Mousawi and Secretary, Department of Social Services (Social services second review)
[2021] AATA 850
•13 April 2021
Mousawi and Secretary, Department of Social Services (Social services second review) [2021] AATA 850 (13 April 2021)
Division:GENERAL DIVISION
File Number: 2019/0503
Re:Ghadir Mousawi
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:13 April 2021
Place:Melbourne
Pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision of the Social Services and Child Support Division of the Tribunal dated 21 December 2018.
....[sgd]....................................................................
Senior Member D. J. Morris
Catchwords
SOCIAL SECURITY – benefits, entitlements and pensions – cancellation of parenting payment – parenting payment debts – pension education supplement debts – child care benefit debts – family tax benefit debts – school kids bonus debt – newborn upfront payment debt – the decision of the Social Services and Child Support Division (first tier) – the nature of that decision – second tier review limited by directions or recommendations in the decision at first tier – which debts are now before the Tribunal for review – consideration of whether the applicant was a member of a couple in the specified period – consideration of circumstances – factors to be taken into account – if the applicant found to be overpaid benefits whether the overpayments are debts due to the Commonwealth – whether all or part of the debts should be recovered – decision under review is affirmed
Legislation
Administrative Appeals Tribunal Act 1975, ss 33A, 37, 38AA
A New Tax System (Family Assistance) Act 1999, Sch 3, item 3(1)
A New Tax System (Family Assistance) (Administration) Act 1999, s 71C, 71F, 95, 128
Social Security Act 1991, ss 4, 1068, 1068B, 1061B, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999, ss 179, 196Cases
Gordon and Secretary, Department of Employment and Workplace Relations, Re [2006] AATA 792
Groth v Secretary, Department of Social Security [1995] FCA 1708
Pelka v Secretary, Department of Social Security (2006) 151 FCR 546
RFZS and Secretary, Department of Education, Employment, Workplace Relations and Anor, Re [2010] AATA 35
Sperring and Secretary, Department of Employment and Workplace Relations, Re [2007] AATA 1050REASONS FOR DECISION
Senior Member D. J. Morris
13 April 2021
Mrs Mousawi has brought to the General Division of the Tribunal an application that a decision of the Social Services and Child Support Division of the Tribunal (‘AAT1’) of 21 December 2018 be reviewed.
In the AAT1 decision, it was found that the Applicant was a member of a couple and the Tribunal affirmed the decision of an Authorised Review Officer (‘ARO’) of the (then) Department of Human Services (now called Services Australia) of 6 August 2018; in relation to the cancellation of Parenting Payment, Parenting Payment debts, Pension Education Supplement debts, Child Care Benefit debts for 2011-2012 and 2014-2015; Family Tax Benefit (‘FTB’) debts for 2014-2015, a School Kids Bonus debt for 2015 and a Newborn Upfront Payment debt.
The AAT1 set aside the ARO’s decision in relation to a Child Care benefit debt for 2013-2014; an FTB debt for 2015-2016; a School Kids Bonus debt for 2016 and Child Care Benefit debts for 2015-2016 and 2016-2017; and remitted these particular debts to the Chief Executive of Centrelink for recalculation in accordance with findings the AAT1 had made about the income of Mrs Mousawi’s (then) husband, Mr Al Mousawi in the relevant period.
PRELIMINARY MATTER – JURISDICTION
When the Tribunal at first-tier makes a decision and remits a matter to the Respondent with directions or recommendations, the General Division of the Tribunal is constrained by section 179(2)(d) of the Social Security (Administration) Act 1989 (the ‘SSAA’) in considering any further application for review, to those directions and recommendations made by AAT1.
In Mrs Mousawi’s matter, the decision by AAT1 was:
The decisions under review in relation to the child care benefit debt for 2013/14, the family tax benefit for 2015/2016, the school kids bonus debt for 2016, and the child care benefit debts for 2015/2016 and 2016/2017, are set aside and sent back to the Chief Executive, Centrelink for recalculation in accordance with the Tribunal’s findings about Mr Al Mousawi’s income set out in paragraph 33. The debts as recalculated are recoverable.
The Respondent advised in its written Statement of Facts, Issues and Contentions (‘RSFIC’) that as the result of non-lodgement of Mr Al Mousawi’s tax returns for the 2012-13 and 2013-14 financial years, two additional debts have been raised as the result of the AAT1 decision remitting the matter to take into accounts about his income, which included a new FTB debt of $16,650.17 for 2012-2013 and a School Kids Bonus debt for 2012-13 of $410. The Respondent submitted that these debts are not reviewable by this second-tier review because of section 179(2)(d) of the SSAA and mirror provisions in section 128(2) of the A New Tax System (Family Assistance) (Administration) Act 1999 (the ‘FSAA Act’).
