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

[2023] AATA 4208

Moverley and Secretary, Department of Social Services (Social services second review) [2023] AATA 4208 (20 December 2023)

Division:  GENERAL DIVISION

File Number(s):      2022/8581

Re:Elizabeth Moverley

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:20 December 2023

Place:Adelaide

The decision under review is set aside and in substitution it is decided that the Applicant was not overpaid Parenting Payment Single and accordingly there is no debt.

..................................[Sgnd]......................................

Senior Member B J Illingworth

Catchwords

SOCIAL SECURITY – overpayment of Centrelink benefits – Parenting Payment Single – Coronavirus Supplement – member of a couple – circumstances of a relationship – separation under one roof – decision under review set aside

Legislation

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Cases

Gilson; Secretary, Department of Employment and Workplace Relations and [2007] AATA 1361

Haddara and the Secretary, Department of Social Services and (Social services second review) [2023] AATA 2316
Melvin v Secretary, Department of Social Security [2016] FCA 375
Pelka v Secretary, Department of Social Security (2006) 151 FCR 546
Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1
Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2010] AATA 284

VBH and Anor;and Secretary,Department of Family and Community Services [2006] AATA1

Secondary Materials

Social Security Guide (version 1.307, 8 May 2023)

REASONS FOR DECISION

Senior Member B J Illingworth

INTRODUCTION

1. From 12 August 2013, the Applicant was in receipt of Parenting Payment Single (PPS) on the basis that she was single, not a member of a couple but residing under the same roof as a former partner Mr Duncan Barnes (Mr Barnes).

2. On 10 May 2021, Centrelink determined that the Applicant was a member of a couple within the meaning of s 4(3) of the Social Security Act 1991 (the Act) for the period 17 July 2019 to 30 June 2020 (the relevant period). As a consequence, she was overpaid her Centrelink entitlements and hence she had a PPS debt of $18,386.37 together with a Coronavirus Supplement debt of $2,750.00 for the period 5 May 2020 to 30 June 2020.

3. The Applicant requested a review of that decision and on 22 July 2021 an Authorised Review Officer (ARO) affirmed the decision.[1] The ARO under the heading ‘Information considered’ wrote:

   In making this decision I considered:

   oThe decision by an Authorised Review Officer dated 23 September 2020, affirming the determination that you and Duncan Barnes were members of a couple from 17 July 2019.

   oThe debt calculations.

   oThe information you provided during our discussion.

   oRecords maintained by us.        

   [1] Exhibit A, T3 p 15-20.

4. The ARO under the heading ‘Reasons for Outcome’ wrote that on 7 July 2020 the Applicant and Mr Barnes were found to be a member of a couple with effect from 17 July 2019 without further explanation or detail of the factual reasoning or information provided, and the Centrelink records considered and upon which the decision was founded. The ARO then explained the debt and referred the Applicant to her appeal rights. The Centrelink records received by the AAT2 were substantial.

5. The Applicant brought an application to the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) to review the decision of the ARO. On 12 October 2022 the AAT1 affirmed the decision of the ARO.

6. The Applicant has now brought an application for review to the General Division of the Administrative Appeals Tribunal (AAT2) which application is now before me.

7. The Applicant appeared in person, was self-represented and gave evidence. She provided unsigned and undated statements which were received into evidence,[2] and called her former partner Mr Barnes to give evidence which he did by telephone. The Respondent was represented by Counsel, Ms Rapson of the Litigation Branch of Services Australia. The Tribunal received into evidence the documents listed on the AAT2 file.

   [2] Exhibits D-H.

OPENING SUBMISSIONS

The Respondent

1. In opening submission, the Respondent referred the Tribunal to s 4 of the Act and Part 2.2.5.30 of the ‘Social Security Guide’ (the Guide) and the need for the Tribunal to have regard to all of the circumstances of the relationship in a member of couple determination. The Respondent referred to the particular regard to be given to the following five factors namely (1) the financial aspect of the relationship, (2) the nature of the household, (3) the social aspects of the relationship, (4) any sexual relationship, and (5) the nature of the commitment.

2. The Respondent submitted that on an objective assessment of the whole of the evidence, the Applicant and Mr Barnes were in a de facto relationship from 17 July 2019 rather than as ‘share mates’ as asserted by the Applicant. This, it is argued, is based on contrasting the relationship before and after the ‘alleged separation’. Further, it is submitted that there is no special reason to treat the Applicant as single in accordance with the discretion under s 24 of the Act.

3. It is submitted there is no evidence before the Tribunal to indicate a legal or practical reason that Mr Barnes cannot adequately contribute to the pooling of resources. Further, the Respondent submitted there was no financial difficulty because of the couple’s circumstances, and financial hardship alone does not amount to circumstances which are unusual, or out of the ordinary.

4. In relation to the question of recovery of the debt, the Applicant was in receipt of parenting payment at the single rate, and was the principal carer of her son RB, who was approximately 6 years of age at the time of the relevant period. Centrelink raised the debt being an overpayment for the relevant period. Further, the Applicant was not entitled to the Coronavirus Supplement as she was not in receipt of a qualifying social security payment for the period 5 May 2020 to 30 June 2020 which was within the relevant period.

5. It is submitted that no part of the debt was attributable to administrative error on the part of the Respondent. The existence of the debt was due to the Applicant’s failure to advise the Respondent of her true relationship with Mr Barnes as required by the Social Security (Administration Act) 1999.

6. The Respondent submitted the Applicant took 10 months to comply with the requirement to provide Separated Under One Roof forms (SUOR) and only after her payment was suspended was the form provided. The Respondent submits that the Applicant lacked good faith as she likely knew she was not entitled to PPS as a single person given her relationship with Mr Barnes.

7. The Respondent referred to the various notices sent to the Applicant requiring she notify the Respondent of any change in circumstances, and argues she was aware at all times of the true nature of her relationship with Mr Barnes which she failed to disclose to the agency. The Respondent argues therefore, that a waiver due to the special circumstances of this matter, should not be exercised by the Tribunal. Further, it is submitted that there is a lack of evidence to suggest that the recovery of the amount of the debt would result in severe financial hardship or that the Applicant has no capacity to repay the debt. The Applicant may make a payment arrangement with Centrelink at any time.

8. It is submitted that the Applicant and Mr Barnes have been a member of a couple within the meaning of s 4(2)(b) of the Act during the relevant period and the debts were correctly calculated on the basis of their true relationship status during the relevant period; and the debts should not be written off or waived.

   Tribunal’s question at the close of the Respondent’s opening submission

9. The Tribunal raised with the Respondent’s Counsel how it is said, in regards to the question of the waiver, that it was not available, solely due to administrative error of the Respondent having regard to the SUOR forms provided to the Respondent, and the evidentiary material before the Tribunal.

10. In summary, the material indicated in 2013 a SUOR form was provided to Centrelink, and the Respondent thereafter paid the Applicant the PPS. For 7 years she provided the SUOR form when required. When she did not complete the SUOR form when required in 2019, her payments were, by notice dated 11 July 2019, suspended because it was said she was living as a member of a couple and had not given enough information to Centrelink about her partner. Following the suspension of payments and on about 17 July 2019 the Applicant provided a SUOR form. That document was not strikingly different to the ones provided previously including the first SUOR form in 2013.

