Koulmandas and Secretary, Department of Social Services (Social services second review) - [2021] AATA 4017

Koulmandas and Secretary, Department of Social Services (Social services second review) [2021] AATA 4017 (29 October 2021)
Division:GENERAL DIVISION
File Numbers: 2019/6474, 2019/6475, and 2019/6477
Re:Eleni Koulmandas
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

File Numbers: 2019/6478
Re:Eleni Koulmandas
APPLICANT

AndSecretary, Department of Education, Skills and Employment
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date of Decision: 29 October 2021
Place:Hobart

The decision that the Applicant has a parenting payment debt of $75,169.41 is set aside and the matter is to be sent back to Centrelink for reconsideration in accordance with the finding that the Applicant was not a member of a couple for the period from 26 June 2011 to 20 August 2011 and that for the period from 21 August 2011 to 24 January 2012, her partner had no income.
The decision that the Applicant has a family tax benefit of $1,445.09 in respect of payments made for the 2010-11 income year is set aside, and the matter is sent back to Centrelink for reconsideration in accordance with the finding that the Applicant has a family tax benefit for the 2010-11 income year that is to be repaid, but the amount of the debt is to be re-calculated on the basis that the Applicant was not a member of a couple for the period 26 June 2011 to 20 August 2011.
The Tribunal affirms the decisions that the Applicant has the following debts which she is required to repay:
(a)A family tax benefit debt of $ $2164.45 in respect of payments made for the 2013 – 14 income year;
(b)A family tax benefit debt of $3556.02 in respect of payments made for the 2014 –15 income year;
(c)A family tax benefit debt of $1946.36 and respect of payments made for the 2015-16 income year;
(d)A childcare benefit debt of $592.48 in respect of the 2013-14 income year;
(e)A childcare benefit debt of $768.84 in respect of the period 7 July 2014 to25 July 2015; and
(f)A childcare benefit debt of $4106.88 in respect to the period 11 August 2014 to 25 July 2015

........[SGD]..............................................
A G Melick AO SC, Deputy President
Catchwords
FAMILY ASSISTANCE AND SOCIAL SECURITY – parenting payment – child care benefit – family tax benefit – whether the Applicant was a member of a couple – whether the debt should be waived – whether special circumstances apply
Legislation
A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act)

A New Tax System (Family Assistance) (Administration) Act 1999 (the Family Assistance Administration Act)
Criminal Code (Cth)
Social Security Act 1991 (the Act)
Social Security (Administration) Act 1999 (the Administration Act)
Social Security (Non-Budget Measures) Legislation Amendment Act 1995 (No 105/1995)
Supreme Court Act (WA)

Cases
Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25; 44 AAR 436
Beadle and Director- General of Social Security (1984) 6 ALD 1
Bishop and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 531
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415
Department of Family and Community Services and WAP [2000] AATA 7
Dimov and Secretary, Department of Family and Community Services [2005] AATA 912
Director-General of Social Security v Hales [1983] FCA 81; 47 ALR 281
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Groth and Secretary Department of Social Security (1995) FCA 1708; 40 ALD 541
Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor [2011] AATA 162
In Marriage of Todd (No 2) (1976) 25 FLR 260
Ivovic and Director General of Social Services (1981) 3 ALN N95
Jones and Dunkel (1959) 101 CLR 298
L and Department of Social Security No. N94/272 AAT No. 10230 (1995) 38 ALD 176
Lambe v Director-General of Social Services (1981) 4 ALD 362
Main and Main (1949) 78 CLR 636
Melvin v Secretary, Department of Social Security [2016] FCA 375
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92; (2008) 102 ALD 22
Pelka v Secretary, Department of Family and Community Services (2006) FCA 735; 151 FCR 546

Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404
Read v Commonwealth [1988] HCA 26; (1988) 167 CLR 57
Re Anderson and Secretary, Department of Families and Community Services (2002) 69 ALD 484
Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435
Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173
Re Hallak and Secretary, Department of Social Services (1990) 20 ALD 527
Re Lumsden and Secretary Department of Social Security (1986) 10 ALN N225
Re Lynda Maree Petty and Thomas John Davis and Director-General of Social Security [1982] AATA 165
Re Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72
Re Sjk and Secretary, Department of Social Security [1988] AATA 258 (23 August 1988)
Re Stubbs and Secretary Department of Families and Community Services [2003] AATA 729
Re Utczas and Anor and Secretary, Department of Social Security (1989) 19 ALD 110
RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35
Salsone and Secretary, Department of Family and Community Services [2002] AATA 1117
Secretary, Department of Education, Employment, Training & Youth Affairs v Barry Prince [1997] FCA 1565 (21 November 1997)
Secretary, Department of Social Services and Melvin [2015] AATA 248
Secretary, Department of Family and Community Services and VBH and VBG [2006] AATA 1
Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923
SRQ and Secretary, Department of Social Services [1998] AATA 397
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164; (1991) 25 ALD 27
Timothy Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114; (2007) 94 ALD 693
Secondary Materials
Guide to the Social Security Law
Oxford Languages, New Shorter Oxford English Dictionary (Oxford University Press UK, 6^th ede, 2007)
Peter Sutherland, Annotations to the Social Security Act 1991 (The Federation Press, 4^th Ed, 1991)
REASONS FOR DECISION

