JULIE Moore v Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 838
•30 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 838
ADMINISTRATIVE APPEALS TRIBUNAL ) No 2008/5448 and
) No 2008/5449
GENERAL ADMINISTRATIVE DIVISION )
Re JULIE MOORE Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
AND
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INIDGENOUS AFFAIRS
Respondents
AND
THIRD PARTY - MAXWELL HARRIS (2008/5448)
DECISION
Tribunal The Hon R J Groom (Deputy President) Date30 October 2009
PlaceHobart
Decision The Tribunal affirms the decisions under review.
[Sgd The Hon R J Groom]
Deputy President
CATCHWORDS
SOCIAL SECURITY - Newstart Allowance - Parenting Payment - Family Tax Benefit - all paid at single rate - whether "member of a couple" - whether in a "marriage-like relationship" - consideration of circumstances of relationship - relationship a marriage-like relationship - whether debts should be waived - false statement or false representation - debt not waived - decisions affirmed
Social Security Act 1991, ss 4(2), 4(3), 1237AAD
A New Tax System (Family Assistance) Act 199, s3, 101
Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27
Lambe v Director-General of Social Services (1982) 38 ALR 405
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
REASONS FOR DECISION
30 October 2009 The Hon R J Groom (Deputy President) Introduction
1. On 13 November 2008 the Social Security Appeals Tribunal ("SSAT") confirmed an earlier decision of Centrelink that the applicant had been living with Maxwell Harris as a member of a couple since 28 November 2003.
2. Between 28 November 2003 and 17 October 2007 the applicant was paid Newstart Allowance, Parenting Payment and the Family Tax Benefit as a single person. The payments made to her as a single person were at a higher rate than she was entitled to receive as a member of a couple.
3. In a separate decision dated 13 November 2008 the SSAT decided that as the applicant was a member of a couple she had been overpaid and was therefore required to repay the following debts:
·Newstart Allowance of $3,153.74 and $1,765.42 for the period 28 November 2003 to 19 April 2005
·Parenting Payment of $20,504.16 for the period 20 April 2005 to 17 October 2007
·Family Tax Benefit of $72.81 for the 2004/05 year, $90.30 for the 2005/06 year and $3,465.60 for the 2006/07 year.
4. The applicant has sought a review by this Tribunal of the two decisions of the SSAT.
5. The two applications were heard together in Hobart on 20 and 21 August 2009 and on 8 September 2009. Ms N Rattray appeared for the applicant and Mr B Sparkes for the respondents. The applicant, Mr Maxwell Raymond Harris, Mr William Arthur Hughes and Ms Suzanne Harris gave oral evidence. The documents produced pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") and several other documentary exhibits were tendered in evidence.
6. The applicant contends that she was not a member of a couple between 28 November 2003 and 17 October 2007 and therefore there was no overpayment to her. In the alternative the applicant submits that if there was an overpayment to her it should be waived because "special circumstances" existed. The respondents argue that the applicant was a member of a couple during the relevant period and that the resultant overpayment, which has been correctly calculated, is a debt to the Commonwealth. The respondents say the waiver requirements in the relevant legislation have not been met and therefore the debt cannot be waived.
7. The accuracy of the calculations by Centrelink of the amounts of the various alleged overpayments is not in dispute before the Tribunal. The Tribunal finds that those calculations are correct. Those calculations are based, however, on the determination that the applicant and Mr Harris were members of a couple for the whole of the relevant period. If the Tribunal were to find that they were not members of a couple for part of the period there would then be a need to recalculate the amount of the overpayments.
The Issues
8. The principal issues to be determined by the Tribunal are:
(a) Was the applicant a member of a couple from 28 November 2003 to 17 October 2007, or for any part of that period, for the purposes of assessing her entitlement to Newstart Allowance, Parenting Payment and Family Tax Benefit.
(b) If so, then should any overpayment to the applicant, and the resultant debt to the Commonwealth, be waived.
The Law
9. Section 4(2) of the Social Security Act 1991 ("the Act") provides as follows:
"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
(aa) both of the following conditions are met:
(i) a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 22B of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(ii) the person 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 another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship"
10. It is noted that the family tax benefit overpayment was made under A New Tax System (Family Assistance) Act 1999. Section 3 of that Act states as follows:
""Member of a couple" has the same meaning as in the Social Security Act 1991".
