether there are any other factors relevant to the particular matter listed."
32. I consider that the approach identified by French J also be relevant to a consideration of the matters identified in s. 4(3) of the Act in the context of s. 4(2)(a) of the Act. In doing so, I recognise that in the present case those matters are to be considered, not for the purpose of forming an opinion as to whether parties are in a "marriage-like relationship", but for the purpose of considering whether two married persons are living separately and apart from each other on a permanent and indefinite basis.
33. From the above authorities and discussion, I consider the following propositions to be applicable to this case:
(a)While decisions in similar contexts may be of assistance, it is always important to focus on the statutory language which identifies the relevant question. In this case that is whether the Respondent was living separately and apart from Duoc on a permanent and indefinite basis. That question is not to be approached by assessing the Respondent's circumstances as if she were allegedly living in a de facto relationship.
(b)The considerations identified in s. 4(3) of the Act are not exhaustive or exclusive, and are not to be treated as a determinative checklist. Rather what must be looked at is the composite picture of the persons' interpersonal relationship as a whole, having regard to all of the circumstances of the case as disclosed by the evidence, including but not limited to those matters specifically identified in s. 4(3) of the Act.
(c)Financial support given by one party to another is only one of a number of relevant matters that I should take into account in characterising the nature of the relationship. Financial cooperation does not itself necessarily indicate that two people are not living separately and apart on a permanent or indefinite basis. The reasons for shared financial arrangements must be taken into account, and may be as or more important than the nature of the financial arrangements themselves.
CONSIDERATION OF THE ISSUES
34. For reasons I will explain, I am of the opinion that the Respondent and Duoc were not living separately and apart on a permanent or indefinite basis during the relevant period. Discussed below is the manner in which I have considered the composite picture of the Respondent's relationship with Duoc as a whole, having regard to the matters referred to in s 4(3) of the Act, to arrive at that conclusion.
The Record of Interview
35. Before considering those matters, however, it is appropriate to deal with the use sought to be made by the Applicant of a record of an interview between the Respondent and two Centrelink officers on 21 April 2005.
36. The Respondent denied the accuracy of that record, and gave evidence as to the emotional strain she was under at the time.
37. The record of the interview was produced before me. It was in the form of a typewritten file note. However, neither of the Centrelink officers gave evidence as to the accuracy of that record or the manner in which it was obtained. There was no reason offered by the Applicant as to why those officers could not be called as witnesses. In circumstances where the Respondent disputes what occurred at the interview, I am not prepared to find that the record is accurate in the absence of evidence of either of the officers who conducted that interview. I therefore do not rely on the contents of that record in finding the facts identified below. In my view, if the Applicant wishes to rely on a record of interview, which is not recorded on either audio or video, in the manner sought in this case then it is incumbent upon the Applicant to call witnesses to verify the accuracy of the record.
The Respondent's Evidence
38. The Respondent's evidence was somewhat rambling and difficult to follow. Essentially, however, her evidence was as follows.
39. The Respondent said that she and Duoc separated when Stephanie was about 6 months old, and that they had never lived together as a family since that time. She first moved into her mother's house at Cartmell Way. She subsequently went up to Carnarvon and stayed with her brother, David Tien Vu Huynh, when her second child, Stephen, was less than one year old. She subsequently returned to Perth for a time, before returning to Carnarvon.
40. The Respondent's evidence was that she returned to Perth from Carnarvon in July 2003 to have Steffie, with whom she was then pregnant, in Perth. At that time the Respondent's mother would not permit the Respondent stay with her, so she stayed at Duoc's Morley Drive house. At that time Duoc was not there, but he returned before Steffie was born. He stayed at the house in a separate bedroom.
41. The Respondent's evidence was that she returned to her mother's house for a time before Steffie was born.
42. The Respondent's evidence was that she moved to the Ilumba Road house of her sister-in-law in early 2004, and stayed at that house for 12-14 months. She then returned to her mother's house, but stayed what she estimated to be a total of 5-6 days on and off at the Morley Drive house.
43. The Respondent's evidence about the above matters was not consistent. When she gave evidence on 18 October 2006 she said that she stayed at Morley Drive prior to the birth of Steffie and that Duoc did return to that house. Her evidence on 13 December 2006 was that Duoc was not at the Morley Drive house. In her evidence on 18 October 2006, she said that she stayed at the Morley Drive house for a few weeks before returning to her mother's house. On 13 December 2006 she said that she stayed only a few days at the Morley Drive house after the birth of Steffie, before she returned to hospital and subsequently her mother's house.
44. The Respondent denied having lived at the Ilumba Road address owned by Duoc prior to July 2001, or having lived at their Morley Drive property aside from a short period before and after the birth of Steffie in October 2003 and for a few days in March 2005.
