Mavruk and Secretary, Department of Social Services (Social services second review) - [2015] AATA 997

Mavruk and Secretary, Department of Social Services (Social services second review) [2015] AATA 997 (21 December 2015)

Division

General Division

File Number

2014/5286

Re

Fatma Mavruk

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Ms G Ettinger, Senior Member

Date 21 December 2015

Place Sydney
The Tribunal varies the decision of the SSAT dated 29 September 2014 to find that Mrs Mavruk has been a member of a couple with Mr Mavruk from 1991 to the date of these Reasons for Decision. Accordingly the debt of parenting payment claimed at the single rate incurred since Mrs Mavruk first claimed it on 28 July 1994 must be recovered.

..............................[sgd]..........................................
Ms G Ettinger, Senior Member
CATCHWORDS
Member of a couple – Applicant married for 24 years – whether the Applicant and her husband were living separately and apart from one another on a permanent or indefinite basis from 1991 to the date of the decision – parenting payment single claimed from 1994 - overpayment raised – bankruptcy does not serve to extinguish the debt – fraud pursuant to the Bankruptcy Act 1966 - no special circumstances - decision under review varied to accommodate recalculation of debt amount.
LEGISLATION
Social Security Act 1991 ss 4(2), 4(3) 1236, 1237AAD

Social Security (Administration) Act 1999

Bankruptcy Act 1966 (Cth) s 153
CASES
CWJT and Secretary Department of Education, Employment and Workplace Relations [2012] AATA 910

Pelka and Secretary, Department of Family and Community Services (2006) FCA 735
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Re Civitareale and Secretary, Department of Social Services (1999) 57 ALD 54
Re Fode v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 543
Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164

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

SECONDARY MATERIALS
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
21 December 2015
SUMMARY

