Marshall and Secretary, Department of Education, Employment and Workplace Relations and Anor

[2010] AATA 1045

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1045

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           No 2008/5002

GENERAL ADMINISTRATIVE DIVISION		)
Re		SHONA MARSHALL

Applicant

And SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

First Respondent

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Second Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date22 December 2010

PlaceAdelaide

Decision

The tribunal sets aside the decision under review, and in place of that decision decides that Ms Marshall was a member of a couple during the period from 1 August to 15 December 2004 (the overpayment period), and  remits the matter to the respondents for reconsideration in order to:

(a)      calculate the overpayment of parenting payment single in respect of the overpayment period and the overpayment of family tax benefit in respect of the financial year ended 30 June 2005;

(b)      raise debts for the amounts of such overpayments; and

(c) determine whether the resulting debts should be written off pursuant to s 1236 of the Social Security Act 1991 (Cth) and s 95 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth).

D G Jarvis
  ... [Signed] ...
  Deputy President

CATCHWORDS

SOCIAL SECURITY - Family Tax Benefit - parenting payment single - continued joint ownership of house property - applicant’s husband working long shifts at remote country centres - only occasionally returning to jointly owned home - consideration of relevant criteria - held that applicant a member of a couple during part only of period in issue - decision under review set aside.

Social Security Act 1991 (Cth), ss 4(2) and (3) and 24(1)

Social Security (Administration Act) 1999 (Cth), s 152(4)

A New Tax System (Family Assistance) Act 1999 (Cth), s 3

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth), s 71

Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546

R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327

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

Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6^th Edition, 2006)

REASONS FOR DECISION

22 December 2010   Deputy President D G Jarvis

1.      A decision was made by a Centrelink Authorised Review Officer (ARO) to affirm a decision that the applicant, Shona Marshall, should be considered to have been a member of a couple with her husband, John Yeates, for the period from 28 November 1998 to 25 January 2005 (the relevant period).  The ARO also affirmed a decision to raise and recover a debt of $64,993.08 arising from an overpayment of parenting payment single (PPS) for the relevant period, and a second debt arising from an overpayment of Family Tax Benefit (FTB) of $19,235.79 for the financial years 2001 to 2005 inclusive.

2.      The decisions of the ARO were subsequently affirmed by the Social Security Appeals Tribunal (SSAT).  Ms Marshall has applied to this tribunal for review of the decision of the SSAT.

Issues before the tribunal

3.      The issues before the tribunal are:

(a)whether Ms Marshall and her husband should be considered to be members of a couple during the relevant period;

(b)whether there have been overpayments of PPS during the relevant period, and of FTB for the relevant financial years;

(c)whether the overpayments are debts due to the Commonwealth, and if so, whether all or part of the debts should be waived or written off. 

4.      Whilst Ms Marshall disputes that she has received overpayments of PPS or FTB to which she was not entitled, she has not disputed the calculation of the amount of the asserted overpayments.

Background

5.      The following facts were not in contention, and are based upon the evidence of Ms Marshall, including her witness statement (exhibit A1), and the documentary material before me.

6.      Ms Marshall and Mr Yeates had a sexual relationship while they were both living in Peterborough.  This resulted in the birth of Ms Marshall’s children, a daughter born in 1992 and a son born in 1993.  However, she and Mr Yeates did not live together, and she thought that he was not prepared to commit to her and her children as a family.  She accordingly moved to Adelaide in September 1996 to take up work.

7.      Mr Yeates had been working for Australian National, but his work at Peterborough finished and he obtained a transfer to the head office in Adelaide.  He met up with Ms Marshall again, and they subsequently agreed that he would move into the house which Ms Marshall was renting in Adelaide.  He did so in January 1997, and the parties were married in September of that year.

8.      In 1998, Ms Marshall bought a block of land.  She and Mr Yeates subsequently agreed to build a house on the block, and the property was owned in their joint names.

