Luong Nguyen and Secretary, Department of Education, Employment and Workplace Relations and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 246
•30 April 2012
[2012] AATA 246
| Division | GENERAL ADMINISTRATIVE DIVISION |
| File Number | 2011/0171 |
| Re | Luong Nguyen |
| APPLICANT | |
| And | Secretary, Department of Education, Employment and Workplace Relations and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs |
| RESPONDENTS |
DECISION
| Tribunal | Regina Perton, Member |
| Date | 30 April 2012 |
| Place | Melbourne |
The Tribunal varies the decision under review and substitutes a decision that the applicant was a member of a couple from 16 March 1993 to 3 April 1996, 1 September 1996 to 31 December 1996, 1 January 2000 to 28 February 2000, 1 September 2003 to 30 November 2003 and 13 January 2007 to 13 March 2007.
The Tribunal remits the matter for recalculation of the debt based on the above dates.
The Tribunal sets aside the decision under review concerning cancellation of the applicant’s parenting payment (single) and substitutes a decision that on 9 December 2009, the applicant was not a member of a couple.
........................[sgd]...............................
Regina Perton
SOCIAL SECURITY - parenting payment (single), family tax benefit and other social security benefits - whether member of a couple - debt to Commonwealth - decision varied as to dates that applicant was a member of a couple – remitted for fresh calculations – cancellation of parenting payment on specified date not justified on chosen date.
Social Security Act 1991 ss 4(2), 4(3), 1223(1), 1236, 1237AAD
A New Tax System (Family Assistance) Act 1999 s 3
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Lynam v Director-General of Social Security (1983) 52 ALR 128
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Ryde v Secretary, Department of Family and Community Services [2005] FCA 866
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
Regina Perton 30 April 2012
Luong Nguyen is the mother of three children. She has lived in Australia since the late 1980s after arriving as a refugee. She had one year of formal education in Vietnam and is illiterate in Vietnamese and English.
Ms Nguyen’s first child was born in October 1991 following a short liaison. She has not had contact with her first son’s father since before she became aware of her pregnancy. Her other two children, a son born in September 1993 and a daughter born in March 2004, were fathered by Na Van Doan. Ms Nguyen claims to have had an on and off relationship with Mr Na between 1993 and mid-2009. They have not married. Ms Nguyen received social security payments as a single parent for much of that 16 year period. Ms Nguyen and Mr Na have jointly owned properties throughout most of the period.
Centrelink, which administers social security payments on behalf of other Government agencies, decided that as from 9 December 2009, Ms Nguyen would not receive payments as a single person on the basis that she was partnered. Debts were raised for overpayment of various benefits Ms Nguyen had received between November 1991 and 8 December 2009.
Ms Nguyen conceded that she was partnered for some but not all of the period determined by Centrelink and sought internal review of the decision. An authorised review officer (ARO) of Centrelink re-examined Ms Nguyen’s circumstances. On 11 August 2010 the ARO determined that the debt should date back to 17 June 1993 rather than to 7 November 1991 and adjusted some of the other dates thereby lowering the debt by a considerable amount. The ARO agreed that Centrelink’s decision to cancel parenting payment (single) from 9 November 2009 was correct. As a result of the ARO’s decision, the debts as at 11 August 2010 were as follows:
Sole Parent Pension (SPP) debt of $1,586.50 for the period 17 June 1993 to 12 August 1993;
SPP debt of $1,420.14 for the period 26 August 1993 to 7 October 1993;
SPP debt of $17,928.60 for the period 18 April 1996 to 19 March 1998;
Parenting Payment Single (PPS) debt of $3,641.07 for the period 20 March 1998 to 19 March 2000;
PPS debt of $48,631.57 for the period 20 March 2000 to 8 December 2009;
Family Tax Benefit (FTB) debt of - $649.19 (“top up” amount) for the period 1 July 2006 to 30 June 2007;
FTB debt of $1,276.26 for the period 1 July 2007 to 30 June 2008;
FTB debt of $1,633.15 for the period 1 July 2008 to 30 June 2009.
