Nguyen; Secretary, Department of Employment and Workplace Relations and Anor and

[2007] AATA 1986

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1986

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S200600357

GENERAL ADMINISTRATIVE DIVISION

)

Re

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

First Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Second Applicant

And THI KIM DINH NGUYEN

Respondent

DECISION

Tribunal Deputy President D G Jarvis

Date27 November 2007

PlaceAdelaide

Decision

1.        The tribunal affirms the first decision under review.

2.        The tribunal sets aside the second decision under review and in place of that decision decides that there was no overpayment to the respondent of parenting payment single during the period 10 November 2000 to 1 August 2005, and directs the first applicant to expunge the debt of $54,618.98 raised against the respondent for overpayment of parenting payment single.

3.        The tribunal sets aside the third decision under review and in place of that decision decides that Ms Nguyen was not overpaid family tax benefit for the tax years ended 30 June 2001 to 30 June 2005 inclusive, and directs the second applicant to expunge the debt of $49,488.90 raised against the respondent for overpayment of family tax benefit for those four years.

D G Jarvis
  (Signed)
  Deputy President

CATCHWORDS

SOCIAL SECURITY - Family tax benefit - parenting payments single – parties separated due to husband’s excessive drinking and abusive behaviour – continued joint ownership of matrimonial home – parties obtained loans in joint names during separation – parties not divorced until after period in issue – relevance of divorce to whether respondent a member of a couple during period in issue – held that respondent not a member of a couple during period in issue – held that respondent not engaged in paid employment in relevant tax years – decisions under review reformulated but affirmed in substance.

Social Security Act 1991 (Cth), s 4(2) and (3)

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

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

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

In the Marriage of Todd (No. 2) (1976) 25 FLR 260

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

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

Re Jebb and Repatriation Commission (2005) 86 ALD 182

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

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

REASONS FOR DECISION

27 November 2007   Deputy President D G Jarvis

1.      Late in 1997, the respondent, Thi Kim Dinh Nguyen, claimed and was granted sole parent pension, claiming that she had separated from her former husband on 28 October 1997.  Following legislative changes in 1998, sole parent pension was replaced by parenting payment single (“PPS”), and after that Ms Nguyen received PPS.  However, in 2005 an officer of Centrelink decided to cancel Ms Nguyen’s PPS in respect of the period from 11 October 2000 until 1 August 2005, on the grounds that her marital status had changed and that she had commenced to live in a marriage-like relationship on 11 October 2000.  It was further decided that there had been an overpayment during this period, and a debt was raised against Ms Nguyen for the amount of the overpayment.

2. These two decisions were subsequently affirmed following reviews by Centrelink officers, on the basis that Ms Nguyen and her former husband should have been considered to be members of a couple as from 10 November 2000 (not 11 October 2000, as originally determined) until 1 August 2005 (the “relevant period”). As a result of the decisions, a debt was raised against Ms Nguyen pursuant to s 1223(1) of the Social Security Act 1991 (Cth) (“SS Act”) of $54,618.98, being the PPS paid to her during the relevant period.

3. On 29 August 2006, an Authorised Review Officer (“ARO”) in the Family Assistance Office affirmed a decision to raise and recover overpayments of Family Tax Benefit (“FTB”) for the tax years ended 30 June 2001 to 30 June 2005 inclusive. He found that there had been overpayments amounting to $49,488.90. This decision was based on the earlier decision by Centrelink that Ms Nguyen had been living with her former husband as a member of a couple since 10 November 2000. The ARO further recorded that because Ms Nguyen was not entitled to the payments of FTB, the above amount was a debt due to the Commonwealth by virtue of s 71 of the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (“FA Administration Act”).

4.      Ms Nguyen applied to the Social Security Appeals Tribunal (“SSAT”) to review the two decisions in relation to PPS, and also the decision in relation to FTB.

5.      The SSAT decided to set aside all three decisions on the grounds that Ms Nguyen was not a member of a couple during the relevant period.  The first applicant has applied to this tribunal for review of the SSAT’s decision to the effect that subject to the necessary income test, Ms Nguyen’s PPS should be restored from the date of her appeal to the SSAT on 20 April 2006 (the “first decision”) and its decision to the effect that there was no overpayment of PPS (the “second decision”).  The second applicant has applied to this Tribunal for review of the SSAT’s decision to the effect that there was no overpayment of FTB on the ground that Ms Nguyen was a member of a couple, and subject to there being no other grounds “upon which overpayment was raised” Ms Nguyen should be repaid the amounts already recovered from her relating to the 2000/2001 tax year (the “third decision”).