11. The Tribunal asked, given that history, how it is said that the Applicant has made an error. It might be argued that Centrelink had been accepting at face value the SUOR forms without further consideration of their content and did so for 7 years. It was only when the Applicant failed to provide the SUOR form that the Respondent stopped the payments and looked at the matter afresh.

12. The Tribunal raised whether it is arguable that there is nothing in the SUOR forms that, on its face, suggests the Applicant has acted to deceive the Respondent, and the Tribunal would be assisted in an explanation for the opening submission that the Applicant lacked good faith and likely knew she was not entitled to PPS as a single person given her relationship with Mr Barnes from 17 July 2019.

13. Counsel agreed initially that Centrelink accepted the SUOR forms. Counsel advised there was an inquiry about the Applicant’s parenting obligations together with a telephone conversation with Mr Barnes that informed the decision under review.

14. It was agreed that the Respondent would provide written submissions on those questions after the close of the hearing and the Applicant was provided time to respond in writing.

The Applicant

1. The Applicant in opening said that the questions raised by the Tribunal summarised the concerns she had about the decision under review. She said she did not know about the 5 different criteria to be considered in determining whether she and Ms Barnes were partners. She had received Mr Barnes’ bank card so she could purchase things for their son. That has stopped. She stopped the previous rental payment arrangement because she perceived that may have been a factor in Centrelink’s decision. She was now receiving Newstart allowance at the partnered rate.

ISSUES

1. The issues were correctly summarised by the Respondent in the Statement of Facts, Issues and Contentions (the SoFIC’s) namely whether:

   (a)the Applicant was a member of a couple with Mr Barnes as defined in s 4(2) of the Act for the relevant period;

   (b)the Applicant was overpaid PPS in excess of her entitlement during the relevant period; and

   (c)if so

   (i)whether any overpayments are debts due to the Commonwealth, and

   (ii)whether all or part of the debts should be recovered

BACKGROUND

1. The Applicant is 44 years of age. She resides in rental accommodation in Morphett Vale with her son RB born in November 2012 and RB’s biological father Mr Barnes. The Applicant and Mr Barnes are both tenants of the property.[3] They have all lived at that address since 11 February 2011.[4]

   [3] Exhibit A, T15 p 151; T16 p 152.

   [4] Ibid T24 p 253.

2. On 26 September 2018, the Respondent requested the Applicant provide information for her PPS and she was sent a SUOR form to be completed by her and Mr Barnes and be returned to Centrelink by 10 October 2018. The SUOR form was not completed and returned by the due date.

3. On 11 July 2019, the Respondent sent to the Applicant a ‘Suspension of your Parenting Payment Notice’ and the reason was because she was living as a member of a couple and had not given Centrelink enough information about her partner.

4. On 16 July 2019, Mr Barnes completed and submitted the SUOR form.[5] He there declared that:

   [5] Ibid T9 p 80 – 85.

   (a)he and the Applicant separated on 14 August 2013;

   (b)he was not sure for how long they intend to reside at the residence;

   (c)the reason for living with the Applicant was ‘son, works well’;

   (d)the relationship differed from that of a married couple or de facto couple namely, Just roommates, do our own thing, get along better as friends;

   (e)since separation he had never claimed to be a member of a couple;

   (f)neither he nor the Applicant owned the property in which they resided;

   (g)he did not pay for rent, board or lodgings and shared no assets jointly with the Applicant;

   (h)he declared the other person did not pay for accommodation (which the Tribunal infers was an incorrect statement, and the Applicant did pay for accommodation), and he pays for things in another way;

   (i)he and the Applicant did not eat or prepare meals together and each used the kitchen laundry and bathroom when needed;

   (j)he and the Applicant had their own bedrooms, they did not have a sexual relationship and were both free to form a sexual relationship with others;

   (k)he and the Applicant did not provide support to each other when ill, in a personal crisis, financially or in family disputes;

   (l)the Applicant paid for telephone, electricity and gas and was the owner of a motor, vehicle which Mr Barnes used when needed;

   (m)they both paid for food and household expenses, both did the shopping, household tasks, washing, general maintenance, but Mr Barnes did the gardening;

   (n)they shared the care arrangements of RB, both decided matters about his education and development, and in answer to the question how often the other party attended school/sporting/leisure outings with RB he declared ‘not very’.

5. On 17 July 2019, the Applicant submitted the requested SUOR form which was dated 9 October 2018.[6] Her responses were the same as those of Mr Barnes. There is no evidence to explain the delay in submitting the form. The Applicant was not cross-examined about the delay. There is no evidence before the Tribunal that there was anything improper or deceptive in the Applicant’s failure to provide the SUOR form in the requested timeframe.

   [6] Ibid T10 p 98 – 109.

6. The Respondent in its SoFIC’s advised that on 13 September 2019 the Respondent determined a member of a couple assessment should be completed.

7. The Centrelink records indicate that at 12.00pm on 6 July 2020 a Centrelink officer tried to contact the Applicant by telephone but left a message on her voicemail that she would ring back the following day. The following day that officer spoke with Mr Barnes. There is no record of any attempt to telephone and speak with the Applicant again. The Applicant in evidence said that she received a telephone call from Centrelink, she was at work and could not speak to the caller, the caller was going to ring back but did not do so. The Tribunal accepts the Applicant’s evidence in that regard. 

8. The Centrelink record dated 7 July 2020 appears to be a summary of the information held by Centrelink about the Applicant’s and Mr Barnes’ living arrangement. However, the wording of the record is troubling in that it suggests both the Applicant and Mr Barnes had been spoken to. For example, at page 292 it records “Miss Elizabeth Moverley and Mr Duncan Barnes advised they do not eat together, and do not prepare meals for each other.” The record then describes what they say are their living arrangements. The record then reads ‘Miss Elizabeth Moverley and Mr Duncan Barnes both indicated they have a sexual relationship and are free to form a sexual relationship with other people’.[7] The Centrelink record goes on to attribute to the Applicant and Mr Barnes further comments about how long they intend to live together. The Tribunal infers this was an attempt by the Centrelink officer to summarise information already on Centrelink’s record. There was no evidence to explain where or when the information contained in that summary was received. The record was not put to the Applicant.

   [7] Ibid T25 p 292-293.

9. The record does indicate that on 6 July 2020, the Centrelink officer had a telephone conversation with Mr Barnes and records the following:

   ·The Applicant pays the full amount of the rent ($270.00 per week), iinet account, Origin electricity and gas which are all her name;

   ·Mr Barnes pays for food and toys for RB;

   ·Mr Barnes pays a little towards the bills when the Applicant asks, or she would take money from his ANZ account; she has access to that account, or she would grab his ANZ card;

   ·Mr Barnes does the majority of the shopping, and the Applicant would write a list of items she required; both paid for the shopping; sometimes the Applicant would pay half or he would just pay for it;

   ·In respect of Mr Barnes telephone account the Applicant grabs his phone to pay the account;

   ·It is convenient not to move as Mr Barnes wants to be in his son's life and does not want him travelling back and forth between each parent. Their son is not aware they are separated (stated on the ss293 Centrelink form that their son was aware) and was not sure if the school had been advised;

   ·They share the Applicant’s motor vehicle but he rarely drives it; his car is not registered;

   ·In the seven years of separation neither Mr Barnes nor the Applicant have met another person and have not spoken about that occurring.

   ·Mr Barnes does the majority of the cleaning and cooking but they do not eat together. They sit in different areas of the house but eat at the same time.

   ·They do not socialise together, and relatives and friends see them as good friends living together.[8]

   [8] Ibid.