A G Melick AO SC, Deputy President
29 October 2021

The decision under review was made by the Administrative Appeals Tribunal (Social Security & Child Support Division) (AAT1) on 3 September 2019 in relation to review numbers 2019/H137312 and 2019/H137314 in the following terms:
The decision to cancel Ms Koulmandas’ parenting payment is affirmed.
The decision that Ms Koulmandas was a member of a couple with Mr Mark Lanteri from 26 June 2011 is set aside, and in substitution, the tribunal decided that Ms Koulmandas was a member of a couple with Mr Lanteri for the periods 26 June 2011 to 26 January 2012 and from 12 November 2012 to at least 5 May 2016.
The decision that Ms Koulmandas has a parenting payment debt of $89,095.95 is set aside, and in substitution, the tribunal decided that Ms Koulmandas has a parenting payment debt of $75,169.41, in respect of payments made for the periods 26 June 2011 to 26 January 2012 and 12 November 2012 to 5 May 2016, that she is required to repay.
The decision that Ms Koulmandas has a family tax benefit debt of $5,109.23 in respect of payments made for the 2011-12 income year is set aside, and the matter sent back to Centrelink for reconsideration in accordance with the directions that Ms Koulmandas has a family tax benefit debt for the 2011-12 income year that is to be repaid, but the amount of the debt is to be recalculated on the basis that Ms Koulmandas was not a member of a couple for the period 27 January 2012 to 11 November 2012.
The decision that Ms Koulmandas has a family tax benefit debt of $4,909.27 in respect of payments made for the 2012-13 income year is set aside, and the matter sent back to Centrelink for reconsideration in accordance with the directions that Ms Koulmandas has a family tax benefit debt for the 2012-13 income year that is to be repaid, but the amount of the debt is to be recalculated on the basis that Ms Koulmandas was not a member of a couple for the period 27 January 2012 to 11 November 2012.
The decisions that Ms Koulmandas has:
·A family tax benefit debt of $1,445.09 in respect of payments made for the 2010-11 income year;
·A family tax benefit debt of $2,164.45 in respect of payments made for the 2013-14 income year;
· A family tax benefit debt of $3,556.02 in respect of payments made for the 2014-15 income year;
·A family tax benefit debt of $1,946.36 in respect of payments made for the 2015-16 income year;
·A child care benefit debt of $592.48 in respect of the 2013-14 income year;
·A child care benefit debt of $765.84 in respect of the period 7 July 2014 to 5 July 2015; and
· A child care benefit debt of $4,106.88 in respect of the period 11 August 2014 to 5 July 2015;
That she is required to repay are all affirmed.
The above decisions were based upon findings by AAT1 that the Applicant was a member of a couple (a MOC) for the periods 26 June 2011 to 26 January 2012 and 12 November 2012 to at least 5 May 2016, but not for the period 27 January 2012 to 11 November 2012.
The AAT1 decision had the effect of reducing the parenting payment (PP) debt from $89,095.95 to $75,169.41. It also reduced the family tax benefit (FTB) debts for the 2011/2012 and 2012/2013 financial years.
Issues
The issues in these applications were whether:
a. The Applicant was a MOC as defined in s 4(2) of the Social Security Act 1991 (the Act) for the period 26 June 2011 to 26 January 2012 and 12 November 2012 to 5 May 2016. During the hearing, the Applicant conceded that she was a MOC from 17 April 2015 to 5 May 2016[1] and so, the relevant periods are 26 June 2011 to 26 January 2012 and 12 November 2012 to 5 May 2016 (the relevant periods);
b. The Applicant was overpaid a PP, FTB and child care benefit (CCB) in excess of her entitlement in the years 2011 to 2016 which resulted in debts to the Commonwealth; and
c. If so, whether all or part of the debt(s) should be recovered.
[1] Transcript, 93.
Facts
The Tribunal was provided with over 7000 pages of evidence, with some periods being covered more comprehensively than others. It has taken considerable time to carefully analyse and cross reference the evidence, and because the hearing was conducted by telephone, it was difficult to make judgments as to credibility and so I have relied upon the abovementioned evidence. The facts set in italics are findings I have made which were not the subject of agreement between the parties.
I find the following facts which were either agreed or established by the evidence as footnoted:
(a)In about 2009 the Applicant and Mr Lanteri were in a relationship and engaged to be married.[2]
[2] 2019/6474-5, T2, 40.
(b)On 31 July 2010 the Applicant gave birth to her first child child I, at the Royal Hobart Hospital.[3]
[3] 2019/6474-5, T13, 621.
(c)In Royal Hobart Admission documents for 16 April 2013 the Applicant's marital status is described as "de facto" and her address 76 Strickland Avenue, South Hobart.[4]
[4] 2019/6474-5, T19, 948. I note the date of this document is 29 July 2010.
(d)In a "Newborn Child Claim for Family Assistance and Medicare" form dated 13 August 2010 lodged with Centrelink in respect of child I, the Applicant said her permanent address was 76 Strickland Avenue, South Hobart and her current partner was Mr Lanteri.[5]
[5] 2019/6474-5, T74, 4146-53.
(e)Mr Lanteri was the child's biological father.[6]
[6] 2019/6474-5, T25, 1019.
(f)On 29 April 2011 the Applicant completed and lodged with Centrelink a “Customer Declaration Form Parenting Payment-partnered” in which she said:
·She was in a de facto relationship with Mr Lanteri;
·She had one dependent child;
·Neither she or Mr Lanteri were earning any income; and
·They both lived at 76 Strickland Avenue, South Hobart.[7]
[7] 2019/6474-5, T11, 277-82.
(g)On the basis of this information the Applicant was granted PP and paid at the partnered rate from 26 April 2011 until 25 June 2011.[8]
[8] 2019/6474-5, T11, 261.
(h)Sometime before 14 July 2011 the Applicant applied for child support in respect of her daughter.[9]
[9] 2019/6474-5, T26, 1470-502.
(i)On 14 July 2011 the Child Support Agency referred the Applicant to a Centrelink social worker “re. evident distress post sep from partner”.[10] The Child Support Agency recorded the following note:
[10] 2019/6477-8, T4, 170.
Customer states that she and her partner sep. approximately two weeks ago however her partner has not left the home and has not provided an exit date. Eleni described a recent history of conflict and suggested DV. Eleni eluded to her partner overt antagonism, periodic physical aggression and apparent financial coercion. She added that her partner was currently in Victoria “gambling with is (sic) mates”, and that he had previously lost their savings ($3000) gambling.
[…] Referral made in the hope of the customer further exploring her and her partners relatipnship given the customers evident indecision.[11]
[11] 2019/6477-78, 170.
(j)The Applicant made an appointment on 19 July 2011 to be interviewed the following day in relation to PP at the single rate.[12]
[12] 2019/6474-5, T117, 5803.
(k)The information was accepted as being correct and Centrelink began paying the Applicant PP at the single rate which she received from 26 June 2011 until 5 May 2016.[13]
[13] 2019-6477-88, T11, 295-8.
(l)When the Applicant was sentenced in the Supreme Court of Tasmania that her relationship with Mr Lanteri had ended before she applied for Parenting payment Single in July 2011 because of his "aggression and violent behaviour, including a particularly brutal incident of violence early in their relationship, as well as his infidelity and lack of commitment ... ";[14]
[14] 2019/6474-5, T2,40.
(m)Mr Lanteri told Centrelink he stopped living at 76 Strickland Avenue, South Hobart on 19 July 2011 and he was living at 73A Harrington Street, Hobart from 20 July 2011 until 12 August 2012.[15]
[15] 2019/6474-5, T77, 4252; T116, 5779.
(n)On 20 August 2011, the Applicant and Mr Lanteri were issued with a invoice for flights to China, due on 21 August 2011.[16]
[16] 2019/6474-75, 765.
(o)A car insurance policy was issued on 24 August 2011 in the Applicant’s name with Mr Lanteri named as a contact.[17]
[17] 2019/6474-75, T15, 646.
(p)On 11 December 2011 Centrelink became aware that the Applicant, Mr Lanteri and their daughter had travelled to China on 6 December 2011 and returned on 18 January 2012.[18]
[18] 2019/6474-5, T11, 268.
(q)According to the Incoming Passenger completed in respect of this trip:
·The Applicant’s intended address on her return to Australia was 76 Strickland Avenue, South Hobart;[19] and
[19] 2019-6477-88, T13, 600.
·Mr Lanteri’s intended address on his return to Australia was 76 Strickland Avenue, South Hobart.[20]
[20] 2019/6474-5, T43, 3012.
(r)The Centrelink employee asked the Applicant and Mr Lanteri for three pieces of evidence showing their residential addresses which they did.[21]
[21] 2019/6474-5, T117, 5819.
(s)That evidence revealed:
·Mr Lanteri resided at 73A Harrington Street, Hobart; and
·The Applicant resided at 76 Strickland Avenue, South Hobart.[22]
[22] Ibid.
(t)The Centrelink employee concluded that the “evidence indicates separate addresses are being maintained at this time”.[23]
[23] Ibid.
(u)The Commonwealth subsequently charged the Applicant with two counts of obtaining a financial advantage (Pay Parenting Payment single) by a deception.[24]
[24] 2019/6474-5, T2, 49.
(v)The first count was based on an allegation that the Applicant's statement to the Centrelink employee on 9 January 2012[25] to the effect that she remained separated from Mr Lanteri was false.[26]
[25] 2019/6474-5, T117, 5818.
[26] 2019/6474-5, T2.
(w)A further car insurance policy was issued on 25 January 2012 with Mr Lanteri named as a contact and a driver.[27]
[27] 2019/6474-5, T15, 646, 690, 696, 758.
(x)On 20 March 2012, two $6,000 deposits were made into a Commonwealth Bank account in the Applicant’s name in trust for child I.[28]
[28] 2019/6474-5, T11, 491.
(y)Mr Lanteri advised to the following that his address was 2/557 Grimshaw Street Bundoora, Victoria:
·6 February 2012, Australian Taxation Office;
·27 September 2012, Commonwealth Bank of Australia;[29]
[29] 2019/6474-5, T52, 3200-2.
·20 October 2012,TAB;[30]
[30] 2019/6474-5, T80, 4444.
·4 February 2012, TT Lines;[31]
[31] 2019/6474-5, T20, 956.
·31 October 2012, TT Lines;[32]
[32] Ibid.
·20 November 2012, TT Lines;[33]
[33] Ibid 957.
·1 March 2013, Australian Taxation Office.
(z)According to Centrelink's records Mr Lanteri:
·Ceased living at 73A Harrington Street, Hobart on 12 August 2012 and he was living at 2/557 Grimshaw Street, Bundoora, Victoria between 13 August 2012 and 14 May 2013;
·Moved back to 73a Harrington Street, Hobart on 15 May 2013 and he remained there until 7 April 2015; and
·Was living at 22 Queens Parade, Kingston from 8 April 2015 and continuing.[34]
[34] 2019/6474-5, T116, 5779.
(aa)In Royal Hobart Admission documents for the Applicant's admission to hospital on 2 February 2013 her marital status was described as "de facto" and her address, 76 Strickland Avenue South Hobart. Mr Lanteri was identified as her partner and his address was also provided as 76 Strickland Avenue, South Hobart.[35]
[35] 2019/6474-5, T19, 951.
(bb)On 16 April 2013 the Applicant gave birth to a second daughter, child G.[36]
[36] Ibid.
(cc)Mr Lanteri was child G’s biological father.[37]
[37] 2019/6474-5 T14, 631.
(dd)In Royal Hobart Admission documents for 16 April 2013 the Applicant's marital status was described as "de facto" and her address, 22 International Close, Acton Park. Mr Lanteri was identified as her partner and his address was 76 Strickland Avenue, South Hobart.[38]
[38] 2019/6474-5, T19, 951.
(ee)In a "Newborn Child Claim for Paid Parental Leave, Family Assistance and Medicare" form dated 7 May 2013 in respect of child G the Applicant said:[39]
[39] (2019/6474-5, T73, 4155-74.
·Her permanent address was 76 Strickland Avenue, South Hobart;
·Her postal address was 22 International Close, Acton Park;
·Her marital status was "Separated'; and
·She was the primary carer of child G.
(ff)Between 28 May 2013 and 28 November 2013, seven cash deposits over $1000 are made into a Commonwealth Bank account in the name of the Applicant in trust for child G.[40]
[40] 2019/6474-5, T11, 499.
(gg)Sometime before 24 April 2014, 76 Strickland Avenue, South Hobart was sold.[41]
[41] 2019/6474-5, T21, 980.
(hh)On 24 September 2013 the Applicant entered into a Residential Tenancy Agreement in respect of Unit 20, 107 Channel Highway, Kingston for a period of 12 months because of the sale of 76 Strickland Avenue.[42]
[42] 2019/6474-5, T7, 174-90.
(ii)The Tenancy Agreement was between the Landlord and the Applicant as Tenant.[43]
[43] Ibid.
(jj)The Applicant moved into the property with her two daughters and she paid the rent by direct transfers from her account with the National Australia Bank.[44]
[44] 2019/6474-5, T7, 171.
(kk)The Applicant signed a form on 26 September 2013 (sic) consenting to the Landlord providing information to the Australian Government in relation to the National Rental Affordability Scheme ("NRSA") in which she said:[45]
[45] 2019/6474-5, T7, 192-99. I note the date of the form is 24 September 2013.
·There were three people living at Unit 20, 107 Channel Highway Kingston, two under the age of 4 and one who was between 18 and 54
·Those three people had previously been living with family or friends;
·There were no couples living there;
·There was one single parent living there whose sole source of income was government pensions and allowances.
(ll)On 26 September 2013 the Applicant told Centrelink her new address was Unit 20, 107 Channel Highway, Kingston and on the following day she had the power connected to the property.[46]
[46] 2019/6474-5, T21, 979.
(mm)On 5 February 2014, a $20,000 cheque deposit was made into a Commonwealth Bank account in the Applicant’s name in trust for child G.[47]
[47] 2019/6474-5, T11, 501.
(nn)In a child passport application in respect of child G dated 3 March 2014, the residential address for child G, the Applicant and Mr Lanteri is recorded as 22 International Close, Acton Park.[48]
[48] 2019/6474-5, T14, 626-30; T87, 5172-8.
(oo)The Applicant's parents purchased 22 International Close, Action Park on 16 October 2012.[49]
[49] 2019/6474-5, T111, 5665.
(pp)On or about 13 August 2014 Centrelink became aware the Applicant and Mr Lanteri had left Australia and travelled overseas for a second time on 25 May 2014 and returned to Australia on 7 August 2014.[50]
[50] 2019/6474-5, T49, 3070-2.
(qq)According to the Incoming Passenger card completed in respect of this trip:
·The Applicant's intended address on her return to Australia was 76 Strickland Avenue, South Hobart).[51]
[51] 2019-6744-6745, T12, 594. I note the address stated is 20/107 Channel Hwy, Kingston.
·Mr Lanteri's intended address on his return to Australia was 22 International Close, Action Park.[52]
[52] 2019/6474-5, T43, 3010.
(rr)In a conversation the Applicant had with a Centrelink employee on 24 August 2014 she said:[53]
[53] 2019/6474-5, T117, 5844-5.
·She had travelled to Greece to see her family;
·Mr Lanteri would not let her take the children overseas on her own so he came;
·She paid for herself and Mr Lanteri paid for himself;
·They stayed together at her family house but in separate bedrooms;
·When they were in Italy they stayed in the same hotel room but different beds;
·She lives at Unit 20, 107 Channel Highway, Kingston;
·Mr Lanteri lives at 73 Harrington Street, Hobart;
·They do not have joint bank accounts;
·Mr Lanteri pays:
oChild support;
oPrivate health insurance because it is cheaper to have it as a family than separate; and
oPart of the child care fees;
·They do not provide any other form of financial support to each other;
·She does not have joint loans, credit cards or assets with Mr Lanteri;
·The only people living with her are her children;
·She is the sole leaseholder of a property she is renting a property from Harcourts;
·She pays rent of $280/week and all household bills are in her name only;
·There are no set arrangements with the children;
·If Mr Lanteri wants to see the kids, he will see the kids;
·If she has something on she may drop the kids off at his house;
·They do not present as partnered to third parties;
·Their family, friends and associates know they are separated;
·Her family overseas were aware they were not together as a couple;
·They have had 2 children together and she wants more with Mr Lanteri;
·They had not reconciled when the youngest (Child G) was conceived;
·They are not married to anyone else;
·There are free to see other people;
·They are still friends and maintain an amicable relationship for the children's sake;
·She receives child support; and
·She has taken action regarding child support.
(ss)The Centrelink employee concluded there was no need for verification since the Applicant:
... has confirmed that she is no longer in a relationship with other party and they are not living together. separate (sic) addresses for cus and other party have been established. cus (sic) has also provided a reasonable explanation for travelling overseas with ex-ptr. There are no further triggers to warrant further investigations.[54]
[54] 2019/6474-5, T117, 5845.
(tt)This conversation was the basis of the second charge referred to in the Applicant’s Statement of Facts, Issues and Contentions at paragraphs 31 to 33 to which the Applicant pleaded guilty.
(uu)For the purpose of the plea the Applicant admitted some of the statements she made to the Centrelink employee on 20 August 2014 were false, namely:
·She and Mr Lanteri did not present as partnered to third parties;
·Their family, friends and associates knew they were separated; and
·She had not reconciled with Mr Lanteri.[55]
[55] 2019/6474-5, T2, 41.
(vv)On 24 September 2014 Mr Lanteri lodged his income tax returns for the period 1 July 2011 to 30 June 2012 in which he said:[56]
[56] 2019/6474-5, T48, 3055–6; T108, 5624–7.
·His address was 22 International Close, Acton Park;
·He did not have a spouse throughout the financial year; and
·His gross taxable income was $11,620.00 which was from “Manager- Fast Food” and $7,858.00 from “Australian Government allowances and payments.”
(ww)On 24 September 2014 Mr Lanteri lodged his income tax returns for the period1 July 2012 to 30 June 2013 in which he said:[57]
[57] 2019/6474-5, T48, 3058–9; T106, 5631–4.
·His address was 22 International Close, Acton Park;
·He was single with no dependants; and
·His gross taxable income was $12,818.00 which was from “Australian Government allowances and payments.”
(xx)On 24 September 2014 Mr Lanteri lodged his income tax returns for the period 1 July 2013 to 30 June 2014 in which he said:[58]
[58] 2019/6474-5, T48, 3062–5; T108, 5635–8.
·His address was 22 International Close, Acton Park;
·He was single with no dependants; and
·His gross taxable income was $13,927.00 which was from ‘Australian Government allowances and payments’.
(yy)Mr Lanteri applied for registration of a motor vehicle on 6 October 2014 with the previous owner nominated as the Applicant. Mr Lanteri’s car (Holden) registration on 6 October 2014 indicates his address as 22 International Close, Acton Park.[59]
[59] 2019/6474-5, T17, 835.
(zz)At an unknown date but before 4 December 2014, the Applicant and Mr Lanteri jointly acquired a property described in certificate of title volume 37690 Folio 55 (35 Laycock Drive, Interlaken).[60]
[60] 2019/6474-5, T45, 3014.
(aaa)On 4 December 2014 the Applicant transferred her interest in the property to Mr Lanteri for "Nil" consideration.[61]
[61] Ibid.
(bbb)On 5 December 2014 the Applicant gave birth to a third daughter, child S.[62]
[62] 2019/6474-5, T74, 4176–89.
(ccc)Mr Lanteri was also child S' biological father.[63]
[63] 2019/6474-5, T87, 5187.
(ddd)In Royal Hobart Admission documents the Applicants marital status is described as "de facto" and her address, Unit 20, 107 Channel Highway Kingston. Mr Lanteri is identified as her partner and his address was 76 Strickland Avenue South Hobart.[64]
[64] 2019/6474-5, T19, 953.
(eee)In a "Newborn Child Claim for Paid Parental Leave, Family Assistance and Medicare" form dated 7 May 2013 (sic) in respect of child S the Applicant said:[65]
[65] 2019/6474-5, T74, 4176–87. I note child S was born on 5 December 2014 therefore the date agreed upon by the parties is incorrect.
·Her postal address was Unit 20, 107 Channel Highway, Kingston;
·She did not have a partner; and
·She had the primary care of child S.
(fff)On 8 January 2015 Mr Lanteri entered into a contract to purchase 22 Queens Parade, Kingston and the title was transferred to him on 16 April 2015.[66]
[66] 2019/6474-5, T26, 1388.
(ggg)Mr Lanteri mortgaged 22 Queens Parade, Kingston to the Australian and New Zealand Banking Group to secure a loan to purchase that property[67] and he was responsible for the following payments in respect of the property:
[67] 2019/6474-5, T85, 4743–4.
·ANZ Bank loan;[68]
[68] 2019/6474-5, T26, 1413.
·Rates;[69]
[69] 2019/6474-5, T93, 5387.
·Taswater;[70] and
[70] 2019/6474-5, T26, 1371–8.
·Building and content insurance.[71] A number of expensive items of jewellery were specified contents.[72]
[71] 2019/6474-5, T26, 1399–410.
[72] 2019/6474-5, T26, 1376.
(hhh)On 16 April 2015 the Applicant told Centrelink her new address was 22 International Close, Acton Park.
(iii)On 17 April 2015 the Applicant had the power to her previous address at Unit 20, 107 Channel Highway Kingston disconnected.[73]
[73] 2019/6474-5, T26, 1272–3.
(jjj)On 20 April 2015 the Applicant asked Australia Post to redirect all mail for her, Mr Lanteri and her children to 22 Queens Parade, Kingston.[74]
[74] 2019/6474-5, T26, 1276–7.
(kkk)The Applicant and Mr Lanteri travelled overseas on 26 May 2015 to 7 August 2015 to Europe. They shared accommodation and the costs of travel.[75]
[75] 2019/6474-5, T16, 771, 774–87, 790; T53, 3507, 3388; T79, 3931–4.
(lll)The evidence from Immigration and Border Protection indicate that the Applicant and Mr Lanteri had five overseas departures from 2009 to May 2016. The Applicant also went overseas with one child in February and October 2012.[76]
[76] 2019/6474-5, T42, 2987–8.
(mmm)On 30 July 2015 Mr Lanteri lodged his income tax returns for the period 1 July.2014 to 30 June.2015 in which he said:[77]
[77] 2019/6474-5, T48, 3066-9; T108, 5639–42.
·His address was 22 International Close, Acton Park;
·He was a single parent with a dependant; and
·His gross taxable income was $43,962.00 form being the ”Manager- Fast Food”.
(nnn)On 11 August 2015 (sic) the Applicant completed a child passport application in respect of child S in which she recorded 22 Queens Parade, Kingston as her residential address and 73A Harrington Street, Hobart as Mr Lanteri's residential address.[78]
[78] 2019/6474-5, T14, 635–8. I note the date signed is 12 August 2015.
(ooo)The Applicant admits (at paragraph 89 of her statement) that since at least 20 August 2014 she and Mr Lanteri presented themselves to third parties as partnered.[79] Further, the Applicant admits that as at the former date family, friends and associates perceived they were a couple and were not aware of any separation.[80]
[79] Applicant’s Statement of Facts, Issues and Contentions.
[80] Ibid.
(ppp)Mr Lanteri on 20 October 2015 insured a motor vehicle nominating 22 Queens Street Kingston as the place where the vehicle was kept.[81]
[81] 2019/6474-5, T26, 1374.
(qqq)A car was registered in the Applicant’s name on 4 January 2016 with the drivers named as the Applicant and Mr Lanteri.[82]
[82] 2019/6474-5, T14, 647.
(rrr)On 22 April 2016 the Applicant completed a child passport application in respect of child I in which she records 22 Queen Parade, Kingston as both her and Mr Lanteri's residential address.[83]
[83] 2019/6474-5, T87, 5163–70.
(sss)On 10 May 2016 a search warrant was executed on 22 Queens Parade, Kingston and Mr Lanteri, the Applicant and their three children were found to be living there.[84]
[84] 2019/6474-5, T28, 1527.
(ttt)A number of electronic communication devices such as an iphone and ipad were seized and later examined which revealed:
•The Applicant and Mr Lanteri had been:
·using Skype to communicate between 1 August 2012 and 8 November 2012;[85]
[85] 2019/6474-5, T38, 2450–7.
·sending SMS messages to each other between 5 December 2014 and 9 May 2016[86]
[86] 2019/6474-5, T99, 5454–532.
·Various images of the Applicant, Mr Lanteri and the children created in July 2012 and May, August and October 2013;[87]
[87] 2019/6474-5, T38, 2482–501.
·Photographic images/video of the Applicant and Mr Lanteri together on the overseas trip in May/August 2014; and
·The Applicant does not appear with Mr Lanteri in photographs found on an iPad until 26 February 16 and 11 March.2016 and 10 May 2016
Payments of Family Tax Benefits and Child Care Benefits
(uuu)In addition to the payments of Parenting Payment at the single rate. the Applicant received the following payments of Family Tax Benefits and Child Care Benefits in respect of her three child I, child G and child S:
Family Tax Benefits:
·$1445.09 for the period 1 July.2010 to 30 June 2011;
·$5,109.23 for the period 1 July 2011 to 30 June 2012;
·$4,909.27 for the period 1 July 2012 to 30 June 2013;
·$2,164.45 for the period 1 July 2013 to 30 June 2014; and
·$3,556.02 for the period 1 July 2014 to 30 June 2015.
Child Care Benefits
·$592.48 for the period 1 July 2012 to 30 June 2013;
·$592.48 for period between 7 July .2014 and 5 July 2015: and
·$4,106.88 for period between 11 August 2014 and 5 July 2015.
Mr Lanteri’s Income
(vvv)Mr Lanteri's gross annual income for Centrelink purposes was:
·$44,347.00 for the period 1 July 2010 to 30 June 2011;[88]
[88] 2019/6474-5, T48, 3051-2.
·Nil for the period 1 July 2011 to 30 June 2012;[89]
[89] 2019/6474-5, T48, 3055-6.
·Nil for the period 1 July 2012 to 30 June 2013;[90]
[90] 2019/6474-5, T48, 3058-9.
·$13,927.00 for the period 1 July 2013 to 30 June 2014;[91]
[91] 2019/6474-5, T48, 3062-3.
·$43,962.00 for the period 1 July 2014 to 30 June.2015;[92] and
[92] 2019/6474-5, T48, 3066–7.
·$27,134.00 for the period 1 July 2015 to 30 June 2016.
(www)Those amounts have been calculated using the information set out below.
(xxx)On 1 March 2013 Mr Lanteri lodged his income tax returns for the period 1 July 2010 to 30 June 2011 in which he said:[93]
[93] 2019/6474-5, T48, 3051–2; T108, 5624–7.
·His address was Unit 2/577 Grimshaw Street, Bandoora, Victoria;
·He spouse throughout the financial year was the Applicant; and
·His gross taxable income was $44,347.00 form being the “Manager- Fast Food.”
(yyy)The amounts of income recorded in the returns as "Government allowances and payments" is Newstart Allowance received by Mr Lanteri.
(zzz)The gross income figures in the returns corresponds with wages records in respect of the Mayfair Take Away which records Mr Lanteri was paid the following annual gross wages:
·1 July 2010 to 30 June 2011: $44,347.00;[94]
·1 July 2011 to 30 June 2012: Nil;
·1 July 2012 to 30 June 2013: Nil;
·1 July 2013 to 30 June 2014: $13,927.00;[95]
·1 July 2014 to 30 June 2015: $43,962.00;[96] and
·1 July 2015 to 30 June 2016: $27,134.00.[97]
[94] 2019/6474-5, T109, 5647.
[95] 2019/6474-5, T109, 5644. The period is recorded as 16 January 2014 until 30 June 2014.
[96] 2019/6474-5, T109, 5643.
[97] 2019/6474-5, T96, 5446.

