Lam; Secretary, Department of Social Services and (Social services second review)

[2018] AATA 3031

Lam; Secretary, Department of Social Services and (Social services second review) [2018] AATA 3031 (22 August 2018)

Division:GENERAL DIVISION

File Number(s):      2017/2094, 2017/2098 and 2017/2101

Re:Secretary, Department of Social Services

APPLICANT

Yien Lam and Nyadowni WangAnd  

RESPONDENTS

DECISION

Tribunal:Dr Damien Cremean, Senior Member

Date:22 August 2018

Place:Melbourne

The Tribunal affirms the decision under review in relation to application 2017/2094 noting that there is no basis for the cancellation of Mr Lam’s Austudy entitlement.

The Tribunal sets aside the decision under review in relation to application 2017/2098 and 2017/2101 and remits the decision to the Applicant with the directions noted in this decision.

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

Dr Damien Cremean, Senior Member

Catchwords

SOCIAL SECURITY – cancellation of benefits — whether husband and wife members of a couple — whether living separately and apart on a permanent or indefinite basis - waiver or writing off of debt – decision affirmed.

Legislation
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 95, 97, 101.

Social Security Act 1991 (Cth) ss 4(2) (a), 4(3), 1236, 1237A, 1237AAD.

Cases

Pelka v Secretary, Department of Family and Community Services  (2006) 151 FCR 546
Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous affairs [2011] AATA 404

Re Secretary Department of Family and Community Services and VBH [2006] AATA 1

REASONS FOR DECISION

Dr Damien Cremean, Senior Member

22 August 2018

BACKGROUND

1. The Applicant in each of these matters is the Secretary, Department of Social Services (‘Secretary’).

2. In 2017/2094 the Respondent is Mr Yien Lam.

3. In 2017/2098 and 2017/2101 the Respondent is Ms Nyadowni Wang.

4. In 2017/2094 the Secretary seeks review of the decision of the Social Services & Child Support Division of the Tribunal (AAT1) given on 1 March 2017, which set aside a decision of an Authorised Review Officer (‘ARO’) made on 15 September 2016 cancelling the Respondent’s entitlement to Austudy, effective 26 August 2016.

5. In 2017/2098 and 2017/2101 the Secretary seeks review of two decisions of AAT1, given on 1 March 2017. The first decision set aside a decision of an ARO made on 13 September 2016 to cancel the Respondent’s entitlement to PPS (Parenting Payment Single) and raised a debt against her owed to the Commonwealth of Australia (the Commonwealth). The second decision, set aside a decision of an ARO made on 25 November 2016 to raise and recover FTB (Family Tax Benefit) debts. Each matter was remitted to the Secretary with directions.

   ISSUES

6. In all matters a finding was made (by whom) that at relevant times Mr Lam and Ms Wang were single and were not members of a couple within the meaning of s 4(2) of the Social Security Act 1991 (Cth)(‘the Act’)

7. Section 4(2)(a) of the Act provides:

   (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…

8. For the purposes of s 4(2)(a), the Act s 4(3) provides:

   In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

   (a)  the financial aspects of the relationship, including:

   (i)  any joint ownership of real estate or other major assets and any joint liabilities; and

   (ii)  any significant pooling of financial resources especially in relation to major financial commitments; and

   (iii)  any legal obligations owed by one person in respect of the other person; and

   (iv)  the basis of any sharing of day‑to‑day household expenses;

   (b)  the nature of the household, including:

   (i)  any joint responsibility for providing care or support of children; and

   (ii)  the living arrangements of the people; and

   (iii)  the basis on which responsibility for housework is distributed;

   (c)  the social aspects of the relationship, including:

   (i)  whether the people hold themselves out as married to, or in a de facto relationship with, each other; and

   (ii)  the assessment of friends and regular associates of the people about the nature of their relationship; and

   (iii)  the basis on which the people make plans for, or engage in, joint social activities;

   (d)  any sexual relationship between the people;

   (e)  the nature of the people’s commitment to each other, including:

   (i)  the length of the relationship; and

   (ii)  the nature of any companionship and emotional support that    the people provide to each other; and

   (iii)  whether the people consider that the relationship is likely to continue indefinitely; and

   (iv)  whether the people see their relationship as a marriage‑like relationship or a de facto relationship.