Ms Nguyen lodged an application with the Social Security Appeals Tribunal (SSAT) on 27 August 2010. On 4 January 2011 the SSAT affirmed the decisions under review.
On 14 January 2011 Ms Nguyen lodged an application for review with the Tribunal.
The issues before the Tribunal are:
Was Ms Nguyen a member of a couple during the relevant periods?
If so, was Ms Nguyen paid social security benefits to which she was not entitled?
If so, are the overpayments a debt to the Commonwealth?
Is Ms Nguyen entitled to the debts being written off or waived?
Was the decision to cancel Ms Nguyen’s PPS from 9 December 2009 correct?
WAS MS NGUYEN A MEMBER OF A COUPLE DURING THE RELEVANT PERIODS?
Section 4 of the Social Security Act 1991 (the Act) in effect prior to 1 July 2009 set out the criteria for deciding whether a person is a member of a couple as follows:
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in the paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary’s opinion (formed as mentioned in subsections (3) and (3A), a marriage-like relationship;
….
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(ii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(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
(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.
On 1 July 2009, there were amendments to s 4 of the Act but the provisions relevant to this relationship as cited above remained the same. Section 3 of the Family Assistance Act 1999 (the FA Act) essentially contained the same provisions.
In determining whether two people are living in a marriage-like relationship under the Act, O'Loughlin J at paragraph 20, in Staunton Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170, referred to the list of circumstances in s 4(3) of the Act:
It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
French J in Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 dealt with ss 4(2) and 4(3) of the Act in the context of an application for a carer payment. He referred to the decision in Staunton Smith and to the decision of Fitzgerald J in Lynam v Director General of Social Security (1983) 52 ALR 128. He stated that in determining whether a marriage like relationship exists under the Act, the nature of the exercise is much the same as that required under the statutory formula used in Lynam and Staunton Smith. In Lynam, Fitzgerald J said, at 131:
Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
The Full Federal Court, in Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92 (Pelka No. 2) (which followed a rehearing by a differently constituted Tribunal following the 2006 Pelka decision by French J) stated (at paragraph 24):
There is nothing in s 4(3) that requires the relevant decision maker to make a finding of fact as to any of the matters specified in that provision. Rather, the decision maker is required to have regard to all the circumstances of the relationship, including the specified matters, in forming an opinion about the relationship between two people. Having regard to a matter does not require making a finding of fact about that matter…
At paragraph 30 of Pelka No. 2, the Court stated:
The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person…
The Tribunal heard oral evidence from Ms Nguyen, Mr Na Van Doan, Ms Ngan Thi Bich Truong (Mr Na’s ex-wife) and Ms Co Thi Hien (Ms Nguyen’s sister-in-law). A Vietnamese interpreter facilitated communication. Centrelink provided a vast amount of documentation, particularly concerning the financial aspects of the relationship.
Financial aspects of the relationship
Ms Nguyen and Mr Na have shared ownership of a number of properties, one property at a time. Their first property purchase together was in June 1995 when they purchased a house as tenants in common in equal shares (the first property).
In August 1998 Ms Nguyen and Mr Na were registered as joint proprietors of another property in the same suburb as the first (the second property). They held that property until September 2006. The second property was vacant land on which they built a house.
In December 2006 Ms Nguyen and Mr Na jointly purchased a property in another part of the same suburb.
Ms Nguyen stated that she would not have been able to purchase a home on her own given her low level of income and savings. She said that if they wished to have a legacy for their children, she had to get Mr Na to invest his money in a house or else he would have spent it gambling. She said that she went through a short gambling phase as well.
Ms Nguyen and Mr Na have always maintained separate bank accounts for any money that they received; generally moneys from Centrelink or her family in Ms Nguyen’s case, and from wages, business receipts or social security benefits in that of Mr Na. When they owned particular properties, they shared a mortgage account. Ms Nguyen also had an account she held in trust in her second son’s name which had commenced prior to May 2007.
In terms of Ms Nguyen’s involvement in a sewing business Mr Na ran, it appears that her financial and physical involvement was very little if at all.
