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

Naaman and Secretary, Department of Social Services (Social services second review) [2022] AATA 2533 (10 August 2022)
Division:GENERAL DIVISION
File Number: 2020/3069
Re:Baha Naaman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:
Member R West
Date:10 August 2022
Place:Melbourne

The decision under review is set aside and the matter remitted to the Respondent for reconsideration with a direction that the Applicant is not a member of a couple on and from 31 January 2011.
.........................[sgd]...............................................
Member R West
Catchwords
SOCIAL SECURITY – overpayment of social security benefits – disability support pension debts – whether member of a couple – decision set aside
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Family Law Act 1975 (Cth)
Cases
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Fairbairn v Radecki [2022] HCA 18
Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor [2011] AATA 162
Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) FCA 1084
Lambe v Director-General of Social Services (1981) 4 ALD 362
Melvin v Secretary, Department of Social Security [2016] FCA 375
Pelka v Secretary, Department of Social Security (2006) FCA 735
Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
VBH and Secretary, Department of Family and Community Services (2006) 89 ALD 293
Secondary Materials
Department of Social Services, Social Security Guide (version 1.295, released 1 July 2022)
REASONS FOR DECISION
Member R West
10 August 2022
BACKGROUND
This matter concerns an appeal of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 31 March 2020. The AAT1 decision affirmed the decision of an authorised review officer (ARO) of Services Australia that the Applicant had been a member of a couple since 29 January 2011 and was overpaid social security benefits.
Relevant History

The Applicant was married to Ms Kawsar Naaman in Lebanon in March 2003. He is the father of 10 children with Ms Naaman.
The Applicant and Ms Naaman were paid social security benefits at the couple rate from 13 March 2009.
On 2 February 2011, the Applicant notified Centrelink that he had separated from Ms Naaman.[1] On 21 February 2011, Ms Naaman notified Centrelink that she had recently separated from the Applicant.[2]
[1] T Documents submitted for the Applicant (TD2), T12 at p.338
[2] T Documents submitted for Kawsar Naaman (TD1), T28 at p.456
Centrelink recorded that the Applicant was ‘separated’ from 31 January 2011 and after that date he was paid the disability support pension at the single rate.[3]
[3] TD1, T28 at p.462
On 8 October 2019, Centrelink determined, on the basis of the evidence then available, that the Applicant and Ms Naaman were to be treated as a couple for the period from 29 January 2011 to 26 January 2019.[4]
[4] TD1, T28 at p.615
On 31 October 2019, Centrelink raised debts against the Applicant in relation to the overpayment of the disability support pension at the single rate for the period 27 January 2011 to 30 January 2019 totalling $69,318.22.
On 19 December 2019, an authorised review officer (ARO) affirmed the decision of 8 October 2019, that the Applicant and Ms Naaman were a couple in the period from 29 January 2011 to 26 January 2019 and the decision of 31 October 2019 that the Applicant was indebted to the Commonwealth in relation to the overpayment of the disability support pension in the sum of $69,318.22 (ARO Decision).
On 16 March 2020, the Administrative Appeals Tribunal (Social Services and Child Support Division) affirmed the ARO Decision (AAT1 Decision).
On 13 May 2020, the Applicant applied to the Administrative Appeals Tribunal (General Division) seeking review of the AAT1 Decision (Applicant’s Second Tier Review).
Related Proceeding
On 31 October 2019, Centrelink also raised debts against Ms Naaman in relation to the overpayment of social security benefits at the single rate as follows:
a.parenting payment debt of $9,303.83 for the period from 31 January 2011 to 18 October 2012;[5] and
b.carer payment debt of $36,290.18 for the period from 19 October 2012 to 30 January 2019;[6]
[5] TD1, T29 at p.1734
[6] TD1, T29 at p.1731
On 8 January 2020, an ARO affirmed the decision of 8 October 2019 that the Applicant and Ms Naaman were a couple in the period from 29 January 2011 to 26 January 2019 and the decision of 31 October 2019 that Ms Naaman was indebted to the Commonwealth in relation to parenting payments of $9,303.83 and carer payments of $36,290.18.
Ms Naaman applied for an AAT1 review of the ARO’s decision and on 31 March 2020 the AAT1 affirmed the ARO’s decision.
On 7 May 2020, Ms Naaman applied to the Administrative Appeals Tribunal (General Division) seeking review of the AAT1 decision (Naaman Application).
Joinder
Prior to the hearing of this matter, the Tribunal accepted that the Applicant’s Second Tier Review and the Naaman Application involved the common issue of whether the Applicant and Ms Naaman were in a couple relationship at the relevant times. The Tribunal determined that it would facilitate the efficient determination of both matters for a joint hearing to be conducted. Accordingly, the Tribunal directed, pursuant to s 33 of the Administrative Appeals Tribunal Act 1975 (AAT Act), that the matters be heard jointly, with each application to be determined on the basis of common evidence.