9. The main issue in dispute is whether Ms Wang and Mr Lam were members of a couple at relevant times. Other issues depend on a finding on the main issue and include whether the debts of Mrs Wang should be waived or written off.

   HEARING

10. All three applications were heard together as they involved a common set of facts and had issues in common. The hearing was conducted over several days and was fragmented due to language and significant interpreter difficulties. Ms Wang was represented by Ms Nola Karapanagiotidis of Counsel, instructed by Victoria Legal Aid. Mr Lam was represented by Ms Tamara Spence, solicitor of the Darwin Community Legal Centre who appeared by telephone. The Secretary was represented by Ms Kellie Latta, solicitor of Sparke Helmore Lawyers.

11. Ms Wang (via interpreter) and Mr Lam gave evidence at the hearing. The Respondents appeared by telephone. The Secretary called no evidence from any witnesses. All the parties filed detailed submissions after the hearing.

    SUMMARY OF EVIDENCE

    Ms Wang

12. Ms Wang gave evidence supportive of her Witness Statement dated 22 September 2017.

13. Ms Wang was born on 31 December 1976 in Sudan. She married Mr Lam on 13 November 2005 in Egypt and arrived in Australia after him in May 2006. She and Mr Lam separated on 27 July 2009 due to many problems.

14. Ms Wang and Mr Lam have had five children together—the last three born since the date of separation. She indicated that Sudanese culture encourages large families. She also said that since separation she had not had sex with another man.

15. From the date of separation, Ms Wang says, she and Mr Lam have remained separated. Since 2011, Ms Wang and her children but not Mr Lam, have lived at an address in Narre Warren South. Ms Wang says Mr Lam and she have not shared our finances or our financial obligations. At the same time, Mr Lam has made payments of child support.

16. Ms Wang says her name was added to Mr Lam’s bank account, held with the Commonwealth Bank of Australia (CBA), so that it was in joint names but she has not accessed or used this account.

17. A loan document was obtained by Ms Wang to purchase a car but that was because she needed another person to appear on the document as guarantor. She said she paid out the loan by herself as she was solely responsible for it.

18. Ms Wang said Mr Lam has had contact with the children but has not seen them since he moved to Darwin in March 2017. Mr Lam helped out in the past by taking the oldest child, who suffers from spina bifida, to medical appointments. However, Mr Lam did not attend the births of the last three children.

19. Ms Wang says her current financial circumstances are desperate. She lives alone with her five children and is their sole carer. She says she has no income at all. However, she indicated that an understanding exists in the Sudanese community to help members out financially.

    Mr Lam

20. Mr Lam gave evidence supportive of his Witness Statement dated 15 June 2017.

21. Much of Mr Lam’s Witness Statement contains information in common with the statement of Ms Wang. Mr Lam says that he and Ms Wang separated in July 2009 as their relationship had deteriorated and they were arguing constantly. In February 2013 Mr Lam says he commenced studying for a degree at Victoria University.

22. Mr Lam gave the Narre Warren South address as his address to the University and kept giving it because this was the address on his driver’s licence. After separation, Mr Lam says he kept the bank account which was in their joint names but he has been the sole user of the account. Mr Lam says he has never in fact lived at the address at the Narre Warren South address.

23. Mr Lam agrees that he and Ms Wang continued to have a sexual relationship after separation, resulting in the births of three more children. He says this is because Ms Wang wanted to have more children. He agrees that he did visit the children after separation and did take the oldest child to medical and hospital appointments.

24. Mr Lam agrees his name is on a loan document for the purchase of a car but he says he signed the document so Ms Wang could get finance which she otherwise would not have obtained. Mr Lam also agrees his name was on insurance paperwork for the new car but this was because he says Ms Wang could not get insurance at the time, having only a provisional licence. Mr Lam says he has made no financial contribution towards the payments on the vehicle or insurance.

25. Mr Lam says he now lives in Alice Springs in the Northern Territory.  He moved there on or about 4 April 2017 as he was told that his job prospects may be good there.

26. Mr Lam says he communicates with Ms Wang by telephone regularly about the children but has no wish to return to a marital relationship.