11. Section 4(3) of the Act is also relevant to the issues before the Tribunal and provides:
"In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage‑like relationship or a de facto relationship".
12. Section 4(2)(b) of the Act sets out the conditions which are required by the Act to be met in order to establish that the applicant was a member of a couple at the relevant time. Section 4(2)(b) (i) (ii) (iv) and (v) are clearly satisfied. The only element in section 4(2)(b) in contention in this application is whether the relationship between Ms Moore and Mr Harris was a "marriage-like relationship" as required by section 4(2)(b)(iii).
13. French J in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at para 46 expressed the following view on the proper approach to be adopted in considering whether a particular relationship is a "marriage-like relationship":
"Having regard to the current provisions of s 4(3) ... a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1. Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. Must have regard to each of:
(a) the financial aspects of the relationship; (b) the nature of the household; (c) the social aspects of the relationship; (d) any sexual relationship between the people; (e) the nature of the people’s commitment to each other.
3. In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4. Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5. Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation; (b) cohabitation; (c) a sexual relationship; (d) cooperative household arrangements;
(e) mutual commitment"
14. It is well established law that the Tribunal must consider "all facets of the interpersonal relationship" (Lambe v Director-General of Social Services (1982) 38 ALR 405 at 413) including not only factors which suggest a marital like relationship but also evidence which indicates separateness. (Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27).
Background
15. Ms Moore and Mr Harris first met in early 2002. They became engaged in August 2002. They then commenced to plan for their wedding. It did not take place. The relationship became strained because of Mr Harris' displays of anger. This anger was caused by a frontal brain injury that he suffered as a child. Ms Moore decided to end the relationship. This was in about November 2003.
16. It is readily conceded by Ms Moore that since January 2008 she and Mr Harris have been living together at their jointly leased house in Kingston in a de facto relationship. However the central issue in this case is whether Ms Moore and Mr Harris were in a marriage-like relationship from 28 November 2003 until 17 October 2007. That was the date when Centrelink ceased to make payments to Ms Moore at the single rate. They say their relationship during that period was simply a continuing friendship based largely on Mr Harris' desire to regularly see his daughter and to provide her with support.
17. The Tribunal will now consider the criteria set out in section 4(3) of the Act. It will not limit that consideration to factors which tend to show the existence of a marriage-like relationship but will consider others which support the contention that it was not such a relationship.
Financial Aspects of the Relationship
18. Ms Moore and Mr Harris do not jointly own any real estate or other major assets.
19. They did jointly lease properties at Baretta (5/12/03 to 29/1/05), Leslie Vale (6/4/05 to 12/8/05), Howden (13/8/05 to 31/8/05) and Kingston (since 1/9/07). They assumed joint liability for the tenants' obligations under those leases including the payment of rent.
20. Mr Harris says he paid money towards the rental of the properties but he said this was in lieu of paying maintenance for their daughter. On occasions receipts for the rent were issued in the names of both Ms Moore and Mr Harris. At other times they were issued in Ms Moore's name alone.
21. Mr Harris named Ms Moore as a 75% beneficiary of his superannuation fund with CBUS. This was increased to 100% in 2004. However on occasions other times other people were named as a beneficiary of his superannuation.
22. Ms Moore and Mr Harris did not have a joint bank account. At times amounts were transferred from Ms Moore's account to a separate account in Mr Harris' name.
23. In 2007 Mr Harris entered into a contract with W Coogan and Co to purchase a Westinghouse refrigerator which was located at the property in Kingston occupied by Ms Moore. Mr Harris said he purchased the refrigerator for the benefit of his daughter. A television was also purchased. Again Mr Harris said that was for his daughter.
24. A bond on one of the rental properties was not paid by Mr Harris but he signed for the return of the bond. He says he did that because his name was on the lease.
25. There is no evidence of any significant pooling of resources or joint financial commitments other than the leases. Also there is no evidence of any regular day to day sharing of household expenses. Mr Harris indicated he did not generally assist with grocery shopping.
26. Both Ms Moore and Mr Harris explained that Mr Harris included his name on the various lease agreements to increase Ms Moore's prospect of obtaining suitable rented premises. Both Ms Moore and Mr Harris said they believed that it was much more likely that a landlord would rent premises to a couple than to a single female.