10. Hence, it appears that Centrelink’s decision was reliant on history given by Mr Barnes on 6 July 2020 and compared it to the prior records held by Centrelink. Consistent with the evidence of the Applicant, the record tends to confirm the Centrelink officer did not telephone the Applicant back on 7 July 2020 before making the decision that the Applicant and Mr Barnes were a member of a couple.

11. The Tribunal raised with Counsel the Centrelink record that the Applicant and Mr Barnes maintained a sexual relationship, which was inconsistent with the balance of the evidence and the SUOR forms. The Tribunal asked that the Respondent check to see if it was a typographical error. The Applicant said the word ‘not’ was missing from the record. This inquiry was to be made along with the other matters raised by the Tribunal at the close of the Respondent’s opening submission and the response included in the further written submissions after the hearing.

12. On 7 July 2020, the Respondent determined that the Applicant was partnered and should be treated as being a member of a couple with effect from 17 July 2019[9] which decision was affirmed by an ARO on 21 September 2020.[10]

    [9] Ibid T13 p 121-125.

    [10] Ibid.

13. On 23 April 2021, Ms Barnes and the Applicant each submitted a further SUOR form.[11] Both forms are similar in content and confirm:

    [11] Exhibit A, T14 p 126-135; T15 p 136-145.

    ·they each pay one half of the telephone and internet expenses;

    ·electricity is paid by the Applicant under a payment plan;

    ·they buy their own food;

    ·they each clean up after themselves and their son;

    ·they do their own washing and that of their son;

    ·Mr Barnes does the gardening;

    ·they each do house maintenance as does the real estate agent;

    ·they intend to share accommodation for more than 12 months so their son can see both parents; they work better together as friends;

    ·they take turns attending special events at their son’s school;

    ·they are not in an emotional relationship.

1. The Tribunal received a medical certificate dated 11 May 2022, from the Applicant’s treating doctor, who certified that he had been treating her since 23 May 2017 for anxiety and depression.[12] This was also confirmed in Centrelink medical certificates dated 11 May 2022, 10 August 2022 and 9 November 2022.[13]

   [12] Ibid T18 p 160.

   [13] Ibid; T21 p 164; T23 p 166.

THE EVIDENCE

The Applicant’s evidence

1. The Applicant is 44 years of age born on 16 December 1978. She had resided at the current rented home since about February 2012 when pregnant with their son RB, who was born  November 2012. Prior to that, the Applicant and Mr Barnes lived in separate accommodation but were in a serious relationship and regarded themselves as being partnered. They had been together for approximately 4 years when RB was born.

2. When they leased the current residence both the Applicant and Mr Barnes were the lessees of that premises.

3. Two weeks after RB’s birth Mr Barnes lost his job. The Applicant was receiving Centrelink payments and RB was listed as her dependent. Mr Barnes then commenced receiving Newstart payments. At that time, they regarded themselves as partners.

4. Their relationship changed given the financial difficulties they then faced, and because the Applicant suffered post-natal depression. She asked Mr Barnes to leave but he stayed and helped look after RB. She started to receive medication for her condition. They decided to separate.

5. The Applicant spoke to Centrelink at the time, explained the change in their relationship and was provided a SUOR form to complete and submit, which she did. The Applicant was almost immediately approved for and received PPS.

6. Thereafter, the relationship with Mr Barnes remained the same. They ceased to have an intimate relationship sometime before the first SUOR form was lodged and thereafter they have not engaged in sexual intercourse together. The Applicant continued to occupy their bedroom and RB was also sleeping in his room. Mr Barnes was using the shed which had a couch bed, toilet and running water. He would come inside when it was cold. He had his own room in the house which was the computer room which had a couch on which he would sleep.

7. At that time, the Applicant was paying the rent. She received rental assistance from Centrelink. Mr Barnes bought things for RB such as toys, clothes and food, and purchased his own food. They agreed to that arrangement rather than Mr Barnes paying child support. Mr Barnes continued receiving the Newstart allowance, and the Applicant was receiving PPS. Since the first appeal in relation to the issue with the PPS in 2021, they have each been paying one half of the rent through Centrelink rental assistance.

8. The intention was that Mr Barnes would move out at some time, but the living arrangement continued. Neither formed a new relationship. The Applicant said that RB was an emotional child, and she did not want him upset unnecessarily and hence they stayed with that arrangement in the best interests of RB.

9. Mr Barnes would give the Applicant cash from time to time when needed. The cash was for bills such as gas and electricity which accounts were in the Applicant’s name. They had payment arrangements for those utility accounts. Gas was $30.00 and electricity was $70.00 and Mr Barnes would pay half for each.

10. The Applicant and Mr Barnes did not attend each other’s family functions. The Applicant’s parents and extended family lived in Bendigo. She and RB would go to Bendigo, but Mr Barnes did not. The Applicant said that when her parents visited her and RB, they had a cordial relationship with Mr Barnes. The Applicant’s parents both died in 2018.

11. Mr Barnes’ mother died in 2017 and he did not enjoy a good relationship with his other family members. When the Applicant and Mr Barnes were together, they all attended a family Christmas function at the Applicant’s brother’s home but have not done so not since separation.

12. The Applicant no longer suffers from post-natal depression. She recovered from that approximately 12 months after RB’s birth. Following the loss of her parents the Applicant started to have mental health issues and was diagnosed with anxiety and depression. She saw a psychologist for 10 free sessions. She continues to suffer from anxiety and depression and is treated by her GP. She has other medical issues and has an upcoming appointment to see a surgeon.

13. The Tribunal notes the medical certificate of the treating GP records he started treating the Applicant for anxiety and depression from 23 May 2017. The Tribunal accepts that certificate and infers the condition worsened following the death of the Applicant’s parents in 2018. This arguably coincides with the date the Applicant was to have lodged the SUOR form dated 9 October 2018.

14. Mr Barnes did not, and continues not to assist the Applicant with her medical issues, and did not take her to medical or psychologist appointments. The Applicant said she is soon to go into hospital for a procedure. She has a friend who helps her, and who will take her to hospital and who is named as her next of kin.

15. Mr Barnes is unemployed and looked after RB when the Applicant was in hospital or was unwell. He also looked after RB and would take him to school which enabled the Applicant to go to work from time to time. He provided no care or support for the Applicant.

16. Mr Barnes has a good relationship with RB. The Applicant said her relationship with Mr Barnes was best described as friends. Both the Applicant and Mr Barnes’ parents previously assisted with RB from time to time but only Mr Barnes’ father is now alive. Mr Barnes does not enjoy a close relationship with his father, and he does not assist with RB’s care.

17. The Applicant has a car. Mr Barnes would use the car very occasionally. Mr Barnes’ car does not work. Mr Barnes would on occasions take RB to school when the Applicant was working, and if he needed the car to go to an appointment, she would allow him to use it. The appointment was usually to attend Centrelink.

18. In terms of shopping, on payday the Applicant and Mr Barnes would purchase separately what each needed. The Applicant usually purchased for RB. She would purchase a lot of things from the op shop for RB. Mr Barnes would purchase separately things that he thought RB needed. They each purchased their own groceries.

19. Mr Barnes would often cook and on occasions do a larger cook up which the Applicant and RB would share; but Mr Barnes never ate with the Applicant and RB. Often the Applicant would cook for herself and RB and sometimes she too would let Mr Barnes know there was a meal available, but they still ate separately.