Issues Before the Tribunal

6.      The issues before the tribunal are as follows:

(a)      whether the respondent and her former husband were a member of a couple, that is whether they were, in the tribunal’s opinion, living separately and apart from each other on a permanent or indefinite basis;

(b)      whether any such overpayment of PPS is a debt due to the Commonwealth;

(c) whether the amount of FTB paid to the respondent during the relevant period was greater than the correct amount of assistance that should have been paid to her under the FA Act and if so, the extent of the overpayment;

(d)      if there has been an overpayment of PPS or FTB, and there is a debt due to the Commonwealth, whether all or part of the debt should be waived or written off.

7.      Whilst the respondent disputed that she had received payments of PPS or FTB to which she was not entitled, there was no dispute about the calculation of the amount of the asserted overpayments.

Background

8.      The following findings are based largely on the evidence of Ms Nguyen, which I accept.

9.      Ms Nguyen was married to her former husband, Van Hieu Nguyen, on 15 July 1980.  She had two sons by him, who were born in 1980 and 1985, and a daughter who was born in 1989.  She also has another daughter who was born in 2001 as a result of a casual relationship during a short interstate holiday.

10.     In 1986 Ms Nguyen and her former husband purchased a house in joint names at Oleander Drive, Parafield Gardens.  Ns Nguyen has continued to live in that house ever since, except for a period of about a year in 1998, when (according to her evidence) she and her former husband separated.

11.     The house was sold in November 2005 to Ms Nguyen’s eldest son.  He leases the house back to Ms Nguyen.  The net proceeds of sale of the house were divided equally between Ms Nguyen and her former husband.

12.     Mr and Ms Nguyen were divorced on 14 January 2006.

13.     I was informed early in the hearing that neither the applicants nor the respondent were proposing to call Ms Nguyen’s former husband.  After I indicated that I thought this to be unsatisfactory, the respondent arranged to call him.  Certain issues involving the respondent’s second son, Nam Hoang Nguyen, arose during the hearing, and the respondent also called him to give evidence in relation to those issues (as well as in connection with the relationship between her and her former husband).  I will refer later to the evidence of Ms Nguyen’s former husband and their son.

Legislation

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

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

“(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or … .”

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

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

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

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

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

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

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

(b)the nature of the household, including:

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

(ii)the living arrangements of the people; and

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

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

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

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

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

(d)any sexual relationship between the people;

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

(i)the length of the relationship; and

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

(iii)whether the people consider that the relationship is likely to continue indefinitely; and

(iv)whether the people see their relationship as a marriage-like relationship.”

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

Evidence as to Whether Respondent a Member of a Couple

18.     Certain evidence as to the financial aspects of the relationship between Ms Nguyen and her former husband suggests that she was a member of a couple.  They jointly owned the house at Oleander Drive for the whole of the relevant period.  There was a joint liability to the Australia and New Zealand Banking Group Ltd (“ANZ Bank”) under a mortgage over the property (exhibit A1, volume 4, page 166).

19.     One account for council rates is before me.  This is a rate notice issued on 8 July 2005 by the City of Salisbury (see exhibit A1, volume 2, page 22).  It is addressed to Mr Nguyen and Ms Nguyen at the address of the property in Oleander Drive.

20.     Furthermore, two new loans were raised by Ms Nguyen and her former husband during the relevant period.  In November 2000, they opened a new access account with the ANZ Bank in connection with the purchase a motor vehicle for their son (see exhibit A1, volume 4, page 130).  On 26 November 2004, they agreed to borrow $20,540.00 from the ANZ Bank to buy a Toyota Rav4 motor vehicle at the instigation of Mr Nguyen.  This amount included $540.00 for credit-related insurance, and the loan was secured by the mortgage over the Oleander Drive property (see exhibit A1, volume 2, pages 1 – 8).