The Respondent submitted that the following debts are before this Tribunal:
(a)A Parenting Payment debt of $54,259.81 for the period 7 May 2012 to 30 June 2017;
(b)Pension Education Supplement debts of $4,590.86 for the period 20 October 2012 to 15 September 2014 and $1,493.41 for the period 10 January 2017 to 10 December 2017;
(c)Child Care Benefit debts of $1,455.30 for the period 4 July 2011 to 1 July 2012 and $32,069.72 for the period 7 July 2014 to 5 July 2015;
(d)FTB debts of $16,946.95 for the period 1 July 2014 to 30 June 2015 (a non-lodger FTB debt); FTB School Kids Bonus of $422 for the period 1 January 2015 to 30 June 2015; and an FTB Newborn Upfront Payment debt of $523 paid on 18 January 2017.
The Tribunal agrees with the submissions of the Secretary that, given that AAT1 made directions in its decision, my scope in this second-tier review is confined by the legislation in respect of the directions that AAT1 made, and the Tribunal may not review the two additional debts which have been raised as a result of the remittal to the Department and the calculation of debts owed relating to Mr Al Mousawi’s failure to lodge tax returns, as outlined above.
The consequence is that the matters before the Tribunal are as follows: Was Mrs Mousawi a member of a couple as defined by section 4(2) of the Social Security Act 1991 (‘the Act’) for the period from 4 July 2011 to 10 December 2017 (which I will call ‘the relevant period’)?. If the answer to this question is ‘yes’, there is a second question: Was Mrs Mousawi overpaid Parenting Payment, Pension Education Supplement, Child Care Benefit and FTB in excess of her entitlement? If the answer to that second question is ‘yes’, the Tribunal must then consider whether the debt or debts are due to the Commonwealth and whether all or part of the debt or debts should be recovered.
HEARING
The hearing was held on 15 October 2020 by telephone, under section 33A of the Administrative Appeals Tribunal Act 1975 (the ‘AAT Act’) and in accordance with the temporary restrictions on face-to-face hearings relating to the current public health emergency. Mrs Mousawi gave evidence and was cross-examined by Mr Nam Nguyen, of Sparke Helmore Lawyers, representing the Respondent. The Tribunal appreciates the assistance of an interpreter in the Arabic language.
The Tribunal took into evidence the following documents submitted by the Applicant:
(a)Letter from Mr Ali Alshassani dated 11 February 2019 (Exhibit A1);
(b)Optical medical report relating to the Applicant’s daughter, lodged on 20 February 2020 (Exhibit A2).
The Tribunal also took into evidence a volume of ‘T’ documents lodged by the Respondent in accordance with section 37 of the AAT Act (Exhibit R1); and a volume of supplementary ‘T’ documents, or ‘ST’ documents lodged by the Respondent in accordance with section 38AA of the AAT Act (Exhibit R2).
THE LEGISLATIVE FRAMEWORK
Part 1.2 of the Act concerns definitions of terms used in the Act. Section 4 concerns Family relationships – definitions – couples. Section 4(2) of the Act provides:
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;…
(Emphasis added.)
Section 4(3) of the Act relevantly states:
(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
ORAL STATEMENT AND EVIDENCE OF THE APPLICANT
Mrs Mousawi in her opening statement said she disputed that she was a member of a couple with Mr Al Mousawi during the relevant period. She said that she has now divorced her husband, and that occurred in 2018, but she was not sure of the exact date. Mrs Mousawi said she had evidence of the divorce, which she would provide to the Respondent and the Tribunal after the hearing.
Mrs Mousawi agreed that she has four children with Mr Al Mousawi and, during the relevant period, resided at a house in Thomastown. She said she was the owner of the house during the relevant period and that the residence was previously owned by her ex-husband.
Mr Nguyen asked whether the ownership of the residence was transferred into her name in mid-2013, which Mrs Mousawi agreed was the case.
Mrs Mousawi said that she asked her husband to transfer the house so that she could live there with the children and told the Tribunal she paid “about half the price at that time.”
Mrs Mousawi was referred to a Transfer of Land declaration dated 11 June 2013 (T, p 524) from Mr Al Mousawi to her in relation to the Thomastown residence which, in the part of the form requiring details of the consideration for the transfer, stated “Love and affection the Transferor being the husband of the Transferee.”