9.      In about May or June 1998, before the new house was finished, Mr Yeates left and was away for a protracted period.  Ms Marshall did not know where he was and had no contact with him, until about May 1999, when their son saw him playing football at a local oval.  Ms Marshall said that she then went and spoke to Mr Yeates, and he asked to go to the house to see the children.  Ms Marshall did not demur because he was the children’s father.

10.     At that time, and during the remainder of the relevant period, Mr Yeates was working at remote country centres in other States, with long shifts away.  After contact with him was renewed, he returned to the jointly owned property on infrequent occasions because he wanted to see his children.  Ms Marshall was under intense financial pressure, and the parties later put their financial affairs into the hands of a firm of financial planners, at the suggestion of a social worker from Centrelink.

11.     The parties remained married, but finally the marriage broke down on 25 January 2005, being the end of the relevant period.

12.     Evidence referring to the relationship between the parties during the relevant period was provided not only by Ms Marshall, but also by Mr Yeates and by a mutual friend, one Alan Raymond Neander.  I now refer to this further evidence.

Evidence of the applicant

13.     Ms Marshall had difficulty remembering dates when she gave evidence, and was emotional in describing relevant events.  Nevertheless, many of the matters she raised were not contested, and indeed were confirmed by the evidence given by Mr Yeates.  I accept that Ms Marshall did her best to give an honest account of the relationship of the parties, and I accept her evidence except where otherwise indicated.

14.     After describing the events leading up to the decision to build a jointly owned house, Ms Marshall said that she injured her knee in a sporting accident in October 1997, and had to stop working.  She was covered by an insurance policy, and received monthly payments for about one year.  In August 1998, she had a knee reconstruction, and had a long period of convalescence after that.  Her family looked after her and her children until she was well enough to manage.

15.     She gave evidence that Mr Yeates was very unhappy when she was unable to bring home a wage to support herself and her children.  She regarded this as a turning point in their relationship, because he then had to support her and the children fully.  According to her witness statement (exhibit A1) he became absent on and off from the end of October 1997 onwards, and would say that he had to work away.  After his disappearance in 1998 and his subsequent reappearance in about May 1999, she requested him to pay maintenance, and said that he owed her a year’s maintenance.  She said that he should have been paying $780 per month.

16.     Mr Yeates saw the children on several days after he reappeared in 1999, but he did not stay at the house.  By August or September 1999 he had gone away again “nowhere to be found” (exhibit A1, page 4).

17.     Ms Marshall said that in the years from 2000 to 2002, Mr Yeates returned home “only occasionally”.  She said that by that she meant once or twice a year, or perhaps three times a year.  When he returned she would demand financial support and they would fight, and after spending perhaps three days at the house he would take the children away to see his mother who lived at Crystal Brook.  During this period Ms Marshall’s niece came to live with her also, so that for a time she was caring for five children.

18.     On those occasions when Mr Yeates returned to the house he and Ms Marshall did not sleep in the same room.  Sometimes she would sleep in the car because of the tension between them.  In 2001 their daughter went to live with Ms Marshall’s mother, and after that Mr Yeates would sleep in their daughter’s room.

19.     In January 2003 Mr Yeates had been working at Southern Cross, a remote centre in Western Australia, and Ms Marshall gave evidence that he asked her to go there to sort out their differences regarding the house property and children.  He paid for her fare to go there, but she had to stay there for a month, living in a caravan park with her second cousin, because she had to wait for two Centrelink payments before she had enough money to return to Adelaide.  She said Mr Yeates was working in two different places and lived apart from her.  She emphatically denied in cross-examination that there was any reconciliation at that time.  In her witness statement, she said that by then she felt hate for him, he made her feel sick and was a “controlling pig”.  Ms Marshall also said that in 2003, Mr Yates started to take an interest in her elder son by a prior marriage, and her son starting working with him, somewhere in Victoria.  Her son would come home on his days off. 