Other Evidence Adduced by the Respondent
45. The Respondent was, in general terms, supported in the above version of events by Duoc and David.
46. The Respondent also called her sister, Michelle Huynh, to give evidence before me.
47. Michelle was 19 years old at the time she gave evidence. She affirmed the contents of a letter she had written to the Tribunal which was received on 12 December 2006. In that letter she indicates that the Respondent and Duoc separated a long time ago when she was quite young, and that as far as she knows they hardly talk to each other. Michelle said that Duoc has never attended any family events because her mum dislikes him. She says that the Respondent and her children have lived at her mother's house in Cartmell Way, Balga from before 2000 until the end of 2002, when the Respondent decided to go to Carnarvon and live with David. Michelle recalls that the Respondent moved back into Cartmell Way around April 2005. Michelle refers to the Respondent still having feelings for Duoc, having suffered depression since the birth of her second child, and regularly fighting with Michelle and their mother.
48. In cross-examination Michelle made it clear that she did not talk with the Respondent about their personal lives, and that she did not know what the Respondent did outside the Cartmell Way house. She did not know whether the Respondent saw Duoc outside the house, and said she understood the reason that Duoc was kept away was because of her mother's dislike for him.
49. I found Michelle's evidence to be of limited assistance in making findings as to the nature of the Respondent's relationship with Duoc because of her limited involvement with her sister and limited knowledge of her sister's personal life. In her oral evidence she was also very vague as to the dates at which the Respondent stayed at the Cartmell Way house. The only matter she was sure of was that the Respondent had lived at the house since 3 April 2005, which was Michelle's 18th birthday. That is mostly outside the relevant period I am required to consider, which ends on 18 April 2005. She said that the Respondent had been away from the house for a period, of perhaps a year, prior to that time. She couldn’t recall the Respondent being at the premises when the Respondent's daughter Steffie was a new baby. It is in these last two respects that I find her evidence to be of greatest assistance in determining the matter. I do not regard that evidence as supportive of the Respondent's case.
Documentary Evidence
50. I do not regard the evidence of the Respondent, Duoc or David to be consistent with a number of the documents produced and relied upon by the Applicant. I have discussed the documents on which the Applicant sought to rely below.
-Finance Documents Relating to Ilumba Road Nollamara
51. In December 2000 the Respondent and Duoc applied to refinance a loan in respect of a property at Ilumba Road, Nollamara. This was not the nearby property, also on Ilumba Road, owned by Duoc's brother and his wife. A finance application was made to Homeside Lending by the Respondent and Duoc through a mortgage broker on 16 December 2000. That loan related to property at Ilumba Road in Nollamara and appears to be an application to refinance that property. In the application form, which was signed by both the Respondent and Duoc, the same Ilumba Road address is given for both parties and there is an indication that both have lived there for 3 years and 6 months. The assets of both are listed, but only the income of Duoc is given. It is stated that the Respondent's occupation is "home duties". The Respondent was nominated to receive the documents relating to the loan.
52. Two loans from Homeside Lending were drawn down on 15 January 2001. The Respondent and Duoc were joint account holders of the first loan, styled a "Plain and Simple Home Loan" for an initial amount of $66,000. The second loan was a "reducible mortgage" in the name of Duoc alone for an initial amount of $50,000. The loan amounts were both drawn down on 15 January 2001, following which regular payments were made until 27 July 2001 when the loans were discharged. The account addresses for both the Respondent and Duoc was their Ilumba Road address.
- Finance Application – Summerlakes Parade Ballajura
53. A further finance application to Homeside Lending was made by the Respondent and Duoc through the same mortgage broker on 30 May 2001. In that application form the Respondent and Duoc were both shown as being owner occupiers of their Ilumba Road address and as having both lived there for 4 years. The Respondent is shown as being a business proprietor from January 2001, while Duoc is said to be a weaver at Canningvale Weaving Mills. The application was for the amount of $220,500. A separate application for the same loan had been made by Duoc's brother on the same date. The loan was sought to purchase a property in Summerlakes Parade Ballajura, of which the three persons were to be owner. Again, in relation to the application by the Respondent and Duoc, the only indicated income was that of Duoc and the Respondent was nominated as the person to receive notices. The application was signed by both the Respondent and Duoc.
- Finance Application and Property Purchase – Morley Drive Dianella
54. The Applicant submits that I should find that the Respondent was the registered proprietor, along with Duoc and his brother, of a property at Morley Drive, Dianella between July 2001 and 8 July 2005 when the property was sold.