HEARING
A hearing in relation to the Applicant’s Second Tier Review and the Naaman Application was held by videoconference on 19, 20, 21 and 22 April 2022. Ms Naaman and the Applicant were each self-represented. The Respondent was represented by Mr Anthony Gardner, a solicitor with Minter Ellison.
In conducting the review in both matters, the Tribunal has had regard to:
a.the documents produced by the Respondent pursuant to ss 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents and Supplementary T Documents) in relation to Applicant’s Second Tier Review and the Naaman Application;
b.documents tendered by Ms Naaman and marked as exhibits as listed in Appendix A;
c.the oral evidence[7] of:
[7] Ms Naaman appeared by videoconference and all other witnesses by telephone. Ms Naaman was assisted by an interpreter in Arabic/English
i.The Applicant;
ii.Kawsar Naaman;
iii.Mae Abu Mahmoud, psychologist;
iv.Aydah Naaman;
v.Jourmana Dandal;
vi.Elham Naaman;
vii.Zaina Akid;
viii.Zaynab Abdulrahman;
ix.Fatima Naji; and
x.Zainab Naaman.
LEGISLATION
The Tribunal has had regard to the following relevant legislation in making its decision:
·Social Security Act 1991 (the Act);
·Social Security (Administration) Act 1999 (the Administration Act);
·Administrative Appeals Tribunal Act 1975.
EVIDENCE AND SUBMISSIONS
Uncontested Facts
There are a number of facts which are established by the documentary evidence which are not disputed by the parties, namely:
a.The Applicant and Ms Naaman were married in Tripoli, Lebanon in March 2003[8] and they have not formally divorced.
b.The Applicant and Ms Naaman are the biological parents of 10 children, four of whom were conceived after 29 January 2011.
c.The Applicant and Ms Naaman each received social security benefits at the couple’s rate from 13 March 2009 until 31 January 2011 when Centrelink accepted that they had separated and thereafter their social security benefits were calculated at the single rate.
d.Ms Naaman and her children are recorded on Centrelink records as living at Werribee, Victoria from 3 March 2019[9] and the Applicant as living at Punchbowl, NSW from 26 January 2019.[10]
[8] TD1, T11 at p.115
[9] TD1, T27 at p.443
[10] TD2, T12 at p.327
The Applicant
The Applicant gave evidence and made oral submissions at the hearing. He explained that he had some limitations because of the medication he was required to take for his mental health condition. The Tribunal accommodated his limitations by interposing his evidence and submissions at times when he advised the Tribunal he was best able to do so.
The Tribunal also noted the observation of Member Bygrave in the AAT1 hearing that the Applicant’s oral evidence was ‘confused, emotional and evasive when answering the Tribunal’s questions’.[11] In light of these comments, and mindful that the Applicant was unrepresented and had mental health issues, the Tribunal took steps to clarify the issues for the parties. It ensured that the Applicant had copies of all relevant documents and an opportunity to consider them before proceeding. The hearing was adjourned on the first day to provide this opportunity.
[11] TD2, T2 at p.4
Although the Applicant had difficulty controlling his emotions at times during the course of the hearing, the Tribunal was satisfied that he understood the nature of the proceedings, the issues to be considered by the Tribunal, and that he was able to fully engage with the process.
The Applicant explained that he thought his marriage to Ms Naaman was a mistake and he should have married someone else. He explained that he was born in Australia and Ms Naaman was born overseas and had a different way of thinking. He said she doesn’t live my way or understand me. He said they had no connection emotionally or culturally. He acknowledged that Ms Naaman had tried to get back together but he was insistent that he didn’t want to get back to that life.
The Applicant said he had lived on the streets when he was 14 years old and he didn’t live the way other people live. He said no one understands how I live. He said he is disorganised and doesn’t want to live the life of a normal family. He said he had not fulfilled his responsibilities as a father. He also said that the Tribunal should not see the documents as a reliable indicator of how he has lived his life. He said: “Paperwork for me is just to get by. It doesn’t mean shit to me!”. He claimed not to know anything about the private health cover taken out for him by Ms Naaman in 2014-2016 and insisted that he had not claimed on it.
Mae Abu Mahmoud
Ms Mahmoud, a consultant psychologist, provided written statements in the form of letters dated 15 September 2020[12] and 6 September 2021[13] and gave oral evidence at the hearing.
[12] TD1, ST2 at p.1762
[13] Exhibit A1
In her written statement, Ms Mahmoud stated that she had been involved with Ms Naaman professionally since 2004 and had provided psychological counselling to her at different intervals since 2010. She said that Ms Naaman was married to the Applicant (Ms Naaman’s cousin) at the age of 16 in an arranged marriage in Lebanon. She said the Applicant had been diagnosed with paranoid schizophrenia but Ms Naaman struggled to comprehend the complexity of his mental health and its impact on her and her children. She said that Ms Naaman was naïve, extremely traditional and afraid to leave the marriage because of the shame it would bring on her family’s reputation in Lebanon. She said that Ms Naaman tried to leave the marriage at different times until 2011 when she built up the strength to separate from the Applicant and he moved out of the family home while she remained to look after the children. She added that although they lived apart after separating, Ms Naaman continued to give the Applicant a chance for the sake of the children, and she had more children in the belief that it may change his attitude to her.