21.     According to a record of an interview of Ms Nguyen by an officer of Centrelink on 2 August 2005, Ms Nguyen said that she could have the use of the Rav4 whenever she wanted.  Further, the results of a search inquiry show that Mr Nguyen is registered as a “joint” owner of the vehicle (see exhibit A1, volume 4, pages 105 and 234).  Ms Nguyen paid for the insurance for the vehicle with her visa card (exhibit A1, volume 4, page 103).  However, when she gave evidence she disputed that she could have the use of the Rav4 at any time, or that she had said this at the interview.  There is evidence before me that Ms Nguyen had her own motor car during the relevant period, and there is no evidence of her having driven the Rav4, or that it was garaged or parked at the Oleander Drive premises.

22.     There is some documentary evidence that suggests that the parties lived together for the duration of the relevant period, or at least for some of that period.  For example, Mr and Ms Nguyen showed the address at Oleander Drive as their address at the time of the applications for loans from the ANZ Bank to fund the acquisition of motor cars in November 2000 and November 2004.  They opened a new access account in connection with the former loan, and they were both authorised operators of the account.  Further, bank statements were issued to Mr and Ms Nguyen at that address.  The Certificate of Registration of the Rav4 purchased in November 2004 shows that as Mr Nguyen’s address.  In addition, a record of the Lyell McEwin Hospital in May 2001 shows that as his address (although, I note, not as Ms Nguyen’s address: see exhibit A1, volume 4, page 198).  Mr Nguyen also had an account with the Commonwealth Savings Bank, and his address during the relevant period according to that bank was also the Oleander Drive address.

23.     There are, however, other documents that suggest the parties had separated.  An account from SA Water referring to use from 3 November 2004 until 22 April 2005 is addressed only to “Mrs Nguyen”, even though the property was jointly owned by her and her former husband.  In the course of his evidence, Mr Nguyen produced a Centrelink Pensioner Concession card issued on 3 October 2002.  This showed an address at St Ives Drive, Parafield, which was repeated when the card was renewed following its expiry in 2006 (see exhibits A10 and A11).  In addition, that is the address shown on the certificate of insurance issued in respect of the Rav4 motor car (see exhibit A1, volume 4, page 215).  Further, the record from the Lyell McEwin Hospital to which I have referred above shows Ms Nguyen’s marital status as “separated”, and this is repeated on records prepared in June 2001, June 2002, and August 2004 (see exhibit A1, volume 4, pages 198 – 203).

24.     There is reasonably consistent oral evidence before me to the effect that the parties have lived separately and apart during the relevant period.  Ms Nguyen gave evidence that she and her former husband separated in 1998 as a result of her husband’s continuing abuse of alcohol.  She said that she and her children were abused by him every time he got drunk.  She said that she left the matrimonial home and went to live with a friend at Shepherdson Road, where she stayed with her children for about one year.  She then moved back in to the matrimonial home hoping that her former husband would stop drinking and become a responsible father.  However, this did not eventuate because he kept drinking and abusing her and the children.  She accordingly requested him to leave the matrimonial home and he did.

25.     Ms Nguyen said that while her husband was authorised to use the ANZ access account, he did not do so and could not do so, because she had cut up his credit card soon after the account was opened.  She acknowledged that she had been a party to the two joint loans with the ANZ Bank, but as to the first loan, she had wanted to provide a car for her son, and she and her husband had cooperated in doing so.  As far as the Rav4 was concerned, she said that her husband had demanded that she sign up for a loan with him so as to use the house as equity for the loan to enable him to purchase that vehicle, and then he would not ask her for anything else, but otherwise he would force her to sell the house.

26.     Ms Nguyen said that she had not had sexual relations with her former husband since she separated from him in 1998.  When asked how her former husband felt about her having had a relationship with another man that resulted in the birth of her youngest daughter, Ms Nguyen said that because she and her former husband were not living together, “each one of us could do anything he or she considered to be done” (transcript, 23.07.07, page 9, line 1).  She said that she did not know where he was living after they separated, did not know whether he had a girlfriend during the relevant period, and said that it was not necessary for her to know that.  She said he often came to visit their children, but she did not talk to him.  She said in examination-in-chief that the Vietnamese “community” knew that there was no relationship between her and her former husband any more, so they did not say anything about her pregnancy with her youngest child.  In cross-examination, however, she said that she was referring to her friends, and there appears to have been some confusion arising from the interpreter’s translation of the question she was asked in examination-in-chief (see transcript, 23.07.07, page 14, line 17, and page 46, lines 35 – 46 and page 47, lines 1 – 21).