Mrs Fatma Mavruk has applied to this Tribunal for review of the decision of the former Social Security Appeals Tribunal (the SSAT) dated 29 September 2014 which held that she and Mr Mehmet Mavruk were members of a couple between 29 July 2003 and 27 January 2014.
At the hearing before me, Dr S Thompson of Sparke Helmore Lawyers who represented the Respondent, the Department of Social Services, (the Department or Centrelink), indicated that the relevant period to consider whether Mrs Mavruk was a member of a couple with Mr Mavruk, was 20 July 1991 to the date of the hearing. Ms S Thirukumar, of the Welfare Rights Centre who represented Mrs Mavruk, told me that she was aware of those revised dates, and made no objection. Accordingly I have considered the relevant period for consideration of Mrs Mavruk’s status by this Tribunal to be 20 July 1991 to the date of my decision.
I note that Mr and Mrs Mavruk who are cousins, were married in Turkey in July 1991, when Mrs Mavruk was 19 years old. At the date of marriage they were a member of a couple within the terms of the Social Security Act 1991 (the Act). Unless I find that Mr and Mrs Mavruk have been living separately and apart from one another on a permanent or indefinite basis from 1991 (or some other date), to the present, I will find that they are a member of a couple.
I heard evidence and had statements from Mr and Mrs Mavruk, and other family members, including their daughter Ms E, Mrs Mavruk’s mother, Mrs Emel Malgit, her brother, Mr Ozan Malgit, and Mr Ozan Malgit’s wife, Ms Kate Stella-Monck. I am satisfied that Mr and Mrs Mavruk may have had periods of separation over the 24 years of their marriage for various reasons, including Mr Mavruk’s attendance at construction sites related to his work, but I am not satisfied from the evidence that they have been living separately and apart from one another on a permanent or indefinite basis during the relevant period. I concluded therefore that in the relevant period Mrs Mavruk was a member of a couple in the terms of section 4(2) of the Act.
The SSAT held that because Mrs Mavruk is a member of a couple with Mr Mavruk, from 29 July 2003 to 27 January 2014, which it considered was the relevant period, Mrs Mavruk owes the Commonwealth a debt of $105,219.21.
I am satisfied that there is no special reason why Mrs Mavruk should not be treated as a member of a couple. Accordingly the overpayment of parenting payment which Mrs Mavruk has been claiming at the single rate since 28 July 1994, is a legally recoverable debt, and must be recalculated by the Respondent.
Following the hearing, both parties made submissions regarding the impact of Mrs Mavruk’s bankruptcy on recoverability of the debt. I have preferred the submissions of the Respondent, and find that the debt Mrs Mavruk owes to the Commonwealth is not irrecoverable.
Having considered the submissions, the evidence, legislation and case law, I am not satisfied that any special circumstances exist so that all or part of the debt should be waived, or that it should be written off. My reasons follow.
ISSUES BEFORE THE TRIBUNAL
The issues before the Tribunal are:
(a)whether Mrs Mavruk was a member of a couple with Mr Mavruk from 20 July 1991, and, if so, for what period of time; if so,
(b)whether there is a special reason why Mrs Mavruk should not be treated as a member of a couple during any particular time; if not,
(c) whether the overpayment of parenting payment is a legally recoverable debt;
(d) whether all or part of any debt should be written off or waived.
BACKGROUND
Fatma Mavruk was born and raised in Australia to parents who migrated from Turkey. They were busy people running restaurants and businesses in Australia, and in that context, and that of their culture, Fatma was expected to look after her younger siblings, and do housework and cooking after school. She wanted to attend university after leaving school, but was not permitted to do so. The evidence indicated that on one occasion when Fatma wanted to leave the family home, her mother struck her. On another occasion, Fatma took an overdose of medication, and ended up in hospital.
In 1991, aged 19, she was taken to Turkey with the intention that she marry of one three relatives. After knowing him for only a short time, she married Mehmet Mavruk, a cousin, on 20 July 1991. They returned to Australia in December 1991, where Mehmet studied English and updated his qualifications in order to be able to practise his building trade, while Fatma worked to support them. They were living with her parents at first, and then rented a unit in the same area.
The Mavruk marriage appears not to have been a happy one after the first two and half years. Mrs Mavruk’s evidence was that in approximately 1993/4, when Mehmet hit her during a fight they had, she moved out of their rented accommodation, and returned to live with her parents. Mrs Mavruk said that due to cultural reasons, and because separation and divorce are not viewed favourably in the Turkish community, her parents tried to have the pair reconcile. She told me that their attitude was that she should not have questioned Mehmet’s authority.
I have noted that the Tribunal in CWJT and Secretary Department of Education, Employment and Workplace Relations [2012] AATA 910 stated that:
historical and cultural factors are a highly relevant backdrop and shed light on some of the other evidence more directly related to the factors I must consider.
Mehmet, who is related to the family, visited regularly while Mrs Mavruk was living with her parents, and it was during this time that the first child, Ms E, was conceived. Ms E was born in 1994. Mr Mavruk then built a granny flat at the back of Mrs Mavruk’s parents’ house, where Fatma and the child lived from approximately 1995. She told me Mehmet did not live there, and that every time he came to visit, they would argue and fight.
Mr and Mrs Mavruk have three children, born in 1994, 1999, and 2006. On each occasion, even though Mrs Mavruk now claims that she was separated at the time, she filled in the hospital admission forms stating that Mehmet was her husband, and giving his address as well as hers, as number two (the designation I have, for privacy reasons, given the home the couple owned jointly from 1997 to 2007). Mrs Mavruk also told me that Mehmet was present for all the births, and that the second child was planned because she did not want a second child with a different father. Mr Mavruk has given his address as number two on all but one of the documents concerning him which were in the voluminous 784 page bundle of T-documents before the Tribunal.
After the birth of her first child in 1994, Mrs Mavruk claimed parenting payment as a single person, which she received from 28 July 1994. She said in cross-examination that she had been separated and living apart from Mr Mavruk on a permanent basis since 30 October 1992.
In 1995 Mr and Mrs Mavruk and Ms E travelled to Turkey for a family funeral. Things did not go well between the pair, and they returned to Australia separately, Mr Mavruk in August 1995, and Mrs Mavruk, and her daughter, in November 1995.
After disagreements with her parents, Fatma moved out of the granny flat into number two in 1997. Fatma says that due to tensions between her and her parents, and to provide security for her and their daughter, Mehmet decided to buy the house, number two. Both Mr Mavruk and Mrs Mavruk’s names were on the title, and on the loan documents, as on many occasions following that when loans and mortgages were either entered into or discharged. Mehmet and Fatma were shown as husband and wife each time. Her evidence, and that of her daughter Ms E, (now 20), was that Mr Mavruk coerced Fatma into signing documents with physical and emotional violence. She said that she felt she had no choice but to do it when he asked, and was subject to emotional blackmail. Mrs Mavruk said that she did not contribute to the purchase price of number two, or make any mortgage payments because she had no job and no money. When giving her evidence she frequently insisted that she was not a home owner because she simply signed documents, (which I note at law indicated she was a joint owner with Mr Mavruk), and because she made no contributions to the purchase price of the house.
She felt it was good for her and her child to have their own place, and independence. She admitted that she intentionally did not inform Centrelink of the purchase in 1997 as she should have, because she was not sure the arrangement was secure, and that she was afraid of having her parenting payment single cancelled. She finally informed Centrelink in 1999, and told them she was paying rent of $300 per week to Mr Mavruk. No receipts or other confirmation that the money was paid were provided or available. Given the many issues of credit in this matter, and the lack of corroborating evidence, I do not accept that Mrs Mavruk paid that rent.