In her statement of 15 September 2020, Ms Mahmoud commented that Ms Naaman and the Applicant had a complicated relationship and Ms Naaman ‘did not appear to have completely separated from her partner Baha. I understood the relationship to be somewhat of a defacto [sic] in nature’.
Ms Mahmoud added in her oral evidence that after Ms Naaman and the Applicant separated in 2011, a pattern developed where the Applicant would be in and out of the relationship, leaving and then returning in unsuccessful attempts to reconcile. It was not uncommon for him to return to the family home for short periods. She said that the Applicant had been diagnosed with paranoid schizophrenia by a psychiatrist and she had also provided counselling to him prior to 2010.
Kawsar Naaman
Ms Naaman gave evidence at the hearing with the assistance of an Arabic/English interpreter.
She stated that she married the Applicant at the age of 18 in Lebanon. It was a religious and civil marriage. She said she and the Applicant came to Australia in 2003 within a month of being married and lived at the Applicant’s mother’s house. After a year, they moved into their own apartment in Lakemba NSW.
In January or February 2011, the Applicant and Ms Naaman were living in Bankstown, NSW when they separated. She said that she had fought with the Applicant and he had disappeared telling her before he left that he didn’t want to live with her anymore. She said she had 6 children at the time, the Applicant’s family were very supportive and she moved in with the Applicant’s parents. She said she notified Centrelink of the separation at the time. She had her seventh child in September 2011, an eight child in December 2013, a ninth child in September 2015 and her tenth child in November 2017.
During the period from 2011 to 2013 she moved a lot, and the Applicant returned to live with her and the children occasionally but each time he only stayed for a few days. She said that on those occasions they had sexual relations as she had ‘a kind heart’ and believed him when he said that he wanted to come back, but then the next day he was different.
Ms Naaman said that she went to live in Brisbane in 2014 to get away from the Applicant to try to change her life but it didn’t work out and the Applicant followed her to Brisbane. While in Brisbane, she rented a house in her name. She returned to Sydney after a few months and the Applicant followed her to Sydney.
After returning to Sydney, she lived in the Applicant’s mother’s house in Yagoona.
Ms Naaman said that on two occasions, she and the Applicant went to Qatar to see a cleric to get religious guidance to address their marriage problems. Ms Naaman explained in cross-examination that she went to Qatar with the intention to find a way to reconcile with the Applicant because, in Lebanon, marriage is for life and she thought he might change. When asked whether she had an exclusive sexual relationship with the Applicant, she replied incredulously ‘Yes’, and explained that although she could have a sexual relationship with more than one man, she would not do so because of Islamic tradition. Her intention in going to Qatar was to try to fix her relationship with the Applicant.
She said that initially, she and the Applicant established separate bank accounts and her carer and parenting payments were paid into her account. She later found out that the Applicant had opened his account as a joint account with NAB. When she found out it was a joint account, she asked NAB to remove her as a signatory.
She said that she took out private health cover with Medibank between January 2014 and May 2016 which covered herself, the children and the Applicant. She said she did so primarily to get dental cover for the children and included the Applicant so that he could take the children to appointments. She said she listed him as the father not her partner, but the actual form refers to the Applicant as a ‘partner’.[14]
[14] TD1, T12 at p.121
She said that the Applicant was not involved with the children, although he speaks to them in a ‘good manner’. She also acknowledged that the Applicant would occasionally contribute money for the children.
Under cross-examination, Ms Naaman accepted that she had made representations to Centrelink that the Applicant was her partner, on newborn declaration forms and in an interview with a Centrelink officer on 19 August 2016.[15] She explained this was because he was the father of the children. She also admitted that she had listed the Applicant as her next of kin in 2013 and 2015 when she was admitted to hospital for the birth of her children.
[15] TD1, T28 at pp.579-581
Zaina Akid
Ms Akid provided a written statement[16] and gave oral evidence at the hearing.
[16] Exhibit A2
Ms Akid said that she had known Ms Naaman as a friend for over 10 years and they met through her brother who is close to Ms Naaman’s family in Lebanon. She said that she has lived in Qatar for the last 5 or 6 years. She said that in 2010 and 2013, she invited Ms Naaman and the Applicant to go to Qatar to see a religious counsellor for help with their marital problems. She said she was aware that the Applicant had mental health problems, that they had separated and Ms Naaman was raising the children on her own. She said their relationship was not healthy, they both struggled to make it right and unfortunately it would break down quickly. She said that it was difficult to reason with the Applicant.
Aydah Naaman
Aydah Naaman provided a brief written statement[17] and gave oral evidence at the hearing.
[17] Exhibit A3
She stated that the Applicant is her brother and she has known Ms Naaman for 17 years. She confirmed that the Applicant has mental health problems which he has been dealing with for many years. She said that Ms Naaman and the Applicant have a rocky relationship and the Applicant is always in and out of Ms Naaman and the children’s lives. He is very unstable and unreliable and has not supported his family financially or helped raise the children. She said Ms Naaman had tried to fix the relationship but the Applicant had never been there for her.