20. The Applicant said they never pool their money together to pay for items. They paid for their respective items separately and Mr Barnes would give her some money for his share of certain living expenses.

21. The furnishings in the house belong to the Applicant. Mr Barnes has some furniture in the shed. They do not share any furniture or furnishings.

22. The Applicant explained that they have changed how they manage their finances. They now halve the cost of each of the utilities and each paid one half. They did this after the Centrelink decision to demonstrate they live separately and apart. Their previous arrangement was less regimented but still resulted in each making approximately the same financial contribution to the household, which arrangement the Tribunal notes was still in operation in 2018 and 2019 and until the decision was made by Centrelink.

23. The Applicant and Mr Barnes each have separate bank accounts. They no longer have access to each other’s accounts. They ceased that practise following the Centrelink decision, in an endeavour to further demonstrate they live separately and apart. Insofar as they had a practise where the Applicant would use Mr Barnes’ ANZ card or account, they stopped that practise for the same reason. They had previously adopted that practise for convenience, so that purchases could be made for RB.

24. The Respondent in the  SoFIC’s at paragraph 3.3 said ‘The Applicant has three children with Mr Barnes’ and named in addition to RB their first child born July 2009 and second child born October 2011 and referenced T24 but without a page reference[14] which was pages 167 – 267 of Exhibit A and is part of the Centrelink records. The Respondent’s SoFIC’s said nothing further in relation to the additional children. The Tribunal therefore asked the Applicant about those children and was advised that she lost both children during pregnancy at 24 and 26 weeks respectively.

    [14] Exhibit A, T24 p 167-267.

25. In circumstances where there was no dispute that the Applicant and Mr Barnes had been in a relationship for 4 years prior to the birth of RB, the reason for referring to those children was unnecessary and troubling. It would be information that would be distressing to the Applicant. The SoFIC’s was misleading and left the impression that other children were relevant to the application and decision. This was not the standard of submission I would expect from the Respondent.

26. The Applicant and Mr Barnes would usually do their laundry separately and, if when doing so there was laundry for RB, each would wash his clothes.

27. The Applicant and Mr Barnes since separation have never socialised together. Mr Barnes had attended a reception or kindergarten graduation at RB’s school, and possibly a Christmas function on a school oval, but not otherwise.

28. The Applicant said that they have told RB they are separated. She said that she knew Mr Barnes said RB did not know, but they had told him when they told the grandparents and others of their separation. RB was younger at that time. They do not push the fact because he is an emotional child. She said that he cried when his teacher left.

29. Mr Barnes does all the gardening. He can do so because he is unemployed. The Applicant has no interest in, or aptitude for gardening.

30. The Tribunal took the Applicant to Exhibit E and her calculation of her debt to the Respondent and asked her to explain her calculation. She calculated her parenting payment as partnered being $608.70 per fortnight being the base rate in 2019 referred to on the Centrelink’s website. She provided a screenshot of that page.[15] For the 26-week period it is said she was allegedly overpaid, the total of the partnered payment was approximately $16,434.90. When deducted from Centrelink’s calculated overpayment of $18,386.37 the difference is $1,951.47. Hence, if it is determined that she was partnered during the relevant period it is that difference she argues, she should be liable to pay. She had asked Centrelink for the correct Coronavirus-related entitlement for couples but is still waiting for a response.

    [15] Exhibit H.

31. The Applicant said if the Centrelink calculation was based on her receiving the Newstart allowance, she accepts that she would still have to pay something back to Centrelink and would agree to do so, but she does not believe she should have to repay the total amount received. The Applicant advised Centrelink said that there would have been other factors that needed to be taken into account. However, the Applicant explained that every year a person in receipt of a Centrelink benefit, the person has to estimate his or her future work payments to enable a calculation to be performed. Because the relevant period was in the past, she has the exact amount earnt from which Centrelink could do the calculation. She said Centrelink will not engage in that process and wants the whole amount repaid as a debt. 

32. The Applicant also said that she had spoken to the real estate agent in charge of the management of her rental property and advised the agent about the Tribunal proceedings.  She said they were still paying off the water account and the rent was to increase from in or about August by $50.00 per week to $350.00 per week. It was originally $250.00 per week. The real estate agent said that if either the Applicant or Mr Barnes were to move out, the other would have to move out because alone, neither could afford the rent. The Applicant said she has twice received a notice that rent was in arrears. She is still paying off the arrears in addition to her ongoing rental.[16]

    [16] Exhibit A, T15 p 148-150. In relation to a hearing held in March 2021 relating to an application for vacant possession regarding rent arrears. A payment plan was agreed in respect of arrears in the sum of $1,264.61.

33. The Applicant confirmed she does not want to be a member of a couple with Mr Barnes, but she does not want to lose her current residence. She does not have money for new rental accommodation. Once she has a decision from the Tribunal, if her application is unsuccessful, she will go to Centrelink to discuss what she must do to satisfy them she is not a member of a couple but ensure that RB can see his father ever day which is currently the case. She referred to a friend who had three daughters, has money for a rental property but lives in a motel because she cannot get a rental property.

Cross-examination

1. Cross-examination of the Applicant was very brief.

2. The Applicant was asked about the laundry arrangements and washing of towels. The Applicant confirmed her evidence-in-chief that she washes towels together and if there was room for Mr Barnes’ towels and they were in the laundry to be washed she would wash them. There was one bathroom and two toilets one of which was in the shed.

3. Mr Barnes washes his own bed linen. The Applicant washes her and RB’s clothes but not Mr Barnes’ clothes.

4. As for cleaning, if Mr Barnes has cooked a meal for everyone the Applicant will do the dishes and vice versa. Otherwise, the Applicant washes her, and RB’s dishes and Mr Barnes washes his dishes.

5. The Applicant confirmed Mr Barnes provides her with no emotional support. They speak to each other but do not have long conversations. The Applicant and Mr Barnes watch television separately. They share the common area of the house.

6. The Applicant does not use the computer room, but RB may use the room on occasions.

7. As for the bankcards, the Applicant no longer uses Mr Barnes’ bankcard. As soon as Centrelink indicated that was a relevant consideration in determining whether the Applicant was a member of a couple that arrangement ceased. Mr Barnes did not use the Applicant’s card, but she conceded he may have done so on one or two occasion but no more.

8. Given the paucity of the cross-examination including any questions about the Applicant’s finances or any question directed to any change in the Applicant’s relationship that gave rise to the decision, the Tribunal asked some further questions of the Applicant.

   Tribunals further questions

9. The Tribunal asked the Applicant some further questions about the documents Exhibits D – H which were typed, undated statements prepared by her and received into evidence. The Respondent failed to question the Applicant about any of them and in particular Exhibit G in which she wrote to Centrelink to negotiate a resolution of her matter and raised those special circumstances that she asked to be taken into account. She provided them in dot point as follows:

   ·Medical evidence regarding both my mental, emotional and physical health (doctors certificates). I suffered both from postnatal depression as I had lost two previous pregnancies, the loss of both my parents within months of each other and trying to bond with my newborn.

   ·My son is noticing the effect it is having on everyone. Less communicative between his father and I. Distancing ourselves from each other, more argumentative and snappy which is not a good environment for him and his emotional state.

   ·In severe financial hardship due to payments being cut off. My electric bill is around $5000, gas $1000 and a current rent form 2 which I am 5 weeks behind in and am in the process of organizing.