20.     Between January and March 2004 Mr Yeates did not return to South Australia at all.  In April and May 2004 he came to see the children and would take them to his mother’s place.  He stayed away in June and July 2004, and in July 2004 his mother died.  It was after that, that Ms Marshall came to understand that his work involved a routine of 21 days work and 9 days off, and she said in evidence that he started spending all his days off at the home in Adelaide.  She gave evidence that in December 2004, she could not handle this any more; the children’s behaviour had changed, and she asked him to find other accommodation.  She said that she had also started to see another male friend in May or June 2004.

Evidence of Mr Yeates

21.     Mr Yeates was called by the Secretary, and gave evidence by telephone.  He said that he had previously been employed by Australian National, and in about 1999 joined a company called Harsco Track Technology.  He said that he used to work in different country places, including Horsham, Stawell and Ararat, and would stay in cabins in a caravan park.

22.     He confirmed that during his 9 days off, he would return to Adelaide to see his children, and would sleep on the lounge or in a bed or bunk with his young son, but after two or three days he would leave or go back to work because he and Ms Marshall would fight, and she would tell him to leave.  He was asked whether he would say that they were a couple prior to January 2005, and he replied:

“Well, married, just by paper, but we fought like cats and dogs and I went and came ... I wanted to see my kids.  That was all I wanted.”

23.     He also said that after Ms Marshall moved to Adelaide, he caught up with her and then they “sort of got together again, but ... this is when I got married, and then after that it all went sour.  That was 1999.”  He admitted that he left for quite a while after that; he did not think that it was for 11 months, but said it might have been.

Legislative Provisions

24. The rate of parenting payment varies according to whether or not a person is a member of a couple: see Part 3.6A of the Social Security Act 1991 (Cth) (SS Act). If a person is not a member of a couple, the person is entitled to PPS calculated in accordance with s 1068A at the single rate, and the rate is not reduced by the income of the person’s partner.

25. Section 4(2) of the SS Act provides in effect that a person is a “member of a couple” for the purposes of that 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 … .”

26. Under s 4(2) of the SS Act, the Secretary (and now this tribunal standing in the shoes of the Secretary) is required to have regard to all the circumstances of the relationship between two people, including in particular certain enumerated matters. Section 4(3) provides as follows:

“4(3)    Member of a couple – criteria for forming opinion about relationship.  In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

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

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

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

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

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

(b)the nature of the household, including:

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

(ii)the living arrangements of the people; and

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

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

(i)whether the people hold themselves out as married to each other; and

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

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

(d)any sexual relationship between the people;

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

(i)the length of the relationship; and

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

(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.”

27.     Provision is made for family tax benefit in A New Tax System (Family Assistance) Act 1999 (Cth) (“FA Act”), and that Act is implemented under the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (FA Administration Act). Under s 3(1) of the FA Act, the expression “member of a couple” has the same meaning as in the SS Act.

Consideration - Was the Applicant a Member of a Couple? 

28.     The matters listed in s 4(3) of the SS Act are not exhaustive, since the decision-maker’s obligation under that section is “to have regard to all the circumstances of the relationship including in particular the (enumerated) matters.”  I refer to the discussion at [6.56] to [6.60] in D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia, (6^th Edition, 2006) in relation to the meaning of the word “includes” in this context.  It is clear that the decision-maker is required to assess the totality of the evidence and other available material in order to decide whether an applicant for a pension is a member of a couple, taking into account that the personal circumstances of people vary substantially: see Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at 170; Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.

29.     It is nevertheless necessary to “have regard to” the relevant matters, and this expression has been interpreted to entail a requirement to take the relevant matters into account and give weight to them as a fundamental element in the decision-making process: R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327 at 333.

30.     In Pelka (supra) French J, after setting out the provisions of s 4(2) and (3) of the SS Act, reviewed a number of authorities where the courts have considered various analogous criteria or statutory formulae to determine whether a marriage-like relationship existed. His Honour provided at [46] what is, with respect, a most helpful summary of the effect of the authorities. He said:

“Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:

1.   Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).

2.   Must have regard to each of:

(a)    the financial aspects of the relationship;

(b)    the nature of the household;

(c)    the social aspects of the relationship;

(d)    any sexual relationship between the people;

(e)    the nature of the people’s commitment to each other.