Fatima Naji
Ms Naji provided a brief written statement[18] and gave oral evidence at the hearing.
[18] Exhibit A4
She said she had known Ms Naaman since 2011 in her role as a receptionist at the surgery of Ms Naaman’s treating doctor. She said the Applicant also used the same doctor and she knew him as well.
She said she knew that Ms Naaman and the Applicant had many marital problems and a lot of times the Applicant would leave Ms Naaman and the children for months at a time. She conceded that they had attempted to reconcile but it was ‘just verbal’.
Zainab Naaman
Ms Z Naaman provided a brief written statement[19] and gave oral evidence at the hearing.
[19] Exhibit A5
She said she was the wife of the Applicant’s father, although not the Applicant’s biological mother. She said she has known Ms Naaman for 23 years[20] starting in Lebanon before she was married. She said that between 2011 and 2019, Ms Naaman lived close by and spent most of her time at her house. They ate meals together, their children played with each other and her partner dropped off the children at school. She acknowledged there was trouble in the marriage between Ms Naaman and the Applicant. She said she was shocked by the Applicant’s mental condition. She agreed that between 2011 and 2019 Ms Naaman and the Applicant had tried to reconcile and they had gone overseas to see an Islamic counsellor for the sake of the children, but the Applicant didn’t care as ‘he is not normal’.
[20] Her written statement says 20 years – Exhibit A5
Elham Naaman
Ms E Naaman provided a brief statutory statement dated 22 July 2020[21] and gave oral evidence at the hearing.
[21] Exhibit A6
She said she is Ms Naaman’s mother-in-law and the Applicant is her son from whom she is estranged. She has known Ms Naaman since she was married in 2003. She said that Ms Naaman and her children lived with her and paid rent as a contribution to the cost of water, electricity and taxes at properties in Bankstown and Yagoona from 2011 to 2019 except for a brief period when Ms Naaman moved to Queensland. She said that the Applicant did not live at either house. When pressed, she conceded that the Applicant had come to the house at the beginning, but then he stopped coming although she couldn’t recall the details.
Jourmana Dandal

Ms Dandal provided a written statement dated 11 August 2020[22] and gave oral evidence at the hearing.
[22] Exhibit A7
She said she had known Ms Naaman for 5 years and said she had heard that Ms Naaman had been going through difficult times with her husband who suffers from mental problems. She said she was aware that Ms Naaman was trying to fix their problems and had travelled to Saudi Arabia to get advice from religious leaders. She said that, from what she knew, the situation ‘will get better for a couple of days then Dad will leave as he cannot handle the pressure of too many people in the house’. She acknowledged that she did not know the Applicant personally.
Zaynab Abdulrahman
Ms Abdulrahman provided a brief written statement[23] and gave oral evidence at the hearing.
[23] Exhibit A8
Ms Abdulrahman said she was Ms Naaman’s sister-in-law and had known her for 17 years. She said she knew the Applicant, but had not seen him socially or at Ms Naaman’s house. She said that the Applicant was mentally unstable. She said he would leave Ms Naaman for months with no support and no contact, leaving Ms Naaman to look after the children on her own. She said she was not aware of any attempts by Ms Naaman to reconcile with the Applicant.
Assessment of the Evidence
The Respondent referred the Tribunal to the observations of the two AAT1 members, in their respective and separate decisions, regarding the credibility of Ms Naaman and the Applicant:
a.On 16 March 2020, Member Bygrave noted at paragraph [19] that the Tribunal ‘has significant concerns about the credibility of [the Applicant]’s oral evidence’;[24] and
b.On 31 March 2020, Member Rieper noted at paragraph [29] that ‘The Tribunal has concerns about the truth of some aspects of Mrs Naaman’s evidence… Given the inconsistencies where Mrs Naaman’s evidence is contradicted by contemporaneous written records, the Tribunal accepts the evidence in the written records.’.[25]
The Respondent submitted that the objective and independent evidence should therefore be preferred to the evidence of Ms Naaman and the Applicant when attempting to retrospectively assess the nature of their relationship.
[24] TD2, T2 at p.4
[25] TD1, T2 at p.12
The Tribunal notes the observations of the AAT1 members but gives them no weight in assessing the credibility of Ms Naaman and the Applicant. Having directly observed both witnesses in giving their evidence, the Tribunal is in a position to assess their credibility for itself.