    SUMMARY OF SUBMISSIONS

    The Secretary

27. The Secretary submits that whether Ms Wang and Mr Lam are members of a couple under s 4(2)(a) of the Act must be determined objectively, on the totality of the evidence and having regard to the factors set out in s 4(3) of the Act.

28. The Secretary submits that considering the factors set out in s 4(3) the Tribunal should determine on the evidence Ms Wang and Mr Lam have been members of a couple since their alleged separation.

29. This is based on the financial aspects of the relationship between them; the nature of the household; the social aspects of the relationship; the sexual relationship between them and the nature of their commitment to each other. These are all matters referred to in s 4(3) of the Act.

30. On the financial aspects of the relationship, the Secretary refers to Ms Wang and Mr Lam’s joint bank account, and notes they both applied for financing with Toyota Finance Australia Ltd in October 2011. The Secretary refers to the financing document and to the car insurance. The Secretary notes that Ms Wang in her tax return for the financial year ended June 2012 lists a vehicle owned by Mr Lam as a tax deduction.

31. Regarding the nature of the household, the Secretary notes that the statements for the joint bank account are addressed to both Respondents. The Secretary refers to the address at Narre Warren South which is Ms Wang’s address but which has been an address given by Mr Lam on various occasions.

32. The Secretary submits that Ms Wang and Mr Lam held themselves out to society as being members of a couple for the purposes of obtaining financing and insurance.

33. On sexual matters, the Secretary notes that the Respondents are still legally married and have had five children together and that three of them were conceived after the date of separation. The Secretary notes that they have had an ongoing sexual relationship and contends that neither has had a relationship with anyone else.

34. The Secretary submits the commitment of Ms Wang and Mr Lam to each other shows a level of support qualitatively different to the relationship they have with other persons.

35. Considering all these matters, the Secretary submits that Ms Wang and Mr Lam, irrespective of their subjective beliefs, have been members of a couple at all relevant times

36. The Secretary, therefore, submits that the decisions under review should be set aside.

    Ms Wang

37. The written submissions of Ms Wang largely respond to those of the Secretary.

38. Ms Wang submits that, on balance, the evidence does not support a finding that Mr Lam and she are still members of a couple after separation. This is so despite their having had three further children after separation.

39. Alternatively, it is submitted that a confident finding that Ms Wang and Mr Lam have been members of a couple since separation cannot be made.

40. The decisions under review therefore should be affirmed as regards the issue of Mr Lam and her not being members of a couple.

41. Ms Wang submits that any debts owing to the Commonwealth should be written off or waived under the Act or A New Tax System (Family Assistance)(Administration) Act 1999(Cth) (FAA Act). 

    Mr Lam

42. The written submissions of Mr Lam follow much of the ground covered by Ms Wang.

43. Mr Lam submits that the decisions under review represent a sound assessment of the relationship between Ms Wang and him, and give a balanced and rational view considering all the evidence.

44. Mr Lam submits that having regard to the evidence, which should be accepted, it should be found they have not been members of a couple since separation.

45. Accordingly, he submits that the decisions of AAT1 should be affirmed and the cancellation of Mr Lam’s Austudy should be set aside.

    ANALYSIS

46. The opening condition to the operation of s 4(2)(a) of the Act is satisfied - Ms Wang and Mr Lam are legally married.

47. The question then is whether they are or have they been living separately and apart on a permanent or indefinite basis. This depends upon the application of the criteria set out in s 4 (3) of the Act, in light of the evidence.

48. I agree with Senior Member Handley that s 4(3) of the Act overwhelmingly specifies objective criteria. (See Re Secretary, Department of Family and Community Services and VBH [2006] AATA 1 at [94].)

49. In considering a matter under s 4(2)(a) the Tribunal must have regard to the total picture of the relationship created by all the factors in s 4(3). (See Pelka v Secretary, Departmentof Family and Community Services (2006) 151 FCR 546at [46] per French J.)

50. I am clear that the role of the Tribunal — to address the alternative submission of Ms Wang — is to decide what is the correct or preferable decision on the evidence before it. Its role is not to be confident about whether a decision is the correct or preferable one.