The evidence concerning the basis for sharing household expenses was that when they lived together, they shared expenses. However, when they were apart, each met their own expenses. Any moneys that Mr Na provided to Ms Nguyen when they were separated appeared to go towards the mortgage on the property they owned at the time.
Based on the available evidence, the financial relationship could be viewed as those expected of parties in an ongoing partnership. However, it can also be viewed from the perspective of a wish to own property to pass on to their children and to have some security in circumstances where neither parent can afford to purchase a property in their own right. The Tribunal is of the view that in more recent years, the latter motivation dominated although not necessarily throughout the 16 years under review.
The nature of the household
An amalgamation of evidence, including Centrelink’s records, reflects that Ms Nguyen and Mr Na were sharing accommodation and living as a couple from a date commencing somewhere between 16 March 1993 and 20 August 1993 depending on the source document and oral evidence. They appear to have split up for the first time on 3 April 1996. The documentation included statements and oral evidence given by each of the two at various times; health care cards showing Ms Nguyen and their son born in September 1993 on the same card as Mr Na; information provided by Mr Na in an application for Newstart Allowance lodged in December 1993 in which he stated that the de facto relationship commenced in August 1993; and a Statement of Financial Circumstances lodged by Ms Nguyen in February 1994 which gave a date of August 1993 as the commencement of living with Mr Na.
On 7 October 1993, payment of social security benefits to Ms Nguyen on the basis of her being a single parent ceased. This was because she was considered to be a member of a couple with Mr Na. She continued to receive parenting payments on the basis of the combined income of herself and Mr Na.
On 9 April 1996 an Interim Intervention Order was issued against Mr Na following an application by Ms Nguyen. This followed police attendance at their shared property on 4 April 1996 following a domestic dispute.
On 19 April 1996 Ms Nguyen advised Centrelink in a Separation Details form that she had separated from Mr Na on 4 April 1996. She also lodged a claim for a pension on that day as a single parent. She recommenced receipt of benefits as a single parent of two children as from 18 April 1996. Ms Nguyen indicated that she continued to live at the first property. She indicated that she paid $500 of the $710 mortgage repayment with Mr Na contributing the rest.
Mr Na gave his address as the first property in January 1997 when he lodged a fresh claim for Newstart Allowance. In the form, he described his marital status as married since 1990. In July 2002 Mr Na gave that same address when he again applied for Newstart Allowance but described his marital status as separated. He stated that he worked as a sewing machinist subcontractor from his home until 30 June 2002. In a form entitled Separation details which Mr Nguyen completed on 25 July 2002 with assistance from a Centrelink officer and an interpreter, Mr Nguyen stated that he was not sure when he separated from Ms Nguyen but thought it might have been 1994. He stated that his former partner lived next door to the second property.
As indicated earlier, in December 2006 Ms Nguyen and Ms Na purchased their third property together. In their loan application, they were described as spouses. It was not entirely clear if this was a description of convenience, in order to obtain the loan, or an accurate description of the relationship at that time.
In April 2008 Mr Na married Ngan Bich Thi Truong in Vietnam. It took some months for his new bride to be granted her visa. Mr Na had initially moved into the third property but moved out on the arrival of his bride in Australia. Ms Ngan told the Tribunal that she and Mr Na had not lived together in the third property but elsewhere. She said that she and Mr Na separated in February 2011.
In December 2008 Ms Nguyen signed a statement asserting that her ex-partner, Mr Na, had moved out of the third property in October 2008 and she had moved in. She stated that she was still separated from him but they chose to purchase a house together as neither of them could get a loan of their own. They were concerned about having a property for their children. Ms Nguyen stated that she would pay the mortgage but he would assist whenever he had money to help. Ms Nguyen stated that her siblings and a loan obtained via the local community assisted with the purchase as well as proceeds from the sale of the previous property.
Records which Centrelink obtained from VicRoads in April 2009 indicated that Ms Nguyen’s addresses since 1995 for her driver’s licence were the first property from November 1995, the second property from May 2000 and the third property from 19 December 2006. Mr Na’s addresses for his driver’s licence from 1995 were the rental properties they shared until August 2000 when the address became the first property and then the third property from December 2006. VicRoads did not have the second property listed as Mr Na’s address at any time.