The assessment of both witnesses was not without difficulty. Ms Naaman required the assistance of an interpreter as she had very limited English language skills. She is a relatively young woman who appeared overborne by the responsibility of raising ten children on a modest social security income. She presented as a traditional and devout observant of her religious faith who had limited engagement with the wider community. The Applicant clearly suffers from a significant mental health condition and he struggled to control his emotions at times during the hearing. Unfortunately, neither had the assistance of legal representation in presenting their case. Ms Naaman, to her credit, supported her case with some eight witnesses who, to varying degrees, provided some independent verification of her evidence. Nevertheless, the evidence presented by Ms Naaman, the Applicant and the other witnesses lacked precision and detail and in some respects was clearly hearsay. Although the Tribunal is not bound by the rules of evidence, it nevertheless treats the witness evidence cautiously and gives greater weight to evidence based on direct experience of the circumstances and to evidence which is corroborated by documents. That is not to say that Ms Naaman or the Applicant lacked honesty or candour in giving their evidence. The Tribunal is satisfied that they each gave a genuine account of the facts as best as they were able in the circumstances.
Issues
The primary issues for consideration on the Second Tier Review are whether the Applicant was a member of a couple with Ms Naaman in the period 29 January 2011 to 26 January 2019, and if so:
i.whether and in what amount the Applicant is indebted to the Commonwealth as a result of the disability support pension having been paid to him at the single rate; and
ii.whether any resultant debts should be written off or waived pursuant to ss 1236, 1237A or 1237AAD of the Act, or ss 95 or 97 of the Administration Act.
Issue 1 – Was the Applicant a member of a couple with Ms Naarman in the period 29 January 2011 to 26 January 2019?
The definition of a ‘member of a couple’ for the purposes of the Act is set out in s 4 of the Act. There are separate definitions for persons who are not married[26] and for those in a ‘registered relationship’ prescribed for the purposes of s 2E of the Acts Interpretation Act 1901.[27] Neither of these definitions are relevant to the Applicant who is, and was at all relevant times, legally married.[28] The relevant definition is set out in s 4(2)(a) of the Act which provides that, ‘subject to subsection (3), a person is a member of a couplefor the purposes of the Act if 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’.
[26] s 4(2)(b)
[27] s 4(2)(aa)
[28] TD1, T11 at p.115
The Social Security Guide at Instruction 2.2.5.20 also provides that, if a couple claim to be separated, they must establish that they are living 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.
In forming an opinion about the relationship between two people under s 4(2)(a) of the Act, the Secretary, and in these proceedings the Tribunal, is required by s 4(3) to have regard to all the circumstances of the relationship including 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.
(f) mutual commitment.
A consideration of these factors follows.
Financial Aspects
There is no evidence of any joint ownership of real estate or other major assets and no evidence of any joint liabilities between Ms Naaman and the Applicant. There is also no evidence of any legal obligations owed by the Applicant in respect of Ms Naaman or vice versa.
As to pooling of financial resources, the Respondent principally relies on the evidence of the parties’ bank accounts and the inclusion of the Applicant in Ms Naaman’s family private health cover in 2014-2016.
The principal bank records relate to two accounts with the NAB.
The first is Account xx60,[29] which is allegedly a joint account for the Applicant and Ms Naaman. The Respondent noted that originally the account was listed solely in the name of the Applicant, but from 19 May 2015, Ms Naaman became listed under a shared address.[30] Ms Naaman denied that it was a joint account, saying she was initially unaware that she was named as a signatory and, after becoming aware, she asked NAB to remove her as such. The Applicant also stated that it was not a joint account.
[29] TD1, T19 at pp.158-235
[30] TD1, T19 at p.171
An examination of the bank statements shows that the account holder names and addresses were frequently changed over the period from October 2012 to January 2019. The statements list the account holder at various times as the Applicant alone, Ms Naaman alone and both of them jointly. The Tribunal is not satisfied that these frequent changes were the result of actions by Ms Naaman or the Applicant. Rather, they appear to have resulted from NAB cross referencing details between bank accounts. Consistent with the evidence of Ms Naaman and the Applicant, the records show that the account was opened by the Applicant,[31] there were no withdrawals by Ms Naaman during the entire period and the principal deposits related to the Applicant’s DSP payments.
[31] TD1, T19 at p.158
On the basis of this evidence, the Tribunal is satisfied that Account xx60 was the Applicant’s account and not a joint account.
The second account is Account xx00[32] which was opened on 6 January 2010 by Ms Naaman was always listed in her name, as Kawsar Naaman or Kawsar Abdul-Latif (her maiden name), and was consistent with her stated addresses. The vast majority of deposits to the account related to Ms Naaman’s social security benefits. While many of the withdrawals were for cash, there were only occasional money transfers specifically related to the Applicant. This is consistent with the evidence of the Applicant and other witnesses that the Applicant did not financially support Ms Naaman and the children.
[32] TD1, T19 at pp.236-367
The Tribunal accepts that it is possible that Ms Naaman may have used the cash withdrawals for joint purposes with the Applicant but there is no direct evidence that she did so. On balance, the Tribunal is not satisfied that the bank records provide evidence that there was significant pooling of financial resources between the Applicant and Ms Naaman.
As to the private health cover which was extended to the Applicant in 2014-2016, the Tribunal accepts that Ms Naaman paid for coverage for the Applicant under a family benefit plan. The Applicant says he was unaware of the coverage and there is no evidence that he ever made a claim. Ms Naaman’s explanation for including the Applicant, to enable him to take the children to dental appointments, was unconvincing and at odds with the reasons given at the AAT1 hearing.