   ·One or all will be moving out by the end of 2023 to allow us both to start afresh but in this current rent market expensive and places are far between. Removal or lessening the debt will allow us both a cleaner split and less reason for us to communicate apart from the well being of our son.

   ·Sharing of personal assets eg car has ceased, bills will be paid separately by each party via bpay/Internet banking

   ·I have looked into bankruptcy options but would like to avoid them if possible.

10. Thereafter, the Applicant wrote that she is unable to take RB on holidays, short trips, or interstate to see family. I infer from the statement that purchasing clothes, new technology such as an iPad, laptop or computer is difficult if not unachievable, and the Applicant is trying to prevent bullying of RB due to him being ‘the poor kid’. She referred to difficulty in purchasing and repaying for items and would have difficulty with the cost of moving residence and purchasing furniture and household goods.

11. The Tribunal asked the Applicant if the statement reflected her current position. She said she was catching up with rent and is only a week behind, but she has a water bill of approximately $400.00 - $500.00 in respect of which the Applicant and Mr Barnes each pay $20.00 a fortnight. They have been paying the same amount in payment of overdue rent. Both those payments are a ‘centrepay arrangement’ which the Tribunal infers is a direct payment taken out of their respective Centrelink payment. The gas and electricity are on the Applicant’s payment plan which is contributed to equally by the Applicant and Mr Barnes.

12. Insofar as the Applicant referred to one or all of them moving out at the end of 2023, the Tribunal asked if that was still the intention. The Applicant said she did not know and referred to the conversation with the real estate agent about a week ago who said if one leaves, they must all leave because neither the Applicant nor Mr Barnes alone could pay the rent. That real estate agent also tried to get the Applicant to increase the payments in respect of the outstanding water account to $30.00 per fortnight but the Applicant could not afford the increase. Their future is uncertain.

13. The Tribunal asked Counsel Ms Rapson if she had any questions arising from the matters raised by the Tribunal. She referred the Applicant to the various SUOR forms dated August 2013, July 2019, and April 2021 prepared by the Applicant and Mr Barnes, and asked who was the author of each form. The Applicant said she completed her form, and she wrote Mr Barnes out for him because his writing was terrible. She said he told me what to write and then he signed it.

14. The Respondent did not challenge the evidence of the Applicant in regards to her financial circumstance, difficulties arising from her limited funds, and her living arrangements. She was not challenged in regards to her mental health. There was no cross-examination of the Applicant and the contrasting of her living arrangement prior to and during the relevant period. She was not asked any question directed to a change in circumstance which gave rise to the Centrelink decision that the Applicant and Mr Barnes were, during the relevant period, a member of a couple or in a de facto relationship. Nor was she challenged in regards the matters raised in the Respondent’s opening submission that the Applicant lacked good faith as she likely knew she was not entitled to PPS as a single person given her relationship with Mr Barnes.

15. The cross-examination was generally unhelpful.

Mr Barnes’ Evidence           

1. Mr Barnes gave evidence by telephone. He generally corroborated the evidence of the Applicant.

2. Mr Barnes said he was in a relationship with the Applicant for a couple of years before RB was born. The relationship ended approximately 12 months after RB was born.

3. Mr Barnes lost his job as a powder coater about a week after RB was born. He has had intermittent work including gardening and he tried to get his own gardening business started. He worked for the dole and performed volunteer work. He has not had any ongoing permanent work since he lost his job. Following the end of the relationship they were no longer partners but lived in the same house for the benefit of RB and so he would be raised by both he and the Applicant.

1. Mr Barnes agreed that he and the Applicant submitted SUOR forms. He said the Applicant had to help him complete the forms because he was hopeless with paperwork. The Applicant ran through the forms’ general questions. He found the monetary questions difficult. She would ask the question and he would give her the answer and she would write it down.

2. After separation, sexual intercourse ceased. He stayed at the home because he wanted to raise his son and he was there to help raise him. He moved to the shed or the computer room. He slept in the shed through summer. It is a large shed with toilet, sink and running water. It had a fold out couch bed. He described it as his man cave with a pool table, dart board, and bar.

3. In winter, when cold, he would sleep on the couch in the computer room, the lounge room, at a friend’s home or in the car. He had even slept with RB in his bed.

4. After separation, they received separate Centrelink payments. The Applicant had access to his bankcard to take money out for his share of rent or other items. The finances were split between them. She might pay electricity and he would pay the internet. He agreed that they each paid half the household expenses.

5. Mr Barnes agreed he was given credit for babysitting and gave the example when the Applicant travelled interstate or went out, he cared for RB.

6. Since receiving notice from Centrelink of the debt Mr Barnes said there had been no change in their financial arrangements. He does his own food shopping including for RB. If he cooked a roast the Applicant was welcome to have some. The Applicant cooked her own food and RB would eat either what the Applicant or Mr Barnes cooked.

7. Centrelink take his share of the rent out of his entitlement. Mr Barnes pays the internet account, and they share the cost of electricity. The Applicant pays for the car, and he has the benefit of using the car if needed which was not often. He has his own car, a Ford Falcon utility, but given the limited use he had for it, there was no point keeping it registered. He could not afford it. When he was working, he used and registered the car; but when unemployed he could not afford to keep it on the road.

8. Mr Barnes said they have separate lives with a small number of common friends. He will take RB to school and collect him at the end of the day and will use the Applicant’s car. The school is less than 5 minutes’ drive from their house and RB will start walking to school soon. RB turns 11 years of age at the end of the year, and he will soon have his own life and will not be there as often. Mr Barnes would like his own place but does not think he could afford it. He said the cost of living is crazy.

9. He eventually sees he and the Applicant living separately and this would be assisted if he could find employment. He would prefer his own home.

Cross-examination

1. Cross-examination was again very brief.

2. In cross-examination, Mr Barnes said he will do his food shopping. He might make a large serve of some foods such as spaghetti bolognese which would last a couple of days. RB often shares in the meal and the Applicant may do so occasionally. He purchases his own toiletries and one or the other will buy bread and butter or dishwashing liquid.

3. He has no objection to sharing a meal with the Applicant, but they would often eat at different times.

4. Again, Mr Barnes was not challenged in relation to the financial circumstances of himself or the Applicant. Nor was he questioned in regards to the matters raised by the Respondent in the opening submission that the Applicant lacked good faith as she likely knew she was not entitled to PPS as a single person given her relationship with Mr Barnes or that Mr Barnes was part of that deceptive practice. He was not asked questions directed to the change in circumstances relied on by Centrelink in its decision that the Applicant and Mr Barnes were a member of a couple or in a de facto relationship during the relevant period.

5. The cross-examination was generally unhelpful.

Closing submissions

1. The Respondent agreed to give oral closing submissions but also provide written submissions in relation to the matters raised by the Tribunal to which I have referred.

2. The Respondent in closing submissions submitted the evidence supported the Respondent’s position that the Applicant’s and Mr Barnes’ relationship was that of a de facto couple from 17 July 2019. Each party was receiving a benefit from the current arrangement and submitted that there were sharing of certain resources that would not always be available to those who otherwise share the same house. The submission was a brief generalised statement and did not refer to specific evidence.

3. In regards to the debt, the Respondent submits the whole of the debt arising from the decision under review should be recovered and there is no basis for any write-off or waiver but did not expand on that submission, but did not expand on that submission relevant to the evidence before the Tribunal.