In July 2010 Mrs Mavruk stated on a form applying for rent assistance that she had been living at number two since 2009, and paying rent to Ozan Malgit of $360 per week. In doing so she did not disclose that he was her brother, and did not disclose that she had been living at number two since 1997. She was not able to provide receipts or other proof of payment.
Mr Ozan Malgit signed a Centrelink form on 10 September 2013 in which he stated that Mrs Mavruk paid him $700 in cash for rent (no lease signed), when he came round to number two to collect it. He stated further that he was usually invited in for coffee, and that he had not seen any adult male residing at the premises. He did not disclose on the form that he was Mrs Mavruk’s brother. His wife, Ms Stella Monck said that she had at times seen Mrs Mavruk give money to Ozan, or occasionally collected it on his behalf, but had never counted it.
When asked about Mr and Mrs Mavruk’s joint accounts or what addresses they provided to lending institutions, or what Mrs Mavruk told Centrelink, Mr Malgit stated that he did not know about their personal finances. He said that his sister is human and makes mistakes, and what she told Centrelink was not his business.
I am satisfied Mrs Mavruk did not tell the truth to Centrelink on the application form for rent assistance, and that as there is no documentary evidence regarding the payment of rent to Mr Malgit, either from Mrs Mavruk or Mr Malgit, I do not accept that she paid rent to him. I have noted and discuss below many such instances of Mrs Mavruk not telling the truth to Centrelink and to lending institutions over the years.
The relationship between Mr and Mrs Mavruk appears to have become violent and Mrs Mavruk is on record for having called for Police assistance between November 1997 and December 2000.
A second child was born in January 1999. Mrs Mavruk’s evidence was that she wanted a second child, and notwithstanding they were separated, asked Mehmet to be the father, as she wanted to have him as the father of both children. He obliged by moving in with her, she said.
In May 2000, Mr Mavruk arranged to buy number three, a house opposite number two, and again required Fatma to sign the relevant documents as joint owner for the purchase, and for the loan documents. Both Mr and Mrs Mavruk indicated in the loan application dated 24 February 2000 that they were married, lived at number two, and that Mrs Mavruk’s occupation was: designers & illustrators: fashion, and that she had been employed at Catwalk Fashions for three years. She indicated that her monthly income after tax was $2,582. The Applicant also stated that she had previously worked at Ozan’s Sofra Restaurant (her father’s restaurant). Mrs Mavruk acknowledged when giving her evidence that none of the above details regarding her employment and income were true.
In December of 2005, the title of number three was transferred to another person.
In January 2002, a delegate of the Secretary reviewed Mrs Mavruk’s circumstances, and determined that she was a member of a couple. Centrelink consequently cancelled her parenting payment single. That was one of a number of such events where Centrelink reviewed, and changed its view as to whether Mrs Mavruk was single or a member of a couple. A decision of that kind of course depends upon the information provided by the recipient of such a pension,including untruths. Centrelink also contracted for investigations and covert surveillance to be conducted, including surveillance on 8 and 10 January 2014, the result of which was that both Mr and Mrs Mavruk were observed to emerge from number two, and leave by car together, returning with shopping after several hours on one occasion. Mrs Mavruk’s explanations in that regard are discussed below.
Mrs Mavruk’s family background, and the religious and cultural values her parents and husband brought with them from their lives in Turkey impact on this application but cannot explain the many untruths which she and Mehmet told to lending institutions and to the Tribunal. By way of example Mrs Mavruk admitted at the hearing that she had been untruthful in giving her profession as designers & illustrators: fashion, and that she had been employed at Catwalk Fashions for three years when she and Mehmet made a loan application in February 2000.
Mrs Mavruk was shown in a Veda Advantage Information Services and Solutions Ltd report as having, in 2010 declared herself as Fatma Malgit (her maiden name), and as an employee of Mavruk Constructions. She admitted she has never been employed by Mavruk Constructions, or any other of Mr Mavruk’s entities. The report also shows that Mrs Mavruk applied unsuccessfully for a credit card to various financial institutions in 2010, in her maiden name, which Mr Mavruk stated he encouraged her to do.
In July 2003, the same Departmental delegate who reviewed Mrs Mavruk’s circumstances, determined she was not a member of a couple, and reinstated her parenting payment single.
In June 2006, the Mavruks’ youngest child was bom. In the period before he was conceived, Mrs Mavruk stated that Mehmet moved in with the family, (I note that it was perhaps some 4 – 5 months), ostensibly to assist Fatma who had been assaulted by a neighbour. She was unhappy, drinking, and obviously having sexual relations with Mr Mavruk.
In 2006 Mr Mavruk opened a superannuation account, providing his address as number two, and naming Fatma as the sole beneficiary. She told me she did not know anything about that.
Both Mr and Mrs Mavruk are shown on the Australian Electoral Roll as living at number two.
In September 2006, and August 2008, a Departmental delegate reviewed Mrs Mavruk’s circumstances in light of the birth of her son, and determined that she was not a member of a couple.
Mr Mavruk sold number two to Mr Ozan Malgit on 30 May 2007. Mrs Mavruk said that she did not find out about the sale until sometime afterwards. However as her name appeared on the transfer documents, that evidence is not credible. The documents before me indicate that the so-called sale was a transfer to Mr Malgit because the mortgage was in arrears to the value $356,452.06, and Mr Mavruk could not pay it. Mrs Mavruk subsequently filed for bankruptcy in 2008. The Respondent has submitted that the sale and bankruptcy were both to avoid the property being sold by the lender.
Following the transfer of number two to Mr Malgit in May 2007, on 25 November 2008 Mrs Mavruk declared bankruptcy, from which she was discharged on 26 November 2011.
Ozan Malgit transferred number two to Mr Mavruk (in his name only), on 13 June 2015 allegedly for the price of $620,000, which Mr Mavruk admitted to me, was an inflated price. He told me that this was done in order to obtain a bigger mortgage. I have no evidence that money actually changed hands. Fatma did not find out that Mehmet now owns number two in his name only, until she heard him give his evidence at the hearing. She was most upset.
In 2012 Mrs and Mrs Mavruk, (the Applicant travelling as Fatma Malgit), and their children, spent a holiday in Fiji. The evidence was that the male members of the family shared a room, and Mrs Mavruk shared with Ms E. The reason given for the family holiday was to celebrate Ms E’s graduation from University. Ms E said that she wanted her mother to come too. The evidence Mrs Mavruk gave as to why her passport was issued in her maiden name, which was that the relevant authority would not issue the passport in the name of Mavruk, was not credible.
In January 2014, a delegate of the Secretary concluded an investigation into Mrs Mavruk’s circumstances, and determined that she had been a member of a couple from July 2003 when her parenting payment single was reinstated. Her parenting payment single was then cancelled, and a debt of over $105,219.21 was raised against her. Other family assistance payment debts have also been raised.
LEGISLATIVE CONTEXT
The relevant legislation is the Social Security Act 1991 (the Act), and the Social Security (Administration) Act 1999 (the Administration Act). Section 4(1) of the Act defines partner as follows:
partner in relation to a person who is a member of a couple means the other member of the couple.
Since Mrs Mavruk and Mr Mavruk married on 20 July 1991, and were married during the relevant period, and in fact remain married, they can only not be considered a member of a couple if the evidence indicates they are living separately and apart from each other on a permanent and indefinite basis.
Member of a couple--general
(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
…