The Tribunal accepts that the inclusion of the Applicant in the private health cover and the occasional transfer of funds between their respective bank accounts does indicate that there were some financial dealings between them. However, this was on a very limited scale and the Tribunal gives it little weight in assessing the nature of the relationship.
Nature of the Household
The Applicant notified Centrelink on 2 February 2011 that he had separated from Ms Naaman.[33] Ms Naaman gave a similar notification to Centrelink on 21 February 2011.[34] Centrelink accepted that the parties were no longer a couple and assessed them both for social security benefits on the single rate from 31 January 2011.[35] The Respondent did not explicitly dispute that the parties had separated in January/February 2011. The Respondent’s essential contention was that the separation was not permanent and indefinite. Having regard to all of the evidence, the Tribunal is satisfied that Ms Naaman and the Applicant separated in January 2011 and consistent with the Centrelink records, the Tribunal accepts 31 January 2011 as the effective date of separation.
[33] TD2, T12 at p.338
[34] TD1, T28 at p.456
[35] TD1, T28 at p.462 and TD2, T13 at p.426
The Tribunal is also satisfied that Ms Naaman and her children moved to Victoria to live in January 2019 and that the Applicant continued to live in NSW.[36]
[36] Centrelink records show Ms Naaman as living at Werribee, Victoria from 3 March 2019 (TD1, T27 at p.443) and the Applicant as living at Punchbowl, NSW from 26 January 2019 (TD2, T12 at p.327).
The documentary evidence,[37] shows that both Ms Naaman and the Applicant used common residential addresses throughout the period from 2011 to 2019 until Ms Naaman moved to Melbourne. The evidence of Elham Naaman, Ms Naaman’s mother-in-law and the Applicant’s mother, was that Ms Naaman and the children lived with her at properties in Bankstown and Yagoona from 2011 to 2019 except for a brief period when Ms Naaman moved to Queensland. The Applicant stated in his evidence that these addresses were his family home, but he was estranged from his mother.
[37] TD1, T27 at pp.443-444
None of the witnesses stated that the Applicant actually lived at either of these addresses on a consistent basis over the period from 2011 to 2019. The evidence of Zainab Naaman and Elham Naaman was that he did not. The consistent evidence of Ms Naaman, Ms Mahmoud and others was that after he separated from Ms Naaman in 2011, the Applicant returned to spend time with Ms Naaman for short periods, in repeated unsuccessful attempts to reconcile with her. Ms Naaman said these periods generally lasted a few days.
The use of common residential addresses by Ms Naaman and the Applicant on formal documentation, such as bank records and in forms lodged with Centrelink, does not satisfy the Tribunal that they actually lived together at those addresses on a consistent basis. The Tribunal is mindful of the Applicant’s statement that the Tribunal should not see the documents as a reliable indicator of how he has lived his life. It prefers the evidence of Ms Naaman, as corroborated by other witnesses, that the Applicant ceased living with her in 2011 but returned for short periods between 2011 and 2019 in an attempt to reconcile with her.
The consistent evidence of Ms Naaman, the Applicant and the other witnesses was that the Applicant played little, if any, role in caring for and supporting any of the children.
There is no specific evidence as to the basis on which responsibility for housework was distributed, but the Tribunal infers from the totality of the evidence, and especially the Applicant’s assertion that he did not care for his children, that the Applicant took no responsibility for the household.
Social Aspects of the Relationship
Ms Naaman and the Applicant were married. The Applicant’s evidence was that he did not want to be married to Ms Naaman. The tenor of Ms Naaman’s evidence was that she was unhappy in the marriage but felt obligated by her religious faith and traditions to try to make the marriage work as she regarded it as a marriage for life.
In summary, the evidence of Ms Naaman’s friends and relatives was that Ms Naaman and the Applicant were married but separated and that repeated attempts at reconciliation had been unsuccessful.
Apart from their two trips to Qatar to attend marriage counselling by a cleric, there is no evidence that Ms Naaman or the Applicant made any plans to engage in joint social activities in the period from 2011 to 2019.
The Tribunal notes that the Respondent reassessed the Applicant’s entitlements following receipt of information on 11 March 2016 that the Applicant and Ms Naaman were together at meetings and family gatherings.[38] No evidence was produced to the Tribunal either to substantiate this information or to establish that Ms Naaman and the Applicant had otherwise been involved in any meetings or social gatherings.
[38] TD1, T20 at p.386
Sexual Relationship
Ms Naaman and the Applicant each confirmed that their sexual relationship continued throughout the period from 2011 to 2019 and it resulted in the birth of four children in September 2011, December 2013, September 2015 and November 2017. Ms Naaman was clear in her evidence that for her, the sexual relationship with the Applicant was exclusive as an essential aspect of her religious commitment to the marriage. There is no evidence as to whether the Applicant had other sexual partners.