27. It is noted that Mr Harris did not claim Ms Moore as his dependant spouse for the purpose of income tax.
28. Ms Moore and Mr Harris did have their own cars. They were registered in their separate names.
Nature of the Household
29. Ms Moore and Mr Harris claim that during the relevant period Mr Harris visited Ms Moore's various houses no more than one or two nights per week. Mr Harris said this was to enable him to see his daughter. The Tribunal accepts that Mr Harris was very fond of his daughter. It was suggested that during most weeks the visits were for one night only.
30. Mr Harris said that he slept separately from Ms Moore when visiting. During the relevant period Mr Harris and Ms Moore have said that there was no sexual relationship between the two except for one occasion when they met at a local hotel. This was when their daughter was conceived.
31. Moore had serious health problems after she became pregnant. At this time Mr Harris went to the house daily to give Ms Moore injections of medication as prescribed by her doctor.
32. Mr Harris said he kept his work tools in the shed at the Howden property occupied by Ms Moore. He said he would go to the house to collect the tools early in the morning before work and then would return them later in the day after he had finished work.
33. Ms Moore had the responsibility of caring for and supporting their daughter. Mr Harris paid some money towards the rent instead of regularly paying maintenance.
34. Ms Moore says that she did the housework at her various houses. There is little evidence of a sharing of housework or house-related responsibilities.
35. On some occasions Mr Harris would buy bread and milk for Ms Moore, especially if her car had broken down. Mr Harris also sometimes mowed the lawn and worked on her car. It was confirmed by Ms Moore that on 31 October 2006 Mr Harris accompanied her to the cemetery to visit her mother's grave. Ms Moore said they rarely went out together.
36. When a search warrant was executed on 12 October 2007 at the premises occupied by Ms Moore at 18 Lester Crescent at Kingston, a significant quantity of payslips, letters and other documents were found bearing Mr Harris' name. Mr Harris said that he lent a computer and a desk to Ms Moore and this was why so many of his documents were found at the Lester Crescent property. A number of the documents listed his address as 8 Ferry Road Kettering. He admitted that some of his clothes were in the main bedroom because "... the spare room was pretty full of boxes". (Transcript page 156)
37. The handwritten records made by Ms Moore in the period 19 October 2006 to 13 April 2007 include many references to Mr Harris coming "home" when he was visiting the house occupied by Ms Moore. Ms Moore said she intended those references to be references to her home rather than to Mr Harris' house.
38. In October and November 2006 and in September 2007 surveillance was conducted at the Howden property occupied by Ms Moore. Of the seven days when surveillance was conducted Mr Harris was observed at the house on six days:
·Mr Harris was seen mowing the lawn at 6.13 pm on 16 October 2006
·On both 17 October 2006 and 31 October 2006 Mr Harris was seen leaving the property
·On 31 October 2006 Mr Harris and Ms Moore were seen at 4.31 pm leaving in Mr Harris' utility with a baby seat between them
·On 1 November 2006 Mr Harris was observed driving from the property at 7.14 am
·On 24 September 2007 Mr Harris was seen leaving the house and placing a bag in the vehicle and removing the child seat and driving off at 6.47 am
·At 4.29 pm on 24 September 2007 Mr Harris was observed entering the house
·On 25 September 2007 at 6.39 am Mr Harris was observed walking up the driveway of the house
·On 25 September 2007 Mr Harris was observed entering the property at 4.53 pm carrying a bag in what appeared to be a bag of potatoes
·As previously indicated Mr Harris bought a refrigerator and a television for the house at Kingston occupied by Ms Moore. He has claimed that this was intended to benefit his daughter.
39. Both Mr Harris and Ms Moore have said in evidence that Mr Harris' home was at his parents' house at 8 Ferry Road, Kettering. Mr Harris' mother, Mrs Suzanne Harris, gave evidence that Mr Harris:
"... was living with us in Ferry Road in Kettering since the breakup and has done so until Julie's pension was cut off and Max had to support her because his child had no other means of survival".