55. Although the Applicant has not produced a certificate of title which would have conclusively established this fact, the Respondent's Statement of Facts and Contentions, and the evidence of the Respondent and Duoc, admit that the Respondent participated in the purchase of this property. In those circumstances I am prepared to make this finding, although I do so somewhat reluctantly in the absence of a certificate of title. There is a computer printout from a Nominal Index System, which indicates that the Respondent, Duoc and Duoc's brother became registered proprietors of the Morley Drive property on 5 July 2001, for a consideration of $205,000. That supports my conclusion, although I note that the printout states that "a search of original document is required for all legal purposes". I note that the statement for the loan account shows the loan was drawn down on 1 August 2001, so that there is some uncertainty as to the date on which settlement of the purchase occurred.
56. The Applicant also submits that I should find that the Respondent resided at the Morley Drive address at all material times and that she was a beneficial owner of the property.
57. The property in Morley Drive Dianella appears to have been purchased in July or August 2001. That is the period during which the loans relating to the mortgages for the Ilumba Road property were discharged. Loans for the total amount of $184,500 from Home Building Society were drawn down on 1 August 2001. There were two loan accounts in the name of the Respondent, Duoc and the Duoc's brother. Those loan amounts were $134,500.00 and $50,000 respectively. The loans were paid out on 8 July 2005.
58. The documents produced before me include two unsigned and undated applications for finance to Home Building Society for the amount $184,500. One was completed by Duoc's brother, and the other was completed by the Respondent and Duoc. The residential address of the Respondent and Duoc was given as their Ilumba Road address, with Duoc's brother providing the address of his separate residence which was also located in Ilumba Road. The application by the Respondent and Duoc indicated that the purpose of the loans was to purchase an owner occupied dwelling. Their application dealt with the income and assets of the couple in a manner that did not differentiate between the two.
59. Therefore during the relevant period the Respondent:
(a)had a joint liability with Duoc to Homeside Lending for the principal sum of $66,000 plus interest between around 15 January 2001 and 27 July 2001; and
(b)had a joint liability with Duoc and his brother to Home Building Society for the principal sum of $184,500 plus interest from around 1 August 2001 until the end of the relevant period on 18 April 2005.
60. The evidence of the Respondent and Duoc was that the Respondent was asked to participate in this purchase of the Morley Drive property because she was required by the lender to be a co-borrower before the loan could be approved. Their evidence was that the Respondent did not pay any money in respect of the house, and did not receive any part of the proceeds of the sale. However, there was no evidence, other than the oral evidence of the Respondent and Duoc, to show that the Respondent was required as a co-borrower in order for Duoc and his brother to obtain finance. The evidence as to the Respondent's financial position does not make it obvious why her presence on the loan application would have improved the chances of it being approved.
61. Further, the Respondent and Duoc made series of joint applications for finance in 2000 and 2001. These included:
(a)the application made in December 2000 for a loan to be secured by mortgages of the property at Ilumba Road, which was granted;
(b)the application in May 2001 for a loan to finance the purchase property at Summerlakes Parade, with which the Respondent and Duoc did not proceed; and
(c)the application, made some time prior to August 2001, for finance to assist in the purchase of the property at Morley Drive, which was granted.
None of these applications indicated any income of the Respondent. Further, Duoc's brother made separate loan applications. If the Respondent was separated from Duoc and, as they claimed, joining in the application for the purpose of assisting in having the loan approved I would have expected her to also have filled out a separate application form.
-Travel to Vietnam
62. The Applicant has obtained immigration records for the movements of the Respondent and Duoc in and out of Australia.
63. During the relevant period the Respondent and Stephanie both departed Australia from Perth airport on flight SQ224 on 7 February 2002. They returned to Perth on flight SQ255 on 3 March 2002.
64. In the relevant period Duoc was recorded as departing Perth on flight SQ224 on 2 February 2002, returning on flight SQ225 on 3 March 2002. He is also recorded as having departed Perth on flight SQ216 on 30 November 2002, returning on 9 December 2002 on flight SQ225. He departed Perth on 1 February 2004 on flight SQ216, and returned on 17 February 2004 on flight SQ215.
65. In cross-examination, Duoc said that he went to Vietnam "many times" and that the trip in February to March 2002 was one of those occasions. He said that he and his wife did not plan to go together, and that they just met at the airport. The evidence of the Respondent was to the same effect.
- Loan from David
66. In his oral evidence, David indicated that he lent the cash sum of $10,000 to the Respondent in January 2003. The Respondent's bank records do not show any substantial deposits at this time. However, the sum of $7,000 was deposited into Duoc's ANZ account on 24 January 2003.
67. Duoc said, during the course of cross-examination, that he borrowed that money from a family member. The Respondent suggested in her evidence that David had loaned her money for a trip to Vietnam, however that trip took place in February and March 2002.