The existence of an ongoing exclusive sexual relationship is a strong indicator of a marriage-like relationship. In this case, however, the Tribunal accepts the evidence of Ms Naaman that the sexual relationship between her and the Applicant was confined to the brief periods when Ms Naaman and the Applicant reunited in an attempt to reconcile. Accordingly, their continuing sexual relations were not reflective of the totality of their relationship and the Tribunal gives it limited weight in assessing whether the Applicant was a member of a couple during the period from 2011 to 2019.
Commitment to Each Other
The formal marriage between Ms Naaman and the Applicant has lasted for over 17 years. However, the evidence does not indicate that the parties to the marriage have provided companionship and emotional support to each other, certainly since 2011. The Applicant strongly stated that he does not wish to be with Ms Naaman and that he has no connection emotionally or culturally with her. Ms Naaman expressed her unhappiness and her disappointment at the lack of support she has received from the Applicant. Her attempts to reconcile with the Applicant were largely borne from her religious commitment to marriage rather than any affection for him.
The other witnesses clearly acknowledge that Ms Naaman and the Applicant remain legally married, but their evidence was that people recognise that they are separated and have failed repeatedly to reconcile.
Mutual Commitment
The existence of mutuality in the commitment of people to a marriage-like relationship is a critical factor. The essence of 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.
In this case there is no mutual commitment. Ms Naaman has made a commitment to her marriage based on her religious and cultural beliefs. She has acted on that commitment by attempting repeatedly to try to reconcile with the Applicant and by attending counselling in Qatar. The Applicant has said in his evidence that he has no commitment to the relationship and wishes he had not married Ms Naaman. While he has participated in attempts at reconciliation he has not done so with any strength of commitment and has withdrawn from the process within days.
The lack of mutual commitment by Ms Naaman and the Applicant weighs against there being a marriage-like relationship.
CONCLUSION
The question for the Tribunal arising from s 4(2)(a) is whether the Tribunal, having regard to the factors identified in s 4(3), is satisfied that Ms Naaman is living separately and apart from the Applicant on a permanent or indefinite basis.
However, the Federal Court in Staunton-Smith v Secretary, Department of Social Security[39] made clear, the matters included in s 4(3) are merely indicators and not exhaustive. The Tribunal must make its assessment having regard to the totality of the evidence and other material that is before it and consider the ‘total picture of the relationship’.[40]
[39] (1991) 32 FCR 164; see also Pelka v Secretary, Department of Social Security (2006) FCA 735
[40] Pelka v Secretary, Department of Social Security (2006) 151 FCR 546 at [46] (‘Pelka’)
In considering all the circumstances of the relationship, the Tribunal is required to make an objective assessment based on the evidence: ‘The opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances’.[41] However, the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.[42]
[41] VBH and Secretary, Department of Family and Community Services (2006) 89 ALD 293 at [94]
[42] Boskoski and Secretary, Department of Social Services [2014] AATA 915 at [63]

The Courts and the Tribunal have recognised, in the context of the exercise of the special reasons exclusion in s 24 of the Act, that the ability of a couple to pool their financial resources is at the heart of the reason why a higher rate of benefit is paid to single recipients than to those in a couple.[43] The Full Court of the Federal Court recognised in Lambe v Director-General of Social Services[44] that mutual financial support is an important factor in determining whether a person is in a couple relationship.
[43] See for example Kazmierczak and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2010) FCA 1084 at [37]-[42] and the cases there cited.
[44] (1981) 4 ALD 362 at p.369
The evidence does not show any significant pooling of resources between Ms Naaman and the Applicant in the sense explained by the Court in Pelka.[45]
[45] Pelka at [52]
The Respondent’s contention was that the evidence of the Applicant and Ms Naaman repeatedly sharing a household, even after their purported separation, indicates they chose to not live apart on a permanent or indefinite basis; they had a perpetual intent or aim to reside under the same roof as a family for the benefit of the children.
The Tribunal does not accept that the evidence bears out the Respondent’s contention.
The Applicant and Ms Naaman ceased living together in February 2011. For the next 8 years (until 26 January 2019 when Ms Naaman moved to Melbourne), Ms Naaman and her children lived with her mother-in-law, except for the few months when Ms Naaman moved to Queensland. During this period, Ms Naaman actively sought to reconcile with the Applicant in order to preserve their marriage. They reunited briefly on several occasions in an effort to reconcile. During these periods, they lived under the same roof and resumed their sexual relationship resulting in the birth of four additional children. They travelled together to Qatar to seek counselling from a cleric on two occasions. None of Ms Naaman, the Applicant or any of the witnesses indicated that these attempts at reconciliation were successful. The Applicant’s ability to resolve his issues with Ms Naaman were no doubt hampered by his mental health issues and his troubled upbringing. He was adamant that he did not want to be married to Ms Naaman and he regretted having done so. The Applicant played no meaningful role in raising the children or in supporting Ms Naaman financially, physically or emotionally. Ms Naaman sought to reconcile, not out of affection for the Applicant, but rather because of her religious and cultural belief that marriage is for life and the practical necessity born of her isolation in Australia from her homeland and her own family.