Mr Nguyen suggested to Mrs Mousawi that ‘consideration’ usually requires a monetary amount to be inserted and put to the Applicant that she did not pay any money to Mr Al Mousawi for the transfer of the property. Mrs Mousawi responded: “I don’t know what they wrote. I paid him some cash money for the house. The problem is that I paid him cash, I have no evidence.”
Mrs Mousawi agreed that she had a home loan account with the Bank of Melbourne. She agreed that Mr Al Mousawi was making regular payments into that account and told the Tribunal; “I gave him some cash and he was paying the mortgage at that time. I was paying from my work. He borrowed money and was paying back to me.”
When asked directly by the Tribunal whether there was some loan agreement between her and Mr Al Mousawi, the Applicant responded: “We have documents between us, actually. We used to write down how much he took from the credit card and how much he paid back.”
When asked by Mr Nguyen whether she let Mr Al Mousawi borrow her credit cards, Mrs Mousawi said: “Because we have a problem in the family. I let him use my account. We had children.”
When pressed on whether Mr Al Mousawi could use the credit cards freely, as he wished, Mrs Mousawi said: “There was no difference between us at that time.”
When asked directly by the Tribunal what she meant by the phrase ‘no difference’, Mrs Mousawi then said: “I was forced to give him the card for the children’s sake. There was a problem between my husband and my daughter, so I was forced to do it.”
Mr Nguyen asked Mrs Mousawi whether she had bought a plot of vacant land in the suburb of Wollert in March 2016, and whether she had taken out a bank loan in the amount of $225,000 to purchase this land. Mrs Mousawi agreed this was the case.
Mrs Mousawi was referred to an ANZ Bank form headed ‘Statement of Financial Position (Consumer)’ (ST, p 21), provided to the Department pursuant to section 196 of the SSAA, which she agreed was signed by her and related to her application for the bank loan to purchase the Wollert block of land. In that form, the gross monthly income is recorded as “$8,696”. Mrs Mousawi responded: “I don’t know where that figure came from; it’s not correct.”
In the same form, in response to the question about money in accounts with other financial institutions, the amount of “$150,000” is recorded. Mrs Mousawi was asked what this referred to and she responded: “I don’t know where these figures came from. I can’t remember. I had this sum, but not that much.”
Mrs Mousawi was taken to a payslip apparently from a company called SZS Mechanical and Smash Repairs, which is in her name and recorded the period of payment of wages between 31 July 2017 and 8 August 2017. The Applicant agreed it showed her name but said: “I never worked for them; I was working for the childcare centre.”
When asked why this payslip was in her name and how it might have come into the bank’s possession in relation to her application for the loan, Mrs Mousawi responded: “I have no idea.”
The Tribunal asked whether it was possible that Mr Al Mousawi might have worked for this company, but the Applicant said she did not think so, as he was driving a truck at the time.
The Applicant was taken to the following extract of an interview with a case officer of the Department relating to undeclared income (T, p 736) which relevantly reads, about the purchase of the Wollert land:
Q: How did you afford to buy the land?
A: My husband bought it and put it under my name, he pays the mortgage, it is for his children, not sure what he is going to do with it, maybe build and we move in, rent it out. If he can’t pay mortgage, I’ll sell it.
Case officer showed the mortgage application to MOUSAWI,
Q: There is a listing of $150,000 in other bank accounts, where are these bank accounts?
A: He put into my account so I could get a loan, put it in her [sic] mortgage to lower interest.
Q: In the loan documents, you are listed as employed by SZS mechanical with a base salary of $104,000.
A: I do not work there, maybe my husband has worked there. “husband took her to sign the form, he filled it in, I just signed it.”
Mrs Mousawi was asked about this exchange with the Department’s case officer and told the Tribunal: “I didn’t have an interpreter. They are not my words.”
Mr Nguyen then asked Mrs Mousawi how, then, was she able to take out the bank loan. She responded: “Working for a few years in family childcare and saved and bought the land.”
Mr Nguyen queried as to whether, if she was working in childcare at the time she applied for the ANZ Bank loan, which Mrs Mousawi confirmed, why she did not put down that source of income rather than the payslip from SZS Mechanics and Smash Repairs, Mrs Mousawi told the Tribunal: “The broker said he was going to fix everything, don’t worry.”
Mrs Mousawi agreed that after purchasing the Wollert land it was subdivided.
The Applicant was then referred to a letter (T, p 498) from Nagam Abas, the Managing Director of Al Raja Family Day Care at Epping, dated 30 December 2016. The letter states:
This letter is to confirm that Ghadir Mousawi has stopped working as an educator with Al Raja Family Day Care since the 19th of December 2016.