68. The Applicant submits that I should find that David lent about $10,000 to the Respondent in January 2003 and that money was paid into Duoc's ANZ account. While the evidence before me gives rise to a suspicion that this was the case, it does not, in my view, establish that fact on the balance of probabilities. The evidence before me is consistent with Duoc having been loaned the money from another family member, and the Respondent having received a cash loan from David and spent the money without banking it.
-Living in Carnarvon
69. The Applicant relies on the bank account records of the Respondent and Duoc as evidence that they were both in Carnarvon from late 2002 to mid 2003.
70. The Respondent was the holder of an account with the Commonwealth Bank into which her Centrelink payments were made. Between 27 December 2002 and 2 July 2003 withdrawals from that account are shown as being transacted in Carnarvon. The exceptions are one transaction in Mirrabooka on 3 February 2003, which is followed by a transaction in Carnarvon on 5 February 2003, and one transaction in Northbridge on 11 March 2003 which is followed by a transaction in Carnarvon on 14 March 2003.
71. Duoc was the holder of an account with the ANZ bank, which was opened on 12 November 2002. A deposit was made into that account on 24 January 2003 from a source not revealed by the statement for that account. Three withdrawals were made from Mirrabooka, one on 29 January 2003 and two on 3 February 2003. I note that 3 February 2003 was the same date on which a withdrawal was made from the Respondent's account. It appears that the withdrawals from both the Respondent's and Duoc's accounts were made at the Mirrabooka Shopping Centre.
72. The next transaction on Duoc's account after 3 February 2003 was a withdrawal from an ATM in Carnarvon on 21 February 2003. There are further withdrawals noted in Carnarvon on 3 and 6 March 2003. There is then a transaction in Hamelin Pool, located near Shark Bay between Carnarvon and Geraldton, on 7 March 2003, and transactions at Dongara, located between Geraldton and Perth, and Mirrabooka on 10 March 2003. There are transactions in the Perth metropolitan area on 12 and 13 March 2003. The withdrawal made on 13 March 2003 in the metropolitan area was from a service station in Wanneroo Road, which is one of the main routes to the north of Perth. Also on 13 March 2003 there was a withdrawal from a service station at Glenfield, which is a suburb of Geraldton. Subsequent transactions between 18 March 2003 and 13 June 2003 are undertaken in Carnarvon. The next transaction shown on the account is conducted in the Perth metropolitan area on 12 August 2003. The following transactions are in Perth.
73. It may be inferred from these transactions that Duoc travelled by road from Carnarvon to Perth on or about 10 March 2003, possibly having made a stop-over at Shark Bay on 7 March 2003. He returned from Perth to Carnarvon on or about 13 March 2003, where he remained until at least 13 June 2003. By 12 August 2003 he had returned to the Perth metropolitan area.
74. The Respondent made a transaction on her account in Perth on 11 March 2003, and a transaction in Carnarvon on 14 March 2003. There was also a transaction shown on the Respondent's account on 7 March 2003, but this was a direct debit. The medical records of the Bulwer Medical Centre indicate that the Respondent was seen in Perth on 8 March 2003.
75. There is, accordingly, a correlation between the transactions on the Respondent's and Duoc's accounts. Unless one of the couple was using the other's card (and there was no suggestion of that in the evidence of either the Respondent or Duoc), this gives rise to an inference that:
(a)The Respondent and Duoc were both at the Mirrabooka Shopping Centre on 3 February 2003, and were in Perth at about that time;
(b)The Respondent and Duoc were both in Carnarvon between at least 21 February 2003 and early March 2003;
(c)The Respondent and Duoc were both in Perth on 11 and 12 March 2003; and
(d)The Respondent and Duoc then both remained in Carnarvon until at least 13 June 2003.
76. Duoc gave a statutory declaration on 6 December 2005 in which he indicated that he went to Carnarvon after the Respondent took the children up there as he was worried about them and wanted them to return to school in Perth. He says that he stayed with a friend and worked in the friend's business until he started his own business for a year or so.
77. In cross-examination Duoc was extremely vague about his travels to and from Carnarvon. However, he accepted that the transactions shown on his ANZ account were performed by him, that he went to Carnarvon in late 2002 or early 2003 and returned to Perth in July or August 2003. He said that he went to Carnarvon to start a business growing tomatoes, which he stopped because it wasn't profitable. He said that he was aware that the Respondent was in Carnarvon at that time. He said that he did recall driving the Respondent and the children from Carnarvon to Perth in March 2003.
78. At one point in cross-examination, Duoc said that the Respondent followed him to Carnarvon. That is inconsistent with Duoc's statutory declaration to the effect that he followed the Respondent to Carnarvon.
79. The Respondent said that she had travelled to Perth in February and March 2003, but denied travelling to Perth with Duoc. That is inconsistent with the evidence of Duoc, who recalled driving the Respondent to Perth.