3.   In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).

4.   Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.

5.   Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:

(a)  financial cooperation;

(b)  cohabitation;

(c)  a sexual relationship;

(d)  cooperative household arrangements;

(e)  mutual commitment.”

Financial aspects of the relationship

31.     According to Ms Marshall’s evidence Mr Yeates made no contribution to the expenses of her or their children or the repayment of the mortgage over the jointly owned home from about May or June 1998 when he disappeared until when contact was made with him again in about May 1999.  She said that by then he was indebted to her for maintenance for the children in the order of more than $9,000, and she had also made some payments to the mortgagee of monthly instalments which were then about $800 per month.  As a co-owner Mr Yeates was jointly liable for these instalments.  By the time he reappeared in May 1999, he was accordingly significantly indebted to Ms Marshall.

32.     In the early part of the relevant period, Ms Marshall was struggling financially, and at one stage the electricity was cut off for about four weeks.  Ms Marshall admits that at that stage, she wrongly told Centrelink that she was receiving maintenance from her husband, so that her Centrelink payments could be adjusted on that basis.  She said that after Mr Yeates reappeared in or about May 1999, maintenance was a big issue between them.

33.     After he returned Mr Yeates gave Ms Marshall an American Express card in his name for her to use.  He said that this was to make up for the maintenance he owed.  However, she said that he had to approve the use of the card.  She was able to use it to buy such things as floor tiles at a cost of about $700, and some clothes and a bed for the children, and she estimates that she spent about $4,000 to $5,000 on those things and other things for the home.  He also gave her a card on an account he had with the CPS Building Society, but she said that although she tried to use the card, nine times out of ten, there was never any money in the account.

34.     In 1999 or 2000, Ms Marshall went to Centrelink and spoke to a social worker there.  As a result, arrangements were made for the finances of Ms Marshall and Mr Yeates to be managed by an organisation called The Financial Managers.  Ms Marshall said that she needed to secure Mr Yeates’ cooperation for this to be put in place, and whilst there was some delay contacting him, he agreed to cooperate.  The T documents include a copy of ledgers covering a period commencing on 31 December 2001 and extending until July 2003.  At my request Centrelink endeavoured to obtain the records of The Financial Managers prior to 31 December 2001, but Centrelink was informed that they no longer have records prior to that date, and could not say when their involvement commenced, but the last deposit of funds into their trust account was made on 24 July 2003.

35.     The records in the T documents show that Mr Yeates’ salary was paid into a trust account of The Financial Managers, who paid a range of expenses from that account, including mortgage instalments, electricity expenses, water rates, telephone expenses and sundry household expenses.  In addition, regular withdrawals were made from the account by Ms Marshall and to a lesser extent by Mr Yeates.  The withdrawals by Ms Marshall covering the period 9 January 2002 to 28 July 2003 total nearly $27,000 or an average, on my calculations, of about $1,420 per month (see exhibit R1, T14, pages 213 – 214).  Ms Marshall said that on occasions, Mr Yeates would ask her to obtain funds from The Financial Managers, and then deposit the funds into his account.  However, I can see no matching entries in the financial records before me that confirms that this occurred, and I proceed on the basis that all of the withdrawals shown as having been made by Ms Marshall were in fact retained by her.

36.     Ms Marshall said that she had endeavoured at one stage to buy out Mr Yeates’ interest in the home, but could not obtain the finance to do so.  She also endeavoured to re-arrange accounts related to the joint ownership of the home for such things as utilities, but was unable to do so because the accounts were in arrears and she could not afford to bring them up to date.

37.     Ms Marshall acknowledged that the house property was refinanced on two occasions, and this necessitated the agreement of both her and Mr Yeates, and their executing relevant mortgage documents.  Ultimately, they were unable to keep up the payments on the house, and it was sold and the net proceeds were divided between them.  Ms Marshall said that there was little money left over for her after she had paid legal expenses.

38.     The T documents also include statements of accounts held by Ms Marshall and Mr Yeates in their own names.  At my request, Centrelink also obtained further information about certain significant credits to the account in Ms Marshall’s name.  These revealed that with one exception, the relevant deposits were made by Ms Marshall’s son, and not by Mr Yeates.