Mrs Mousawi confirmed that she stopped working at the end of 2016. She agreed that after she bought the Wollert land she was paying two mortgages, and said that the mortgage for her Thomastown residence was at that time around $1,500 per month (having reduced from $1,700 per month) and the mortgage on the land was $1,000 per month, a total she estimated of around $2,500 per month.
Mr Nguyen suggested to Mrs Mousawi that after she ceased employment at the childcare centre, Mr Al Mousawi helped her make repayments. The Applicant responded: “He never tried to help me. He took money from my credit card and never helped me.” She told the Tribunal that she was the only one paying the mortgage.
The Applicant was taken to the bank statement for her Bank of Melbourne home loan account (T, p 1883) which showed regular and substantial payments by Sadek Mousawi (i.e. Mr Al Mousawi) in the period, for example, of between February to May 2015. Each payment over $2,000, which she agreed were sufficient to make all the required payments for this loan during the relevant period.
Mr Nguyen put to Mrs Mousawi that her then husband operated a childcare business at the Thomastown residence during the relevant period from May 2012 to June 2017. Mrs Mousawi responded: “He worked for short periods at [the residence]. I suggested I run it for him.”
Mrs Mousawi was asked about Education Department records that indicate Mr Al Mousawi was operating a childcare service at the Thomastown house from August 2013 to August 2017, and she responded: “It wasn’t that long. It was at most one year in 2017.”
Mr Nguyen took Mrs Mousawi to a printout of Education Department records (ST, p 31) showing payments to Mr Sadek Mousawi in 2013 and 2014. She responded: “He possibly worked for a short period of time.” Mrs Mousawi said she accepted that Mr Al Mousawi worked in 2013 at the Thomastown residence. The Applicant said she could not remember if he also worked there in 2014.
The Respondent put to Mrs Mousawi that the records show that Mr Sadek Mousawi worked regularly between 2013 and 2017 at the childcare centre at the Thomastown address. She replied: “He worked for short periods of time; I can’t remember.”
The Tribunal directly put to Mrs Mousawi at this stage that she was changing her evidence, which she denied.
Mrs Mousawi agreed that during the relevant period her husband would visit the Thomastown house, but she said he never stayed there after the property was transferred into her name. Mrs Mousawi said that Mr Al Mousawi was living at another place in Epping and came to visit the children but ‘never stayed’ and did not sleep there overnight.
The Applicant was referred to the AAT1 decision, at paragraph 44, where Member Smith wrote:
Mrs Mousawi testified that Mr Al Mousawi came to visit the children at [the Thomastown residence]. She said he stayed overnight (in the living room) and estimated this was about twice per week. Mrs Mousawi was unable to recall the pattern of his visits with any clarity and was unable to identify if there were any changes in the pattern of his visits. Mrs Mousawi moved into [the Thomastown house].
Mrs Mousawi, in response, said that her then husband “possibly stayed overnight once or twice in 2013.”
Mr Nguyen put to Mrs Mousawi that she allowed Mr Al Mousawi free access to the house. She replied: “He had freedom to come and see the children, but he couldn’t come whenever he liked.”
Mrs Mousawi agreed that she gave birth to two children during the relevant period, fathered by Mr Al Mousawi, and that she travelled overseas with her then husband “once to help the children.”
CONSIDERATION – WAS THE APPLICANT A MEMBER OF A COUPLE?
The Tribunal and the Courts have considered the provisions in the Act relating to coming to an assessment as to whether a person is a member of a couple on many occasions. Senior Member Isenberg said in Re Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050, at [70]:
Determining whether a relationship is ‘marriage-like’ is a difficult task. The assessment is made somewhat easier by the common sense criteria identified in the legislation, as addressed above. As observed in Cullinane (where there was found to be a marriage-like relationship) 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.
The Tribunal’s task, standing in the shoes of the Secretary, is to form an objective opinion about the circumstances of Mrs Mousawi’s relationship with Mr Al Mousawi, including considering the various criteria set out in section 4 of the Act. Importantly, this opinion is not formed from the views that the two people themselves might have, although the decision-maker’s opinion may be informed by those views.
French J (as His Honour then was of the Federal Court) stated, in Pelka v Secretary, Department of Social Security (2006) 151 FCR 546 (‘Pelka’), at [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. 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 by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.