40. Mrs Harris agreed in evidence that Mr Harris lived mostly at her house and that she:
"... did all their housework - the washing and ironing, and generally looked after him as a mother would". (Transcript page 171)
Mrs Harris added:
"He paid me board and he also did a lot of work around the yard that his father wasn't able to do due to ill health". (Transcript page 171)
41. There is evidence before the Tribunal that Mr Harris had other relationships with female acquaintances during the relevant period.
42. Ms Moore was a patient in the Royal Hobart Hospital in 2005 and 2006. Mr Harris was named as her emergency contact and next of kin. His address was given as 8 Ferry Road Kettering.
Social Aspects of the Relationship
43. As has been mentioned Ms Moore and Mr Harris were engaged to be married on 31 August 2002. They commenced to plan a marriage but it did not take place.
44. They held themselves out as a couple when they jointly applied to lease rental premises, signed leases and in also dealing with some of the landlords and also with the Tenants Union.
45. There is very little other evidence before the Tribunal on Ms Moore and Mr Harris holding themselves out to the wider community as married or in a de facto relationship.
46. According to Ms Moore, Mr Harris stayed with her "one or two nights" each week after their daughter was born in April 2005. Mr Harris also gave evidence to that effect. Ms Moore said that between the "split-up" in their relationship and when their daughter was born in 2005 she had only seen Mr Harris "... a couple times ...".
47. Ms Moore attended some of Mr Harris' cricket matches and also attended a cricket dinner on the 31 March 2007. It is noted that it was said in evidence by Mr Hughes that Mr Harris also took other women to cricket matches from time to time.
48. Ms Moore and Mr Harris travelled by car together on 31 October 2006 to visit Ms Moore's mothers grave at Cornelian Bay.
49. When asked whether Ms Moore and Mr Harris were in a marriage-like relationship Mr Hughes said ",,, I don't think they were ...".
50. Mr Hughes said of Mr Harris in evidence "... yes, certainly (he) had other girlfriends and a few times he brought them ..." (ie to the cricket). Mr Hughes said of the girlfriends "... I think they were pretty casual ...". (Transcript page 113). There is very limited evidence of joint social activities apart from occasionally attending a cricket match and also attending the cricket functions.
51. Mr Harris emphasised in his evidence that he was really visiting the houses occupied by Ms Moore for the sake of his daughter rather than because of his relationship with Ms Moore.
52. Ms Moore said that she agreed to Mr Harris moving in to live with her in 2008 because she had no choice. The only alternative was to reside at a Women's Shelter.
Sexual Relationship
53. The Tribunal accepts that the relationship between Ms Moore and Mr Harris was tempestuous. As has been mentioned Mr Harris was inclined to outbursts of anger. This conduct was not conducive to a loving and affable relationship. Also it is accepted that Ms Moore suffered endometriosis which made sexual relations particularly difficult for her.
54. There is clear evidence, however, that there was a sexual relationship between Ms Moore and Mr Harris as the relationship has produced two children, one born in 2005 and the second in late 2008. Ms Moore and Mr Harris are now openly living together in a genuine de facto relationship and are sharing the same bed.
Ms Moore was asked "you share the bed now?" She answered "yes". (Transcript page 105).
55. Ms Moore's handwritten notes about their relationship include a number of statements which suggest that the two had, at least at times, a rather loving and close relationship.
56. The Tribunal accepts that Mr Harris did have brief associations with some other female companions during the period of time relevant to these applications.
Nature of the Commitment to Each Other
57. The two were engaged but did not proceed to marry. However their relationship, despite the differences already mentioned, has survived for a considerable period of time. They remain together.
58. According to Mr Harris when Centrelink stopped Ms Moore's social security payments he was most concerned, particularly for their daughter, so he moved in to live with Ms Moore and the child. The fact that they acknowledge they are now openly live together as man and wife sheds light on the commitment they have to each other and to their children. It also aids an understanding of the nature of their earlier relationship.
59. Mr Harris assisted Ms Moore in many different ways at various times between 2003 and late 2007 including agreeing to apply jointly for tenancies and signed joint leases, joint approaches to landlords and the Tenants Union when difficulties arose with the tenancies, giving Ms Moore daily injections when she was pregnant, sometimes mowing the lawn and occasionally buying groceries.
60. Ms Moore showed a great deal of affection for Mr Harris in the handwritten notes she made about the relationship, for example her statement as follows:
"Max, you mean the world to me, I love you and always will ..." (T19 page 154).