27.     Ms Nguyen said that she worked for a company called IC Contractors for a few days part-time in May or June 2005, but apart from that, had not had any paid employment between 10 November 2000 and August 2005, when she started working for Inghams.  Ms Nguyen said that she had to look after her youngest child, who was born on 19 June 2001, when she was very small, and she also had to look after her other children, so that she did not have time left to work.  She said that her former husband has never paid any child support payments to her.  She acknowledged that on occasions he took her older daughter to or from school.

28.     Ms Nguyen agreed that her former husband had gone to the Lyell McEwin Hospital when she was giving birth to her youngest daughter, and he had taken her to hospital in March 2005 after she had been accidentally burned, and on one other occasion when she took medication that made her ill he visited her in hospital.  However, she said that in each case this had occurred because her daughter had telephoned her former husband to seek his assistance, and it was not her idea to seek help from him.  I note that the Lyell McEwin forms relating to Ms Nguyen’s admission to that hospital on 12 May 2001 and on three forms for admissions in June 2001 show her former husband as the first contact.  Ms Nguyen said in evidence that she had not been aware of this, and assumed that the hospital had obtained the relevant contact details from an earlier period of hospitalisation when she had had her first daughter.

29.     Mr Nguyen’s evidence confirmed that the parties separated in 1998, and that she moved out of the house at Oleander Drive.  He said that it was his decision to live by himself, that he went out with friends gambling, that he drank alcohol, and just wanted a quiet place to live by himself.  He also said that when his wife moved back to Oleander Drive he moved out.  He said he was not quite sure when that was, but it was probably in 2002 or 2003 (transcript, 14.08.07, page 38, line 25).  He said that he went to his wife’s sister’s house, where he lived for one year or over one year (transcript, 14.8.07, page 32, line 46).

30.     Mr Nguyen acknowledged that he had a drinking problem and admitted to having been in prison for drink driving in 1986 or 1987.  He said that he had not supported his family financially, because he had not even had enough money for his gambling or drinking.  He said he only ever comes back to the home at Oleander Drive to visit his children and advise them as to their future.  He emphatically denied that his wife had been able to use the Rav4 purchased in 2004.

31.     The parties’ divorce occurred after the relevant period.  Ms Nguyen said that it was her husband who wanted a divorce, and that she had not previously considered divorcing him for the reason that she did not know that she could do so because she did not have a marriage certificate (transcript, 23.07.07, page 41, line 17).  Mr Nguyen said that the reason he applied for divorce was because he had wanted to marry another woman.  When he was asked why he did not divorce Ms Nguyen earlier, he said he was not familiar with such matters, but believed that if he and his former wife did not get on with each other then they would just go their own way.  He said: “I look for my future.  She looks for her future.” (transcript, 14.08.07, page 30, line 18).  He was asked whether he had been disappointed in any of his children, and he said that he had been disappointed with his second son, but added that he did not discuss this with his former wife, because they did not get on with each other and so he tried to avoid talking to her because of the fighting and arguments he had had with her.

32.     Mr Nguyen said that his reason for not changing his address with the banks was that he changed his address at different times, and he did not think that the address was important or that it was important to tell the bank.  In cross-examination Mr Nguyen said he used the address in Oleander Avenue, but did not live there.  He also said that he did not use the joint bank account with his wife during the relevant period.

33.     The evidence of Mr Nguyen and Ms Nguyen as to their separation was substantially confirmed by their second son, Nam Hoang Nguyen, who also gave evidence.  He admitted that he became addicted to drugs and said that he had left home in the year 2000, but still came home, and when he did, his father was not living there.  He also confirmed that his father had been abusive, and always blamed his mother.  Mr Nam Nguyen also gave evidence as to issues relevant to the third decision (that is, the decision in relation to the asserted overpayment of FTB), to which I will refer later.

34.     Some further confirmation of the breakdown in the relationship between Ms Nguyen and her former husband appears in the evidence of her sister, Kim Hanh Thi Cao.  She confirmed that she allowed Mr Nguyen to stay in her house for about a year, but said that this was in the year 2002.  In that respect her evidence is inconsistent with that of Ms Nguyen, and fits with the recollection of Mr Nguyen.