In terms of section 4(3)(1) of the Act, the financial aspects of the relationship, the Respondent noted that Mr Al Mousawi purchased the Thomastown residence in his name in 2011 and transferred it to the Applicant in June 2013, with the consideration on the Transfer of Land document being described as ‘love and affection’. The loan repayments for this property were made from Mrs Mousawi’s Bank of Melbourne home loan account and the bank statements for that account before the Tribunal show numerous, regular and substantial payments by Mr Al Mousawi into that account during the relevant period. There is also evidence that, during the relevant period, Mr Al Mousawi made purchases relating to his business from the Applicant’s own bank account.
In her evidence to this hearing, Mrs Mousawi first said that she allowed her former husband to use her credit cards; when pressed as to why she did this at the time, because she was saying they had ceased to be a couple, she first responded that, at the time, ‘there was no difference’ between her and her husband. When asked precisely what she meant by this phrase, Mrs Mousawi then changed her evidence and stated that her husband had ‘forced’ her to give him her credit cards because of some dispute over one of their children.
When Mrs Mousawi entered into a loan with the ANZ bank to buy the Wollert block of land in 2016, she declared that she held $150,000 in other accounts and earned a gross salary at that time of $8,696 from a smash repairs business, attaching pay slips from a named business in support of this claim. When she was interviewed by a Department case officer, Mrs Mousawi said that her husband had transferred money into her account so she could get the loan and denied working for the smash repairs business. She suggested to the case officer that her husband ‘possibly’ worked there, but then told this hearing that he did not, because he was driving trucks at the time.
It is also clear from the evidence that, at least for some part of the relevant period, Mr Al Mousawi was working from the Thomastown residence where the Applicant lived and operating his family day care business from there. Mrs Mousawi said she offered to run it for him; whatever was the arrangement, the evidence is that it was operating from her house, in tandem with her own family day care business also operating from there.
I am satisfied on the evidence before me that there was significant pooling of financial resources between the Applicant and Mr Al Mousawi. It is not necessary for me to make any finding about the veracity of the material Mrs Mousawi furnished to the bank in relation to her application for the loan to enable her to buy the Wollert property, especially the unexplained payslips from the smash repairs business. It is sufficient for me to find that the intertwining of their financial affairs was such that they were:
(i) sharing credit cards;
(ii) Mr Al Mousawi was making regular and substantial payments to the loan account for the Thomastown property; and
(iii) on Mrs Mousawi’s evidence to AAT1, her husband had transferred money into her accounts to improve her financial profile in order for the Applicant to get the loan for the block of land.
The Applicant’s evidence supports the conclusion that, effectively, Mr Al Mousawi was the purchaser of the land, but it was put in his wife’s name.
It is significant to me that, in the notes recorded by the Department case officer, Mrs Mousawi, after saying that her husband bought the Wollert property and put it in her name, said that if he cannot pay the mortgage, she would sell it. This satisfies me that there was a clear arrangement between them in terms of buying the land.
Mrs Mousawi told this hearing that she paid ‘half’ the cost of the Thomastown house when her husband transferred it into her name, but said she had no evidence of this. She also said that she and Mr Al Mousawi had kept their own records of financial dealings between them after they separated in 2011, but she did not provide any such records to the Tribunal.
I note AAT1 recorded that both the Applicant and her husband were both operating family day care businesses at the Thomastown house and that Mr Al Mousawi’s educator payments were paid into Mrs Mousawi’s offset account from August 2013. In addition, throughout the period Mrs Mousawi’s credit card was used by her husband for his business.
I am comfortably satisfied that the evidence of the overall financial aspects of the relationship during the relevant period supports a finding that the Applicant was a member of a couple.
In terms of the nature of the household, both the Applicant and Mr Al Mousawi advised Centrelink that the Thomastown house was their joint address in July 2011. In November that year Mrs Mousawi said they had separated under one roof and in December 2011 she advised Centrelink that Mr Al Mousawi had moved out. AAT1 found that from about April 2014 Mr Al Mousawi was using an Epping address for certain purposes, such as advice to VicRoads, his employer and on his own bank account. Mrs Mousawi provided a letter to the AAT1 hearing from the homeowner of the Epping address saying that Mr Al Mousawi had been living at that address since April 2014 (T, p 748).
However, pointing in the other direction, Mr Al Mousawi registered the place of business of his transport company at Mrs Mousawi’s Thomastown residence and continued to use that address for his company bank account after April 2014 until 2016, and according to Education Department records, for his family day care business until May 2018.
In her evidence to AAT1, as set out above, Mrs Mousawi said that Mr Al Mousawi came to visit the children at the Thomastown house and that he stayed overnight about twice a week but slept in the living room. Her evidence to this hearing was different. She said he did not stay overnight, and then retreated from that, and said he might have ‘once or twice’.