The Applicant was in receipt of PP, FTB and CCB payments during the relevant period and paid on the basis that she was not partnered.
On 29 July 2016 the Department decided that the Applicant was partnered with Mr Lanteri and raised the various debts set out at [1].
It was decided at the same time to cancel the Applicant’s parenting payment single (PPS) on the same basis.
Those decisions were referred to an authorised review officer (ARO) and on 17 August 2016 and 27 March 2017 those decisions were affirmed.[98]
[98] 2019/6474-6475 T5/131 & FTB/CCB 2019/6477-6478 T6/182 respectively.
The ARO found the Applicant was a MOC (MOC decision) and that she was overpaid PP (PPS decision)), FTB and CCB (FTB/CCB decision) during the relevant period.
The ARO’s decision of 17 August 2016 affirmed the MOC decision and PPS decision and the ARO decision of 27 March 2017 affirmed the consequential FTB/CCB decision.
In affirming the MOC decision the ARO outlined the basis for his findings under each of the respective criterion. Those findings were adopted by the Secretary.[99]
[99] 2019/6474-5, T5, 131–7.
More than two years later the Applicant asked the AAT1 to review the ARO decisions.
On 3 September 2019 the AAT1 affirmed the decision to cancel the PPS and varied the decision to raise the various debts noted above by changing the period during which the Applicant was a MOC. It shortened this period with a consequential reduction in the overpayment. The AAT1 varied the FTB debts raised by the Department and shown at paragraph 3 of its decision and varied the FTB debts as set out in its decision and replicated at [1] above.
The Applicant was charged with several offences relating to her receipt of PPS and was convicted on one charge. She plead guilty to one offence of obtaining a financial advantage by deception, contrary to s 134.2 910 of the Criminal Code Act 1995 (Cth).[100]
[100] 2019/6474-5, T2, 49.
Her Honour noted that: The deception (constituting a false statement to Centrelink on 20 August 2014) led the review officer to conclude that the defendant should not be treated as member of a de facto couple. The Court found that by 20 August 2014 the Applicant and Mr Lanteri had reconciled and were in a relationship.
In sentencing the Applicant the Judge said:
It is a relevant factor that the defendant lied because she did not wish to put in jeopardy her receipt of parenting payment single which she knew was a higher rate than parenting payment partnered. Her Honour noted that this was not a case of spontaneously giving answers to questions when taken by surprise. Relevantly, Her Honour noted that in fact, the time of the review was a high point in their relationship.
Relevant law
The relevant legislation is:
·Social Security Act 1991 (the Act)
·Social Security (Administration) Act 1999 (the Administration Act)
·A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act)
·A New Tax System (Family Assistance) (Administration) Act 1999 (the Family Assistance Administration Act)
Where a person is not legally married to a partner, s4(2)(b) of the Act relevantly provides that the person is a “member of a couple” for the purposes of the Act where:
(a) […]
(aa) […]
(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.
The Family Assistance Act definition of a couple is the same as the definition in the Act (s 3 of the Family Assistance Act).The criteria to which regard is to be had in informing an opinion about the nature of the parties relationship as set out in s 4(3) of the Act is as follows:
(3) 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.
The above criteria are expressed in terms of circumstances which suggest a marriage-like relationship. Regard should be had to all of the circumstances of the relationship. The Federal Court in its decision Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 25 ALD 27 found that the Tribunal had erred by only making findings with respect of those circumstances which suggested a marital relationship and not those suggesting separateness such as the absence of a sexual and social relationship. The list in s 4(3) of the Act is not exhaustive and other relevant factors may be taken into account. The existence or absence of any one factor is not conclusive.
I also note the following relevant provisions:
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.
And s 24(2):
(2) Where:

(a) a person has a relationship with another person, whether of the same sex or a different sex (the partner); and

(b) the person is not legally married to the partner; and

(c) the relationship between the person and the partner is a marriage-like relationship; and