Section 4(3) of the Act outlines when a person is considered to be a member of a couple for the purposes of section 4(2)(a) of the Act and is discussed in the paragraphs below.
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint    liabilities; and
(ii) any significant pooling of financial resources especially in relation to                major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other   person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in   a de facto relationship with , each other; and
(ii) the assessment of friends and regular associates of the   people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in,   joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that   the people provide to each other; and
(iii) whether the people consider that the relationship is likely to   continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like   relationship or a de facto relationship.
The Tribunal must consider all the circumstances of the case and make an objective assessment based on the evidence. The Tribunal in VBY and Secretary, Department of Family and Community Services [2006] AATA 1 stated at [94]:
The s 4(3) criteria does 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.
The Tribunal in Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 stated at [70]:
...being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
ISSUES OF CREDIBILITY
As already stated, in coming to a decision whether Mrs Mavruk is a member of a couple between July 1991 and the date of my decision, I am required to consider section 4(2) and 4(3) of the Act, its application to the Applicant, and her relationship with Mr Mavruk. It is an objective assessment of evidence applied taking into account the criteria listed in section 4(3) of the Act. It is not a matter of ticking boxes, or simply aggregating figures in regard to the criteria. Subjective factors can also be taken into account, and the assessment of a person’s credibility is frequently of fundamental importance in determining whether a person is a member of a couple (VBH and Secretary, Department of Family and Community Services [2006] AATA 1).
However if the person's evidence is inconsistent with objective or independent evidence before the Tribunal, the Tribunal may place greater reliance on that objective evidence as in this case. I informed Mrs Mavruk that there were issues of credit with regard to her evidence, and that in coming to a decision, I would rely more on the documentary evidence than on her oral evidence.
There were many occasions during the hearing when it became clear that the oral evidence, in particular that of Mr and Mrs Mavruk was at odds with the documentary evidence. Some examples follow.
Mr Mavruk gave his address as number two on all occasions, except for his recent driving licence. They included the Australian Electoral Roll, many application forms for finance, certificates of title, two ASIC company registrations, and other documents. He said that it was too much trouble to redirect mail, and that mail could be lost so he continued to use number two. The exact amount of time he spent living at number two is unable to be determined accurately.
The SSAT recorded at paragraph 15 of its Reasons for Decision dated 29 September 2014, that: Mr and Mrs Mavruk claim that they have only had ‘three sexual events each of which has produced a child’. This is inconsistent with the submissions of the Welfare Rights (who represented them at the SSAT and at this Tribunal). When Mr Mavruk was asked about the content of paragraph 15, he said it was bullshit, and added: I would have to be Superman.
I am satisfied from the evidence which is discussed below that Mr Mavruk has spent periods of weeks and months at number two, attempted to get together with Mrs Mavruk on more than one occasion, and that he comes and goes at will, frequently, allegedly to see the children. He also often spends the night. Ms E said that he sleeps in her brother’s room.
I am mindful that Mr Mavruk admitted on several occasions during cross-examination that he had lied on application forms provided to banks and other financial institutions when seeking loans. He too provided information when submitting the loan application in which Mrs Mavruk stated that she worked as a fashion consultant earning a salary of $2,582 per month. It is noteworthy that at the hearing she admitted that was not the case at the time, or ever.
In another application, where Fatma was shown as an employee of Mavruk Constructions, both Mr Mavruk and Mrs Mavruk admitted she had never been employed by that firm.
Mr Mavruk also admitted that the $620,000 he put on the transfer form in 2015 when he bought number two back from Mr Ozan Malgit was not the actual price, but an inflated price, in order to obtain a bigger mortgage. When the transfer took place, Mr Mavruk did not include Mrs Mavruk on the title. She had previously been on the title for all mortgages and certificates of title. When she found out at the hearing, she was most upset.
Mr Mavruk also said that in approximately July 2015, he had built a granny flat to live in at the back of number two. By way of contrast, Mr Malgit’s evidence was that Mr Mavruk commenced building the flat before the transfer of title back to him in March 2015. Mr Mavruk’s evidence regarding residing at the granny flat was untrue on the basis of Exhibit A10, which was a real estate agency advertisement for the rental of said granny flat at $430 per week.
Several of the other witnesses including, Mr Ozan Malgit and Ms E maintained their evidence which was clearly simply in support of the Applicant.
I next moved to consider whether Mrs Mavruk was a member of a couple during the relevant period.
WHETHER MRS MAVRUK WAS A MEMBER OF A COUPLE WITH MR MAVRUK FROM 20 JULY 1991, AND, IF SO, FOR WHAT PERIOD OF TIME
In order to decide whether Mrs Mavruk was a member of a couple within the terms of section 4(2)(a) and 4(3) of the Act, I have considered the indicia reproduced below, noting that the Secretary, and the Tribunal standing in his shoes, is to have regard to all the circumstances of the relationship including, in particular, the matters raised in section 4(3) of the Act.
I note also the caution expressed by the Federal Court in Staunton-Smith v Department of Social Security (1991) 32 FCR 164 at [20] as follows:
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.
I am mindful of what Justice French in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, in which he stated at [47]:
The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
His Honour added that the decision maker:
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…
[52] A relevant constructional question which arises under the first ground is the meaning of the term ‘pooling of financial resources’ in s 4(3)(a)(ii). The ordinary meaning of the word ‘pool’ in this context is set out in the New Shorter Oxford English Dictionary thus:
‘Put resources into a common stock or fund; share in common, combine for the common benefit.’
Section 4(3) of the Act outlines when a person is considered to be a member of a couple for the purposes of section 4(2)(a) of the Act. In forming an opinion about the relationship between two people, the Tribunal will have regard to all the circumstances of the relationship including, in particular, the following matters:
·     Financial aspects of the relationship
·     The nature of the household
·     The social aspects of the relationship
·     Sexual relationship
·     The nature of the people’s commitment to each other, including:
Financial aspects of the relationship
I first considered the financial aspects of the relationship, including:
·any joint ownership of real estate or other major assets and any joint liabilities; and
·any significant pooling of financial resources especially in relation to major financial commitments; and
·any legal obligations owed by one person in respect of the other person; and
·the basis of any sharing of day-to-day household expenses;
Mr and Mrs Mavruk have been joint owners of real estate from 10 April 1997 when they purchased number two. Both names were on the title, as well as on the home loan application. The T-documents before the Tribunal reveal that Fatma and Mehmet have frequently represented themselves as a couple when entering into loans with financial institutions. Mrs Mavruk’s evidence and that of Ms E was that Mr Mavruk put pressure on Fatma to sign documents with him. Mr Mavruk agreed he put pressure on Fatma to sign documents. She characterised it as emotional blackmail. She said that she did not feel she was a home owner because she did not contribute to the purchase price of the house, and did not pay the mortgage. Mr Mavruk said that at one time Mrs Mavruk contributed $20,000 to assist with the purchase of number three. I noted from the documents that the money was obtained by way of a loan.