35.     The respondent also called a friend, Tuc Ngoc Nguyen.  She said that she has known Ms Nguyen for three or four years, but had never seen her in company with her former husband except that Mr Nguyen was present at the 21^st birthday party of their second son at Ms Nguyen’s house.

36.     It appears from exhibit A1, volume 4, pages 235 – 242 that the applicants arranged for surveillance of the house at Oleander Drive on 21, 25 and 28 February 2005 and on 1, 2, 4, 5 and 8 March 2005.  The report does not indicate that Mr Nguyen was seen at the Oleander Drive on any of these occasions, or that his Rav4 motor vehicle was seen there.

Consideration – Was the Respondent a Member of a Couple?

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

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

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

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

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

2.   Must have regard to each of:

(a)    the financial aspects of the relationship;

(b)    the nature of the household;

(c)    the social aspects of the relationship;

(d)    any sexual relationship between the people;

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

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

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

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

(a)  financial cooperation;

(b)  cohabitation;

(c)  a sexual relationship;

(d)  cooperative household arrangements;

(e)  mutual commitment.”

Relevance of the parties’ subsequent divorce

40. On 13 December 2005 a Federal Magistrate made a divorce order (which took effect on 14 January 2006) in relation to the marriage of Ms Nguyen and her former husband. Under s 48(1) of the Family Law Act 1975 (Cth) an application for a divorce must be based on the ground that the marriage has broken down irretrievably. Under s 48(2) the relevant ground shall be held to have been established, and the divorce order shall be made, only if “the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.” (emphasis added). The concept of living separately and apart is then dealt with in s 49(2), which provides as follows:

“(2)     The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.” (emphasis added).

41. The statutory formulation of the test of whether a couple is living separately and apart in the SS Act is accordingly different from the formulation in the Family Law Act. The factors referred to in s 49(2) of the Family Law Act may be disregarded, but under s 4(3) of the SS Act, the decision-maker is required to have regard to the living arrangements of the persons in question and the basis on which the responsibility for housework is distributed, together with a non-exhaustive list of specific matters. An order for divorce is therefore not conclusive on the question of whether the parties were a member of a couple, or in a marriage-like relationship, for the purposes of the SS Act or the FA Act. I note that in Staunton-Smith (supra) O’Loughlin J referred to the limited assistance to be derived from cases decided under the Family Law Act, in that in those cases, the essential question was whether a particular marital union had ceased to exist (at page 175), and that question might also involve examining and contrasting the state of the marital relationship before and after the alleged separation : see In the Marriage of Todd (No. 2) (1976) 25 FLR 260 at 263.

42. Mr and Ms Nguyen’s application for divorce was a joint application, and in it they asserted that they had lived separately and apart since 1998 (see exhibit R2). However, as is apparent from the above analysis, the order for divorce, whilst a relevant consideration, is not conclusive on the issue of whether they were members of a couple for the purposes of the SS Act or the FA Act.

43.     Counsel for the applicants, Mr Prince, submitted that the evidence of Ms Nguyen and of other witnesses was unreliable, and that it should not be accepted.  He drew attention to a number of inconsistencies in Ms Nguyen’s evidence and in her interview by the witness Susan Caroline Chown of Centrelink.  He also referred to other instances where, he submitted, Ms Nguyen’s answers were evasive.  He also criticised Ms Nguyen’s evidence in relation to what she was doing at a produce packing company called the Carrot Company, and her evidence as to her involvement with her son, both when he was at work and when he travelled to and from work.  He pointed out that Ms Nguyen and her former husband were parties to joint applications to their bank for loans that gave her former husband’s address as the Oleander Drive address, and on another consumer credit application, she stated that she was working for Asforce (see exhibit A1, volume 4, T11, page 178), but in her evidence she denied that she worked for that company.  Counsel also pointed out that there was an inconsistency between Ms Nguyen’s evidence and that of her son, in that Ms Nguyen said that she was working at the Carrot Company, whereas her son said she was helping him with his work at an affiliated company called Golden Grace Produce.  Counsel also drew my attention to certain inconsistencies between the evidence of Ms Nguyen, her son, the witness Arthur Singer and the witness Ivan John Osborne.  I will refer below to the evidence of Messrs Singer and Osborne, but as to the question of which company the son was working for, I note that the Carrot Company and Golden Grace Produce operate on the same site, and Ms Nguyen’s description of the work her son was doing is consistent with the work done at at least one other company affiliated with the Carrot Company, namely Golden Grace Produce (see transcript, 16.08.07, page 25, line 10).