I am satisfied on the evidence before the Tribunal that Mr Al Mousawi was not regularly living at the Thomastown residence during the relevant period and was living elsewhere. It is not clear to me where he was living from 2011 to 2014, but from 2014 he was apparently living at an address in the adjacent suburb, at Epping. However, I am also satisfied that he had free access to the Thomastown residence not only to see the children, but also to operate his family day care business. I find Mrs Mousawi’s evidence at the hearing about when and how regularly Mr Al Mousawi stayed at her house both inconsistent with previous accounts, and evasive.
I accept that there had been some separation in the relationship between the Applicant and Mr Al Mousawi, which led to him transferring the house into her name (for, on the facts before me, no monetary consideration) and moving into a different residence, but this does not, by itself, lead me to the conclusion that she was not a member of a couple with Mr Al Mousawi in the relevant period.
In terms of any social relationship (section 4(3)(c) of the Act), there was evidence before the Tribunal through a letter from Mr Ali Alshassani (Exhibit A1) that states he has known the Applicant and Mr Al Mousawi since 2009 and was aware that they went through ‘family issues’ which resulted in them separating in 2011. Mr Alshassani suggested the Applicant allowed her husband to use her credit cards owing to pressure from her daughter, because Mr Al Mousawi was struggling financially, and that Mr Alshassani was aware the Applicant’s husband was transferring some funds back to repay money lent to him. Mr Alshassani does not say how he was aware of this.
Mr Alshassani also wrote:
The reason of Mr Sadek [i.e. the Applicant’s husband] not staying overnight at Ms Ghadir’s house is due to the purpose of him visiting his children only, since he has a different address.
It is not clear how Mr Alshassani would know what Mr Al Mousawi’s sleeping arrangements were, since he lives elsewhere. It would appear he is basing this on what either the Applicant or her then husband has told him, which as I have mentioned above, has been a somewhat inconsistent story.
I note that the Applicant told AAT1 that some people knew she and Mr Al Mousawi had separated during the relevant period, and other friends did not know. These matters are often very personal, and the Tribunal accepts that often couples do not want even close friends to know about marital disagreements. Immigration Department records show (T, p 717) that the Applicant and Mr Al Mousawi travelled together abroad, departing Australia in early December 2013 and returning in mid-February 2014. The Applicant told the ARO that she went to Iran with her children and Mr Al Mousawi went to Iraq. However, she subsequently told AAT1 that they both travelled to Iran but stayed with separate family members, and then her husband went on to Iraq.
I note the Respondent in written submissions contends that Mrs Mousawi and her husband “travelled together on numerous occasions over the relevant period”. That assertion is not supported by the Immigration Department movement records (at T, pp 740-741), which records only one common date egress and ingress of both the Applicant and Mr Al Mousawi in the period.
In terms of any sexual relationship (section 4(3)(d) of the Act), I note that before AAT1 Mrs Mousawi gave evidence that her third child with Mr Al Mousawi was born in May 2012 and was conceived before they separated in November 2011, and that there was a brief period of a few weeks in November 2015 when they again had an intimate relationship and their fourth child was conceived, born in June 2016. I note also that the records provided by the Royal Women’s Hospital, completed on the advice of the Applicant, record Mr Al Mousawi as the father of the children and the next-of-kin of the Applicant.
While the absence of a sexual relationship between a couple does not of itself mean that they are not members of a couple in terms of a conclusion under section 4 (see, for example, Deputy President Groom in Re Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792), I am satisfied on this evidence that there was a sexual relationship between the Applicant and Mr Al Mousawi at times during the relevant period.
In terms of the nature and commitment of the Applicant and Mr Al Mousawi to each other in the relevant period, in Pelka, it was held that the nature of the commitment has to be qualitatively different from the commitment that either party to the relationship has to any other person. This would seem to me to have applied, in the relevant period, to the Applicant and Mr Al Mousawi. Mrs Mousawi gave evidence to AAT1 that she had married young and did not want to be married. She told AAT1 that Mr Al Mousawi had repeatedly wanted to rekindle the relationship and that he used the children, particularly the oldest daughter, to be his mediator. There was no evidence before the AAT1, nor before this hearing, that either Mrs Mousawi or Mr Al Mousawi had formed a relationship with another person and, indeed, the evidence of the Applicant pointed to a joint commitment to supporting their children and the cordial arrangement she put in place to allow Mr Al Mousawi regular access to see them.