The evidence of Mr and Mrs Mavruk was that Mehmet does not live at number two, and that he arranged to purchase it so that Fatma could have security to bring up the children. Mrs Mavruk’s evidence was that she saw the purchase of the house as providing independence for her from her parents, and security for her children rather than it being an expression of a loving relationship.
Mrs Mavruk told me that she currently pays rent to Mehmet of $300 per week. There were however no receipts available, and no documentation as to the source of the funds. I did not accept Mrs Mavruk’s evidence in that regard. He in turn told me that he pays Mr Malgit $50 a week for the use of the garage to keep his tools there. Once again there was no documentation available, and given Mr Mavruk now owns number two again, that is quite improbable.
Mr Mavruk’s evidence was that Fatma had only paid rent until transfer of the title in 2007. He did not have any corroborating documentation or other evidence in that regard, and I was not satisfied that the situation was as he stated.
On 7 April 2000, Mr and Mrs Mavruk used the property at number two as security to purchase number three, a house opposite them. Once again both names were on the title and mortgage documents. Number three was sold in November 2005.
Mrs Mavruk signed a loan application with her husband in 2007. In 2010 she made an application to GE Money for a credit card. She stated on the application form that she was married, and employed by Mavruk Constructions. Mrs Mavruk agreed in reply to questions in cross-examination that she had never been employed by any of Mr Mavruk’s companies.
Mrs Mavruk has not worked outside the home since she had children. She told me, as corroborated by Mr Mavruk, that his greatest concern is his children. She says that he is a good father. He pays for their private schooling, Foxtel, mobile telephones, computers, some food, a car for Ms E which Mrs Mavruk also drives, council rates and other expenses. Mrs Mavruk said that he gives the children money, but does not give her money. Mrs Mavruk said that she pays the household bills from the little social security assistance she receives, but is at times unable to manage. A Centrelink file made in September 2003 recorded after Mrs Mavruk attended at one of its offices, notes that she told the officer she and Mr Mavruk were not living as a couple, and that Mr Mavruk provided no real financial help to her and that she was the one left to pay the bills, (water, rates, mortgage). He occasionally gave her some money towards the mortgage but that was all … It is likely that given the evidence at the Tribunal regarding what payments Mr Mavruk makes, that it was not true.
When asked about whether the timing of the sale of number two to Mr Malgit in 2007, and Mrs Mavruk’s declaration of bankruptcy in 2008, was to preserve the safety of the house, Mr Mavruk replied that they owed a lot of money, and there was pressure from the lenders.
Mr Malgit’s evidence regarding the sale of number two to him in April 2007, was that it was between him and Mr Mavruk, and that Mrs Mavruk had nothing to do with it. This was notwithstanding her name was on the title. He said that he assumed Mehmet had told her about the sale. He also told me that he did not know Mrs Mavruk’s name would not be on the title when he sold number two back to Mr Mavruk in 2015. He said that he went to the conveyancer with Mehmet, and disagreed that it was not an arm’s length transaction.
The evidence before me indicates that Mr and Mrs Mavruk share certain financial commitments, and pool their resources, thus sharing liabilities and financial benefits. They jointly held three bank accounts from 1999 to 2007 on which they were shown as husband and wife, which indeed they were, and still are. Mr Mavruk conceded he had not read the declarations on the forms both he and Mrs Mavruk signed with financial institutions, and that the information they provided included untruths. As Dr Thompson asked the question in particular in relation to a loan document, the declaration of which was at T-documents page 261, I note that in particular.
Mr Mavruk told me that although his superannuation policy is in arrears, Fatma is the sole beneficiary. He added that she did not find out about it until she was at the Tribunal.
The evidence about the financial aspects of the relationship between Mr and Mrs Mavruk points strongly to the couple not living separately and apart from one another on a permanent or indefinite basis, but rather that they were a couple during the relevant period, and remain so.
The nature of the household
I have considered the nature of the household, including:
·any joint responsibility for providing care or support of children; and
·the living arrangements of the people; and
·the basis on which responsibility for housework is distributed.
The evidence in regard to the household is that it is not a loving conventional relationship. There were incidences of violence between November 1997 and December 2000, and the assistance of Police was sought.
Both Mr and Mrs Mavruk claim that Mehmet has not lived at number two, except for short periods, but that he comes and goes because he visits the children. They did not dispute that he spends several nights there every week, and said he sleeps on the couch. Ms E told me that he sleeps in her brother’s room. There appeared to be no dispute that Mr Mavruk only has a key to the back of the house, but equally there appears to be no problem if he wants to come into the main house, which he frequently does. They simply let him in.
I am mindful that there are periods where Mr Mavruk admitted, as corroborated by Mrs Mavruk, that he lived at number two, for example two months in 2005/6 when he lost his job. He also moved in at Mrs Mavruk’s request, and told me that he stayed at number two for four or five months with a view to a reconciliation with Fatma, and before the conception of the second child (born in 1999), because she wanted him to be the father of her second child.
Mr Mavruk also stayed with the family at number two at their request for a period before the third child was conceived, a period when Mrs Mavruk was depressed and drinking after she had been assaulted by a neighbour. He also stayed for a few weeks at the end of 2005 before the birth of the third child.
Mr Mavruk also told me that he stores his work tools in the garage at number two. He says that during the time Mr Ozan Malgit owned the house, from 2007 until Mr Mavruk bought it back in 2015 (in his own name only), he paid rent for the use of the garage to Mr Ozan Malgit. There were no receipts or other evidence available to convince me that rent was paid as told to me.
I have noted that there are times when Mr Mavruk’s work takes him to distant locations as part of his construction business, and he has to be away from the family home for that reason. He told me that he is completely committed to caring for his three children and will do anything for them. Mrs Emel Malgit, Fatma’s mother told me that Mehmet is a good man, and that she has tried unsuccessfully to get the couple to reconcile. She said that she does not often go to number two because she and her daughter argue. She seemed to think that Mr Mavruk would only stay over at number two after a function if he had consumed excess alcohol. However, given she is not a frequent visitor, and does not stay overnight, Mrs Emel Malgit’s evidence was not of assistance to me.
Mr Mavruk has given number two as his address in regard to every document which was before me with the exception of one. His evidence was that although he lives with friends in another suburb, and only visits at number two, it is convenient to use that address for documents, banks, and at other times when he has had to give an address. It was also convenient for receiving mail, he said. The only time Mr Mavruk has given a different address is on his most recent driving licence which has been endorsed with a different address. Although Mr Mavruk denied it, I cannot but accept the Respondent’s submission in coming to the conclusion that it was a deliberate attempt to improve Mrs Mavruk’s position at the Tribunal. Mr Mavruk also gave various versions of his visits and periods of residence at number two. It would not be possible to work out the actual situation over the years except to say that both Mr and Mrs Mavruk have given opportunistic evidence about it.
Mr Malgit told me that he has at times worked with Mr Mavruk and driven him to wherever he happened to be living with his work colleagues.