44.     In matters involving a determination of whether persons are members of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance.  I have carefully considered the matters to which Mr Prince referred.  I found Ms Nguyen’s evidence to be unsatisfactory in certain respects because of various inconsistencies, and because at times she appeared to resent being asked certain questions in the course of a lengthy cross-examination, and was evasive.  However, Ms Nguyen and other witnesses were asked to recall events that had occurred a number of years earlier, and it is not surprising that there were some inconsistencies in their recollection of some matters.  Nevertheless, on the essential matters relevant to the question of whether she was a member of couple, Ms Nguyen’s evidence was clear and substantially consistent.  Those essential matters were supported by the evidence of her former husband and of her son.  Whilst I found the assessment of credibility in the case of Mr and Ms Nguyen is more difficult because they gave their evidence through an interpreter, and Mr Nguyen was vague as to a number of matters, I find that they gave a truthful account of the essential matters relevant to their relationship, and in Ms Nguyen’s case, as to the extent of her paid employment during the relevant period.  My following findings reflect this assessment of the credibility of the witnesses.

Financial aspects of the relationship

45.     The evidence I have already narrated indicates that the parties’ financial affairs had in a number of important respects remained intertwined during the relevant period.  The house in Oleander Drive remained in joint names until not long before the parties were divorced, but it appears from Ms Nguyen’s evidence that she did not want the house sold, and that it was eventually sold as part of the divorce settlement, at Mr Nguyen’s instigation.  The car loans were obtained in joint names, and whilst Ms Nguyen was therefore jointly liable for those loans, I accept that she did not anticipate having to meet the repayments herself.  The continued joint ownership of the Oleander Drive property was an important factor in facilitating the obtaining of the loans, and I accept Ms Nguyen’s explanation that she wanted to help her son purchase a car, and that she only agreed to join in the second loan because of the threats made by her former husband, to which I have referred.  The above circumstances substantially reduce the significance of the joint loans in assessing the parties’ relationship.  Further, I find that there was no sharing of day-to-day household expenses.

Nature of the household

46.     I accept that Mr Nguyen assisted by taking his daughter to or from school on occasions, but otherwise he has abrogated his responsibility for providing care or support for his children.  The recollection of the parties as to the dates when Ms Nguyen returned to the Oleander Drive property varies, and this may have occurred after the date referred to by Ms Nguyen, but I am satisfied that the parties were living separately and apart during the relevant period, and that Mr Nguyen has not been responsible for housework during that period.

The social aspects of the relationship

47.     I find that the parties did not hold themselves out as married to each other except when they sought to obtain loans from the bank which had a mortgage over the matrimonial home.  Whilst the evidence of Ms Nguyen’s friend Tuc Ngoc Nguyen is based largely on hearsay, it is clear that in her assessment, the marriage had broken down.  The evidence of Ms Cao also indicates that that was her assessment.  I find that Mr and Ms Nguyen did not engage in any joint social activities.

Sexual relationship between the parties

48.     I accept that there has been no sexual relationship between the parties during the relevant period.

Nature of the parties’ commitment to each other

49.     Mr and Ms Nguyen had been married for approximately 18 years before they separated.  However, I find from the evidence of Ms Nguyen that for a number of years before their separation, Mr Nguyen had consumed excessive amounts of alcohol and had been abusive towards Ms Nguyen and their children, and this led to their separation and to the breakdown in their relationship.  I take into account that Mr Nguyen visited Ms Nguyen or assisted her on the occasions when she was hospitalised, and apparently felt some responsibility towards her, but I find that this was initiated by their daughter and her inability to provide appropriate assistance to her mother.  I further find that the parties considered during the relevant period that their relationship was at an end; this is clear from their evidence as to their attitude towards each other, to which I have referred above, and is further evidenced by their divorce soon after the end of the relevant period.

Overall assessment

50. In summary, the first criterion in s 4(3) points to the conclusion that Ms Nguyen remained a member of a couple during the relevant period, but not strongly, and each of the remaining criteria points to the opposite conclusion.