61. In the search of the property at 18 Lester Crescent a number of Mothers Day and birthday cards were discovered with messages indicating a close and loving relationship.
Consideration of the Issues
62. Mr Sparkes for the respondent submitted that credibility was an issue in these applications and that the evidence of both Ms Moore and Mr Harris should be treated "... with a degree of caution".
63. Although the Tribunal accepts that much of the evidence given by Ms Moore and Mr Harris was accurate and truthful it is also satisfied that both understated the true nature of their relationship and the amount of time Mr Harris actually spent staying with Ms Moore at the various dwellings she occupied during the relevant period.
64. The evidence establishes to the Tribunal's satisfaction that both Ms Moore and Mr Harris have a propensity to make untruthful statements in order to gain some advantage for one or the other or indeed for both. This was in fact openly admitted by both of them when giving evidence.
Mr Harris was asked "so you are prepared to stretch the truth?" He answered "yes". (Transcript page 142).
When Mr Harris was asked "what does stretch the truth mean?" He answered "... sometimes twist things slightly so they appear better than they are". (Transcript page 142).
Mr Harris was then referring to misrepresentations made in joint tenancy applications. Mr Harris said he made those misrepresentations simply to assist Ms Moore to gain a tenancy which he believed she would not otherwise get.
65. Similarly Ms Moore conceded that she had made misrepresentations in tenancy applications which she had made to benefit herself. The evidence also establishes that Ms Moore deliberately altered information in a lease agreement which gave a false impression to Centrelink and was plainly intended to conceal her relationship with Mr Harris.
66. Although the Tribunal accepts that Mr Harris did, from time to time, spend nights away from the house occupied by Ms Moore it is satisfied that he was at that house far more often than either he or Ms Moore were prepared to admit.
67. The evidence of the surveillance of the Howden property in October and November 2006 and September 2007 is particularly persuasive. Of the seven days chosen for surveillance of the property Mr Harris was observed at the house on six of those days. Mr Harris said he had to go to the Howden property often because his "building materials" were stored in sheds at the property.
68. Mr Harris said in his witness statement (Exhibit A2) that "I did not live in the house. I would spend a night a week if I could be with my daughter, but it wasn't always possible. Sometimes I'd stay two nights".
69. Mr Harris emphasised that for much of the relevant period he was visiting the houses occupied by Ms Moore principally to see his daughter. Yet he says that he was staying one or two "nights" each week. The Tribunal considers it to be interesting that Mr Harris would frequently stay overnight. It was obviously not necessary for him to stay overnight if his desire was only to see his young daughter.
70. The quantity and nature of the various documents and other written material belonging to Mr Harris found at the Kingston property on the 12 October 2007 (T19) strongly suggest this was his usual place of abode. The explanation that those documents were at the house because Mr Harris had lent a desk to Ms Moore is unconvincing. Despite the fact that a number of the documents carried the address 8 Ferry Road Kettering their presence at the property at Kingston is evidence that Mr Harris was regularly attending at that property and treating it as his usual place of abode by keeping his personal and business records there.
71. It is recognised by the Tribunal that there are factors suggesting that the relationship between Ms Moore and Mr Harris was not marriage-like:
·They were engaged but did not marry.
·The relationship was tempestuous with frequent arguments and conflict.
·Quite often Mr Harris did spend nights away from Ms Moore at Kettering or elsewhere.
·He had brief relationships with other female companions. He was seen by friends with other women.
·There is no evidence of any joint assets or liabilities or genuinely pooling of funds to meet household expenses.
·Some of the documents found at the Kingston property carried the Ferry Road Kettering address.
·His car was seen at Ferry Road Kettering from time to time and that is where he was contacted by his cricket team mates. He was also seen at the Kettering Hotel.
72. However there is a substantial amount of persuasive evidence suggesting that the relationship was marriage-like:
·They were engaged in 2002 and in a variety of ways have been supportive of each other for much of the period since.
·There is evidence of their affection for each other in documents found at the house.
·Ms Moore and Mr Harris held themselves out as a couple to the landlords of a number of houses and also jointly signed tenancy applications and leases.