Surveillance arranged by the Respondent on 8 and 10 January 2014 recorded Mr and Mrs Mavruk coming out of the house together, early in the morning on one occasion, and driving away together, returning after some hours. On one occasion they were carrying household shopping on their return. It seems to me that Mr Mavruk was spending more time at number two more often than either Fatma or he admitted.
Following the disclosure of the surveillance evidence, Mrs Mavruk told me that several times a week she and Mehmet leave the house together to talk and to plan what they need for the children, and to do shopping. Mr Mavruk was more specific, saying it was three to four times a week. I had difficulty accepting that explanation in terms of the people living separately and apart from one another on a permanent or indefinite basis.
I am satisfied that Mr and Mrs Mavruk hold themselves out as a couple to the local community, schools, and friends, stating that they do it for cultural reasons, and for the benefit of the children. Ms E’s evidence in that regard was that the school expects to call her mother first if a parent is needed. I do not find that unusual, and not an indication that her parents are living separately and apart from one another on a permanent or indefinite basis.
I note that housework is mentioned in the last dot point above. It was not mentioned at the hearing, but it would be unlikely that a Turkish man of Mr Mavruk’s age and background would assist with housework. That is not relevant to my decision regarding whether Mr and Mrs Mavruk are living separately and apart from one another on a permanent or indefinite basis.
The evidence about the nature of the household points strongly to the couple not living separately and apart from one another on a permanent or indefinite basis, but rather that they were a couple during the relevant period.
The social aspects of the relationship
I have considered the social aspects of the relationship, including:
·whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
·the assessment of friends and regular associates of the people; and
·about the nature of their relationship; and
·the basis on which the people make plans for, or engage in, joint social activities;
Mr and Mrs Mavruk hold themselves out to the community, schools and others as a couple, although Mrs Mavruk said that people close to them understand they are separated. They say that for cultural reasons, divorce and separation are frowned upon, and Mrs Mavruk’s parents, with whom she has a fractured relationship, try to get them together. She says they put pressure on her because Mehmet is a good man, and a member of the family, and in the Turkish culture a woman alone is not acceptable. Mr Ozan Malgit who is approximately 15 years younger than Fatma, told me that his parents are very traditional, and indeed old fashioned, but that he is more laid back. He refers to himself as Oz, and to Fatma as Faye. He was very young when Mr and Mrs Mavruk married, and was not able to comment on their relationship at the time. He is clearly very fond and supportive of both.
Ms E described Mrs Mavruk’s parents as old school and very directive. She was aware of the differences in thinking between them and her mother, Mrs Mavruk. She said that she is close to her uncle Ozan. Her opinion was that her parents do not live together and that Mr Mavruk lives with a friend, or various friends. She said that he does not have a stable address. She also said that she has memories of them fighting. Ms E said that her father travels for his work, and is then away for weeks or months.
Mrs Emel Malgit told me that Mr and Mrs Mavruk appear to the Turkish community as a married couple. She said that they lived together as a couple between 1991 and mid-1995.
Ms Kate Stella Monck who has been married to Mr Ozan Malgit since 2008, told me that she visits number two weekly, and stated that she has seen Mr Mavruk there visiting the children or putting his tools in the garage, but that he does not live there, and never has. She said that both she and her children have spent some days and nights at number two. I ascertained that the frequency of overnight stays was very low, and hence that Ms Stella Monck’s evidence was not of great assistance to me.
Neither Mr Mavruk nor Mrs Mavruk appear to have made inquiries about divorce in Australia. They told me they would only be able to divorce in Turkey. I note they have not made credible inquiries, neither consulted any lawyers for advice. Mr Mavruk said that they had made many attempts to resolve their differences over the years since 1998.
Mrs Mavruk filled in the hospital admission forms each time she had a child, being 1994 1999, and 2006, describing Mr Mavruk as her next of kin and husband, and providing contact details and the mutual address of number two.
Mr and Mrs Mavruk both attend family functions and religious occasions. Ms E’s evidence was that it was difficult to get her mother to attend the latter.
The evidence about the social aspects of the relationship between Mr and Mrs Mavruk, including how they have held themselves out to the community, banks, schools, hospitals and other providers of services, weighs strongly to the couple not living separately and apart from one another on a permanent or indefinite basis. Rather, the evidence indicates that they were a couple during the relevant period.
Sexual relationship
I have considered what, if any, sexual relationship exists between Mr and Mrs Mavruk. I am satisfied that a sexual relationship is not necessarily indicative of a warm or loving relationship, neither that the participants are necessarily members of a couple.
The undisputed evidence before me is that Mr and Mrs Mavruk have three children, so that there has been a sexual relationship in the time they claim to have been living separately and apart from one another on a permanent or indefinite basis.
The undisputed evidence is that Mr Mavruk comes and goes from number two at will, and is there overnight at least several times a week. It is also undisputed that Mr Mavruk is the father of all three of the Mavruk children, born in 1994, 1999 and 2006. Mrs Mavruk told me that she specifically asked him to be the father of the second child, and that he moved in with her for some time, and obliged. At the time of conception of the third child, Mrs Mavruk says that she had experienced a frightening event of aggression with a neighbour, and that the children wanted Mr Mavruk to stay with the family. She said that she was upset and drinking at the time, and that the third child was conceived at that time. I can conclude therefore on the balance of probabilities that the couple had sexual activity, at least between 1993 and 2005. Mrs Mavruk told me that Mr Mavruk may have a girlfriend, but that she does not query that. She says that her preoccupation is with being a mother, not having other relationships, and that Mr Mavruk is a good father to the children.
I am satisfied that there was sexual activity between Mr and Mrs Mavruk at least between 1993 and 2005. A lack of further or other sexual relations is only one of several factors which must be taken into account in finally assessing whether Mr and Mrs Mavruk were living separately and apart from one another on a permanent or indefinite basis.
I reject the submissions made on behalf of the Applicant with reference to the findings in paragraph 55 of the decision of the SSAT. The SSAT noted [55], that it accepted there were issues with Mrs Mavruk’s credibility, and that she was a poor historian, but could not be satisfied that Mrs Mavruk knowingly made a false statement with regard to social security law. Further on in these Reasons for Decision, I find on the basis of the evidence before me that Mrs Mavruk knowingly and intentionally misled Centrelink’s officers with her disclosures to them from time to time.
For the sake of completeness, I note that the SSAT stated [55]:
This is because Mrs Mavruk maintained and continues to maintain that the lack of a sexual relationship and ‘normal cohabitation’ can only lead to a conclusion that she is not a member of a couple. This is not the case. Whilst Mrs Mavruk has not been entirely honest in her representations to family, friends the general community and financial organisations, the Tribunal find that her strong belief that the lack of a physical relationship is sufficient to classify her as a ‘single’ person for Centrelink benefits, prevents a finding that she engaged in behaviour knowingly to defraud the Commonwealth to secure a higher rate of welfare payment.
The nature of the people’s commitment to each other
I have considered the nature of the people’s commitment to each other including:
·the length of the relationship; and
·the nature of any companionship and emotional support that the people provide to each other; and
·whether the people consider that the relationship is likely to continue indefinitely; and
·whether the people see their relationship as a marriage-like relationship or a de facto relationship.
The length of the relationship dates to the short time Fatma and Mehmet knew each other before marriage, and the marriage, celebrated in July 1991, in which both people remain. I am satisfied that neither has made any serious attempt to end the marriage at any time. They may have made informal inquiries about divorce, but there is no evidence of either or both consulting a lawyer, or obtaining advice about separation or divorce. In fact the evidence centred around the undesirability of separation or divorce in the Turkish culture, even in Australia, the attempts Mr Mavruk has made at reconciliation, and the role of Mrs Mavruk’s parents in encouraging the couple to reconcile.
There is no indication that Mr and Mrs Mavruk consider that the relationship is unlikely to continue indefinitely. The evidence satisfies me that they both have a deep commitment to the children, and that in times of need such as when a second child was contemplated, or before the conception of the third child, when Mrs Mavruk felt vulnerable due to aggression by a neighbour, Mr Mavruk steps in and provides companionship, both sexual and emotional, by moving in with Mrs Mavruk. Otherwise, the SSAT found that Mr Mavruk spends most weekends with the children, whilst Mrs Mavruk told me that he spends about 50% of weekends with them.
Whilst the commitment between the couple does not appear to be a conventional one, there is mutual understanding and commitment regarding the children, their financial support, finances generally, and a commitment to working together within the confines of cultural and religious observances.
In Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92, the Full Federal Court commented on what regard the decision maker should have to the nature of two persons’ commitment to each other for the purposes of determining whether or not the persons were members of a couple. The Court stated at [30]:
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.
Mutual commitment was also discussed in Pelka and Secretary, Department of Family and Community Services (2006) FCA 735 at [46] and [47].
[46] 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.
[47] The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
I have noted the caution given by the Federal Court in Pelka. However, the evidence about the nature of the commitment between Mr and Mrs Mavruk as noted above, points strongly to the couple not living separately and apart from one another on a permanent or indefinite basis, but rather that they were a couple during the relevant period.
CONCLUSIONS REGARDING WHETHER MRS MAVRUK WAS A MEMBER OF A COUPLE WITH MR MAVRUK DURING THE RELEVANT PERIOD
Section 4(3) of the Act and the case law, (such as the Federal Court in Staunton-Smith), provide the indicia for considering whether an Applicant is a member of a couple, and guidance in making that decision. The Guide to Social Security Law is also relevant and of assistance in that regard. The question of how a relationship between two people can be characterised is complex and multifaceted, and no particular factor is determinative.
In this case however, as noted in the paragraphs above, there are serious issues of credit, and I have relied more on the documentary evidence than that of the Applicant and the other witnesses in coming to a decision that Mrs Mavruk was a member of a couple with Mr Mavruk from 1991 to the present. I am mindful that although Mr and Mrs Mavruk have been married since 1991, this is not a conventional marriage or relationship, neither a particularly happy one.
In coming to my decision, I have considered in particular the financial dependence of the couple, with Mr Mavruk paying all major expenses, including those for the children, and Mrs Mavruk managing household expenses as far as possible from her benefits. Mr Mavruk has for example, provided a car for Ms E which Mrs Mavruk also drives. I have taken into account that both members of the couple have been entered as joint owners in the purchases and sales of real estate over the years, including the family home at number two, and loan documents from financial institutions, and that Mr Mavruk has on all but one occasion given his address as number two during the relevant period.
As also noted above, I have taken into account the evidence regarding the nature of the household where Mr Mavruk spends at least some nights every week, and comes and goes at will. The evidence regarding Mr Mavruk only keeping his tools at number two, and staying at the granny flat at the back of number two was not credible, particularly in the light of the advertisement for a tenant for the granny flat (Exhibit A10).
Mrs Mavruk has also provided his identity and named him as her husband, residing at number two all three times when she was in hospital to giving birth to her children in 1994, 1999 and 2006.
Also relevant were considerations of the social aspects of the relationship, any sexual relations, and the commitment of Mr and Mrs Mavruk to each other. Mrs Mavruk sought to rely on the lack of a sexual relationship, which is not credible given there were three children born between 1994 and 2006, and the fact that Mr Mavruk spends many days and nights at number two. The commitment to each other is discussed above, and it is significant that in times of trouble, such as when Mrs Mavruk suffered aggression from a neighbour, Mr Mavruk moved in to protect her and the children. Mrs Mavruk also attempted to excuse any social aspects of the relationship pointing to her and Mr Mavruk as a member of a couple by referring to Turkish social mores and religious considerations.
Ultimately taking into account all the indicia in section 4(3) of the Act and aggregating all the evidence before me, I am satisfied that Mrs Mavruk was a member of a couple with Mr Mavruk from 1991 to the present, and that she was not living separately and apart from Mr Mavruk on a permanent or indefinite basis.
WHETHER THERE IS A SPECIAL REASON WHY MRS MAVRUK SHOULD NOT BE TREATED AS A MEMBER OF A COUPLE DURING ANY PARTICULAR TIME
Section 24(2) of the Act confers a discretion on the Tribunal to decide that a person that a person who is in a de facto relationship with another person is not to be treated as a member of a couple if there is some special reason for that. As Mr and Mrs Mavruk are married and remain so, that discretion does not apply in this case.
WHETHER THERE HAS BEEN AN OVERPAYMENT OF BENEFITS
As I have found in the paragraphs above that Mrs Mavruk was a member of a couple from 1991 to the present, the parenting payment which she has claimed at the single rate from 28 July 1994 to 27 January 2014 (when Centrelink cancelled the payment at the single rate), is an overpayment (section 1223 of the Act).
Section 1223 of the Act follows as relevant:
Debts arising from lack of qualification, overpayment etc.
(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
The overpayment amount calculated by Centrelink for the period 29 July 2003 – 27 January 2014, as reviewed and affirmed by the SSAT was $105,219.21. Mrs Mavruk did not query the correctness of the calculation, and I have accepted that it was correct for that period.
However I have decided that Mr and Mrs Mavruk have been a member of a couple from July 1991 to the date of this decision, so the debt amount may now be a different figure. I shall leave the calculation of the overpayment to Centrelink.
WHETHER THE OVERPAYMENT OF PARENTING PAYMENT IS A LEGALLY RECOVERABLE DEBT
AND
WHETHER IT IS APPROPRIATE THAT ALL OR PART OF THE DEBT BE WRITTEN OFF OR WAIVED
The Act prescribes circumstances in which debts can be waived in part or in full, (section 1237AAD of the Act), or written off, (section 1236 of the Act).
Where sole administrative error has occurred, (section 1237 of the Act), a debt must be waived. No sole administrative error can be established in this case, as Centrelink relied upon Mrs Mavruk’s representations that she was not a member of a couple at the relevant dates when they paid her parenting payment at the single rate.
Write off
Section 1236 of the Act prescribes that a debt may be written off in the following circumstances:
1236 Secretary may write off debt
(1) Subject to subsection (1A), the Secretary may, on behalf of the
Commonwealth, decide to write off a debt, for a stated period or otherwise.