51. I have discussed above the relevance of the parties’ divorce. Whilst this is not conclusive, it is some confirmation that the parties’ relationship had come to an end during the relevant period. The fact that Mr Nguyen visited the former matrimonial home during the relevant period to see his children does not indicate a continuation of his relationship with his former wife. Further, during the relevant period Ms Nguyen had a child from another relationship, and Mr Nguyen had hoped to marry another woman. All of these matters, in conjunction with the evidence of the parties and other witnesses as to the breakdown of the relationship, and my evaluation of the specific criteria in s 4(3), lead me to find that Ms Nguyen was not a member of a couple during the relevant period.

Was There an Overpayment of Family Tax Benefit?

52.     It follows from my above finding that Ms Nguyen was not overpaid FTB for the tax years in question on the ground that she was a member of a couple.  It is also necessary to consider whether she made a correct disclosure to Centrelink of her income during the tax years in question.

53.     Mr Prince drew my attention to the express qualifications contained in the three decisions of the SSAT, and submitted that I should not finally determine the question of the level of Ms Nguyen’s income during the relevant period, but that instead I should remit the matter to the applicants for reconsideration.  I do not think that this would be appropriate.  The applicants assert in their Statement of Facts, Issues and Contentions that Ms Nguyen has worked during the relevant period, and proceed to make a number of specific allegations as to matters relevant to whether Ms Nguyen was, or must have been, receiving income during the relevant period.  Those matters were canvassed in detail at the hearing before me.  The applicants have had ample opportunity to investigate and to present evidence in relation to the matters in issue.  Ms Nguyen has answered the case brought against her, and I propose to make findings as to the above issue by carefully reviewing all of the evidence before me.  Of course, if new evidence becomes available to the applicants that is of appropriate cogency, they may not be estopped from reconsidering the issues that have arisen : see the various authorities to which I referred in Re Jebb and Repatriation Commission (2005) 86 ALD 182.

54.     As mentioned above, Ms Nguyen said that she had not had any paid employment during the relevant period, except that she worked for IC Contractors for a few days part-time in May or June 2005.  I note that volume 4 of Exhibit A1 includes, at pages 270 – 271, what appear to be extracts from a yearly time and pay book of IC Contractor Pty Ltd.  These extracts show that Ms Nguyen worked for short periods of two or two and a half hours from 26 July to 1 August 2005, for gross pay of $127.50.  I find that that record is more likely to be correct than Ms Nguyen’s somewhat vague recollection in her evidence as to her work with IC Contractors.  There is no evidence as to whether or not those earnings were disclosed to Centrelink and taken into account, but the earnings on my above finding would relate to FTB for the tax year ended 30 June 2006, and that year is not in issue in the present proceedings.

55.     The applicants produced certain evidence in an attempt to establish that Ms Nguyen was working at the Carrot Company during 2005.  This included surveillance evidence that indicated that Ms Nguyen had attended the site of the Carrot Company on a number of occasions in February and March 2005, and she had been seen going to the site early in the morning at the time when the morning shift started, and leaving the site in the afternoon, when the shift finished.

56.     In reply to an employment declaration form sent to the Carrot Company, Mr Arthur Singer, its Personnel Manager, advised Centrelink that Ms Nguyen had commenced work with Golden Grace Produce in July 2005.  However, when he gave evidence, Mr Singer said that that information had been provided by mistake, since the information related to a different employee with the same surname, and he realised that the date of birth of the respondent differed from that of the employee.  When asked whether he recognised the respondent, Mr Singer said that he did, because he had met her at Golden Grace Produce visiting the employee in question, but he confirmed that the respondent was not the employee referred to in the wages declaration form.

57.     Ms Nguyen admitted in evidence that she went to the Carrot Company, but denied that she was paid for any employment by that company.  She said that her son had obtained employment there and that she went there on occasions with him, in view of her concern about his drug addiction, to make sure that he attended at work, to get lunch for him, and to help him while he was there with his work.

58.     Ms Nguyen’s son confirmed these matters in his evidence.  He also said that he had come to an arrangement with a person at Golden Grace Produce called Ivan that his mother could assist him in this way, on the basis, however, that she would not be paid.