39.     The evidence as to the financial arrangements between Ms Marshall and Mr Yeates in the periods before and after the involvement of The Financial Managers is not clear, but certainly during the period of their involvement, there was a pooling of financial resources, and at least some sharing of household expenses.  In addition, the house was owned in joint names.

Nature of the household

40.     From the evidence before me, this is not a case where the parties assumed joint responsibility for providing care or support for their children.  When they were living in Peterborough, Mr Yeates was not prepared to provide such care or support, and soon after the marriage, he absented himself for a long period and made no contact with Ms Marshall or the children.  After that, he did provide financial support and clearly wanted to see the children, although he only did so occasionally and spasmodically until after his mother died in July 2004.  I find that Ms Marshall assumed the major responsibility for providing care or support for the children at least until his mother’s death, and Mr Yeates assumed very little of this responsibility.

41.     Mr Yeates said that he referred to the jointly owned property as his place of residence when providing his address to various third parties.  However, I place little store by this, bearing in mind that during the relevant period he worked at so many different country centres for relatively short periods of time.

42.     I have referred above to the parties’ living arrangements.  On those occasions when Mr Yeates stayed at the house, the parties did not live together in the customary way as a husband and wife, and Ms Marshall would apparently only cook sometimes for him, and if he was late arriving home, she would not cook for him.

43.     On the odd occasions when he did come home, he said he sometimes did housework; he would clean the back yard, or if Ms Marshall had gone to play darts, he would cook the children a meal and do the dishes.  Once again, it is apparent that Ms Marshall carried out the large majority of the housework.

Social aspects of the relationship 

44.     Ms Marshall called the witness, Alan Raymond Neander, and he gave evidence that he knew Ms Marshall and Mr Yeates from about 1999 or 2000 onwards, and got to know them both through their children, because his children and their children played sport together.  He saw less of them after some years, but was not sure about dates.  When asked if he had any opinion as to their relationship with each other, he said that in his opinion they were “virtually only a couple by paperwork”, but it was “for show more than anything else”.  He added that when people were around it appeared at times that they were committed to one another as a married couple, but with close friends that was not how it was.

45.     No other evidence was led from friends or other associates of Ms Marshall and Mr Yeates.  However, it is apparent from the evidence that Mr Yeates was only at the jointly owned home on comparatively rare occasions.  Ms Marshall also said that she enjoyed competitive darts which she would play at a local hotel, and this was not apparently a pursuit that Mr Yeates participated in.

46.     It was put to Ms Marshall in cross-examination that she and Mr Yeates had had holidays together.  I have already referred to the visit to Southern Cross. She was also asked about a visit to Kangaroo Island, and said that Mr Yeates had been included in that visit to provide company for her best friend’s husband.  Ms Marshall also agreed that she had gone to Brisbane to meet with her husband, but said that he was working there and she went there to try to sort out difficulties with the house and maintenance.  Mr Yeates acknowledged that he was working in Brisbane and at Southern Cross at the relevant times, and said that he flew her to those places “for fun”.  He was not asked to comment on Ms Marshall’s version of these visits, and I do not think that they demonstrate that they constituted joint holidays, or evidence of a holiday together as a married couple.  There was no other evidence before me that suggested that the parties made plans for, or engaged in, joint social activities.

Sexual relationship

47.     Each party was asked about this matter.  They each confirmed that there had been virtually no sexual relationship between them during the relevant period.

Nature of commitment to each other 

48.     The parties had no relationship as a couple until after Ms Marshall went to Adelaide in September 1996, notwithstanding that they had previously had a sexual relationship that resulted in the birth of their two children sometime before.  After that their relationship as a couple committed to each other subsisted for a comparatively short time, until about May 1998, when Mr Yeates disappeared.  After he reappeared, there was no evidence that there was any mutual companionship or emotional support, and the parties clearly did not see their relationship as a marriage-like relationship.  Mr Yeates merely wanted to see his children, and Ms Marshall permitted this.  Their joint ownership of the home came to an end after the relevant period, and proceedings have been taken in the Family Court in relation to property settlement issues.  Ms Marshall said that she had been unable to afford to take proceedings for divorce.