(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;

the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
Counsel for the Applicant submitted that s 4(3A) of the Act precluded a finding that the Applicant could be a MOC when living apart from Mr Lanteri. He accepted if a couple were married they could be found to be a MOC even if living separately. However, he submitted that s 4(3A) makes it clear that to fall within the definition of being a MOC when you're not married, you have to be living together because if you are living separately and apart, either permanently or on an indefinite basis, you cannot be classed as a MOC.
Counsel for the Respondent conceded that the legislation provides two tests:[101] a test for a person that is legally married to another person and a test for de facto couples bearing in mind that under the Act “married couples” does not include defacto relationships. The separation between married and de facto is inferred by the fact that the tests have been drafted as alternatives:
[101] Social Security Act 1991 (Cth) s 4(2).
(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 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.
However, counsel for the Respondent submitted that the tests are exactly the same, albeit using separate words. The test is still as articulated in s 4(3), that is, the various criteria specified therein.
I note that s 4(2)(a) refers to married couples and s 4(2)(b) refers to other people but both subsections provide that the test to be applied or matters to be considered are those outlined in s 4(3).
However, s 4(2)(b) provides that, for couples who are not married, all conditions must be met including:
(iii) the relationship between the person and the partner is, in the secretary's opinion (performed as mentioned in subsections (3) and 3(A), a defacto relationship.
It seems incongruous that s 4(3A) prevents the Secretary forming an opinion that a relationship between a person and their partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
Section 4(3A) was inserted into the Social Security Act 1991 by Social Security (Non-Budget Measures) Legislation Amendment Act 1995 (No 105/1995).
It is noted that Sutherland in Annotations to the Social Security Act 1991 4^th Ed (The Federation Press) opined that the section s 4(3A)) is “most likely to have application where the parties continue to live together”.
The Explanatory Memorandum says:
Qualification for sole parent pension
Sole parent pension is available to people bringing up children on their own in a number of situations. People who are members of a couple may qualify if they are ‘living separately and apart” from their partners. On a strict interpretation of the Social Security Act as it is currently drafted, there is no restriction that the separation be permanent or on an indefinite basis. Therefore, people could qualify for sole parent pension if they were living separately and apart from their partners on a strictly temporary basis. Clearly, it was never the intention that a person might qualify for sole parent pension because, for example, their partner was going overseas on a holiday.
The Bill amends the Social Security Act to ensure that the principle, that people living separately and apart from their partners on a strictly temporary basis do not qualify for sole parent pension, is clarified in the Act. The amendments will not, nor are they intended, to reduce the financial and other assistance provided by the Department of Social Security to people at risk of, or who have sustained domestic violence.
In SRQ and Secretary, Department of Social Services [1998] AATA 397 the Tribunal said:
22. The Social Security (Non-Budget Measures) Legislation Amendment Act 1995, amended sections 4 and 249 of the 1991 Act. The legislation omitted subparagraph (iii) from section 249(1) (a) and added the words "or indefinitely" after "permanent" in subsections 4(2) and (5) in respect of those persons living separately and apart. This is relevant to the applicant's case which includes a claim for SPP to be granted on a continuing basis after 1995. But what "living separately and apart", meant pursuant subsection 249(1) prior to the 1995 amendment is not clear.
23. This question was considered in Secretary, Department of Social Security and SRJ (AAT 10970, 29 May 1996). The tribunal in applying the legislation to ascertain whether a married person was living separately and apart from her spouse for the purpose of qualifying for SPP, considered the Explanatory Memoranda to the 1991 and 1995 legislation. The tribunal concluded (at paragraph 66) that it was "clearly intended that SPP would be granted to a person living separately and apart from his or her spouse on an indefinite basis during the period under review" - in that case, July 1992 to December 1994. The tribunal then decided (at paragraph 67) that "in forming an opinion as to whether a person was living separately and apart for the purposes of s249 (1) (a) (iii) of the Act, it should have regard to the specific factors set out in subsection 4(3) of the Act".
The Federal Court decision in Melvin and Secretary, Department of Social Services [2016] FCA 375 was referenced by the Secretary at paragraph 62 of her Statement of Facts and Contentions. The decision that was appealed to the Federal Court (and affirmed) was that of DP Hotop in Secretary, Department of Socialn Services and Melvin [2015] AATA 248 (24 April 2015). In that decision he said:
148. Although the Tribunal accepts that, in the period from 13 July 2005 to 29 April 2008, Ms Melvin resided primarily at Pawlett Way, it is not satisfied that she did not also stay at Oakover Road with Mr Markland for significant periods on a regular basis in that period. Although there is no direct evidence to this effect, the Tribunal regards it as a reasonable inference from the evidence which is before it that, in the period from 13 July 2005 to 29 April 2008, Ms Melvin regularly spent time at Oakover Road for the purpose (at least) of doing housework, shopping and cooking for Mr Markland, as she had previously done when they were residing together at Pawlett Way and as she subsequently did when they resided together at Oakover Road.
149. Having regard to the considerations referred to in paragraphs 146–148 above, the Tribunal is not satisfied that the “marriage-like relationship” which, in its opinion, existed between Ms Melvin and Mr Markland throughout the period from 6 December 1999 to 12 July 2005 had broken down or ceased to exist in the period from 13 July 2005 to 29 April 2008. Accordingly, the Tribunal is not satisfied that Ms Melvin was “living separately and apart from [Mr Markland] on a permanent or indefinite basis”, within the meaning of s 4(3A) of the SS Act, in the period from 13 July 2005 to 29 April 2008.
I refer to the words of the Federal Court decision in Melvin and Secretary, Department of Social Services [2016] FCA 375:
80. Section 4(3A) of the Act, throughout the first period, at all material times provided, relevantly, that the respondent must not form the opinion that the relationship between a person and her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis. Consequently, the appellant submits that if the finding that she resided with Mr Markland at Pawlett Way on a regular substantial basis has no evidentiary foundation, the Tribunal is precluded from coming to the finding at [133], that the appellant was a “member of a couple”, within the meaning of s 4(2) of the Act for the whole of the first period.
81. This submission is flawed. The proscription found in s 4(3A) is directed to a factual situation where the person and their partner are living separately and apart on a “permanent or indefinite basis”.
82. The question is, not whether they were not living together on a “substantial basis”.
83. It was open to the Tribunal on the evidence to find that the appellant lived at Pawlett Way from time to time during the first period. They lived neither separately nor apart on a permanent or indefinite basis. They physically lived together from time to time. That of itself is not determinative. The meaning of the expression “living separately and apart” was considered at length by the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 at [43]-[58] albeit in the context of provisions of the Migration Act 1958(Cth). There is both a physical and mental element involved and the mental element is independent of whether the parties lived in the same house. This cuts both ways. Characterisation of a relationship as not marriage-like may be reached even where the persons live in the same house.
84.Moreover, the mental element supporting the existence of a marriage-like relationship may be inferred, despite the persons’ subjective evidence to the contrary, as here, from objective circumstances including those set out in s 4(3)(a)-(e). The Tribunal by reference to all the circumstances of their relationship found that they were living during the first period in a marriage-like relationship. This being so, s 4(3A) was not engaged.
In Main and Main (1949) 78 CLR 636 the High Court said, in relation to the meaning of separately and apart in the context of s 69(6) of the Supreme Court Act 1935 (WA), that there must be a physical separation and also the destruction of the consortium vitae or matrimonial relationship.
This concept was also reflected in the Staunton-Smith and Secretary, Department of Social Services (1991) 32 FCR 164 where the Federal Court considered the meaning of “separately and apart” within the meaning of the Act. The Court quotes Watson J in In Marriage of Todd (No 2) (1976) 25 FLR 260 at pages 262- 263 who said “in my view “separation” means more than physical separation – it involves the destruction of the consortium”.
In the position advanced by the Applicant in Re Hallak and Secretary, Department of Social Services (1990) 20 ALD 527, the Tribunal rejected the notion that “separately and apart” meant mere physical separation saying that what was required was the destruction of the consortium vitae.
The Secretary submitted that physical separation - even if present at some point in this matter - is not determinative and does not attract, without more, the operation of s 4(3A) to exclude a finding that a person is in a de facto relationship and therefore a member of a couple. The authorities cited above support that position.
Having considered all submissions I find that the Applicant’s contention was correct and that the Secretary cannot form the opinion that a relationship between a person and their partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis. However, I also find that the Respondent’s contention as to the factors to be considered when determining the meaning of “on a permanent or indefinite basis” at [35]-[40] above is correct and so will apply both of these findings when considering the evidence.
Policy advice contained in the Guide to the Social Security Law (the Guide) is also relevant. The Tribunal has found that although policy is not binding, it will ordinarily be followed unless there is a cogent reason not to do so (see Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
In Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546 the Federal Court ruled that in considering the factors listed in s 4(3) of the Act, the Tribunal is required to consider the totality of the relationship. In making an assessment as to whether a person is a member of a couple, no single factor will be determinative and consideration must be given to factors that weigh in favour of the person being a member of a couple and the factors that weigh against that finding.
Contentions
Credibility