51. I am satisfied that Ms Wang and Mr Lam separated on 28 July 2009. And on the evidence before me, considering the matter afresh, that the correct or preferable decision is that since separation Ms Wang and Mr Lam have not been members of a couple and have been living separately and apart on a permanent or indefinite basis. I note Mr Lam has no wish to return to the marital relationship and that he and Ms Wang have been separated for nearly nine years now.

52. I am satisfied therefore that the requirements of s 4 (2)(a) of the Act are met.

    Financial aspects

53. The financial aspects of the relationship between Ms Wang and Mr Lam do not justify a finding that they have been members of a couple since separation. It is true that a joint CBA bank account has existed in the names of both Ms Wang and Mr Lam. I am asked by the Secretary to draw an inference that they therefore have been members of a couple since separation.

54. I note this account in their joint names was opened on 22 May 2006 - over 3 years before their separation. Another account they had in their joint names was closed on 10 February 2009. However, nothing of relevance arises from this in respect of the period after July 2009. A Smart Access account was opened by Ms Wang in her name alone on 28 July 2009, which I consider is significant. This is the day she lodged a Centrelink crisis payment application form. That date is also given as the date of separation from Mr Lam.

55. Many people (eg business associates) have accounts in their joint names without being members of a couple. Therefore, I do not regard merely having an account in joint names  as of itself significant in the case of Ms Wang and Mr Lam.

56. I note also, in evidence which I accept, that Ms Wang has not used or accessed any funds in the joint account. I agree with the submissions on behalf of Ms Wang that therefore there’s no activity in the account that can be connected with her. Unidentified deposits and withdrawals from this account, which the Secretary refers to, do not by definition show involvement of any person who can be identified.

57. The Secretary notes there is no evidence that Ms Wang is unable to access the joint account. This is not in my view a point of great substance or weight. The fact that Centrelink payments of Ms Wang and Mr Lam were paid into the account until at least mid-2009 is of no assistance to the Secretary in respect of the period after July 2009.

58. There is however evidence of separate bank accounts in Ms Wang’s name alone and I consider this important.

59. The Tribunal is asked also to find that Ms Wang and Mr Lam are members of a couple based on finance documents. Reference is made to a pooling of financial resources. See s 4(3)(a)(ii) of the Act.

60. One such document is a loan document with Toyota Finance Australia Ltd. There is reference in that document (dated 11 October 2011 — over 2 years after the date of separation) to Ms Wang and Mr Lam being a de facto couple. I lack information about how that reference found its way into that document. It is not handwritten and it was possibly inserted by the salesperson at the time or by someone else at the loan company. That person may have given it as their opinion of the relationship, but that person was not called to give evidence to clarify the issue. An obvious question is: why would Ms Wang and Mr Lam say they were in a de facto relationship when they were legally married?

61. The Secretary’s argument that they made a representation to the loan company that they were in a de facto relationship seems unfounded. I, therefore, am unable to draw the inference that the Secretary seeks, based on the loan document.

62. In any event, I accept the explanation given by Mr Lam and Ms Wang, that Mr Lam’s name was needed on the document for the loan to be obtained. There is no evidence to other or contrary effect. I cannot regard as significant how Mr Lam and Ms Wang are described in notes on a loan document unless I am satisfied that this is how they described themselves at the time. I am unable to be so satisfied.

63. I am unable to make a finding on the evidence available concerning how or why a Toyota vehicle appears as a tax deduction in Ms Wang’s income tax return for the year ending 30 June 2012. As I recall, Mr Lam may have said in evidence that this was his vehicle. This however does not assist me with respect to the completion of Ms Wang’s tax return. I regard it as important, and I accept, that it was Ms Wang who paid out the loan on the car, the subject of the loan, because it was her responsibility. Mr Lam did not make any payments.

64. I note that no one from Toyota Finance Australia Ltd was called to give evidence in support of Ms Wang and Mr Lam regarding the loan document. At the same time the Secretary did not seek to call evidence from any person at that company either.

65. Without the evidence of someone from Toyota Finance Australia Ltd, I am unable to say whether the Secretary is correct in saying the fact that [Ms Wang] was on a provisional licence would not have prevented her from obtaining a loan.