80. As I have noted, the Respondent gave evidence that she and her children stayed with David in Carnarvon from late 2002 until about July 2003. The evidence of David was that she stayed with him in Carnarvon only intermittently. It was apparent that he was not aware of the Respondent's pregnancy with Steffie, and not aware where the Respondent was living when not staying with him. I do not regard David's evidence in that respect as consistent with the evidence of the Respondent. In re-examination, David's evidence was that the Respondent stayed away for only a few days during this period. That answer was not consistent, in my view, with his evidence in cross-examination.
- Duoc's Employment and Superannuation Records
81. Advice from Canningvale Weaving Mills was given to Centrelink on 9 May 2006. That advice indicated that Duoc worked for that company from the beginning of the relevant period to 1 November 2002. It indicated that Duoc's addresses during that period were the property at Morley Drive and Ilumba Road. It indicates that he was understood by his employer to be single.
82. On 16 May 2006 the ARF Super Fund informed Centrelink that Duoc held a policy with the Australian Retirement Fund. It indicated that the name of the employer which ceased contributions on 29 April 2005 was BDS Challenge International. The beneficiaries noted on the fund were the Respondent, Stephanie and Stephen. I find, on the basis of that evidence, that the Respondent was listed as a beneficiary in the superannuation fund, which must have been established after Duoc ceased working at the Canningvale Weaving Mills on 1 November 2002.
-Medical Records in relation to Steffie's birth
83. Clinical notes of the Bulwer medical centre show that the Respondent attended on 19 August 2002 making "enquiries for another pregnancy". I note that the Respondent's evidence was that she denied making this inquiry, but I can see no reason why this note would have been made if she did not. I find, on the basis of this note, that the Respondent did make the inquiry.
84. The Respondent again attended that clinic on 31 January 2003 and 3 February 2003, by which time it was apparent that she was pregnant. She was seen again on 8 March 2003 and 8 July 2003. On 8 March 2003 she was noted as living in Carnarvon and, on 8 July 2003, was noted as having just returned from Carnarvon.
85. On 12 July 2003 the Respondent was referred to King Edward Memorial Hospital ("KEMH") for antenatal care and delivery as a public patient. The referral indicated that the Respondent moved to Carnarvon in February 2003 and returned to Perth that week.
86. The Respondent signed a form entitled "Patient Registration Details" at KEMH on 6 August 2003. That form gave her mother's Cartmell Way address as the Respondent's address. However, at the top of the form where there is a postal address noted, the Morley Drive address is written down and crossed out and a post office box address in Mirrabooka is given. In the section of the form headed "marital status" there are options for:
"NEVER MARRIED / MARRIED / DIVORCED / SEPARATED / WIDOWED / DEFACTO / UNKNOWN"
The option "married" is circled. Duoc is identified as the Respondent's next of kin and husband. That is in contrast to the equivalent form completed in 1997, when the Respondent was pregnant with Stephen, in which the Respondent circled the option "separated" and identified her mother as her next of kin.
87. The Respondent's evidence before me was that she did not fill out this form, give the information noted on it to the Hospital or read the form before signing it. I would regard that as an unlikely scenario, as it is difficult to see where else the information had been obtained.
88. The records of KEMH indicate that the Respondent was given antenatal counselling on 1 October 2003. Against the note to discuss "supports at home" is written "husband and family".
89. The Respondent's daughter Steffie was born at KEMH on 9 October 2003. The integrated progress notes include a note that the baby was handed to the father of the baby shortly after the birth. The Respondent's evidence, while unconvincingly vague as to who attended the birth, did not suggest that a person other than Duoc was present.
90. It is not apparent from these medical records relating to the birth of Steffie that the Respondent was separated from Duoc. It appears that she was planning a pregnancy in late 2002, and indicated to KEMH on 6 August 2003 that she was married and indicated to KEMH on 1 October 2003 that she had the support of her husband at home.
- Medicare
91. The Respondent also gave the Morley Drive address as her residential address to Medicare after the birth of Steffie. She said that she gave these details to Medicare at this time, when she admitted living at the Morley Drive address for a few weeks (in her October testimony) or a few days (in her December testimony). She said that she did this because she had no permanent address. However, I find it unlikely that the Respondent would have given her husband's address if she were staying at his house for only a few days.
Inconsistencies in Evidence Adduced by the Respondent as to the Living Arrangements after the Birth of Steffie
92. The witnesses called by the Respondent all addressed the living arrangements after the birth of Steffie in October 2003. However, in my view that evidence involved a number of significant inconsistencies.
93. As I have noted above, Michelle could not recall the Respondent staying at their mother's house with Steffie as a young baby. That is inconsistent with the Respondent's evidence as to the time she stayed at her mother's house.