As noted by the Respondent, the Applicant claimed at various times that she was not in a relationship with Mr Lanteri for the purposes of obtaining social security payments to which she was not entitled. This included the period in relation to which she entered a guilty plea to a related criminal offence.
The Secretary contended that this raised the issue of the Applicant’s credibility, noting that an assessment of credibility is frequently of vital importance in determining whether a person is a member of a couple and quoted the following passages from various authorities.
In RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35 the Tribunal said at [35]:
In matters involving a determination of whether a person is a member of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance. The Tribunal has carefully considered the instances referred to in paragraph 33 of these reasons and the other matters before it and is satisfied that there are a number of telling inconsistencies and contradictions in the Applicant’s evidence when compared with the other information available. Overall, the Tribunal is not satisfied that the Applicant gave a truthful account of the essential matters pertaining to her relationship with Mr B. The following are the Tribunal’s findings about the relationship criteria to be considered pursuant to s 4(3) of the Act.
In Re Lynda Maree Petty and Thomas John Davis and Director-General of Social Security [1982] AATA 165) the Tribunal said at [36]: “Where applicants make an untruthful or misleading statement concerning their relationship they must realise that the inference is likely to be drawn against them, that they are endeavouring to conceal the true nature of their relationship”.
In Re SJK and Secretary, Department of Social Services [1998] AATA 258 the Tribunal said at [22]: “Testimony which swears to the issue is at best to be paid minimal regard, a fortiori, when it comes from people who acknowledge a sustained pattern of lies and falsehoods for a prolonged period of time”.
Windeyer J in Jones and Dunkel (1959) 101 CLR 298 found at page 320 that a negative inference that can be drawn, in certain circumstances, where a party fails to bring a witness before the Tribunal.
In SRQ and Secretary, Department of Social Services [1998] AATA 397 the Tribunal placed greater weight on the documentary evidence as the Applicant’s admission of previous deceptions made her evidence unreliable.
In Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415, DP Hotop stated at [43]:
In these circumstances the Tribunal regards it as appropriate, in analysing the evidence before it for the purpose of forming an opinion about the nature and character of the relationship between the Applicant and Mr B – in particular, whether or not they had a “marriage-like relationship” within the meaning of s 4(2)(b)(iii) of the Act – in the relevant period, generally to place greater reliance on the relevant objective or independent evidence when the Applicant’s evidence is inconsistent with that evidence, and to accept the Applicant’s evidence regarding material matters only where it is corroborated or supported by objective or independent evidence.
The Respondent submitted this was not a case of a person honestly believing that their relationship did not constitute a de facto relationship. It is a case of the Applicant falsely stating the nature of her relationship for personal gain. That was the view expressed by the sentencing judge in sentencing the Applicant.
Whatever subjective belief is held about the nature of a person’s relationship with another, the Tribunal must consider that subjective belief in light of objective indicia that the relationship exhibits.[102]
[102] Secretary, Department of Family and Community Services and VBH and VBG [2006] AATA 1, [94].
In this case, the Respondent submitted that the objective evidence clearly supports the contention that the Applicant was a MOC with Mr Lanteri during the relevant period.
In Boskoski and Secretary, Department of Social Services [2014] AATA 915, Deputy President Constance observed at [63]:
In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.
The Secretary noted that the AAT1 formed the view that the Applicant “treats truth with casual regard”. The AAT1 noted that the Applicant had made false declarations on official documents such as passport applications and passenger arrival cards. It noted that her claims of not being in a relationship with Mr Lanteri at any time are “simply not credible”.[103]
[103] 2019/6474-5, T2.
The AAT1 “[d]id not view (the Applicant) as a witness of credit and was unwilling to place any reliance on her oral evidence”.[104]
[104] 2019/6474-5, T2, 18.
In reply to the Respondent’s Statement of Issues, Facts and Contentions, the Applicant contended that:[105]
1It does not follow as a matter of logic or fact that if a person:
2Makes a statement which is later proved to be untrue or “false” that at the time they made the statement they knew it was untrue, or they intendd to make an untrue statement; or
3Lies about one thing they lie about everything.
4In any event, given the nature of this review, the opinion of the AAT1 regarding the Applicant’s credibility is irrelevant and out to be ignored.
[105] Applicant’s Reply to the Respondent’s Statement of Issues, facts and contentions, [6]-[7].
Difficulty determining evidence by telephone
As previously noted, the hearing was conducted by telephone and I am reluctant to make findings of credit soley based upon the Applicant’s evidence before the AAT1 hearing. However, in light of the above authorities, I have made findings against the Applicant when the amount of objective evidence contrary to her stated position is overwhelming.
Was the Applicant a member of a couple in accordance with s 4(2) of the Act?The financial aspects of the relationship
Section 4(3) of the Act requires the Tribunal to have regard to the following circumstances in particular:
(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;
In Lambe v Director-General of Social Services (1981) 4 ALD 362 at page 369, the Full Federal Court found that even though there was no support in the social security legislation for the contention that mutual financial support is the only or paramount consideration “it is without doubt an important factor, the significance and weight of which will doubtless vary from case to case”.
In Pelka v Secretary, Department of Family and Community Services (2006) FCA 735; (2006) 151 FCR 546 at page 556 [52], the Federal Court considered the meaning of the phrase “pooling of financial resources” in section 4(3)(a)(ii) of the Act. The Court said “This in my opinion is the sense in which the noun “pooling” is used in s (3)(a)(ii). It plainly means more than financial cooperation or separate contributions to different elements of house hold expense”.
A relevant constructional question which arises under the first ground is the meaning of the term “pooling of financial resources” in s 4(3)(a)(ii). The ordinary meaning of the word “pool” in this context is set out in the New Shorter Oxford English Dictionary thus: “Put resources into a common stock or fund; share in common, combine for the common benefit”.
The Applicant contended that there was little evidence of this criterion that would support a finding that the Applicant was a member of couple, relying on the following:
(a)The Applicant and Mr Lanteri jointly owned property at 35 Laycock Dr, Interlaken until about 4 December 2014 when the Applicant transferred her interest to Mr Lanteri for nil consideration.
(b)Mr Lanteri had a private medical insurance policy with Medicare to which the Applicant and their children were added and for which he paid the premiums.
(c)Mr Lanteri contributed to paying part of the childrens’ child care fees.
(d)Mr Lanteri did not claim the Applicant was his partner in his taxation returns.
(e)The Applicant and Mr Lanteri lived separately and apart including a period between 13 August 2012 and 14 May 2013 when Mr lived interstate at 2/557 Grimshaw Street, Bundoora, Victoria.
(f)The Applicant and Mr Lanteri were responsible for their own expenses where they lived such as rent, power, and insurance.
(g)The Applicant and Mr Lanteri did not jointly acquire or own any real estate or major assets during this period.
(h)The Applicant and Mr Lanteri were not joint tenants of any real estate or other major assets during this period.
(i)The Applicant and Mr Lanteri were not co-tenants of any real estate.
(j)The Applicant and Mr Lanteri did not have any joint bank accounts.
(k)The Applicant and Mr Lanteri did not have any joint liabiltiies, accounts, credit facilities, loans or mortgages.
(l)The Applicant and Mr Lanteri did not pool their financial resources.
(m)The Applicant and Mr Lanteri did not owe any legal obligations to each other than Mr Lanteri's obligation to pay the Applicant child support in respect of child I, child S, and child G; and
(n)The Applicant and Mr Lanteri did not share any day to day household expenses.
The Secretary contended that while the Applicant claims that she had separate finances, the evidence shows a pooling of financial resources between the Applicant and Mr Lanteri during the relevant period. The Secretary noted the following facts:
(a)A car was registered in the Applicant’s name on 4 January 2016 with the drivers named as the Applicant and Mr Lanteri.[106]
(b)A car insurance policy was issued on 24 August 2011 in the Applicant’s name with Mr Lanteri named as a contact.[107]
(c)A further such policy was issued on 25 January 2012 with Mr Lanteri named as a contact and a driver.[108]
(d)Mr Lanteri applied for registration of a motor vehicle on 6 October 2014 with the previous owner nominated as the Applicant.[109]
(e)Mr Lanteri maintained a health insurance policy for the benefit of the Applicant and children. This is admitted by the Applicant (at paragraph 87 of her statement).
(f)There is evidence that the Applicant and Mr Lanteri were involved in the search for the purchase of a house in Kingston. The Applicant transferred her interest in a property at 35 Laycock Drive, Interlaken for little consideration thus indirectly contributing to the January 2015 purchase of the Kingston property.[110]
(g)The Applicant admitted that the property transfer mentioned in the previous paragraph was for nil consideration.[111]
[106] 2019/6474-5, T14, 647.
[107] 2019/6474-5, T15, 646.
[108] 2019/6474-5, T15, 646; T15, 690, 696, 758.
[109] 2019/6474-5, T17, 829.
[110] 2019/6474-5, T2, 18.
[111] Applicant’s Statement of Facts. Issues and Contentions [87].
I find that the Applicant and Mr Lanteri did not maintain any joint bank accounts, credit facilities or mortgages during the relevant period however text messages provide evidence that the Applicant had access to monies held in a safe held by Mr Lanteri or from other sources as late as 2014.[112] Relevantly there was no evidence of such payments prior to 20 August 2011.
[112] 2019/6474-5, T99, 5463.
There was no evidence of any legal obligations between the Applicant and Mr Lanteri except for the latter’s mandated obligations to pay child support for each of their three children.
Although Mr Lanteri paid for private health insurance which included the Applicant and their three children, I do not place too much weight upon this fact bearing in mind when such a policy is in place it would not be unreasonable to continue it because the savings available within a combined family policy rather than individual policies.
However, I consider that the motor vehicle insurance policies and registrations referred to at (a)-(d) above provide significant evidence of a financial relationship between the Applicant and Mr Lanteri from at least 24 August 2011.
On 8 January 2015, Mr Lanteri contracted to purchase the property at 22 Queens Parade, Kingston and I'm satisfied from the text messages exchanged between the Applicant, Mr Lanteri and others relating to the purchase of the house are evidence of a joint enterprise.[113]
[113] 2019/6474-5, T99, 5470.
I also consider it highly relevant that the Applicant transferred to Mr Lanteri, for no consideration, her interest in jointly owned land at 35 Laycock Drive, Interlaken in the previous November indicating a pooling of resources for a significant financial commitment.
The nature of the household
Section 4(3) of the Act requires you to have regard to the following circumstances in particular:
(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;
The Secretary noted that the Applicant contended that she lived separately from Mr Lanteri although admitting that Mr Lanteri visited on occasions. The Secretary submitted that this is not conclusive as to whether or not the Applicant was a MOC, but merely one of the factors to be weighed under s 4(3)(b) of the Act in relation to the “the nature of the household” and specifically, “the living arrangements of the people” under sub-paragraph 4(3)(b)(ii).
Importantly, “living separately and apart” requires the Tribunal to consider both physical and mental elements and, the mental element is independent of whether the parties lived in the same house. The Federal Court in Melvin v Secretary, Department of Social Security [2016] FCA 375 said at [83-84]:
They lived neither separately nor apart on a permanent or indefinite basis. They physically lived together from time to time. That of itself is not determinative. The meaning of the expression “living separately and apart” was considered at length by the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 at [43]-[58] albeit in the context of provisions of the Migration Act 1958 (Cth). There is both a physical and mental element involved and the mental element is independent of whether the parties lived in the same house. This cuts both ways. Characterisation of a relationship as not marriage-like may be reached even where the persons live in the same house.
Moreover, the mental element supporting the existence of a marriage-like relationship may be inferred, despite the persons’ subjective evidence to the contrary, as here, from objective circumstances including those set out in s 4(3)(a)-(e). The Tribunal by reference to all the circumstances of their relationship found that they were living during the first period in a marriage-like relationship. This being so, s 4(3A) was not engaged.
The Respondent submitted that the Tribunal has consistently considered that whether an Applicant physically lives under the same roof as another person is not a determinative consideration, noting that in Utczas and Secretary, Department of Social Security [1989] AATA 756 (Utczas) the Tribunal found physical separation was only one of the factors to consider amongst others, at [11]:
Although the Applicants maintain separate households, they are in every other sense married. They maintain daily telephone contact and see each other, on average, about twice a week at Mrs Spett-Utczas' home. Mr Utczas stays overnight at his wife's home about once a week. Despite the physical separation in the sense mentioned, there is no suggestion in the evidence that the matrimonial relationship is anything other than alive and ongoing. The Applicants bona fide recognize the marriage relationship as such, as does this Tribunal.
Utczas was cited with approval by Deputy President Hotop in Dimov and Secretary, Department of Family and Community Services [2005] AATA 912 at [31]:
Having regard to all the circumstances of the relationship between Ms Dimov and Mr Dimov, the Tribunal is of the opinion that, although Ms Dimov and Mr Dimov have been exclusively living in separate residences and maintaining separate households for about the last 5 years, their matrimonial relationship has not broken down but rather has continued throughout that period and is continuing. The Tribunal is, therefore, of the opinion that Ms Dimov has not been, and is not presently, "living separately and apart from [Mr Dimov] on a permanent or indefinite basis", within the meaning of s 4(2)(a) of the Act: see Re Utczas and Secretary, Department of Social Security (1989) 19 ALD 110.
In Bishop and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 531, Senior Member Cunningham said at [46]:
The number of nights that two people spend together under the one roof is not determinative of the issue as to whether or not they are in a marriage like relationship. The Tribunal in Re Utczas and Anor and Secretary, Department of Social Security (1989) 19 ALD 110 held that despite a couple’s maintenance of separate residences, they were not found to be living separately and apart and should be treated as still married to one another.
The Tribunal in Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor [2011] AATA 162 said that the test was not simply whether the Applicant was living with the other person, at [59-60]:
The test to be applied for present purposes is not simply whether two people live together in the same house, or whether they are living in separate premises. There are many examples of married couples who spend periods of time living in different places without disturbing the marriage-like nature of their relationship. I can accept that, from time to time, Ms Hogan and R may have lived in separate abodes for short periods from February 1997 to December 2008. But that is not the end of the matter.
The concept of “separately and apart” was discussed by the High Court in Main v Main[45] and by the Federal Court in Staunton-Smith v Secretary, Department Of Social Security[46]. What must be considered is not only whether the parties live separately, in physical terms, but also whether the marital relationship (the consortium vitae) has not been forged or has broken down. The two limbs of the test are conjunctive. Sections 4(2) and 4(3A) require both elements to be established before it can be said that a marriage-like or member of a couple relationship has ceased to exist. These are matters of fact and degree.
The Secretary contended that whether the Applicant lived under the same roof as Mr Lanteri is but one factor to be weighed amongst others and, goes to the “the nature of the household” (specifically, “the living arrangements of the people” under s 4(3)(b)(ii)). It is not determinative but rather, a matter of fact and degree.
In reply to the Respondent, the Applicant contended that both Utczas and Dimov and Secretary of Family and Community Services are distinguishable and should not be applied because they dealt with different relationships (married couples), definitions and provision of the Act.[114]
[114] Applicant’s reply to the Respondent’s statement of Issues, Facts and Contentions, [14].
The Applicant contended that s 4(3A) the Act makes it clear that if the Applicant and Mr Lanteri were living separately and apart from each other on a permanent or indefinite basis then for the purposes of the Act they were not in a de facto relationship regardless of whether the matters in sub-section (3) have been established. The Applicant submits that this is why the AA T1 found the Applicant and Mr Lanteri were not in a de facto relationship between 27 January 2012 and 11 November 2012.