Addresses on each of their bank separate bank accounts accorded with the properties they owned as did a joint mortgage account for the relevant properties. The address for Ms Nguyen in hospital records at the time of time of her daughter’s birth in early 2004 was not one of the properties she co-owned with Mr Na but the address of her sister-in-law, Ms Co, who lived next door to the second property. Ms Co gave written evidence that Ms Nguyen lived with her from mid-1999 to October 2009 although in oral evidence she was unable to state the dates with any certainty.
In oral evidence both Ms Nguyen and Mr Na said that he had conducted a business in the double garage of the home they co-owned but for most of the time he did not live as if he were Ms Na’s partner. They stated that they were reconciled for a time. The difficulty for the Tribunal is determining those periods during which they were reconciled.
In terms of taking joint responsibility for caring for the children, it is clear that financially, both parents did so when it came to providing a home. It is less clear when it came to actual physical care. The evidence suggests that it was Ms Nguyen who provided more of the primary care but Mr Na also appeared to care for the children from time to time. It was difficult to obtain detailed evidence about this aspect of care.
In terms of sharing household expenses, both Ms Nguyen and Ms Na both contributed to the mortgage. In terms of other expenses, the situation is unclear. Ms Nguyen stated that when they were separated, she was responsible for food, clothing and the like for herself and the children.
The social aspects of the relationship
As indicated earlier, there is documentation before the Tribunal indicating that at certain points of time, such as mid-1993 to April 1996, Ms Nguyen and Ms Na identified themselves as a couple. However, regardless of their relationship status both have seen their roles as parents as being important.
Ms Nguyen said that it was only on special occasions like weddings that she and Mr Na might both share an outing. Both of them gave evidence that they lived fairly separate lives even when they were a couple.
The Tribunal did not have evidence from others who know both Mr Na and Ms Nguyen, such as her siblings or older children. Ms Nguyen gave the impression that her siblings were fond of on Mr Na but there was no solid evidence of this. Ms Nguyen indicated that she did not want her children or siblings to know the details of her difficulties with Centrelink.
Any sexual relationship between the people
Mr Na is the father of two of Ms Nguyen’s three children. Clearly there was a sexual relationship between them at some stage. Their son was born during the three years when Ms Nguyen and Mr Na conceded that they had been in a relationship. Both Mr Na and Ms Nguyen gave evidence that they had attempted to reconcile a few times but the attempts soon ended in arguments and recriminations. They were together for a few weeks when their daughter was conceived in 2003 but both stated that they split up soon after. Ms Nguyen said that she was living with her sister-in-law at the time of the daughter’s birth and this has been corroborated by the records of the hospital where the birth took place.
The Tribunal is not in a position to make any findings beyond those above on this aspect of their relationship.
THE NATURE OF THE PEOPLE'S COMMITMENT TO EACH OTHER
The relationship between Mr Nguyen and Ms Na appears to have commenced in late 1992 at the latest. The quality of their relationship with each other has waxed and waned. However they have both remained committed to the children and share a wish to provide for the children’s financial security.
Mr Na appears to provide some financial support for Ms Nguyen in terms of sharing ownership of a property. He also looks after their daughter from time to time. However there seems to be minimal emotional support by Ms Nguyen to Mr Na or vice versa. He did not marry Ms Na but in 2008, he married a younger Vietnamese woman whom he sponsored to Australia. That marriage has now ended.
Beyond sharing ownership of a house and being parents of two children, neither Ms Nguyen nor Mr Na see their relationship continuing in other ways.
None of the witnesses before the Tribunal believed the Ms Nguyen and Ms Na were still a couple. However, the Tribunal did not have any evidence before it from any of Ms Nguyen’s siblings or other friends whom she could have called to give evidence.
The Tribunal accepts that Mr Nguyen and Mr Na have not been living in the same household continuously throughout the years that are the subject of this matter. When they were sharing a home, it appears that for much of the time, Mr Na was working hard but he also had periods of unemployment. They both found it difficult to remember the dates when they were together and when not.