66. The Secretary submits there is no evidence to support [Ms Wang’s] claim that she was unable to obtain a loan without Mr Lam. I have said, however, that I accept the evidence of Mr Lam and Ms Wang on this point because their account is credible.

67. The Secretary submits that given [Ms Wang] was the person with the greater income, it seems unlikely that she would have required Mr Lam in order to obtain the loan. The Secretary does not explain the basis on which he contends this is so.

1. The submission of Ms Wang characterises this as an unsubstantiated assertion, which I consider is accurate.

2. It is correct that the Direct Debit Request nominates both Ms Wang and Mr Lam as account holders of the account to be debited. Apart from noting the account was in Ms Wang’s name — a point not without significance — the Secretary does not adequately explain how this is important.

3. The Secretary notes that Mr Lam has paid child support to Ms Wang and rightly agrees that this is evidence that they are not members of a couple. This is an important concession in my view.

4. The evidence in this matter, which I accept, is that since separation Ms Wang and Mr Lam do not have shared finances or a shared household. There is no evidence Ms Wang and Mr Lam share living expenses.

   Nature of the household

5. The nature of the household does not enable me to find that Ms Wang and Mr Lam have continued as members of a couple since separation.

6. The Secretary points to the various addresses on file, including the one at Narre Warren South, as indicating Ms Wang and Mr Lam are or have been a couple. Reliance is placed on the CBA statements being sent to them at that Narre Warren South address, and previously to addresses in Springvale South and Dandenong. Reliance is also placed on the Toyota Finance Australia Ltd loan document naming Narre Warren South as the address of both Ms Wang and Mr Lam.

7. I am unable to draw an inference from these matters that, therefore, Ms Wang and Mr Lam have been members of a couple. How documents, particularly letters and correspondence, are addressed provides little or nothing in the way of evidence about the nature of a relationship existing at an address.

8. Moreover, I am unable to see how an inference of Ms Wang and Mr Lam being a couple is sustainable in light of the Centrelink document recording a crisis application payment form being issued to Ms Wang on 28 July 2009.

9. The Secretary’s submissions acknowledge that that document is some evidence that Ms Wang moved out of the home on that date. In my view, the Secretary understates the significance of that document.

10. The evidence of Mr Lam explaining his use of the address at Narre Warren South on his licence, and in University records, is evidence which I accept because Mr Lam impressed me as a witness of truth.

11. The evidence of Ms Wang, is that since about January 2011 she has resided at that address with her children, while Mr Lam has maintained a separate home since separation and this is evidence I accept.

12. The evidence is that Ms Wang and Mr Lam have not shared day-to-day living expenses since separation. I accept this evidence because Ms Wang and Mr Lam impressed me as a witness of truth.

13. Furthermore, the evidence is that from August 2010 Mr Lam resided at a Dandenong address but has since April 2017 lived interstate. Mr Lam indicated he was living at the Dandenong address with his cousin but the rent certificates seem to show a different arrangement. Therefore, I am unable to make a finding from this that he and Ms Wang continued to live together from separation.

14. It is true, as the Secretary points out, that Mr Lam’s cousin was not called to give evidence but I do not regard this as significant in the circumstances. I would note that it was open to the Secretary to take steps to call the cousin or someone from the agency to give evidence if desired. It is not justifiable in my view to proceed from this omission to saying it is consistent with Mr Lam continuing to live with Ms Wang at Narre Warren South. The two are simply not connected and moreover more than mere consistency is needed to show Mr Lam continued to live at the Narre Warren South address. In any event, the evidence which I accept is that Mr Lam has never actually resided at the Narre Warren South address.

    Social aspects of the relationship

15. The social aspects of the relationship do not lead me to find that Ms Wang and Mr Lam have continued as members of a couple from separation.

16. The Secretary refers to representations made by Ms Wang and Mr Lam to various companies that they are members of a couple in order to obtain financing and insurance. I have dealt with this submission under the Financial Aspects heading.

17. I am otherwise unclear about the representations referred to by the Secretary. I am unclear what other representations are being referred to, and when and where and to whom these representations were made. The Secretary notes there is limited evidence regarding the social activities of Mr Lam or Ms Wang but that both appear to be involved in the Sudanese community.