Although the above two cases dealt with different relationships, I still consider the principles relevant to the matters under consideration.
The Applicant contended that during the relevant period, the people that lived in the household where the Applicant lived were the Applicant and her three daughters; the Applicant had the sole care and responsibility for the three girls; Mr Lanteri would visit them on occasion; and the Applicant did all the domestic tasks in the household.
The Respondent relied on the following facts to contend the Applicant was a MOC with Mr Lanteri during the relevant period:
(a)In an application for a child passport made by the Applicant on 3 February 2011 Mr Lanteri was named as the father and residing at 76 Strickland Avenue.[115]
[115] 2019/6474-5, T14, 610.
(b)The Applicant indicated her address in March 2014 as 22 International Close, Action Park.[116]
[116] 2019/6474-5, T14, 633.
(c)On 11 August 2015 the Applicant indicated her address as 22 Queens Parade,Kingston. She advised at the same time that Mr Lanteri resided at 73A Harrington Street, Hobart.[117]
[117] 2019/6474-5, T14, 636.
(d)22 Queens Parade, Kingston was insured in the name of Mr Lanteri from at least 20 October 2015. A number of expensive items of jewellery were specified contents.[118]
(e)Mr Lanteri on 20 October 2015 insured a motor vehicle nominating 22 Queens Street, Kingston as the place where the vehicle was kept.
(f)Mr Lanteri’s car (Holden) registration on 6 October 2014 indicates his address as 22 International Close, Acton Park.[119]
(g)The Applicant provided her address as 76 Strickland Avenue, South Hobart from August 1992 and 22 Queens Parade, Kingston from 12 August 2015.[120]
(h)Mr Lanteri advised his addresses as 76 Strickland Avenue, South Hobart from 21 June 2010, 22 International Close, Acton Park from 12 November 2013 and 22 Queens Parade, Kingston from 10 April 2014.[121]
(i)Mr Lanteri purchased 22 Queens Street Kingston in January 2015.[122] The AAT1 found that the Applicant indirectly contributed to the search for and acquisition of this property.[123],
(j)In a search conducted at 22 Queens Street Kingston on 30 June 2016 pursuant to a search warrant Mr Lanteri was present at the property at 7:00am.[124]
(k)Residences declared by the Applicant and Mr Lanteri coincide at times during the relevant period.[125]
(l)It is noted that the Applicant admitted to the ARO that she had asked Mr Lanteri to live with her to provide care for her and the children.[126]
(m)The Secretary noted that the Applicant contended that she lived separately although admitting that Mr Lanteri visited on occasions. This is clearly against the evidence and rejected by the Judge in her sentencing comments. Even if this were the case the Secretary submitted that this is not conclusive as to whether or not the Applicant was a MOC, but merely one of the factors to be weighed under s 4(3)(b) of the Act in relation to the “the nature of the household” and specifically, “the living arrangements of the people” under s 4(3)(b).
[118] 2019/6474-5, T 26, 1376.
[119] 2019/6474-5, T17, 835.
[120] 2019/6474-5, T17, 795; T17, 808, 810.
[121] 2019/6474-5, T17, 796, 818, 824, 826, 828.
[122] 2019/6474-5, T26, 1386.
[123] 2019/6474-5, T2, 18.
[124] 2019/6474-5, T33, 1672–8.
[125] See for example 2019/6474-5, T20, 954-69; T42, 2988.
[126] 2019/6474-5, T5, 137.
In addition to the matters relied upon by the Respondent referred to above, I note that on 3 January 2012, after a trip to China, both the Applicant and Mr Lanteri reported, on their incoming passenger cards, their addresses as 76 Strickland Avenue, South Hobart.
I note that in a child passport application in respect of child G dated 3 March 2014 the residential address for child G, the Applicant and Mr Lanteri is recorded as 22 International Close, Acton Park.[127]
[127] 2019/6474-5, T14, 626-30; T87, 5172-8.
I note the Applicant was the sole tenant on the lease of Unit 20/107 Channel Hwy, Kingston, and the property manager for this tenancy did not find evidence upon routine inspection of another tenant.[128] Despite this, a property inspection report prepared for Mr Lanteri for 22 Queens Parade listed his address as Unit 20/107 Channel Hwy, Kingston.[129]
[128] 2019/6474-5, T7, 171.
[129] 2019/6474-5, T26, 1451.
The Applicant no longer disputes that she and Mr Lanteri lived together at 22 Queens Parade, Kingston. Accordingly, I find that during the relevant period, the Applicant and Mr Lanteri declared living at the same residence at the same time at 76 Strickland Avenue, South Hobart, 22 International Close, Acton Park, Unit 20/107 Channel Hwy, Kingston and 22 Queens Parade, Kingston.
I note that on 26 June 2011 the Applicant advised Centrelink that she and Mr Lanteri were separated and that she did not know where he was living but on 14 July 2011 she sought assistance from a Centrelink social worker because Mr Lanteri was still living at their shared address. It appears there were allegations of domestic violence and on 25 July 2011, Mr Lanteri advised Centrelink that he was then residing 73a Harrington Street, Hobart.
Since return of the Applicant and Mr Lanteri from China, I can find very little evidence to establish that they lived at different addresses for any of the relevant periods.
The fact that the Applicant and Mr Lanteri reported conflicting addresses to different government agencies and businesses, including insurance companies, over the same period causes me to place no weight upon the Applicant's evidence to the effect that they were living apart for any of the relevant periods after their return from China.
Apart from that brief period between 26 June 2011 and 20 August 2011 I rely upon the matters set out at [84] by the Respondent and my findings at [85]-[91] above to determine that for all relevant periods from 21 August 2011 onwards the nature of the household supports a finding that the applicant was a MOC.
The social aspects of the relationship
Section 4(3) of the Act requires you to have regard to the following circumstances in particular:
(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;
The Applicant conceded the following:
(a)During the period 26 June 2011 to 22 April 2015, the Applicant and Mr Lanteri took the following trips together:
(i)Overseas on 6 December 2011 and back on 21 January 2012;
(ii)To Melbourne on the Spirit of Tasmania on 10 January 2013and back on 10 January 2013;
(iii)To Melbourne on 10 November 2013 and back on 9 January 2011; and
(iv)Overseas on 25 May 2014 and back on 7 August 2014;
(b)Since at least 20 August 2014, the Applicant and Mr Lanteri presented themselves to third parties as partnered;
(c)As at that date their family, friends and associates perceived they were a couple and did not know they were separated; and
(d)Between 5 December 2014 to and including 9 May 2016 the Applicant and Mr Lanteri regularly communicated via SMS.
The Respondent contended that based on the following facts and the above criteria, the Applicant was a MOC for the relevant period:
(e)The Applicant’s three children share the same biological father; Mr Lanteri. Two children were born during the relevant period.
(f)On the occasions of each birth Mr Lanteri was named as the father.
(g)The Applicant and Mr Lanteri travelled overseas on 26 May 2015 to 7 August 2015 to Europe. They shared accommodation and the costs of travel.[130]
(h)The Applicant and Mr Lanteri travelled together to Hong Kong on 6 December 2011 returning on 3 January 2012. They travelled together at other times during the relevant period.[131]
(i)The evidence from Immigration and Border Protection indicate that the Applicant and Mr Lanteri had five overseas departures from 2009 to May 2016. The Applicant also went overseas with one child in February and October 2012.[132]
(j)There are many photographs of the Applicant and Mr Lanteri in various social and holiday circumstances indicating a close, and indeed a happy, relationship.[133]
(k)Mr Lanterti was nominated as the Applicant’s next of kin and partner in hospital admissions.[134]
(l)The Applicant admittedthat since at least 20 August 2014 she and Mr Lanteri presented themselves to third parties as partnered. Further, the Applicant admits that as at the former date family, friends and associates perceived they were a couple and were not aware of any separation.[135]
(m)The Applicant also admittedthat she and Mr Lanteri regularly communicated by SMS during the relevant period.[136]
(n)The Secretary contended that, on balance, the representations and admissions to varying entities is indicative that the Applicant was a MOC during the relevant period and that the relationship was not solely based on the three children the Applicant and Mr Lanteri had together.
[130] 2019/6474-5, T16, 771, 774–87, 790; 2019/6474-5, T53, 3507, 3388; T79, 3931–4.
[131] 2019/6474-5, T18, 844–943.
[132] 2019/6474-5, T42, 2987–8.
[133] 2019/6474-5, T37, 1943–7.
[134] 2019/6474-5, T70, 3926–30.
[135] Applicant’s statement of facts, issues and contentions, [89].
[136] Applicant’s statement of facts, issues and contentions, [89].
The Applicant and Mr Lanteri travelled overseas together and on the Spirit of Tasmania several times during the relevant period. This included a trip to China in late 2011–early 2012. The Applicant has conceded that at least from 2014, she and Mr Lanteri appeared as a couple to friends and family.
I consider the Applicant’s holiday with Mr Lanteri to China, booked on 20 August 2011 signficant. I note that from around 27 January 2012 until 12 November 2012, Mr Lanteri was based in Victoria and this period is not in contention. Accordingly, I find that from 20 August 2011 until 26 January 2012, and from 13 November 2012 until at least 5 May 2016 the social aspects of the relationship support a conclusion that the Applicant was a MOC.
Sexual relationship
I must consider whether there was any sexual relationship between the Applicant and Mr Lanteri during the relevant period.
The Applicant conceded that during the relevant period there were sexual connections between herself and Mr Lanteri, evidenced in the birth of child G on 16 April 2013 and child S on 5 December 2014. Mr Lanteri was recorded as the father of both children.
The Tribunal notes there is also evidence of sexual intimacy between the Applicant and Mr Lanteri in text messages from 2014–2015.[137]
[137] 2019/6474-5, T99, 5530, 5464.
In my view, the evidence supports a finding that from at least mid-late 2012 when child G was approximately conceived, there was a sexual relationship between the Applicant and Mr Lanteri.
The nature of the commitment
Section 4(3) of the Act requires the Tribunal to have regard to the following circumstances in particular:
(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
In Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404, the Tribunal found at [61]:
Overall, it is the absence of mutuality that most characterises the relationship. It is this absence of mutuality, in respect of financial contribution, effort contributed to the maintenance of the household and the support of the children, consistent presence and commitment to the household and to the relationship itself, that leads me to conclude that the relationship between Mr and Mrs Pencev was in essence one of living separately and apart under the same roof. This is so notwithstanding Mr Pencev’s clear exploitation of the home provided by Mrs Pencev and the financial support she gave him.
The Applicant contended that there is conflicting evidence in relation to this criteria because on the one hand the SMS and Skype messages shows commitment but then on the other hand Mr Lanteri was physically abusive to the Applicant and members of her family. Further, Mr Lanteri never married the Applicant, initially being engaged and even telling the Applicant in 2015 that he wanted to marry her in the following year.
The Respondent contended that mutuality of commitment is present. The Respondent noted the following facts:
(a)In her PP claim made on or about 26 April 2011 the Applicant noted that her partner was Mr Lanteri and they resided at 76 Strickland Avenue, South Hobart.[138]
(b)On 20 July 2011 the Applicant lodged a No Longer Partnered Form claiming that the relationship disclosed in May 2011 had ended on 26 June 2011 and with no chance of reconciliation.[139]
(c)The Applicant described her marital status as “de facto” in a hospital admission form on or about 16 April 2013 and during the relevant period.[140] The Applicant claimed to be in a de facto relationship on various hospital admissions during the relevant period.[141]
(d)The Applicant, Mr Lanteri and their daughter went on holiday from 6 December 2011 to 8 January 2012.
(e)The Applicant admits in her statement (at paragraph 91) that there is conflicting evidence in relation to this criteria referencing SMS and Skype messages showing commitment as against alleged abuse of varying forms.
[138] 2019/6474-5, T11, 277.
[139] 2019/6474-5, T11, 160.
[140] 2019/6474-5, T19, 948.
[141] 2019/6474-5, T19, 944–949.
While it has been recognised in some Tribunal decisions that the commitment of parents to children are not reflective of a mutual commitment of parents to each other, it has also been recognised that parents staying together for the needs of the child is a factor indicative of a marriage-like relationship.
As noted above, while there is no evidence indicating the Applicant and Mr Lanteri are legally married or engaged, they have three children together. There is also pooling of financial resources for the benefit of the Applicant and children to ensure they have stable accommodation. There is evidence that both the Applicant and Mr Lanteri have provided a supportive presence in each other’s lives. Whatever the case, the relationship between the Applicant and Mr Lanteri is, tellingly, of long standing, during which they have had three children together.
The Secretary further contended that such evidence supports a finding that the nature of the commitment between the Applicant and Mr Lanteri is qualitatively different to the relationship between an Applicant and some other person (see Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92; (2008) 102 ALD 22, 28at [30]) and indicates that they are a member of a couple.
Even taking into account the Applicant’s contentions relating to the abusive nature of the relationship and the fact that Mr Lanteri never married her despite numerous promises, I find that the nature of the commitment strongly supports the a finding that the Applicant was a MOC for all relevant periods since 20 August 2011.
In Secretary, Department of Family and Community Services and WAP [2000] AATA 7, the Tribunal said at [11]:
[I]n deciding whether a person is a ‘member of a couple’ for the purposes of s 4(2) of the Act, an opinion is formed having regard to all circumstances of the relationship including in particular, those matters enunciated in paragraphs 4(3)(a) to (c) exclusively. Those provide objective criteria, which can be determined on the evidence in the circumstances, it falls to the Tribunal to make a value judgement giving weight to each criterion having regard to all the circumstances of the relationship. The criteria must be considered as a whole in context.
I note that I am required to reach an independent objective assessment of the relationship between the Applicant and Mr Lanteri. In view of the conflicts between the evidence of the Applicant and much of the documentary evidence, including photographs, I have not been persuaded by the Applicant's evidence before the AAT1 hearing and the submissions made during the conduct of this hearing, when in conflict with that documentary evidence.
I accept that the relationship was one involving not insignificant family violence, but two children were conceived and born during periods when the Applicant alleges she was separated from Mr Lanteri. There are also many texts between the two indicating love, affection and a desire for a future together.
I am satisfied that, in view of the allegations of domestic violence, and the fact that the Applicant had advised Centrelink that she and Mr Lanteri were separated, the Applicant was not a MOC from 26 June 2011 until the apparent reconciliation on 20 August 2011 when Mr Lanteri was invoiced for flights to China for the Applicant, himself and their eldest daughter. This finding is supported by the contemporaneous departmental notes regarding the applicant’s complaints of family violence and her desire to be separated from her partner.
I do not accept that the Applicant and Mr Lanteri were living separately and apart on a permanent or indefinite basis between 20 August 2011 and 26 January 2012.
I find that from around 27 January 2012 until 11 November 2012, Mr Lanteri was based in Melbourne while the Applicant was either in Tasmania or overseas. Accordingly I find that the Applicant and Mr Lanteri were living separately and apart or permanently indefinite basis for the above-mentioned period.
However, from the time that Mr Lanteri return to Tasmania on 12 November 2012, having regard to the totality of the evidence and findings referred to throughout this decision, I find the Applicant and Mr Lanteri resumed their relationship and that the Applicant was a MOC after 11 November 2012.
Accordingly I find that the Applicant was a member of a couple with Mr Lanteri from 20 August 2011 to 26 January 2012 and from 12 November 2012 until at least 5 May 2016.
Was the Applicant overpaid social security benefits during the relevant period?
Family Tax Benefit
Section 21 of the Family Assistance Act provides that a person is eligible for Family Tax Benefit if they have at least one Family Tax Benefit child, are an Australian resident and the person’s rate of Family Tax Benefit is greater than nil.
Section 58 and schedule 1 of the Family Assistance Act sets out how to calculate the rate of Family Tax Benefit. A person’s entitlement is calculated for a whole financial year.
Section 58 of the Family Assistance Act, read with the rate calculator in Schedule 1 of the Family Assistance Act, provides that eligibility for Family Tax Benefit is subject to income tests. Section 3 of the Family Assistance Act provides that “taxable income has the same meaning as in the Income Tax Assessment Act 1936”.
Section 20 of the Family Assistance Administration Act provides that a person’s rate of Family Tax Benefit may be calculated using their estimate or income, indexed estimate or indexed actual income.
The High Court in Read v Commonwealth [1988] HCA 26; (1988) 167 CLR 57 at page 69 considered the definition of “income” as it appeared in the Act]:
The definition is exhaustive: the term "income" means what it is defined to mean; it does not mean what "income" would be understood to mean if the definition were not in the Act. The definition is couched in the widest terms, presumably to ensure that public expenditure is directed to those who stand in actual need of the periodic support which income-related pensions provide. The definition is wide enough to embrace receipts of a capital nature as well as receipts of income, for "income" is defined to mean, inter alia, any moneys, valuable consideration or profits irrespective of the means by which or the source from which those moneys, etc. are received”.