Overall assessment 

49.     Mr Visser, the advocate for the Secretary, submitted that the issue of whether Ms Marshall was a member of a couple for the purposes of the SS Act should be determined objectively, and that the views of the parties were not determinative.  He referred in support of his submission to Re Secretary, Department of Family and Community Services v VBH and Another [2006] AATA 1 at [94] where Senior Member Handley said:

“The s 4(3) criteria does [sic] have some subjective components but it is overwhelmingly objective in nature and in construct.  Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3).  The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.”

I agree with respect with these remarks.

50.     In summary, this is a matter where whilst the parties have been married to one another during the relevant period, they have effectively lived separately and apart except for comparatively infrequent occasions.  On those occasions, they were together merely because of Mr Yeates’ desire to spend time with the children, and there was no companionship or marriage-like relationship between them.

51.     I have referred above to the evidence relating to the criteria referred to in s 4(3) of the SS Act.  Except for one criterion, namely the financial aspects of the relationship, the other criteria all weigh against Ms Marshall being a member of a couple during the relevant period.  However, there is strong evidence that during the period from 31 December 2001 to 24 July 2003, the parties’ financial resources were pooled.  An important policy reason behind the provisions providing for a reduction in pensions when a recipient is a member of a couple is that ordinarily, couples should be expected to pool their resources and should enjoy some reduction in their joint living expenses.  On the face of it, this criterion should weigh heavily in a determination as to the status of the parties during that part of the relevant period.

52.     As against this, the pooling of finances must be viewed in the content of Mr Yeates’ prior indebtedness to Ms Marshall, and his legal obligation to provide maintenance for his children.  Further, it is acknowledged by both parties that during the period when The Financial Managers were involved, Mr Yeates spent very little time living with Ms Marshall, due to his work in remote locations, and because on those relatively few occasions when he did return to Adelaide on leave, he spent only two or three days living at the jointly owned home.  The economies that ordinarily would follow from the pooling of resources and living together were therefore not available in this case.  In these circumstances, I think that the criterion in s 4(3)(a), which relates to financial aspects, is not sufficient to outweigh the relevance of the other criteria during any part of the relevant period from its commencement on 28 November 1998 until July 2004.

53.     In July 2004, Mr Marshall’s mother died, and Ms Marshall acknowledges that Mr Yeates spent his intermittent periods of 9 days’ leave living at the jointly owned home.  There is a paucity of evidence as to the financial arrangements between the parties during this time, but I infer that Ms Marshall continued to require a financial contribution from Mr Yeates towards the support of her and their children, and that he provided ongoing assistance with at least some pooling of finances.  It also appears that he became increasingly involved with their children, although this was not welcomed by Ms Marshall.

54.     However, during the period from July 2004 until the parties finally separated in January 2005, Ms Marshall became increasingly concerned at Mr Yeates’ influence over the children, and the extent to which he unsettled their behaviour.  According to her witness statement, she no longer felt safe in her own home, and in December 2004, she asked him to find other accommodation because she could not handle things any more.

55.     There was no evidence before me as to the date of the death of Mr Yeates’ mother or the dates of the first period of 9 days’ leave that Mr Yeates spent at the jointly owned home.  Nor is there evidence of the date in December when Ms Marshall told him to leave the home.  Doing the best I can on the state of the evidence before me, I conclude that it would be reasonable to find that Ms Marshall and Mr Yeates were members of a couple during the period from 1 August to 15 December 2004.

56.     It follows that there has been overpayments of PPS and FTB during the period referred to in the preceding paragraph, and that debts for these overpayments should be raised pursuant to the SS Act and the FA Administration Act.

Should the debts be waived?