4. The Respondent was given 14 days to provide further written submissions and the Applicant 14 days to reply in relation to the questions raised by the Tribunal during the hearing. The Applicant also expressed the hope that the parties may still be able to reach a resolution in that period.

CONSIDERATION

1. The first question for the Tribunal is whether the Applicant and Mr Barnes were in a de facto relationship for the purpose of s 4(2)(b)(iii) of the Act. Subsection 4(3A) of the Act provides that the Tribunal must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.

2. In Haddara and the Secretary, Department of Social Services and (Social services second review) [2023] AATA 2316 (2 August 2023) Member West discussed the term ‘living separately and apart’.[17] At paragraph 24 Member West said:

   The concept of Living separately and apart requires the Tribunal to consider both physical and mental elements, where the mental element is independent of whether the parties live in the same house. The fact that the parties may have physically lived together or apart from time to time is not itself determinative.[18]

   [17] Haddara and the Secretary, Department of Social Services and (Social services second review) [2023] AATA 2316 [24].

   [18] Member West cited Melvin v Secretary, Department of Social Security [2016] FCA 375, [83]-[84] citing the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1, [45]-[58].

3. Instruction 2.2.5.30 of the Guide provides that if a couple claims to be separated, they must establish that they are living separately and apart either permanently or indefinitely and there has been an estrangement or breakdown in their relationship. The Guide notes that generally a physical separation as well as an emotional separation between the couple is required.

4. A decision about the relationship between two people under s 4(2)(b)(iii) of the Act requires the Secretary, and in these proceedings the Tribunal, by s 4(3) of the Act to have regard to all of the circumstances of the relationship in particular the following matters:

   (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.

5. The list of matters referred to are merely indicators and not exhaustive see Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 also see Pelka v Secretary, Department of Social Security (2006) 151 FCR 546.

6. It is for the Tribunal to make an assessment having regard to the totality of the evidence and make an objective assessment. It is not the party’s opinion about the relationship but the regard the Secretary and in the matter the Tribunal has, to its circumstances. The subjective view of the parties may be relevant in considering aspects of the relationship such as the commitment each party has to the other.[19]

   [19]Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 also see the following Pelka v Secretary, Department of Social Security (2006) 151 FCR 546 and VBH and Anor; and Secretary, Department of Family and Community Services [2006] AATA 1.

7. It is necessary for the Tribunal to consider each of those factors and, in so doing, the evidence of the Applicant and Mr Barnes requires careful scrutiny and consideration.

8. As I have said, the matters raised by the Respondent in opening submissions that the Applicant lacked good faith in her dealings with the Respondent were not put to her. No issue was raised in cross-examination or in closing submissions (oral or written) in support of that serious allegation, which goes to the fundamental question of the Applicant’s credibility and reliability. The Respondent’s cross-examination of the Applicant and Mr Barnes was very brief and limited to those matters referred to above.

9. I reject the Respondent’s submission that the Applicant or Mr Barnes lacked good faith in dealing with the Respondent or the Tribunal. The fact that allegation was made by Counsel for the Respondent in opening submissions and not subsequently raised in evidence is a concern. If the Respondent in opening submissions seeks to impugn the character of the Applicant, it is expected that the Applicant will be cross-examined and be given the opportunity to answer the allegation. She was not.

10. The Tribunal found the Applicant to be a credible and reliable witness who did her best to assist the Tribunal. The Applicant’s evidence was generally unchallenged by the Respondent. Her evidence was more precise than that of Mr Barnes, who was more general in his responses to questions. Nonetheless, the Tribunal also found Mr Barnes to be credible and reliable.

11. However, insofar as there was any inconsistency between the two witnesses the Tribunal prefers the evidence of the Applicant. For example, insofar as Mr Barnes said there had been no change in their financial arrangement since receiving the Centrelink notice, that is not correct. There was a change in how the finances were structured and the payments were made, including automatic debits from their respective Centrelink entitlement or payment for their water, gas and electricity debts.

12. The Tribunal also notes that it was the telephone conversation the Centrelink officer had with Mr Barnes that was the foundation of the decision that during the relevant period the Applicant and Mr Barnes were members of a couple. However, when carefully scrutinised, the evidence indicates there was almost no change in the relationship during the relevant period.

13. In circumstances where Centrelink was to ring back the Applicant, failed to do so, spoke with Mr Barnes and made a decision adverse to the Applicant without offering her the opportunity to comment was, in the circumstances of this matter, troubling. Mr Barnes was not a precise or even accurate historian. That much was so given the telephone evidence before the Tribunal. It appears that Centrelink used the convenience of the telephone conversation with Mr Barnes to make a decision that had significant and distressing impact on the Applicant. She should have been spoken to.

14. Nonetheless, it is for the Tribunal to review the decision of the ARO afresh, and stand in the decision maker’s shoes and assess the evidence. This is not a matter in which an assessment of the reasoning of the original decision maker and affirmed by the ARO was wrong. The question for the Tribunal is whether during the relevant period the Applicant was a member of a couple with Mr Barnes, as defined in s 4(2) of the Act during the relevant period. I will now turn to each of the factors relevant in considering whether the Applicant and Mr Barnes were in a de facto relationship.

Financial Aspects

1. The Applicant and Mr Barnes have, since separation in 2013, maintained separate bank accounts. The Applicant said in Exhibit F that she was initially paying the rent and bills while Mr Barnes saved to move out.

2. The Applicant said that COVID-19 also impacted upon this arrangement which could no longer continue, and they then changed their financial arrangement. The Tribunal notes that COVID-19 pandemic did not occur until several years post separation. The significant change in the management of their finances occurred after the Centrelink decision and the introduction of a more formal delineation of their finances and payment arrangements, which they put in place in an attempt to satisfy Centrelink that they remained separated. I accept that COVID-19 also impacted upon the Applicant post the relevant period.

3. For a period of time, the Applicant was permitted to use Ms Barnes’ ANZ card when necessary to pay for items to be purchased for their son RB but for no other purpose. She did not benefit financially from that arrangement. That arrangement did not represent a pooling of finances but was a convenient way to occasionally pay for items for RB which Mr Barnes had agree to fund. That was also the case when the Applicant would pay the telephone account on behalf of Mr Barnes using his telephone. The account was his to pay. Those procedures ceased, post the decision under review.

4. The Applicant and Mr Barnes originally had an informal ‘swings and roundabout’ approach when dealing with their financial obligations. That was ongoing from separation in 2013 and continued during the relevant period. The Applicant paid the rent, telephone, electricity and gas accounts and was the owner of the car which was used by Mr Barnes occasionally when needs demanded. Mr Barnes purchased things for RB, including clothes and food as an alternative arrangement to paying child support. Mr Barnes did the gardening. During this time, Mr Barnes would give the Applicant cash in payment of his contribution for outstanding accounts. More recently and after the Centrelink decision, they have entered into a strict arrangement so that the financial record identified that each paid one half of various accounts to eliminate any doubt about their financial arrangement.

5. The Applicant has also explained that she has been in severe financial hardship with utilities being cut-off because she was in arrears of payment and has twice received a notice of rent arrears. In March 2021, which was before the decision of the ARO, she entered into a payment plan to discharge her arrears. She and Mr Barnes are now paying off the arrears and both receive separate rental assistance from Centrelink. For example, they each pay $20.00 a fortnight for arrears in their water account which is an arrangement each made through Centrelink and paid out of their respective entitlements.