It is difficult for me, in the absence of evidence from Mr Al Mousawi, to come to a conclusion about the nature of commitment the Applicant and he had during the relevant period, and it may indeed be that, even if such evidence was before me, there would be a different view from each side. I note that, in spite of being given notice of the AAT1 hearing, Mr Al Mousawi did not attend it and so the Member at first tier was similarly disadvantaged in not having his submissions or evidence, and being able to clarify or test them.
After the hearing, Mrs Mousawi provided to the Tribunal an Order of the Federal Circuit Court of Australia of her divorce from Mr Al Mousawi, dated 25 September 2018. The Tribunal therefore accepts the evidence that the Applicant has since divorced Mr Al Mousawi, but that took place well outside the relevant period relating to the debts and is not directly relevant to my assessment of whether Mrs Mousawi was a member of a couple at the time the debts were incurred.
Adopting the wise approach in Pelka, the Tribunal must look at the total picture of the relationship. I am satisfied during the relevant period that the total picture of the relationship illustrates that Mrs Mousawi was a member of a couple, principally because of the closely intertwined financial components of her relationship with her husband, estranged as he may have been. There were also some social aspects of the relationship which point to coupledom in the period.
In RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35, Senior Member Dunne said, at [35]:
In matters involving a determination of whether a person is a member of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance. The Tribunal has carefully considered the instances referred to in paragraph 33 of these reasons and the other matters before it and is satisfied that there are a number of telling inconsistencies and contradictions in the applicant’s evidence when compared with the other information available. Overall, the Tribunal is not satisfied that the applicant gave a truthful account of the essential nature matters pertaining to her relationship with Mr B…
These remarks are fitting in this matter. I was particularly disturbed at the inconsistent and vague evidence that Mrs Mousawi gave to this hearing, contradicting not only sworn evidence she gave at the first-tier Tribunal hearing, but also other information she has supplied to the Department. Even if I accept that there may have been certain tensions and pressures in her relationship with Mr Al Mousawi during the relevant period, it is telling to me that much of the inconsistent evidence was around facts which would go to whether she was entitled to certain benefits from the public purse.
Weighing all the factors in a cumulative sense, I find that the Applicant was a member of a couple in the relevant period.
CONSIDERATION – WAS THERE AN OVERPAYMENT OF BENEFITS?
In terms of the Parenting Payment and Pension Education Supplement debts, section 503 of the Act provides that a person’s Parenting Payment (i.e. single) rate should be calculated using the pension rate calculator in the Act at the end of section 1068. Where a person is partnered, the rate is worked out using a different calculator at the end of section 1068B. Section 1061PA of the Act provides that the Pension Education Supplement is only payable to a person receiving Parenting Payment at the partnered rate in specific circumstances.
The Tribunal finds that the calculation of the overpayment of Parenting Payment and Pension Education Supplement to Mrs Mousawi in the relevant period takes into account that she was at the time a member of a couple with Mr Al Mousawi. There is no evidence before me that the amount of this overpayment was not correctly expressed.
In terms of the FTB and Child Care Benefit debts, item 3(1) of Schedule 3 of the A New TaxSystem (Family Assistance) Act 1999 relevantly provides:
For the purposes of this Act (other than Part 4 of Schedule 1), if an individual is a member of a couple, the individual’s adjusted taxable income for an income year includes the adjustable taxable income for that year of the individual’s partner.
The Respondent submitted that Mrs Mousawi was overpaid amounts because she was paid at the single rate during the relevant period when she was in fact at the time partnered with Mr Al Mousawi and therefore should have been paid at the lesser rate. There was no evidence before the Tribunal that this conclusion was not correct, and on the evidence before me I find there was an overpayment because Mrs Mousawi was wrongly treated as not a member of a couple during the relevant time. That debt is due and payable.
In terms of Child Care Benefit, section 71C of the FAA Act at the relevant time provided that if a person has been paid Child Care Benefit in respect of a period and the amount the person received is greater than the correct amount that should have been paid under family assistance law in respect of the period, the difference between the amount received and the correct amount is, subject to section 71F of the FAA Act, a debt due to the Commonwealth.
There was no evidence before the Tribunal that the Child Care Benefit debt had been incorrectly calculated, so that debt is due and payable.
CONSIDERATION – SHOULD THE DEBTS BE RECOVERED?
Section 1236 of the Act provides criteria by which a decision to write off a debt can be made and in particular, at section 1236(1A)(b) is a provision that states that a debt can be written off if a debtor has no capacity to repay the debt. There are also provisions at section 95 of the FAA Act that allow the Secretary to write off a debt for a stated period if certain criteria are met, namely that a debt is irrecoverable at law; the debtor has no capacity to repay; the debtor’s whereabouts are unknown; or it is not cost-effective for the Commonwealth to take action to recover the debt.