94. David's evidence was that the Respondent stayed with him from time to time after he and his family moved from Carnarvon to Perth in March or April 2004, during which time the Respondent was also living with their mother. Although the number of days per week which the Respondent stayed with him appeared to increase as his evidence went on, his final position was that she stayed about 3-4 nights per week. This evidence was not consistent with that of the Respondent who, in her evidence, did not refer to staying with David other than in Carnarvon. Nor was David's evidence that the Respondent was living with their mother at that time consistent with the evidence of Michelle, which was to the effect that the Respondent was not staying at their mother's house in the 12 months prior to her 18th birthday.
95. The evidence of Duoc was that he assumed primary responsibility for the care of Stephanie and Stephen who stayed with him on most nights in the period 2000 to 2005. That evidence is inconsistent with the evidence of both the Respondent and David.
96. I note that the Respondent's sister-in-law has made a written "declaration" to the effect that the Respondent was staying with her, at her Ilumba Road address, between around January 2004 and February to March 2005. However, that declaration was not sworn and the Respondent's sister-in-law did not give evidence before me. In those circumstances, I am not prepared to give significant weight to that "declaration".
Surveillance in March 2005
97. The surveillance video tendered by the Applicant establishes that for the period 24-31 March 2005 the Respondent was residing at the Morley Drive property with Duoc and the Respondent's three children. In that video the Respondent, Duoc, Steffie and Stephen are shown interacting as a family and, on one occasion, Duoc and the Respondent are shown indicating some affection for each other. The video also establishes, in my view, that the Respondent was living at the Morley Road address between 24 and 31 March 2005. In particular, it shows the car registered to her parked at that address during the night. That video is also inconsistent with the Respondent's oral evidence as to the lack of interaction between Duoc and the Respondent and Steffie.
98. Duoc's evidence before me was that the Respondent stayed at his house for only a few days in March 2005, that she slept with the children in the children's room and didn’t do any cooking or housework. He said that the Respondent came "because of the children only". The Respondent's evidence was to similar effect.
99. In my view, it would be an unlikely coincidence that the period during which the Applicant arranged surveillance of the Morley Drive premises was also an exceptional period during which the Respondent was living at the Morley Drive address.
Respondent's Medical Reports after April 2005
100. The first reference to the Respondent being separated from her husband in the medical notes produced before me is on 18 May 2005 when she was seen by Dr Hendrick Janong, who diagnosed that the Respondent was suffering from severe levels of depression and anxiety symptoms. I note, however, that these statements were made after the relevant period I am required to consider, and after Centrelink had decided to recover an overpayment on the basis that she had been a member of a couple.
101. I also note the contents of a medical report from the Respondent's general practitioner Dr Nguyen dated 18 June 2005. That report indicates that the Respondent was consulting the Bulwer Street practice since April 1992, and was last seen on 10 June 2005. Dr Nguyen notes the Respondent's treatment for post-natal depression from 1997. He says:
"Recently, it came as a surprise to me that she revealed many aspects of her private life of which she never wanted to discuss in detail in the past. I am now aware that her male partner already left her for many other girls even when she was pregnant with the first child …"
102. This letter suggests that Dr Ngyuen only became aware of the Respondent's separation after Centrelink's decision to cancel the payments.
103. These reports from Drs Janong and Ngyuen, while consistent with the Respondent having separated from Duoc well prior to mid 2005, only involve the Respondent reporting that separation after the decision to recover the overpayment.
Analysis of Evidence
104. In my opinion the cumulative effect of all of the evidence referred to above is to establish that the Respondent and Duoc were living together during the relevant period.
105. The Respondent's account involves an unlikely series of coincidences, in which she and Duoc are residing in Perth and Carnarvon during the same period, visiting Perth at the same time in February and March 2003, travelling to Vietnam during the same period and were unlucky enough that the period of surveillance occurs during what the Respondent claims to be the few days when she stayed at the Morley Drive address.
106. In addition, the Respondent's account is inconsistent in the respects noted above with documentation relating to a series of joint finance applications made by the Respondent and Duoc and the Respondent's medical records. It is also inconsistent with Duoc having named the Respondent as a beneficiary of his superannuation policy sometime after 1 November 2002.
107. Further, as I have noted, the evidence of the Respondent, Duoc, Michelle and David is inconsistent in a number of significant respects. In my view, those inconsistencies would not have arisen had their evidence reflected the true position. For example, the arrangements for the care of Stephanie and Stephen would be well known to all parties. Michelle is unlikely to have forgotten living in a house with a baby only weeks old if, as the Respondent contends, she was living with her mother during the period shortly after the birth of Steffie.