6. At the time of separation in 2013, Mr Barnes was unemployed and in receipt of Centrelink benefits and apart from brief periods of employment, he has, for the majority of the time since separation, been unemployed. The Applicant has had some employment in the aged care industry whilst also receiving Centrelink benefits. There is no evidence of her income from employment before the Tribunal, but this evidence about periods of employment and financial circumstances was not challenged.

7. There is no evidence of any joint ownership of any real property. The Applicant and Mr Barnes are jointly registered as the tenants of the property in which they have resided since separation. However, the Applicant paid the rent following separation and did so during the relevant period. More recently they have each paid one half of the rent.

8. Mr Barnes has a motor vehicle but cannot afford to maintain it and pay the running costs. The Applicant is the owner of a motor vehicle which she has on occasions made available to Mr Barnes either to take and collect their son from school, and thereby enable the Applicant to accept work, or so that Mr Barnes could attend appointments usually with Centrelink.

9. The Applicant and Mr Barnes do not jointly own furniture and furnishings in the home. Mr Barnes has his furniture in the shed in which he generally resides (his ‘man cave’) and the Applicant’s furniture is in the house that she and RB occupy.

10. Having regard to the evidence about the financial aspects of the household, the Tribunal is satisfied that from the time of separation including the relevant period, the Applicant and Mr Barnes have maintained a level of financial independence while ensuring that each has contributed what they considered to be a fair and equal contribution to the expenses of the household and RB. I am satisfied that insofar as the Applicant has used Mr Barnes’ bank card, that was not for her benefit and only to pay Mr Barnes accounts for purchases relating to RB. The Applicant received no benefit. She did not access Mr Barnes’ bank account for her own benefit. Insofar as Mr Barnes may have used the Applicant’s motor vehicle, it was to enable the Applicant to accept work and therefore, Mr Barnes would take and collect their son from school; or occasionally attend Centrelink appointments. His use of the car was very occasional.

11. The Respondent in supplementary submissions received after the hearing and filed 21 November 2023 provided details of why it is argued there was a change in circumstances compared with the advice received in the SUOR form dated 21 August 2013. Those details are as follows;

    (i)In the 2013 forms the Applicant and Mr Barnes answered yes to question to the question Do you pay rent at the place where you live?[20] The Tribunal notes that the forms are worded in identical terms and both refer to the rent being $265.00 per week but the question How much do YOU pay? is unanswered in both forms.

    (ii)The Respondent says that the forms, which are again identical, indicated gas and electricity accounts were shared.[21].The Tribunal notes the forms refer to a shared payment for each, namely a payment plan. However, this arrangement was never put to the Applicant to provide her the opportunity to explain.

    (iii)That neither the Applicant and Mr Barnes had access to one another’s bank accounts and the Applicant did not use Mr Barnes’ bank cards.[22] There are a series of question commencing at question 45 which reads Do you have a joint account or the use of any accounts…with the other person? to which each answered no. Further answers to questions indicate neither had access to each other’s accounts; neither person was authorised to use a store card or credit card that operated in the name of the other person; and, neither used the other person’s credit cards. Insofar as there was a use of Mr Barnes’ bank card and account, I have explained that above.

    [20] Exhibit A, T6 p 55; Exhibit A, T7 p 67.

    [21] Ibid.

    [22] Exhibit A, T6 p 57; Exhibit A T7 p 69.

1. As I have said, these purported changes in financial arrangements were not put to the Applicant or Mr Barnes. The Applicant was not challenged when she said in her evidence that she paid the rent post separation. I accept the Applicant’s evidence. Mr Barnes evidence relating to sharing electricity and gas accounts is different to the Applicant’s evidence. She said she was paying those accounts. However, the Applicant was not asked to explain the difference.

2. The Tribunal accepts the Applicant’s evidence that she had been paying those accounts including during and after the relevant period and only when a payment plan was entered into because she was in financial difficulty did that arrangement change. In regards to the access to each other’s accounts, it is not suggested by the Applicant or Mr Barnes that they have had joint bank accounts or access to each other’s account for their personal use or that they were pooling their finances. The Applicant has said that she would use Mr Barnes’ credit card or telephone to pay for items that Mr Barnes was responsible for but not for any joint benefit.

3. The Tribunal is satisfied that there has been no significant change to the financial arrangement during the relevant period.

4. The Respondent submits the Applicant and Mr Barnes having continued to cohabit following separation which was a weighty circumstance consistent with them being partnered and in a de facto relationship. This, it is submitted, is not information available to the officer who made the 2013 decision who was advised that the separation was recent. Hence, their continued commitment to each other was less evident as at 2013, but that by July 2019 given their continued cohabitation, such evidence pointed to an enduring commitment as a couple. There is some strength in this submission which needs to be considered and weighed against the balance of the evidence to which I will refer.

Nature of the Household

1. The Tribunal accepts the evidence of the Applicant and Mr Barnes about their living arrangements which has been generally consistent from the time of separation including during the relevant period.

2. They have not attended joint family functions since separation and the Applicant last saw Mr Barnes’ extended family when she attended his mother’s funeral in 2017. The Applicant’s family live in Bendigo Victoria and Mr Barnes has not visited them since separation. Mr Barnes only saw the Applicant’s family if they came to Adelaide to see the Applicant and RB and attended the home. Their relationship was cordial.

3. They do not socialise together, and their family and friends know that they separated in 2013 and have remained separated. Although it was intended that upon separation Mr Barnes would leave the home, that did not occur. The Applicant suffered mental health issues namely post-natal depression and commenced treatment by her GP for anxiety and depression in 2017. Following the death of her parents, the Applicant’s mental health worsened, and Mr Barnes remained at the home for the sole purpose of supporting and being present for their son who was born in 2012 and was approximately 6 to 7 years old during the relevant period.  

4. However, Mr Barnes has, since separation, not supported the Applicant during periods of ill health. She is to have an operation and he will not be supporting her through that procedure. The Applicant will be supported by a close friend who she has named as next of kin on the hospital records.

5. Mr Barnes resides in the shed which has running water and a couch bed. He will sleep in the house on the couch or at a friend’s house when it is cold. He said he had slept in his son’s bed, but the Tribunal infers this was on a rare if not isolated occasion. He has not shared the Applicant’s bed since separation.

6. Since separation in 2013, the Applicant and Mr Barnes have generally done their own washing, cleaning, purchased their own food, cooked and ate separately whilst ensuring the needs of RB were addressed.

7. The Tribunal accepts that the Applicant and Mr Barnes have since 2013 always conducted themselves in a manner in which they genuinely believed they were not a couple, and which was accepted by the Respondent for approximately 7 years from 2013 until the relevant period. There has been little change in their living arrangements during that time including the relevant period. They maintained separate financial arrangements as discussed above. They have not holidayed together or socialised together in any way.

8. I accept the evidence of the Applicant that they told their son about their separation at or about the same time they told family and friends but have not repeatedly done so. He was then very young. He is sensitive and the Applicant did not want to cause him undue distress by pressing the fact further.  

9. In her statement Exhibit G, the Applicant referred to less communication between her and Mr Barnes and they distance themselves from each other. More recently, there is an increased tension between them which RB has noticed. That evidence was unchallenged.

10. It was intended that Mr Barnes move out at the end of 2023 but given a recent statement by the real estate agent that both would have to move out because neither one alone could afford the rent, that intention is unclear. Given the difficulties that the Applicant faces in meeting the financial obligations including payment of arrears in rent and utilities, the Tribunal accepts that moving house would likely cause the Applicant and Mr Barnes additional financial hardship. The Tribunal also accepts the Applicant’s evidence that she has already made enquiries about voluntary bankruptcy.