57.     Under s 1237AAD of the SS Act, the tribunal has a discretion to waive the recovery of the debts in special circumstances.  Corresponding provisions appear in s 101 of the FA Administration Act.  Section 1237AAD provides as follows:

“1237AAD  Waiver in special circumstances

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a)the debt did not result wholly or partly from the debtor or another person knowingly:

(i)        making a false statement or a false representation; or

(ii)failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and

(b)there are special circumstances (other than financial hardship alone) that make it desirable to waive; and

(c)       it is more appropriate to waive than to write off the debt or part of the debt.”

58.     As mentioned above, Ms Marshall provided incorrect information to Centrelink early in the relevant period when she advised that Mr Yeates was paying her maintenance.  This resulted in an increased payment of pension.  There was no evidence that she had corrected this misinformation prior to or during the above period from 1 August to 15 December 2004.  The debts raised against her accordingly partly resulted from her having knowingly made a false statement to Centrelink.  In these circumstances, by virtue of s 1237AAD(a)(i), the Secretary (and this tribunal on the hearing of applications to review decisions of the SSAT) is precluded from exercising the discretion to waive or write off any part of the debt because of special circumstances.

59.     For the sake of completeness, I add that I have also considered the discretion conferred by s 24(1) of the SS Act.  This confers a discretion to treat a person as not a member of a couple for a special reason in the particular case, notwithstanding that the person is married to the other person and not living separately and apart from the other person on a permanent or indefinite basis.  I am not satisfied that any sufficient reason exists to warrant the exercise of discretion under that section during the period in 2004 where I have found that the parties should be treated as members of a couple.  That section might well apply to the parties’ position during the period prior to 1 August 2004, including in particular the period when the parties’ finances were being managed by The Financial Managers, but I am satisfied for other reasons that the parties were not members of a couple prior to 1 August 2004.

Should the debts be written off? 

60. Under s 1236 of the SS Act and s 95(2) of the FA Administration Act, write off is available only if one or more of the four conditions in the provision is met. Those four conditions are:

(a)      the debt is irrecoverable at law; or

(b)      the debtor has no capacity to repay the debt; or

(c)the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d)it is not cost effective for the Commonwealth to take action to recover the debt.

61.     I understand that Ms Marshall has already made some repayments of the debts previously raised.  These repayments have been made partly from weekly instalments and partly by deduction from tax refunds that would otherwise have been paid to her.

62.     Ms Marshall gave evidence that at present she is receiving benefits from WorkCover because of a work-related injury that prevents her from working, and she is not receiving any social security benefits.  That evidence was provided in June 2010.  After that, the proceedings were adjourned to enable further investigations to be made, and when the hearing resumed on 30 September 2010, further inquiries and submissions were lodged later again.

63.     There is therefore no evidence before me of Ms Marshall’s present financial circumstances, or as to the balance of the debts that will remain outstanding as a result of my decision in this matter.

64. I accordingly think it appropriate to remit this matter to the Secretary for reconsideration, to enable the Secretary to consider whether or not it is appropriate to exercise the discretion conferred by s 1236 having regard to my decision in these proceedings and Ms Marshall’s present financial circumstances.

Decision

65.     The tribunal sets aside the decision under review, and in place of that decision decides that Ms Marshall was a member of a couple during the period from 1 August to 15 December 2004 (the overpayment period), and remits the matter to the respondents for reconsideration in order to:

(a)calculate the overpayment of parenting payment single and family tax benefit in respect of the overpayment period and the overpayment of family tax benefit in respect of the financial year ended 30 June 2005;

(b)raise debts for the amounts of such overpayments; and

(c)determine whether or not the resulting debts should be written off pursuant to s 1236 of the Social Security Act 1991 (Cth) and s 95 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)..

I certify that the 65 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G Jarvis

Signed:   .... [signed]...
  B Bills  Admin Assistant

Date/s of Hearing  29 June 2010 and 30 September 2010
Date of Decision  22 December 2010

Date of final submissions
received  9 November 2010

Applicant  In Person
Advocate for the Respondent   Mr C Visser
Solicitor for the Respondent     Centrelink Advocacy Branch