18. In my view Ms Wang and Mr Lam appearing to be involved in the Sudanese community is of no assistance to the Secretary. I would expect they would be involved in the Sudanese community — separately or together. I am not provided with any evidence of events in the Sudanese community Ms Wang and Mr Lam may have attended as a couple. As I recall in any event Ms Wang and Mr Lam both indicated in evidence that they did not attend social occasions together and did not go to community occasions as a couple.

19. There is evidence given by Ms Wang that the Sudanese community in Melbourne has helped her out financially, in accordance with cultural norms. This is not consistent with the social aspect of the relationship between Ms Wang and Mr Lam as being members of a couple. I agree with Ms Wang’s submissions that there is no evidence before me that she and Mr Lam are socially regarded as a couple.

    Sexual relationship

20. I am unable to find that a sexual relationship between Ms Wang and Mr Lam has continued between them as members of a couple from separation. The Secretary notes that since separation Ms Wang and Mr Lam have had three children together. The Secretary says this is clear evidence of an ongoing relationship between Ms Wang and    Mr Lam; particularly since on the available evidence neither has had a relationship (sexual or otherwise) with any other person. It is hard to accept, I would agree, that a married couple who have yet more children together are not members of a couple. But it is a different point, in my view, whether it can be said that the couple therefore have an ongoing sexual relationship, particularly if they are separated and living apart.

21. There is some oral evidence from Mr Lam and Ms Wang that Sudanese culture encourages having many children. This may explain Ms Wang falling pregnant on the three occasions in question despite already having two children. Also, Mr Lam and Ms Wang stated that Sudanese culture may dictate that Ms Wang could not have more children with another man. No independent evidence from anyone in the Sudanese community was called by either Ms Wang or Mr Lam in support of these cultural matters.

22. However, it is plainly possible for two persons to conceive children, even on three occasions, without necessarily being members of a couple.

23. I consider it is possible for married persons to conceive children and not have an ongoing sexual relationship. I accept Ms Wang’s evidence that she had sex with Mr Lam after separation for the sole purpose of conceiving children. Mr Lam, as I recall, indicated that sexual relations were initiated by Ms Wang on each occasion.

24. Therefore, I am unable to make a finding on the basis of the evidence that Ms Wang and Mr Lam have had an ongoing sexual relationship. I note it is pointed out that on the available evidence neither Mr Lam nor Ms Wang have had a relationship (sexual or otherwise) with any other person since separation. I do not consider that not having a sexual relationship with another person is enough to find that Ms Wang and Mr Lam therefore have had an ongoing sexual relationship.

25. If Ms Wang and Mr Lam were members of a couple at the times when they conceived the youngest three children, I cannot make a finding - for lack of evidence - that they were members of a couple in an ongoing sexual relationship in the times in between each conception and after the last child was conceived. There is also the fact that since April 2017 Mr Lam has lived in the Northern Territory.

    Nature of the commitment

26. I am unable to make a finding that Ms Wang and Mr Lam have been members of a couple since separation based on the nature of their commitment. The Secretary notes that Ms Wang and Mr Lam are legally married but this is not in issue. Ms Wang and Mr Lam have been separated since 28 July 2009.

27. In an earlier Tribunal decision (Pencev and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2011] AATA 404 at [49]) there is a reference by Senior Member Bell to companionship and emotional comfort. I see no evidence on which I may make findings of companionship or emotional comfort between Ms Wang and Mr Lam in the period since separation.

28. Since separation from Ms Wang, Mr Lam did not attend the hospital for the birth of any of the three youngest children. Ms Wang referred in evidence to the practical support with the children provided by Mr Lam but it is erroneous to say this suggests a level of support that is indicative of them being members of a couple. It merely shows Mr Lam acknowledging parental responsibilities.

29. It is also true that since separation, at least until he moved to Alice Springs, Mr Lam would help out with visits to the doctor and so on; but I cannot see that he did this as a sign of commitment to Ms Wang as members of a couple.

30. Again the Secretary refers to the ongoing sexual relationship between Ms Wang and Mr Lam from separation in 2009. I have commented on this above. Mr Lam is very clear he does not want to resume the marital relationship and he of course is living in the Northern Territory, as I have noted.