Subdivision D of Division 1 of Part 3 of the Family Assistance Administration Act sets out Family Tax Benefit reconciliation conditions. The reconciliation process compares the person’s Family Tax Benefit entitlement for the financial years based on their actual Adjusted Taxable Income with the amount the person received during the year based on the estimated income. An adjustment takes place where reconciliation shows a difference between the amount of Family Tax Benefit the person received and their correct entitlement.
Schedule 3 Part 3 of the Family Assistance Act relevantly provides:
For the purposes of this Act (other than Part 4 of Schedule 1), if an individual is a member of a couple, the individual’s adjusted taxable income for an income year includes the adjusted taxable income for that year of the individual’s partner.
Section 25 of the Family Assistance Administration Act provides that the Applicant has an obligation to notify the Department of changes to her circumstances.
Section 154 of the Family Assistance Administration Act provides that the Secretary may require a person to give information to the Department that may be relevant to determining:
(a)Whether the person, or any other person, whom the Secretary has determined to be entitled to be paid family assistance is or was eligible for the family assistance, or for family assistance of the amount determined;
(b)Whether the person or any other person to whom a payment of family assistance has been made was entitled to the payment.
Section 71 of the Family Assistance Administration Act provides that:
No entitlement to amount
(1) If:
(a) an amount has been paid to a person by way of family tax benefit, stillborn baby payment or single income family supplement (the assistance) in respect of a period or event; and
(b) the person was not entitled to the assistance in respect of that period or event:
The amount paid is a debt to the Commonwealth by the person
Overpayment
(2) If:
(a) an amount (the received amount) has been paid to a person by way of assistance; and
(b) the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under family assistance law;
The difference between the received amount and the correct amount is a debt due to the Commonwealth by the person
Section 71C of the Family Assistance Administration Act at the relevant time provided that if a person was paid more CCB than they were entitled to receive then the additional amount was a debt owed to the Commonwealth. It provided:
71C Debts arising in respect of child care benefit where overpayment
If:
(a) an amount (the received amount) has been paid to a person by way of child care benefit in respect of a period; and
(b) the received amount is greater than the amount (the correct amount) of benefit that should have been paid to the person under the family assistance law in respect of that period;
the difference between the received amount and the correct amount is, subject to section 71F, a debt due to the Commonwealth by the person.
The Secretary submitted that in accordance with ss 71 and 71C of the Family Assistance Administration Act, the Applicant was overpaid FTB and CCB because the Applicant was paid on the basis that she was single and not a MOC. The Secretary submitted that the amount of overpayment of FTB and CCB have been correctly calculated.
Having found that the Applicant was not a MOC between 26 June 2011 and 20 August 2011, the Applicant’s FTB debt for the income year 2010-11 is to be recalculated accordingly.
PP
Section 503 of the Act provides for a person’s PP (single) rate to be calculated using the pension rate calculator at the end of s 1068, while a person’s PP (partnered) rate is calculated using the calculator at the end of s 1068B. The rate of PP is higher for a single person than for a MOC. The Applicant was paid as a single person over the relevant period.I have found that the Applicant was a MOC from 20 August 2011 to 26 January 2012 and from 12 November 2012 until at least 5 May 2016.
While the rate calculator provides that a lower rate is payable for a person who is a member of a couple than a person who isn’t, it also requires the application of an ordinary income test which is set out in Module D of s 1068B of the SS Act. Under the ordinary income test, the rate of parenting payment payable may be reduced by the ordinary income of the person’s partner.
Under that income test, the Applicant had no entitlement to parenting payment at the partnered rate if Mr Lanteri’s ordinary income exceeded the following annual amounts:

26 Jun 11 $45,119 1 Jul 11 $45,223 20 Sep 11 $46,237

20 Mar 12 $46,692 1 Jul 12 $46,744 20 Sep 12 $47,732

20 Mar 13 $49,773 16 Apr 132 $50,412 1 Jul 13 $50,516

20 Sep 13 $51,589 20 Mar 14 $52,466 1 Jul 14 $52,570

20 Sep 14 $53,038 5 Dec 143 $53,678 20 Mar 15 $54,009

1 Jul 15 $54,061 20 Sep 15 $54,439

The Secretary submitted that the Department correctly calculated the overpayment of PP[142] having regard to the Applicant being a MOC which requires the income of Mr Lanteri to be taken into account in the calculation of the rate payable. However having found that that the Applicant was not a MOC from 26 June 2011 to 19 August 2011, those calculations need to be adjusted.
[142] The PP debt calculations are at 2019/6474-5, T114, 5671–5744.
There was insufficient evidence to allow precise findings as to the income of the Applicant’s partner during the periods that she was a MOC. On the evidence before the Tribunal, I make the following findings:
(a)From 20 August 2011 until 26 January 2012 I have found the Applicant was a MOC, however I am not satisfied that Mr Lanteri’s ordinary income exceeded the relevant annual amount. In reaching that conclusion, I have considered that there were expenses that were incurred including tickets to China valued at $2,702.50 but no evidence of the seemingly extravagant lifestyle apparent from January 2014.[143]
[143] 2019/6474-5, 765.
(b)From 13 November 2012 until 31 December 2013, I have found the Applicant was a MOC and I am satisfied that Mr Lanteri’s ordinary income exceeded the relevant annual amount. In reaching that conclusion, despite Mr Lanteri’s declared income being nil for the period 1 July 2012 to 30 June 2013 and $13,927.00 for the period 1 July 2013 to 30 June 2014, I have taken into account the following matters:
(i)On 20 March 2012, two $6,000 deposits were made into a Commonwealth Bank account in the Applicant’s name in trust for child I. These were subsequently withdrawn within three days.[144]
[144] 2019/6474-5, T11, 491.
(ii)Between 28 May 2013 and 28 November 2013, seven cash deposits over $1000 were made into a Commonwealth Bank account in the name of the Applicant in trust for child G.[145]
[145] 2019/6474-5, T11, 499.
(iii)There has been no explanation for the source of these cash monies, and processing through a childrens’ trust account is suggestive of money laundering.
(iv)In the absence of an alternative explanation, I find that Mr Lanteri had not significant undeclared sourcecs of ordinary income during this period.
(c)From January 2014, I have found the Applicant was a MOC. There was a significant increase in her and Mr Lanteri’s assets and expenditure and I am satisfied that Mr Lanteri’s ordinary income exceeded the relevant annual amount. In particular, I note the following:
(i)On 5 February 2014, a $20,000 cheque deposit was made into a Commonwealth Bank account in the Applicant’s name in trust for child G. As with other unexplained deposits in the children’s trust accounts, the same amount was subsequently withdrawn approximately a week and a half later.
(ii)On 21 May 2014, the Applicant booked a holiday to Greece for the Applicant, Mr Lanteri and their two daughters. Mr Lanteri contributed $10,707.52 towards flights and accommodation for this holiday. The Applicant contributed $930.00.[146]
(iii)On 14 October 2015, the Applicant and Mr Lanteri booked a cruise to Greece for themselves, their three daughters and the Applicant’s mother. The value of this booking was $9,782.65.[147]
(iv)On 10 May 2016, a search warrant executed at 22 Queens Parade revealed assets that suggest the Applicant and Mr Lanteri lived a lifestyle in excess of their combined income.
(v)An insurance policy for this property taken out from 7 April 2015 and renewed on 10 October 2015 included specified contents items including jewellery, watches and memorabilia insured for $85,956.00.[148]
(vi)The AAT1 found that Mr Lanteri paid $90,000 in deposit for the purchase of 22 Queens Parade, Kingston, for which no satisfactory explanation as to its source was provided.[149]
(vii)Mr Lanteri was convicted of trafficking a controlled substance regarding offending that took place in 2015. The sentencing judge found the estimated street value of the drugs to be between $118,000 and $130,000.
[146] 2019/6474-5, T16, 777.
[147] 2019/6474-5, T16, 788.
[148] 2019/6474-5, T26, 1376; 1401.
[149] 2019/6474-5, T26, 1388–95.
Accordingly, I find the Applicant’s partner’s ordinary income exceeded the relevant annual income amount from January 2014 until at least 5 May 2016. The effect of this finding is that the Applicant was not entitled to any parenting payment during this period.
Does the Applicant have family assistance debts?Throughout the period being reviewed, the Applicant was paid family tax benefit and child care benefit at a rate that was determined on the basis that she was in receipt of a social security pension, being parenting payment paid at the single rate.
I have found that the Applicant was not entitled to parenting payment for the periods 21 August 2011 to 26 January 2012 and 13 November 2012 to 5 May 2016. Therefore, her rates of family tax benefit and child care benefit are to be determined under the relevant income tests, having regard to her adjusted taxable income, which includes Mr Lanteri’s adjusted taxable income. I am satisfied that the Applicant was paid more family tax benefit and child care benefit than she was entitled to receive for all the periods set out below except for payents paid for the 2010-2011 income year which will have to be reassessed by Centrelink in view of my findings related to her partner’s income during that period.
Centrelink has calculated that the amount of those excess payments were:
(a)A family tax benefit debt of $5,109.23 in respect of payments made for the 2011-12 income year;
(b)A family tax benefit debt of $4,909.27 in respect of payments made for the 2012-13 income year;
(c)A family tax benefit debt of $2,164.45 in respect of payments made for the 2013-14 income year;
(d)A family tax benefit debt of $3,556.02 in respect of payments made for the 2014-15 income year;
(e)A family tax benefit debt of $1,946.36 in respect of payments made for the 2015-16 income year;
(f)A child care benefit debt of $592.48 in respect of the 2013-14 income year;
(g)A child care benefit debt of $765.84 in respect of the period 7 July 2014 to 5 July 2015; and
(h)A child care benefit debt of $4,106.88 in respect of the period 11 August 2014 to 5 July 2015.
Does the Applicant owe a debt to the Commonwealth?
The overpayments of PP, FTB and CCB are debts due to the Commonwealth pursuant to s 1223(1) of the Act and ss 71 and 71C of the Family Assistance Administration Act. The Applicant is currently repaying the debts at the rate of $30 a fortnight by withholdings from her payments.
Should the debts be recovered?
The relevant Acts provide two broadly similar mechanisms by which a properly raised debt might not be recovered: write off and waiver.
Should the debts be written off for a period?
Section 1236 of the Act and s 95 in the Family Assistance Administration Act provide the criteria for the write-off of a debt. A debt can be written off if a debtor has no capacity to repay the debt.
Neither provision is satisfied here. There is no evidence that the Applicant does not have the capacity to repay the debt or that repaying the debt would result in “severe financial hardship”. She is currently repaying the debt at $30 each fortnight.
Therefore, I find that the debts cannot be written off pursuant to s 1236 of the Act or s 95 of the Family Assistance Administration Act. Even if they could be written off, I would not exercise a discretion to so in view of the Applicant’s deliberate misrepresentations.
Should all or part of the debts be waived?
Waiver - Sole administrative error and good faith
Section 1237A of the Act and s 97 of the Family Assistance Administration Act provides a discretionary power to waive recovery of all or part of a debt where the debt was due to sole administrative error and where the overpayment was received in good faith. Section 97 adds the further requirement that the person must suffer financial hardship if the debt is not waived in order for the discretion to be enlivened. The Secretary contended that neither apply in the Applicant’s circumstances.
The meaning of “solely” was considered in the case of Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173, where the Tribunal stated at [40]:
There is nothing...which indicates that any meaning should be given to "solely" other than its ordinary meaning. Applying those ordinary meanings to the subsection mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth's administrative error. The Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth's administrative error (i.e. they are incidental to the Commonwealth's error), then it may be that the debt is attributable solely to the Commonwealth's administrative error. Whether it is or is not attributable in that situation to the Commonwealth's administrative error will be a question of fact.
The term “severe financial hardship” for the purposes of s 97 of the Family Assistance Administration Act is not defined in the Act, however, the following decisions provide guidance:
(a)In Re Lumsden and Secretary Department of Social Security (1986) 10 ALN N225 the Tribunal said that for this term to be satisfied a person’s entire financial position would need to be materially less than the current rate of pension.
(b)In L and Department of Social Security No. N94/272 AAT No. 10230 (1995) 38 ALD 176 the Tribunal said at [66]:
In summary, I consider that matters relating to the personal financial hardship of the individual are always relevant in any decision as to write off under subsection 1236(1). Retrospective considerations may occasionally be relevant. The essential inquiry will always be whether recovery is a feasible proposition, bearing in mind the financial means and obligations of the individual concerned. Will recovery cause such personal hardship as to run contrary to the beneficial nature of the legislation?
(c)In Re Stubbs and Secretary Department of Families and Community Services [2003] AATA 729the Tribunal said at [20]:
Severe financial hardship, while not implying destitution, goes beyond straitened financial circumstances and imports a need for the particular case of a person to include financial suffering of a severe or extreme nature…
I find that the debts were not attributable to administrative error on the part of the Commonwealth. The debts arose due to the Applicant’s false statements and failure to disclose her relationship status with Mr Lanteri during the relevant periods.
There was no additional evidence before me in relation to the Applicant’s financial circumstances other than that set out in the AAT1 decision as follows:
Ms Koulmandas’ Statement of Financial Circumstances (Centrelink reviews) form discloses a fortnightly income of approximately $2,970.86, but indicates that her Centrelink payments are likely to reduce because she has recently started work. The tribunal estimated that Ms Koulmandas’ Centrelink payments are more likely to be approximately $1,190 per fortnight, because of her return to work, which when combined with weekly earnings of $670 gives a fortnightly income of approximately $2,530.
Having regard to Ms Koulmandas’ reported household expenditure on the Statement of Financial Circumstances (Centrelink reviews) form, the tribunal calculated that her regular expenses are $2,112 per fortnight. This leaves Ms Koulmandas with $418 per fortnight to put towards her debts with Centrelink and the other debts reported on the Statement of Financial Circumstances (Centrelink reviews) form.
I accept that it may difficult for the Applicant to balance her debt obligations but I am not persuaded, especially considering the moderate rate at which the repayments are currently being made, that requiring her to repay her debts by deductions from any family assistance and social security payments would cause her to be in financial hardship.
Accordingly, I find that recovery of the debts should not be waived under s 1237A (1) of the Act or s 97 of the Family Assistance Administration Act as sole administrative error is absent.
Both s 1237A and s 97 also require that the overpayment be received in “good faith”.
The term good faith is not defined in either Act, however as noted by the Secretary, the decision of the Federal Court in Secretary, Department of Education, Employment, Training & Youth Affairs v Barry Prince [1997] FCA 1565 (21 November 1997) says:
Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received - ie is not entitled to use the moneys received as his or her own - that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith…
The Secretary contended that good faith was absent in this matter, contending that the Applicant knew of her obligation to accurately inform Centrelink of her circumstances and any subsequent changes, having been sent several notices during the relevant period informing her of her obligation to notify the Department of any changes to her circumstances—including if she commences a de facto relationship. I agree with those contentions.
The Secretary also submitted that the Applicant did not receive the payments in “good faith” as required by s 1237A of the Act and s 97(2a) of the Family Assistance Administration Act so waiver cannot apply. Once again, I agree and find that the payments for the period of which I have found the Applicant to be a MOC were not received in good faith.
Waiver - Special Circumstances
The Secretary has a broad and unfettered discretion by virtue of s 1237 of the Act to waive the Commonwealth's right to recover the whole or part of a Parenting Payment debt in circumstance described in s 1237 AAD of the Act which includes "special circumstances" other than financial hardship alone.
Likewise, the Secretary has the same discretion by virtue of s 101 of the A New Tax System (Family Assistance) Act 1999 in respect of a Family Tax benefits and Child Care debt.
Section 101 of the Family Assistance Administration Act says:
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 the family assistance law; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.