108. Those inconsistencies and improbabilities, combined by the manner in which the Respondent, Duoc and David gave their evidence, lead me to the view that their evidence is not generally to be regarded as reliable.
109. I make the following findings of fact in relation to the residence of the Respondent and Duoc during the relevant period.
110. Firstly, I find that the Respondent, Duoc and their children were living together at an address in Ilumba Road for most of the period between 8 December 2000, being the beginning of the relevant period, and July 2001. I make that finding principally from the disclosures contained in the finance applications for the Ilumba Road property, the proposed purchase of a property at Summerlakes Parade and the purchase of the property at Morley Drive.
111. Secondly, I find that between July or August 2001 and around December 2002 the Respondent, Duoc and their children were living at the property at Morley Drive, which was jointly owned by the Respondent and Duoc. I find that, during that period, in February and March 2002 the Respondent and Duoc travelled together to Vietnam, although the Respondent's flight left a few days after Duoc's flight. I find that, on 19 August 2002, the Respondent made inquiries about pregnancy at Bulwer Medical Centre, and was contemplating pregnancy at that time. I make those findings based on the finance, immigration and medical records.
112. Thirdly, I find that the Respondent, Duoc and their children lived in Carnarvon, together for most of the time, between about December 2002 and July 2003. During that period the Respondent and Duoc both travelled to Perth in early February 2003, where both made withdrawals at Mirrabooka Shopping Centre on 3 February 2003, and around 11-13 March 2003. I make those findings principally on the basis of the bank records relied on by the Applicant. While the Respondent may have stayed with her brother David occasionally during this period, I find that she was also with Duoc for substantial parts of it.
113. Fourthly, I also find that the Respondent and Duoc were having sexual relations sometime around the end of 2002 or the beginning of 2003. I make that finding on the evidence of the Respondent and Duoc.
114. Fifthly, I find that between around July 2003 and the beginning of April 2005 Duoc and the Respondent lived together for substantial periods of time at the Morley Drive address. I make this finding principally relying on the surveillance video (which relates to the end of that period), the finance records which show the Respondent's interest in the property, the Medicare records and the evidence at Michelle that she could not recall the Respondent living at their mother's house with a young baby or in the year prior to her 18th birthday on 3 April 2005.
115. While there may well have been disputes and periods of separate living during the relevant period, I am unable to conclude that any separation during the relevant period was on either a permanent or an indefinite basis.
Factors Referred to in s. 4(3) of the Act
116. In light of my findings of fact noted above, I shall consider the specific matters identified in s. 4(3) of the Act.
- Financial Aspects of the Relationship
117. As I have noted above, I find that the Respondent and Duoc:
(a)Were jointly registered proprietors in property at Morley Drive between July or August 2001 and the end of the relevant period on 18 April 2005;
(b)Were jointly liable for a loan in the principal amount of $66,000 between around 15 January 2001 and 27 July 2001;
(c)Were jointly liable for a loan in the principal amount of $184,500 between around 1 August 2001 and the end of the relevant period on 18 April 2005.
118. I also infer that the marriage relationship was the reason why the above transactions were undertaken jointly.
119. I also find that the relationship between the Respondent and Duoc during the relevant period did not involve the payment of regular child or spousal maintenance. The evidence of both the Respondent and Duoc is consistent with that finding.
120. As I have noted, the Respondent was also named as a beneficiary of Duoc's superannuation fund at some time after 1 November 2002.
121. The evidence does not allow me to make any finding as to the existence of any financial pooling of financial resources, except in relation to the loans and property purchase identified above. Nor does the evidence enable me to make any finding as to the basis of sharing day-to-day household expenses.
- Nature of the Household
122. I find that the living arrangements of the Respondent and Duoc during the relevant period were as indicated above. During that period I find that, at least for the most part, the Respondent and Duoc were living together and shared joint responsibility for providing care and support of the children.
123. The evidence does not enable me to make any finding as to the basis on which housework was distributed.
- Social Aspects of the Relationship
124. The Respondent and Duoc have held themselves out as married to each other in the financial and medical records noted above. However, on other occasions they also appear to have held themselves out as separated. Aside from the relatives whose evidence I have not generally accepted, there is no evidence before me as to how friends and regular associates assess their relationship. Nor is there any evidence that the Respondent and Duoc make plans for, or engage in, joint social activities.
- Sexual Relationship
125. I find that the Respondent and Duoc had a sexual relationship at around the time of the conception of Steffie in late 2002 or early 2003. Otherwise, I am not able to make any finding as to the extent to which the Respondent and Duoc had a sexual relationship during the relevant period.
- Nature of the Commitment to Each Other
126. The Respondent and Duoc have been in a relationship for a substantial period of time, beginning in 1994 when Stephanie was conceived. Their relationship has produced at least two, and possibly three, children. It appears to be common ground between the Applicant and Respondent that there was a period of separation prior to the relevant period.