    CONCLUSION

31. I have considered the evidence objectively in this matter in light of all the factors mentioned in s 4(3) of the Act, to ascertain the total picture of the relationship between Ms Wang and Mr Lam. Having done so, I am satisfied on all of the evidence that Ms Wang and Mr Lam fall within s 4(2)(a) of the Act.

32. That is to say, I am satisfied they are legally married but have been and are living separately on a permanent or indefinite basis and have been doing so since the date of separation. It follows, in my view, that since that date Ms Wang and Mr Lam have each been a single person and not a member of a couple.

33. Regarding the application numbered 2017/2094 against Mr Lam; this means I affirm the decision under review in favour of Mr Lam.

34. Regarding the application numbered 2017/2098 and 2017/2101 against Ms Wang, I set aside the decisions under review in favour of Ms Wang as discussed below.

    OTHER ISSUES

35. I find no basis for the cancellation of Mr Lam’s Austudy because I consider the decision to cancel his Austudy was based upon him being a member of a couple with Ms Wang and living with her at the Narre Warren South address, which I find is not correct.

36. According to the Secretary’s Statement of Facts and Contentions dated 21 July 2017, Ms Wang owes the Commonwealth a sum of $64,905.97 for FTB and a further $98,854.13 for PP. This was on the basis that the decision being sought contained a component whereby Ms Wang and Mr Lam were members of a couple.

37. I am unclear on the materials before me what should now be the position, in light of my findings, with respect to any entitlement in her to PP for the period between 21 January 2011 and 15 July 2016 or otherwise.

38. A further issue raised on Ms Wang’s behalf is whether her indebtedness should be written off under ss 1236 or 1237A or 1237AAD of the Act or under s 95 or s 97 or s 101 of the FAA Act.

39. This issue was dealt with by AAT1 and it was decided to remit the matter as regards FBT with a notation that her entitlement be reassessed on the basis of her being single but with the notation also that the recalculated FTB debts in respect of the period from 1 July 2009 to 30 June 2014 are recoverable in full.

40. AAT1 decided to remit the matter as regards PP with a notation that any recalculated PP single debts are recoverable in full.

41. I am unable in the materials to identify administrative error on the part of the Commonwealth. Otherwise though, I consider that the questions of her entitlements to PP and FBT and her indebtedness are best dealt with by being remitted for reconsideration.

42. In that regard, information presented on behalf of both the Secretary and Ms Wang may need revision and recalculation with further updated detail as regards any special circumstances she contends apply in her case.

43. I consider I should make a direction accordingly.

44. The reviewable decisions of AAT1 in applications 2017/2098 and 2017/2101 are set aside and remitted to the Applicant on the basis that:

    (a)Mrs Wang’s eligibility for parenting payment single at 22 July 2016 is to be re-assessed on the basis that she is single and not a member of a couple;

    (b)Parenting payment single debts in respect of the period 24 January 2011 to 27 March 2016 are to be re-calculated on the basis that Mrs Wang is single and not a member of a couple;

    (c)Information in respect of Mrs Wang’s earnings from 28 March 2016 to 16 July 2016 are to be acquired and the corresponding amounts of parenting payment single she received in excess of her entitlements re-calculated;

    (d)Mrs Wang’s entitlement to family tax benefit is to be re-assessed on the basis that she is single and not a member of a couple from 27 July 2009;

    (e)any debts raised from the parenting payments are to be assessed for writing off or waiving pursuant to ss 1236, 1237A or 1237AAD of the Act; and

    (f)any debts raised from the family tax benefit are to be assessed for writing off or waiving pursuant to ss 95, 97 or 101 of the FAA Act.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Dr Damien Cremean, Senior Member

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

Associate

Dated: 22 August 2018

Date(s) of hearing:

26 September 2017, 2 October 2017, 31 October 2017 and 23 November 2017

Date final submissions received:

5 December 2017

Advocate for the Applicant:

Ms Kellie Latta

Solicitors for the Applicant:

Sparke Helmore Lawyers

Advocate for Mr Lam:

Solicitors for Mr Lam:

Counsel for Ms Wang:

Ms Tamara Spence

Darwin Community Legal Service

Ms Nola Karapanagiotidis

Solicitors for Ms Wang:

Victoria Legal Aid