11. The Tribunal accepts that the financial difficulties of the Applicant and Mr Barnes, Mr Barnes significant period of unemployment, and the parties’ arrangement for the care of RB were the contributing factors in them continuing to live in the same house.

Sexual Relationship

1. The Applicant and Mr Barnes were consistent in their evidence that they have not engaged in sexual relations since separation. This was not challenged by the Respondent despite the Centrelink record to the contrary to which I have referred.

2. In further supplementary submissions filed by the Respondent dated 21 November 2023, the Respondent concedes that the Centrelink record is wrong and should read that they have ‘not’ engaged in a sexual relationship since separation. The Respondent refers to the other entries which indicate the decision maker accepted there was no sexual relationship and hence the entry was a typographical error. The Tribunal accepts that submission.

3. The Tribunal also notes the Respondent in the SoFIC’s dated 20 June 2023 and authored by Counsel Ms Rapson at paragraphs 6.14 – 6.17 referred to the parties’ position that there was no sexual relationship between them and referred to evidence before the AAT1 in which Mr Barnes said that he has ‘formed a friendship with another person but cannot move in with her as she is a single parent also receiving benefits’.[23] Mr Barnes was not questioned about that relationship before the AAT2, but it gives further support to the Applicant and Mr Barnes evidence that since separation it was accepted that either party may engage in a new relationship.

   [23] Ibid T2 p 10[20].

4. The Centrelink record of the conversation with Mr Barnes on 6 July 2020 records that neither Mr Barnes or the Applicant had met another person and have not spoken about such an event. However, at least for some period of time that position had changed.  

5. The matter before the AAT2 is a hearing de novo and is a review of the decision of the ARO. There was no evidence before the AAT2 about Mr Barnes being in a relationship at the time of the hearing. The Tribunal is to consider the circumstances of the relationship during the relevant period. The fact that Mr Barnes, after the relevant period, entered into a new relationship may inform the circumstances of their relationship before and during the relevant period. It tends to confirm that they were free to enter into a relationship with others and that they regarded themselves as not partnered and in a de facto relationship and that they were separated.

6. The Tribunal is satisfied that the Applicant and Mr Barnes did not have a sexual relationship after separating in 2013.

Commitment to each other

1. In referring to Haddara and Secretary Department of Social Service and (Social services second review) [2023] AATA 2316 Member West at paragraph 54 in referring to the question of commitment to each other said;

   The existence of mutuality in the commitment of people to marriage-like relationship is a critical factor. The essence if marriage is commitment by both parties to a life together. While the nature of the commitment may vary from one couple to another it is the fact that the commitment is shared that is the hallmark of marriage and a marriage-like relationship.

2. I respectfully agree with that observation.

3. The Applicant and Mr Barnes are committed to their son RB and it is for his benefit that the living arrangements have been maintained, and so that RB can see both parents each day. Mr Barnes said he did not want RB moving between houses, albeit there was an acknowledgement by Mr Barnes that he would prefer his own residence. Their commitment to RB does not mean that they have a mutual commitment to each other[24] but the fact they have stayed together for the benefit of RB can be a factor that is indicative of a de facto relationship.[25]

   [24] Gilson; Secretary, Department of Employment and Workplace Relations [2007] AATA 1361, [55]; Tobin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2010] AATA 284, [41].

   [25] See Pelka v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2008] FCAFC 92.

4. The Applicant has had the primary care of RB, but Mr Barnes also remained committed to maintaining his relationship with his son.

5. The parties have previously intended to find their own accommodation. This was the case when they first separated. Mr Barnes’ unemployment, and the Applicant’s mental health impacted upon that decision. The Applicant said that the COVID-19 pandemic also impacted upon them and their decision, about continuing to remain in the same residence. They had intended to find separate accommodation at the end of 2023 which the Tribunal accepts was their genuine intention. That has been made difficult because of their current financial circumstances and because the real estate agent has said if Mr Barnes leaves the Applicant will be required to leave as well. That the Tribunal infers was not the Applicant’s intention and that she hoped to remain in the premises.

6. The Tribunal accepts it is not the parties’ intention that they remain separated under one roof indefinitely but their financial circumstances impact significantly on finding alternate and suitable accommodation.

7. However, the commitment to each other is very different. They regard themselves as friends and have done so since separation. They do not hold themselves out to others that they are partners. They have not been intimate for many years. They do not engage in social activities together. Mr Barnes does not assist or support the Applicant with health matters including hospitalisation save that he is available to care for their son, particularly because he is unemployed.

CONCLUSION

1. The Applicant and Mr Barnes have resided in the same premises for a number of years post separation. There was very little change in their relationship during that period and at the time of the relevant period. Their financial arrangements have remained generally consistent, but that arrangement has been more regimented since the decision of Centrelink on 10 May 2021 but not before or during  the relevant period.

2. The Applicant’s post-natal depression following the birth of RB and Mr Barnes being unemployed, together with their financial difficulties contributed to their decision to separate in 2013. The Tribunal is satisfied that since separation the Applicant paid the rent and other utilities, albeit with difficulty, resulting in her being in significant debt and that post the relevant period, payment plans and arrangements with Centrelink were implemented to pay off the debts and avoid eviction from the rental accommodation. The Tribunal also accepts that since 2017 the Applicant has been treated for anxiety and depression which conditions are ongoing and for which she received treatment from her GP.

3. The Tribunal is satisfied about the household arrangements since separation as detailed by the Applicant, including that Mr Barnes resides in the shed which has been set up with his furniture and that other than when the weather is cold, he does not sleep in the house.  Further, the Tribunal accepts the Applicant and Mr Barnes have not socialised together including with family save to attend a funeral or when the Applicant’s family has visited her when they are cordial in dealing with Mr Barnes.

4. Neither the Applicant or Mr Barnes are committed to each other including during times of ill health and in respect of an upcoming hospital procedure, the Applicant will rely on her friend who she has named next of kin. Mr Barnes will look after their son during this time.

5. I have taken into account the Respondent’s submission in support of a finding of change in circumstance including the length of time the Applicant and Mr Barnes have remained in the same rental accommodation, the financial arrangements submitted by the Respondent as indicative of a change in relationship during the relevant period and the commitment the Applicant and Mr Barnes have to RB which weigh in favour of a finding that they are members of a couple.

6. However, when weighing those factors against the balance of the evidence, I am satisfied that an objective assessment of the totality of the evidence weighs in favour of the Applicant and Mr Barnes having been separated physically and emotionally whilst continuing to reside under the same roof and they were not in a de facto relationship during the relevant period.

7. Having found that the Applicant and Mr Barnes were not in a de facto relationship during the relevant period and, as a consequence, the Applicant was not overpaid her Centrelink entitlements, the Tribunal does not need to consider the recovery or waiver of any debt.

DECISION

1. The decision under review is set aside and in substitution it is decided that the Applicant was not overpaid Parenting Payment Single and accordingly there is no debt.

I certify that the one hundred and sixty-seven (167) preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...................................[Sgnd].....................................

Associate

Date of Decision	202     20 December 2023
Date of Hearing:	05      4 July 2023
Applicant Representative:	Self-Represented
Solicitor for the Respondent:	Jade Rapson (Services Australia)