127. The surveillance video shows, and I accept, that the Respondent and Duoc did provide companionship and emotional support to each other during the relevant period. That is also supported by the fact that Duoc was present at the birth of Steffie, and is noted in the Respondent's antenatal medical records as being a source of support at home.
128. That is not to say that all was well in the relationship between the Respondent and Duoc. Both parties to the marriage admitted to not being faithful to each other, and the relationship may well have been strained for much if not all of the relevant period. However, to recognise that is not necessarily to require a conclusion that the Respondent and Duoc were living separately and apart on a permanent or indefinite basis during the relevant period.
129. I am not able to make a finding on the evidence as to whether, during the relevant period, the Respondent and Duoc considered that their relationship was likely to continue indefinitely. I do not regard the issue of whether the Respondent and Duoc see their relationship as "marriage-like" of great significance where, as here, the parties are married.
Conclusion
130. Taking all of the above matters and evidence into account, I am of the opinion that the Respondent and Duoc were not living separately and apart on a permanent or indefinite basis during the relevant period. I find that they were living together as a family with their two children and, after October 2003, Steffie, and sharing in the care of those children. They had a substantial joint asset and joint liabilities for much of that period. They were in Carnarvon at approximately the same time, and travelled to Vietnam at substantially the same time on one occasion.
131. In reaching this conclusion, I have considered the composite picture of the relationship between the Respondent and Duoc at the relevant time. While I have had regard to the particular matters identified in s. 4(3) of the Act in the manner described above, I have recognised that those matters, and the list of factors relating to each matter, are non-exclusive. In respect of each of those matters and factors I have considered whether there are any other factors relevant to the judgment I am required to make and, where I have concluded that there are other factors, had regard to them in the manner described above.
132. For those reasons, I consider that the decision of the Applicant, that the Respondent and Duoc were not living separately and apart on a permanent or indefinite basis, was correct.
Waiver and Write Off of Debt
133. There was no argument from the Respondent that the debt which I have found to exist should be either waived or written off, or material placed before me which would support such a decision. I have nevertheless considered whether the debt should be written off or waived and concluded that it should not.
134. A raised debt may be written off under s. 1236(1A) of the Act only if it is not recoverable, if a debtor has no capacity to repay it, if a debtor’s whereabouts are unknown or if it is not cost effective for the Commonwealth to take action to recover it. I am not satisfied that any of these criteria apply to the present case. The debt is recoverable, and the Respondent's whereabouts are known. The Respondent does have the capacity to repay it, even if repayments are made through periodic deductions from the Respondent's on-going Centrelink payments. Recovery through that means is also a cost-effective manner of recovering the debt.
135. Section 1237A of the Act provides that a debt must be waived if it is attributable solely to an administrative error made by the Commonwealth and if it was received in good faith. In my view the debt raised against the Respondent was not attributable solely to administrative error made by the Commonwealth and the Respondent did not receive the payments sought to be recovered in good faith.
136. Section 1237AAD of the Act permits waiver in special circumstances but only if the debt that has been raised did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation and there are special circumstances making it desirable to waive the debt and it is more appropriate to waive than to write-off the debt. I am not satisfied that there are any special circumstances which make it desirable to waive the debt. That conclusion makes it unnecessary to consider whether the debt resulted wholly or partly from the Respondent knowingly making a false statement or representation.
137. I have previously considered the meaning of the phases "good faith" and "special circumstances" in Re Secretary, Department Of Families, Community Services and Indigenous Affairs and Foxley-Deschamps (2006) 92 ALD 767 at 774-5, [37]-[41] and 776-7, [50]-[57]. I have adopted that understanding of those phrases in reaching the above conclusions.
DECISION
138. For the above reasons, the Tribunal sets aside the decision of the Social Security Appeals Tribunal made on 16 December 2005 and substitutes a decision that the decision of the Applicant, to raise and recover overpayments of parenting payments of $43,065.10, is affirmed.
I certify that the 138 preceding paragraphs are a true copy of the reasons for the decision herein of Ms LR Tovey, Member
Signed: ................D Brodie....................................
Associate
Dates of Hearing: 8 October 2006, 13 December 2006, 19 April 2007
Date of Final Written Submissions 8 June 2007
Date of Decision 8 October 2007
Representatives for the Applicant Ms N Owen-Conway and Mr A Gerrard
Representatives for the Respondent Ms C Eagle and Ms M Marvelli (on 18 October and 13 December 2006) and Ms C Eagle (on 19 April 2007)
Solicitors for the Applicant Australian Government Solicitor
Solicitors for the Respondent Welfare Rights & Advocacy Service
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