Mrs Mousawi made no submissions that she does not have capacity to repay the debt or that repaying the debt would result in ‘severe financial hardship’ to her. Her principal argument, which the Tribunal has found has failed, was that she was not a member of a couple in the relevant period. She noted during her evidence that she had, since the debts were first notified, paid off significant amounts. On the evidence before me, I cannot conclude that the Applicant does not have capacity to repay the debt, indeed she has a substantial asset (the Wollert land) which she could sell if required.
Section 1237A of the Act provides that where a debt arises which is attributable solely to administrative error by the Commonwealth and the person received the payment in good faith, the debt must be waived. There was no submission to me by the Applicant nor any other evidence before me that there was any administrative error in the calculation of the payments.
Section 1237AAD of the Act provides the Tribunal, standing in the shoes of the Secretary, with a discretionary power to waive recovery of all or part of a debt where the debtor or other person did not knowingly make a false statement or representation or did not knowingly fail or omit to comply with a provision of the Act and that there are special circumstances applicable in the particular case.
The Respondent submitted that there was evidence in the ‘T’ documents before the Tribunal that Mrs Mousawi had been sent many notices during the relevant period reminding her of her obligation to inform the Department of any changes in her circumstances. The Tribunal identifies the notices, letters and other correspondence as T documents: pp 22 to 56, 58 to 135, 137 to 195, 198 to 204, 221 to 223, 239 to 276, 293 to 322, 330 to 353, 359 to 363, 367 to 418, 420 to 445, 460 to 497, 499 to 514, 516 to 577, 594 to 596, 608 to 611 and 653 to 705. Mrs Mousawi did not submit to the hearing that she did not receive these notices, and nor that there were any special circumstances that may be applicable to her, except for a general submission about the effect of the pandemic and an eye condition relating to her daughter.
When she provided details of the eye condition (Exhibit A2), the Applicant told the Tribunal in a covering email that her children were affected by ‘the position’ (by which I understand her to mean the debt repayments). The photograph of the referral from Mrs Mousawi’s general practitioner to an ophthalmic surgeon does not show a date, but it refers to ‘December last year’ and the Applicant’s email to the Tribunal was dated 28 February 2020, so I surmise that the referral letter is from January or February 2020. I can understand that having to repay debts for benefits to which a person was not entitled could place a family under stress but a causal link between the Applicant’s daughter’s optical nerve swelling and the debts themselves has not been made out. It is always open to a debtor to the Department to enter into a repayment plan, which is what the Tribunal understood Mrs Mousawi already had done.
I do not conclude that Mrs Mousawi’s comments about difficulties placed on her family finances by the COVID-19 pandemic were other than general in nature. Without saying they are not genuine statements, these are difficulties that have affected many people who are in receipt of social security assistance (and indeed many who are not) and in the absence of specific submissions that there was something special or, ‘out of the ordinary’, which might place Mrs Mousawi in a special circumstance (see the remarks of Kiefel J (as the Chief Justice of Australia then was, of the Federal Court) in Groth v Secretary, Department of Social Security [1995] FCA 1708) that might enliven the discretionary power to waive some or all of the debt, these provisions are not relevant.
I do not believe this is a case where an Applicant may reasonably be considered to have received social security payments, to which she was not entitled, in good faith. While the Tribunal stops short of making a finding that there has been deliberate fraud on the part of the Applicant, her failure to provide accurate information to the Department and her inconsistent evidence over various periods underlines to me that she was not somehow hapless or unwitting in claiming the entitlements which have led to the debts, and the quantum of which she was not entitled under the law.
Having found the Applicant was a member of a couple in the relevant period and having considered the various provisions for write-off or waiver of part or all of the debts, the Tribunal considers the debts are due and payable to the Commonwealth. Therefore, although the evidence of the Applicant varied, I am satisfied that the AAT1 decision was the correct decision in law, and where a discretionary power is available, the discretion was correctly exercised.
DECISION
Pursuant to section 43(1) of the AAT Act, the Tribunal affirms the decision of the Social Services and Child Support Division of the Tribunal dated 21 December 2018.
99. I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D.J. Morris
.........[sgd]...............................................................
Associate
Dated: 13 April 2021
Date(s) of hearing: 15 October 2020 Applicant: Self-Represented Applicant Advocate for the Respondent: Mr Nam Nguyen Solicitors for the Respondent: Sparke Helmore Lawyers
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