(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(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.

(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a) the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or
(aa) the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or
(b) there is no proof of the debt capable of sustaining legal proceedings for   its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred   before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor's   estate to repay the debt.

I noted that the debt for the period 29 July 2003 – 27 January 2014 was raised on 4 February 2014. I am satisfied that subsections (b), (c) and (d) of section 1236 are not an issue in that Mrs Mavruk has the capacity to repay the debt out of her benefits (if not otherwise), that her whereabouts are known, and that it would be cost effective for the Commonwealth to recover the debt.
However, during closing submissions, Ms Thirukumar submitted that Mrs Mavruk’s debt was irrecoverable at law (section 1236(1A)(a) and section 1236(1B)(c) of the Act), as a result of Mrs Mavruk’s bankruptcy from 25 November 2008 (discharged on 26 November 2011), because it had been incurred before the bankruptcy, and because no fraud had been committed. As this issue had not been previously raised, I gave the parties the opportunity of making further submissions in writing on the issue. I have now had due regard to those.
Essentially the Applicant submitted that because the debt was raised in February 2014, it was not a provable debt in the bankruptcy process in 2008. Ms Thirukumar made submissions about the meaning of fraud, and what constitutes fraud for the purposes of section 153(2)(b) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). She submitted that the Tribunal in Re Fode v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 543 (Re Fode), held that the test relevant to section 153(2) of the Bankruptcy Act was the common law test for fraud. She submitted that for fraud to be established there had to be a subjective element, an act or omission done for intentionally deceitful purposes or with reckless indifference as to the truth or falsity of the representation. (Re Civitareale and Secretary, Department of Social Services (1999) 57 ALD 54).
Ms Thirukumar submitted that the effect of the oral evidence at the hearing was that Mr and Mrs Mavruk did not regard themselves as a couple from 28 July 1994. I note for the sake of completeness that Mrs Mavruk said during her evidence that the date from which they did not hold themselves out to be a couple was 1992, which was typical of the many inconsistencies in the evidence before me.
Ms Thirukumar also submitted that Centrelink investigated Mrs Mavruk with a view to charging her with fraud, but did not proceed. She further noted that Mrs Mavruk’s eligibility for parenting payment single was reviewed several times by Centrelink, that Mrs Mavruk was candid in providing information to Centrelink regarding the involvement of Mr Mavruk in their lives, and that the SSAT did not consider fraud could be established on the evidence before it. Ms Thirukumar submitted in effect that Mrs Mavruk did not knowingly mislead Centrelink as to her status, and that there was no deliberate dishonesty.
Ms Thirukumar concluded therefore that the parenting payment debt was incurred before Mrs Mavruk declared bankruptcy, and is not a provable debt, and upon discharge of the bankruptcy which occurred in 2011, irrecoverable at law. Such a debt can be written off pursuant to section 1236(1A) of the Act, she submitted.
Dr Thompson made submissions about the date of the debt, and whether it was provable. I have found in the paragraphs above that Mrs Mavruk was a member of a couple from 1991 to the present, and that she was overpaid parenting payment single during the period 28 July 1994 when she first claimed the payment, and 27 January 2014. That is then a debt to the Commonwealth pursuant to section 1223(1) of the Act. Dr Thompson submitted that that part of the debt incurred before 25 November 2008 is deemed to have arisen before 25 November 2008. He also submitted that Mrs Mavruk’s bankruptcy did not extinguish the part of the debt which arose before the bankruptcy because the debt was not a provable debt in the bankruptcy. He further submitted that it was tainted by fraud.
Dr Thompson submitted that Mrs Mavruk was not subject to the debt within the meaning of section 82(1) of the Bankruptcy Act at the date of bankruptcy (2008), or at discharge (2011), because it had not yet been raised. He made submissions regarding what constituted non-provable debts pursuant to sections 82(2) and 82(3) of the Bankruptcy Act, and submitted that if the Tribunal should find that Ms Mavruk owed a debt to the Commonwealth before she declared bankruptcy, then the debt could be non-provable, and could be considered for waiver or write-off under the Social Security Act.
Dr Thompson did not agree with Ms Thirukumar’s interpretation of paragraph 6.7.3.05 of the Guide, which I noted states:
When a person is discharged from bankruptcy, they are released from all ‘provable debts’ even if these debts were not acknowledged or ‘proved’ in the bankruptcy process. The exception to this is where a debt was incurred because of fraud.
Dr Thompson then made submissions regarding fraud in this case, noting that section 153(2)(b) of the Bankruptcy Act excludes debts which were incurred by means of fraud. A relevant it follows:
(2) The discharge of a bankrupt from a bankruptcy does not:
…
(b) release the bankrupt from a debt incurred by means of fraud or a fraudulent breach of trust to which he or she was a party or a debt of which he or she has obtained forbearance by fraud; …
I accepted Dr Thompson’s submission that fraud includes an intention to mislead, a deliberate deception to secure unfair or unlawful gain, or acting with some deliberate dishonesty to the prejudice of another person’s propriety right (Re Civitareale and Secretary SDSS (1999) 57 ALD 541).
I make the point that I am not bound by the findings of the SSAT, or what Centrelink decided in regard to fraud, and that what I am considering is the question of fraud in relation to the Bankruptcy Act.
I have considered the submissions of both parties with regard to Mrs Mavruk’s parenting payment debt. I accept it was not provable as it had not been raised either at the commencement of the bankruptcy in 2008, or on Mrs Mavruk’s discharge in 2011.
However, I accept the Respondent’s submissions that the debt is tainted with fraud because I am satisfied on the basis of the evidence before me, that Mrs Mavruk intentionally misled Centrelink’s officers with her disclosures to them from time to time. As I pointed out to Mrs Mavruk at the hearing, the documentary evidence in this case is far more persuasive than her oral evidence. I have already decided in the paragraphs above that she and Mr Mavruk were a member of a couple from the time of their marriage in 1991, and continue to be so, and that the evidence indicates no attempts have been made to separate or divorce. I cannot on the basis of the evidence be satisfied that they were living separately and apart from one another on a permanent or indefinite basis from 1991 to the date of my decision.
In the paragraphs above, I have referred to the issues of credit in this matter, including the untruths Mrs Mavruk was prepared to tell regarding her fictional employment in applications to financial institutions. I refer also to her evidence that she did not know until sometime afterwards that number two had been sold to her brother in 2007, although his name was on the transfer. I refer also to the untrue information she provided to Centrelink in connection with rental assistance, which is discussed above. There are many more such instances to which I have referred in these Reasons for Decision.
Mr Mavruk conceded he was lying about various pieces of his evidence, including the inflated amount he allegedly paid Mr Ozan Malgit for the re-purchase of number two in his name alone in 2015, about which he did not tell his wife until she found out at the Tribunal. Mrs Mavruk signed many applications for loans with Mr Mavruk. She was a joint owner with Mehmet on the title to number two on all occasions except in 2015, even though she denied being a joint owner, saying that she had not contributed to the purchase price.
On the basis of the evidence before me, I am satisfied on the balance of probabilities that Mrs Mavruk engaged in fraud in the terms of the Bankruptcy Act in connection with the claim for parenting payment at the single rate which she received at various times between 28 July 1994 and 27 January 2014.
I noted the findings of Senior Member Walsh in Re Fode below as referred to by Ms Thirukumar.
[100] Based on the verbal evidence given by Mr Fode and his accountant, Mr Edwards, Mr Fode’s letter dated 1 July 2011 and the other evidence before it (as detailed above), the Tribunal is not on the balance of probabilities satisfied that Mr Fode acted with any deliberate or intentional dishonesty in signing the Centrelink “Statement” dated 21 December 2000 which said “To my knowledge there is no loans through the trusts” even though that statement later proved to be false: R v Sinclair and Re Civitareale. The Tribunal is also satisfied that subjectively Mr Fode did not sign that Statement knowingly, without belief in its truth or recklessly without any regard to whether it was true or false: Derry v Peek and SGB v The Queen. This is apparent from Mr Fode’s letter dated 1 July 2011 which states:
“At the time I did not know there were loans to the trust. The statement made ‘To my knowledge there is no loans through the trusts’ is what I thought at the time. I do not consider that I was reckless in making this statement as I really did not know all the ins and outs of my finances and would have believed that Centrelink had been in contact with John Edwards and so would have thought that it was correct. It never entered my mind that they would not have obtained all of the required information from John Edwards......”
[101] It is clear from the evidence that Mr Fode did not know the “ins and outs”, as he put it, of his financial affairs and has always relied on others, including his accountant Mr Edwards, to take care of them for him. If anything, Mr Fode was careless in assuming and expecting that Centrelink would contact his accountant, Mr Edwards, to clarify his financial situation and to obtain the relevant supporting documents (e.g. trust tax returns, balance sheets profit and loss statements etc.). However, mere carelessness does not constitute “fraud” at common law: Angus v Clifford. The Tribunal considers that Mr Fode honestly believed the statement “To my knowledge there is no loans through the trusts” to be true at the time he made it. There is nothing to suggest otherwise: Krakowski v Eurolynx and John McGrath Motors v Applebee…
I distinguish Re Fode on the basis that the Tribunal found he may have been careless, and that mere carelessness does not constitute fraud. Mrs Mavruk’s is quite a different situation where I find she had a deliberate intention to mislead Centrelink and various financial institutions for gain, and did so.
I am satisfied that there can be no write-off, and that the debt Mrs Mavruk owes to the Commonwealth for having received parenting payment at the single rate when she has been a member of a couple since 1991, must be recalculated, and repaid.
I am not able to consider waiver because on the basis of the above findings I am satisfied that I would find that Mrs Mavruk knowingly made false statements which led to the debt. Accordingly waiver would not be available.
DECISION
The Tribunal varies the decision of the SSAT dated 29 September 2014 to find that Mrs Mavruk has been a member of a couple with Mr Mavruk from 1991 to the date of these Reasons for Decision. Accordingly the debt of parenting payment claimed at the single rate incurred since Mrs Mavruk first claimed it on 28 July 1994 must be recovered.

I certify that the preceding 145 (one hundred and forty five) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member

..............................[sgd]..........................................
Associate
Dated 21 December 2015

Dates of hearing
28 September, 30 September, 1 October, 11 November and 12 November 2015

Date final submissions received 2 December 2015

Solicitors for the Applicant Welfare Rights Centre, Ms S Thirukumar

Solicitors for the Respondent Sparke Helmore Lawyers, Dr S Thompson

Division	General Division
File Number	2014/5286
Re	Fatma Mavruk
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Ms G Ettinger, Senior Member
Date	21 December 2015
Place	Sydney

Dates of hearing	28 September, 30 September, 1 October, 11 November and 12 November 2015
Date final submissions received	2 December 2015
Solicitors for the Applicant	Welfare Rights Centre, Ms S Thirukumar
Solicitors for the Respondent	Sparke Helmore Lawyers, Dr S Thompson