Assessment of the relationship
This case is one where the Tribunal must consider a relationship which commenced almost twenty years ago. The Tribunal is satisfied that at some stage over those years, Ms Nguyen and Mr Na should be considered as members of a couple. The Tribunal is, however, also satisfied that there were also periods where they should not be considered as such. The dilemma is how to determine the relevant dates. The Tribunal’s task is made more difficult by Ms Nguyen and other witnesses being unable or unwilling to remember dates. There are also a number of examples of muddling the dates and other evidence. However, that is not surprising given: the length of time involved in this matter; the sometimes conflicting evidence; Ms Nguyen’s illiteracy; her and her former partner’s lapses in notifying Centrelink and other authorities such as VicRoads of changes of address and relationship details; and the tension caused by giving evidence in a matter where there has been a threat of prosecution hanging over her which is yet to be resolved.
How then to decide when the relationship was on and when it was off? Fortunately the Tribunal has been assisted by a submission provided by the respondents’ representative on the last of the five days of the hearing. The submission suggests that Ms Nguyen was a member of a couple with Mr Na for at least the following dates: 16 March 1993 to 3 April 1996, 1 September 1996 to 31 December 1996, 1 January 2000 to 28 February 2000, 1 September 2003 to 30 November 2003 and 13 January 2007 to 13 March 2007. The submission includes an analysis of the evidence to support the suggested dates, whilst also leaving it open to the Tribunal to decide that the applicant was a member of a couple with Mr Na for additional periods and the basis for making such findings.
In relation to the commencement of their cohabitation as partners, Ms Nguyen and Mr Na both stated to Centrelink in October 1993 that they had commenced living together in August 1993. In oral evidence to the SSAT and the Tribunal, Ms Nguyen stated that they started living together after Ms Nguyen knew she was pregnant with their child who was born in September 1993. Mr Na gave evidence that he started living as a de facto partner when it was quite physically obvious that Ms Nguyen was pregnant.
The ARO and the SSAT determined the initial date of cohabitation as partners as being March 1993. However, both Ms Nguyen and Mr Na, back in October 1993, stated that the pertinent date was 20 August 1993. The respondents submitted that Mr Na had a health care card issued in his name on 23 December 1992 which was replaced on 16 March 1993 to include Ms Nguyen’s name and included one child. At the time they commenced living together as a couple, Ms Nguyen’s first son was in their care. The Tribunal accepts that, on the balance of probabilities, the documentary evidence of the change of health care card on 16 March 1993 is a more appropriate date for the commencement of Ms Nguyen’s relationship as a member of a couple with Mr Na than the date given in the forms presented on 20 August 1993 which were lodged after it was discovered that they were a couple.
In relation to the other dates submitted by the respondents as to when Ms Nguyen was a member of a couple, the Tribunal accepts the respondents’ rationale which is to a large extent an accurate analysis of the oral and documentary evidence.
The Tribunal agrees with the respondents’ submission that the evidence contains a number of inconsistencies concerning aspects of the relationship during other parts of the total period under review. However, the Tribunal believes that even if there were further in-depth investigations by the respondents with others involved in Ms Nguyen’s life including siblings, friends and acquaintances, it is unlikely that there would be readily available and definitive evidence of the dates when she and Mr Na should be considered to be a couple. Furthermore, the Tribunal is satisfied that the purchase of the properties together was strongly motivated by a need for security for the children and for Mr Na and Ms Nguyen to have a foothold as individuals in the property market rather than being indicative of an ongoing relationship as a couple. In these circumstances, the Tribunal finds that Ms Nguyen was a member of a couple on the dates cited in the respondents’ final submission, as they are the correct dates on the evidence available to the Tribunal.
WAS MS NGUYEN OVERPAID SOCIAL SECURITY PAYMENTS AND IF SO, ARE THE OVERPAYMENTS A DEBT TO THE COMMONWEALTH?