The Applicant submitted that a “notional entitlement” is a relevant consideration in deciding whether there are "special circumstances' to waive a debt.
In Oberhardt v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1923; 174 FCR 157, Spender J found; at pages 169-170, [61]-[64]:
Further, the thrust of s 1237AAC, although also dealing with debt relief, is significantly different. Section 1237AAC deals with specifically enumerated benefits in particular situations which, if found, have mandatory consequences; that is, if it is shown that there was an entitlement to a particular benefit which was unclaimed, the debt must be waived. That is not the case in s 1237AAD. That section provides a more general avenue for relief, and grants a broad discretion to the Secretary to waive debts, having regard to the way in which the debt resulted, any special circumstances that might exist, and the appropriateness of waiving the debt.
The words in s 1237AAD(b) should not be fettered, or narrowed, in the manner argued for by the respondent and accepted by the Tribunal in this case.
The view reflected by the Tribunal in Secretary, Department of Family and Community Services v Lyster (2000) 59 ALD 587; Re Huynh and Department of Social Security (1994) 34 ALD 694; Dobbie v Secretary, Department of Social Security [1993] AATA 127; Sara 91 ALD 759; and QX2006/1 90 ALD 320 referred to above, to the effect that notional entitlement is not necessarily excluded in considering whether “special circumstances” exist, for the purposes of s 1237AAD, is correct.
It follows that, in my view, notional entitlement should not be excluded from the range of available relevant considerations in deciding whether there are “special circumstances” to waive a debt under s 1237AAD.
In conformity with His Honour’s reasoning, I find that a notional entitlements is one of a range of factors applicable to the Applicant that could, together with other factors amount to special circumstances.
The Applicant contended that if the Commonwealth had a right to recover a debt in respect of a Parenting Payment, Family Tax benefits and or Child Care debt then the amount of the Applicant’s notional entitlement to be paid at the partnered rate should be offset against that debt and waived.
The paucity of reliable evidence in relation to her partner’s income during the relevant periods does not allow me to make any findings as to the values of such notional entitlements, and accordingly I decline to apply any such offset.
The Secretary contended there are no special circumstances in the present case which warrant exercise of the discretion to waive recovery of all or part of the debts (see Beadle and Director-General of Social Security (1984) 6 ALD 1; Groth v Secretary, Department of Social Security (1995) FCA 1708; Ivovic and Director General of Social Services (1987) 3 ALN N95; Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25; Timothy Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114).
The term “knowingly” is not defined in the Act. Deputy President Forgie in Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 commented:
There is nothing in s.1237AAD which suggests that the word ‘knowingly’ should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. The actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or ommision.
The Tribunal in Re Anderson and Secretary, Department of Families and Community Services [2002] AATA 495) stated at [27]:
It is open for the Tribunal to infer that the Applicant has actual knowledge of his obligations under the Act where there are opportunities for that knowledge to be gained and where there are no obstacles to him acquiring that knowledge. In this case, the Applicant has had the opportunity to gain an understanding of his obligations under the Act through the provision of advice letters to him from the respondent. The Tribunal is not aware of any obstacles that would prevent Mr Anderson from understanding those letters and gaining that knowledge.
Deputy President Forgie in Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114; 94 ALD 693, 714 at [74] referred to her decision in Re Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72:
I concluded that ‘knowingly’ means actually knowing as opposed to the other two of the three degrees of knowledge. The first of the other two sorts is the sort of knowledge that comes from deliberately refraining to make enquiries because the enquiries will lead to answers that are not desired by the enquirer. The second is constructive knowledge in the sense that the person ought to have known the specific information or had the means of knowledge.
The term “special circumstances” is not defined in the Act. However, it has been considered in case law:
(a)In Beadle and Director- General of Social Security (1984) 6 ALD 1,3 where the Tribunal said:
An expression such as ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whethepr circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special...
(b)In Groth and Secretary Department of Social Security (1995) FCA 1708; 40 ALD 541, 545 where the Federal Court said:
The phrase ‘special circumstances’, it has been said, although imprecise is sufficiently understood not to require judicial gloss...it is sufficient to observe that it would require something to distinguish Mr Groth's case from others, to take it out of the usual or ordinary case. That was, I consider, the only enquiry to be undertaken in this case. It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary. The enquiry I have referred to would involve considering what would be the effect, if the provision in question or the principle of liability it creates, is applied...
(c)Re Ivovic and Director General of Social Services (1981) 3 ALN N95 where the Tribunal said:
The reference to special circumstances ‘by reason of which’ a person liable “should be released” requires, in our view, that there must exist in the circumstances of the case, a factor or factors which justify the making of an exception in whole or in part to the principle of liability which the Act otherwise establishes…Thus whilst keeping the dominant principle of [recovery of debt] in mind, [the decision maker] must nevertheless be prepared to respond to the special circumstances of any particular case by reason of which strict enforcement of the liability created by the section would be unjust, unreasonable or otherwise.
(d)In Angelakos and Secretary Department of Employment and Workplace Relations [2007] FCA 25; 44 AAR 436, where the Federal Court said:
There is less risk of overstatement if the words :”unusual” or ”uncommon” are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case…
(e)In Timothy Davy and Secretary Department of Employment and Workplace Relations [2007] AATA 1114; 94 ALD 693, 715-716 where Deputy President Forgie stated at [80] in part as follows:
…‘special circumstances’ are not merely directed to the person’s own circumstances. Rather, they are directed to those that are ‘special circumstances…that make it desirable to waive’. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it…He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement…The system of administration of the Social Security Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act…
I find that the Applicant knowingly made false statements and also failed to comply with the requirements to correctly advise the Department of her circumstances. The Applicant advised that she had separated from Mr Lanteri when she had not. Notices were sent to the Applicant advising her of her obligation to inform the Department of any changes in her circumstances and the Applicant failed to comply with her obligations.
Even if I was not satisfied that the Applicant failed to do this knowingly, I would still need to consider if there are special circumstances warranting the exercise of the discretion in s 1237AAD of the Act or s 101 of the Family Assistance Administration Act.
I note that something more than financial hardship alone is required and that, a part from the question of notional entitlement, there is nothing in the Applicant’s circumstances that would lead to the conclusion that her case was something unusual or out of the ordinary thereby attracting the waiver discretion. I have considered the question of notional entitlements but in view of the prolonged period and nature of the Applicant’s deception, and the matters outlined at paragraph 163 above, I find the Applicant’s circumstances in the present case are not so special as to warrant exercising the discretion to waive part or all of the debts under s 1237AAD or s 101 of theFamily Assistance Administration Act.
Conclusion
As noted above I have determined that the Applicant was not a MOC for the period 26 June to 20 August 2011 and was therefore entitled to the benefits received for that period.
I have determined that the Applicant was a MOC for the following periods for which she received benefits:
(a)21 August 2011 to 24 January 2012.
(b)13 November 2012 to 05 May 2016.
For the latter period I find that the Applicant’s partner’s income exceeded all relevant threshold amounts and hence the applicant was not entitled to any of the benefits she received for that period.
However, for the former period I find that the Applicant’s partner had no income and hence the Applicant may be entitled to some benefits even though being classed as a MOC. As this matter was not subject to submissions, I order that the decision that the Applicant has a parenting payment debt of $75,169.41 is set aside and the matter is to be sent back to Centrelink for reconsideration in accordance with the above findings.
The decision that the Applicant has a family tax benefit of $1,445.09 in respect of payments made for the 2010-2011 income year is set aside, and the matter is sent back to Centrelink for reconsideration in accordance with the finding that the Applicant has a family tax benefit for the 2010-11 income year that is to be repaid, but the amount of the debt is to be re-calculated on the basis that the Applicant was not a member of a couple for the period 26 June 2011 to 20 August 2011.
The Tribunal affirms the decisions that the Applicant has the following debts which she is required to repay:
(a)A family tax benefit debt of $ $2164.45 in respect of payments made for the 2013 – 14 income year;
(b)A family tax benefit debt of $3556.02 in respect of payments made for the 2014 –15 income year;
(c)A family tax benefit debt of $1946.36 and respect of payments made for the 2015-16 income year;
(d)A childcare benefit debt of $592.48 in respect of the 2013-14 income year;
(e)A childcare benefit debt of $768.84 in respect of the period 7 July 2014 to25 July 2015; and
(f)A childcare benefit debt of $4106.88 in respect to the period 11 August 2014 to 25 July 2015

I certify that the preceding 177 (one hundred and seventy- seven) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

.......................[sgd].................................................
Associate
Dated: 29 October 2021

Date of hearing: 30-31 March 2020

Counsel for the Applicant
Mr Ian Arendt

Solicitor for the Respondent Mr Brian Sparkes
Services Australia

26 Jun 11	$45,119			1 Jul 11	$45,223		20 Sep 11	$46,237
20 Mar 12	$46,692			1 Jul 12	$46,744		20 Sep 12	$47,732
20 Mar 13	$49,773			16 Apr 132	$50,412		1 Jul 13	$50,516
20 Sep 13	$51,589			20 Mar 14	$52,466		1 Jul 14	$52,570
20 Sep 14	$53,038			5 Dec 143	$53,678		20 Mar 15	$54,009
1 Jul 15		$54,061	20 Sep 15			$54,439

Date of hearing:	30-31 March 2020
Counsel for the Applicant	Mr Ian Arendt
Solicitor for the Respondent	Mr Brian Sparkes Services Australia