The Court recognised in Melvin v Secretary, Department of Social Security[46] that where a couple live together from time to time, it is not determinative of the question whether they are living separately or apart. The Court noted that:
There is both a physical and mental element involved and the mental element is independent of whether the parties lived in the same house.
[46] [2016] FCA 375 at [83]-[84]
The Tribunal in Hogan and Secretary, Department of Employment, Education and Workplace Relations and Anor[47] expressed the relevance of this issue to the question at hand as follows:
What must be considered is not only whether the parties live separately, in physical terms, but also whether the marital relationship (the consortium vitae) has not been forged or has broken down. The two limbs of the test are conjunctive.
[47] [2011] AATA 162 at [60]
The High Court in Fairbairn v Radecki[48] recently considered the question of whether a de facto relationship had broken down in the context of s 90SM of the Family Law Act 1975 (Cth). The Court recognised that the question of whether a de facto or married relationship had broken down is not simply a matter of whether the parties had ceased to live at the same property. The Court recognised that a couple may live under the same roof and yet be separated[49] or may be in a couple relationship even where they live at different locations.[50]
[48] [2022] HCA 18
[49] Ibid at [36], citing Crabtree v Crabtree (1963) 5 FLR 307
[50] Ibid at [42]
The court noted that:[51]
The presence of a mutually recognised de facto or marital relationship involving a shared life was critical in each of SZOXP, Crabtree and Stanford. In Stanford, the continued subsistence of such a relationship explained the making of the "necessary or desirable adjustments" to the property interests of the husband and wife. In contrast, where the "necessary or desirable adjustments" are not made, and one party fundamentally acts contrary to the interests of the other in relation to the property of the couple, it may be possible to conclude that the mutual commitment to a shared life has ceased.
The language of s 4AA of the Act and its reference to "living together" requires no different approach to determining whether a relationship exists of the kind defined. "Living together", consistently with authority, should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a de facto relationship may exist.
[51] Ibid at [38]-[39]
The Tribunal is satisfied that, notwithstanding periods of co-habitation, Ms Naaman and the Applicant did not have a mutual intention to live a shared life as a couple at any time during those periods. Their brief periods of co-habitation reflected an attempt, at least on the part of Ms Naaman, at re-establishing the necessary mental element of their marriage which had broken down by February 2011. The evidence clearly establishes that those attempts were unsuccessful and the separation mentally, and for the most part physically, during that period was permanent and indefinite.
The circumstances of Ms Naaman and the Applicant during this period was akin to the circumstances of the parties in Pencev and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[52] where the Tribunal found:[53]
Overall, it is the absence of mutuality that most characterises the relationship. It is this absence of mutuality, in respect of financial contribution, effort contributed to the maintenance of the household and the support of the children, consistent presence and commitment to the household and to the relationship itself, that leads me to conclude that the relationship between Mr and Mrs Pencev was in essence one of living separately and apart under the same roof.
[52] [2011] AATA 404
[53] Ibid at [61]
For these reasons, the Tribunal is satisfied that the Applicant commenced living separately and apart from Ms Naaman from 31 January 2011 and has continued to do so on a permanent or indefinite basis. Accordingly, he was not a member of a couple and was entitled to receive social security benefits calculated at the single rate from 31 January 2011.
The correct and preferrable decision is to set aside the decision under review and remit the matter to the Respondent for reconsideration with a direction that the Applicant is not a member of a couple on and from 31 January 2011.
Issue 2 – Is the Applicant indebted to the Commonwealth?
The answer to this question is No.
Issue 3 - Should the debt be recovered from the Respondent?
It is unnecessary to answer this question.
DECISION
The decision under review is set aside and the matter remitted to the Respondent for reconsideration with a direction that the Applicant is not a member of a couple on and from 31 January 2011.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Member R West.

.............................[sgd]...........................................
Associate
Dated: 10 August 2022

Dates of hearing: 19, 20, 21 and 22 April 2022

Applicant: Self-represented

Advocate for the Respondent: Anthony Gardner

Solicitors for the Respondent: Minter Ellison
APPENDIX A
Exhibit A1 – Letter from Mae Abu Mahmoud, dated 6 September 2021
Exhibit A2 – Statement of Zaina Akid, undated
Exhibit A3 – Statement of Aydah Naaman, dated 11 August 2020
Exhibit A4 – Statement of Fatima Naji, dated 6 August 2020
Exhibit A5 – Statement of Zainab Naaman, undated
Exhibit A6 – Statutory Declaration of Elham Naaman, dated 22 July 2020
Exhibit A7 – Statement of Joumana Dandal, dated 11 August 2020
Exhibit A8 – Statement of Zaynab Abdulrahman, undated

[2022] AATA 2533

10 August 2022

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Dates of hearing:	19, 20, 21 and 22 April 2022
Applicant:	Self-represented
Advocate for the Respondent:	Anthony Gardner
Solicitors for the Respondent:	Minter Ellison