In view of the Tribunal's finding that Ms Nguyen was a member of a couple during the dates specified, she was not entitled to payment of a social security benefit as a single parent. The Tribunal is satisfied that during the relevant periods cited, Ms Nguyen received moneys to which she was not entitled. The Tribunal is not in a position to determine the amounts overpaid which now represent a debt to the Commonwealth under the provisions of the relevant pieces of legislation. The Tribunal therefore remits the matter to the respondents to recalculate the debt to the Commonwealth based on the dates that Ms Nguyen has been found to be a member of a couple.
SHOULD THE DEBT BE WRITTEN OFF OR WAIVED?
Section 1236 of the Act and its equivalent in the FA Act provide for a write off of the debt under certain circumstances. However, the debt is not irrecoverable at law. Therefore, there are no grounds to write off the debt.
Section 1237A of the Act and its counterpart in the FA Act provide for waiver of a debt to the Commonwealth arising from sole administrative error by the Commonwealth, if the payment was received by the debtor in good faith. The Tribunal finds that the debt was not attributable to any administrative error by the Commonwealth, so the debt cannot be waived on this ground.
Section 1237AAD of the Act (and a similar provision in the FA Act) provides for waiver of the debt in special circumstances:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive;…
The term special circumstances has been considered in many Federal Court and Tribunal cases. In Ryde v Secretary, Department of Family and Community Services [2005] FCA 866 Branson J stated at paragraph 26 that the circumstances of a particular case must give rise to hardship or unfairness sufficient to justify departure from the general rule. In Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25 Besanko J stated, in respect of special circumstances (at paragraph 33):
… I also note that the authorities have emphasised time and again the importance of maintaining flexibility in determining what constitutes special circumstances… It was not the intention of Parliament to confine the exercise of the discretion to an exceptional case…there must be something that distinguishes the case from the ordinary or usual case ….
The Tribunal accepts that repaying a large amount of money will cause difficulties for Ms Nguyen. However, the Tribunal is not satisfied that the situation that she finds herself is vastly different from the situation of other social security recipients who have incurred debts due to overpayments. The method and rate of repayment is usually negotiable. The Tribunal is not satisfied that the circumstances in this case constitute special circumstances (other than financial hardship alone). Hence, the Tribunal finds that the waiver provisions of s 1237AAD of the Act should not be invoked.
SHOULD MS NGUYEN’S PARENTING PAYMENT HAVE BEEN CANCELLED ON 9 DECEMBER 2009?
The Tribunal has determined that Ms Nguyen was a member of a couple at various periods up to and including 13 March 2007. However the Tribunal is not satisfied that she was still a member of a couple as at 9 December 2009. At that time Mr Na was married to Ms Ngan and living with her in a different property to Ms Nguyen. Notwithstanding some suspicions about Mr Na’s motivations or that of his much younger and better educated bride, there is no evidence that the marriage was one of convenience. Given Mr Na had married someone else in early 2008 who arrived in Australia in late 2008, the Tribunal is not satisfied that Ms Nguyen was a member of a couple with Mr Na on 9 December 2009. There is no evidence that she was in a relationship with anyone else.
The Tribunal therefore finds that Ms Nguyen was not a member of a couple on 9 December 2009. Therefore her parenting payment should not have been cancelled on that date on the basis of her still being a member of a couple.
DECISIONS
The Tribunal varies the decision under review and substitutes a decision that the applicant was a member of a couple from 16 March 1993 to 3 April 1996, 1 September 1996 to 31 December 1996, 1 January 2000 to 28 February 2000, 1 September 2003 to 30 November 2003 and 13 January 2007 to 13 March 2007.
The Tribunal remits the matter for calculation of the debt based on the above dates.
The Tribunal sets aside the decision under review concerning cancellation of the applicant’s parenting payment (single) and substitutes a decision that on 9 December 2009, the applicant was not a member of a couple.
| I certify that the preceding 62 (sixty two) paragraphs are a true copy of the reasons for the decision of Regina Perton. |
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Administrative Assistant Legal
Dated 30 April 2012
| Dates of hearing | 7 - 11 November 2011, 14 December 2011 |
| Applicant | In person |
| Advocate for the Respondent | Mr T Noonan, Program Litigation and Review Branch, Department of Human Services Legal Division |
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