·Mr Harris named Ms Moore as a beneficiary of his superannuation with SBUS. Also Mr Harris was named as Ms Moore's emergency contact and next of kin when she was a patient at the Royal Hobart Hospital in 2005 and 2006.
·Surveillance records indicate that Mr Harris was present at the Howden Property six out of seven days.
·There is a sexual relationship between the two as evidenced by the birth of their two children.
·The presence of Mr Harris' personal documents and papers found at the Kingston property on 12 October 2007 indicate that he was treating that property as his principal place of abode.
·Mr Harris helped Ms Moore in a variety of ways when she was in particular need including giving her prescribed injections because of an illness when she was pregnant, mowing the lawn, sometimes buying groceries, working on Ms Moore's car, attending the real estate agent to pay the rent, helping her to do work at her shop and entering into joint lease arrangements.
·The two are now openly living together in a de facto relationship and sleep in the same bed.
Conclusion
73. From time to time Mr Harris did spend nights staying at his parent's house in Ferry Road Kettering or elsewhere. However the Tribunal concludes that his principal place of abode during the relevant period was at the houses in which Ms Moore lived. The Tribunal also finds that there was a sexual relationship between the couple during much of the relevant period. It recognises however that there were often difficulties in that relationship.
74. The Tribunal recognises that there were serious tensions in the relationship but it is satisfied that Mr Harris continued to give significant support to Ms Moore during most of the relevant period. The nature of that support and the very real commitment to each other is indicative of a marriage-like relationship rather than of a simple friendship.
75. After considering all of the material before it including all of the matters required to be considered as set out in section 4(3) of the Act, the Tribunal concludes that Ms Moore and Mr Harris were in a marriage-like relationship for the whole of the period from 28 November 2003 to 17 October 2007.
Should the Debt be Waived
76. It was submitted on behalf of the applicant that if the Tribunal finds that the applicant and Mr Harris were in a marriage-like relationship during the relevant period, the resultant debts should be waived pursuant to s1237AAD of the Act and s101 of the A New Tax System (Family Assistance) (Administration) Act 1999 as "special circumstances" exist.
77. Section 1237AAD of the Act provides as follows:
"Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
Note 1: Section 1236 allows the Secretary to write off a debt on behalf of the Commonwealth.
Note 2: This section has effect subject to section 1237AAE in relation to an assurance of support debt".
Section 101 of the A New Tax System (Family Assistance) (Administration) Act 1999 is in identical terms to section 1237 AAD of the Act.
78. Before considering whether the particular circumstances are "special" the Tribunal must consider the threshold question, namely whether the debt arose as a result of the applicant knowingly making a false statement or false representation.
79. It should be noted the Tribunal is required to first be satisfied that the debt did not result from the debtor making a false statement or false representation.
80. The Tribunal is not satisfied that the applicant did not knowingly make a false statement or representation. Indeed the evidence establishes to the Tribunal's satisfaction that the applicant did deliberately alter the Schedule to a residential tenancy agreement by removing Mr Harris' name and mobile telephone number from the Schedule (See T19 pages 146 and 148). It is clear that this action by the applicant was intended to give the false impression that Mr Harris was not involved in the lease or in a relationship with Ms Moore. The purpose of the deception was to ensure that Ms Moore would continue to receive her social security payments at the single rate.
81. The Tribunal further finds that Ms Moore was aware that her ongoing relationship with Mr Harris was such that she had an obligation to inform Centrelink that she was living with a person in a marriage-like relationship. In not notifying Centrelink of the fact Ms Moore failed to comply with the provisions of the Act
82. The making of the false statement and or representation and the failure to comply with the provisions of the Act were factors which caused at least portion of the overpayment and debt to arise.
83. In those circumstances it is not appropriate to waive the right to recover the debts. As has been previously mentioned the quantum of the debts is not in issue before the Tribunal. Ms Moore's debts as set out in paragraph 3 of these reasons are therefore recoverable.
Decision
84. For the above reasons the Tribunal affirms the decisions under review.
I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R J Groom (Deputy President)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 20, 21 August 2009 and 8 September 2009
Date of Decision 30 October 2009
Solicitor for the Applicant Ms N Rattray, Hobart Community Legal Service
Solicitor for the Respondent Mr B Sparkes, Centrelink Legal Services
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