59.     Mr Singer identified the man referred to by Ms Nguyen’s son as Ivan John Osborne, the Operations Manager of Golden Grace Produce.  Unsuccessful attempts were made for Mr Osborne to give evidence, and ultimately two affidavits sworn by him were tendered and received as exhibits A15 and A16.

60.     Mr Osborne deposed in exhibit A15 that he has been the operations manager for Golden Grace Produce for approximately three years.  He said that he could not recall any discussion with a young man representing Asforce (who I infer was Ms Nguyen’s son) about his mother; but he could not “say definitely” that he did not have such a discussion.  He further deposed to having remembered seeing a woman around the car park in or about March 2005, who said in poor English that he found difficult to understand “words to the effect ‘son work’ or ‘some work’’’, and she pointed towards the premises of Food Processing Powers (“FPP” – yet another affiliated company).  He remembered that she had what appeared to be containers of food and a cardigan (or similar) in her bag.  He said that he gave her an old safety vest and “pointed her in the direction of FPP”, understanding that she wanted to go to FPP.  He also swore that he did not recall seeing the woman in question inside Golden Grace Produce’s building, and he said the he only had responsibilities for Golden Grace Produce and not for the Carrot Company or FPP.

61.     In his second affidavit, exhibit A16, Mr Osborne said, by reference to a photograph of Ms Nguyen, that he was “approximately 90 per cent certain” that the person shown in the photograph was the woman whom he had seen in the car park near FPP.

62.     It appears from the affidavits of Mr Osborne and the evidence of Mr Singer that Asforce provided labour first to FPP and later to Golden Grace Produce, and later changed its name to IC Contractors and continued to supply labour to Golden Grace Produce after that.  There was no evidence before me as to the nature of the work done at FPP, but I infer that this company was also engaged in food processing or packaging operations.  There was no evidence that any of the affiliated produce companies had any relevant information as to the identity of the labour force provided by Asforce or IC Contractors, and with the exception of the extract referred to in paragraph 54 above, no records of Asforce or IC Contractors were produced that indicated that Ms Nguyen was employed as part of the contract labour provided to the produce companies.

63.     On the evidence before me I find that Ms Nguyen did not engage in paid employment with any of the affiliated produce companies except on the occasions referred to in paragraph 54 above.

64.     Ms Nguyen was also asked about records of withdrawals of funds from the Adelaide Casino, since on the face of it, these withdrawals indicated that she must have been receiving income in excess of her social security benefits.  A pattern of withdrawals is apparent from the Visa card statements in exhibit A3, pages 56 to 89, covering a period that includes the relevant period.  However, she said her sister was using her Visa card during the relevant period, and she did not know how often her sister went to the casino, and her sister was not questioned about these withdrawals when she gave evidence.  Ms Nguyen did admit to withdrawing the sum of $1,000.00 on 29 November 2004 from her access account with the ANZ Bank, for the purpose of using the money the next day (transcript, 01.08.07, page 28, line 4).  She was also asked about a withdrawal on 19 November 2004, and the transcript records the following further exchange.

“THE INTERPRETER : I did withdraw $1,000 because it was my money.  I only took my money out.

MR PRINCE : So, that was your withdrawal on 19 November?

THE INTERPRETER : I withdrew once.  I did so.  It was my money.”

65.     It seems likely from this exchange that Ms Nguyen was acknowledging only one withdrawal of $1,000.00, and that she thought that the question about the withdrawal on 19 November 2004 related to the same withdrawal that she had previously been asked about.  However, even if this is not the correct interpretation of this exchange, Ms Nguyen was not asked about some other withdrawals at the casino (or Skycity, as it is also called), and I am not satisfied that Ms Nguyen gambled substantial amounts at the casino during the relevant period.  There was certain further evidence of her gambling at the casino, but this post-dated the relevant period, and in any event, she admitted this and gave some explanation for her subsequent gambling.

66.     I find that Ms Nguyen was not engaged in paid employment during the tax years relevant to the FTB debts that were raised, with the exception of the few days work for IC Contractors, and that her earnings from that company were not received in any of the tax years in issue in these proceedings.  It follows that she was not overpaid FTB during the relevant tax years.

67.     The decisions of the SSAT were subject to certain express qualifications.  However, counsel for the applicants did not suggest that there was any other basis, apart from the issues of the status of her relationship with her former husband and her level of income during the relevant period, to sustain the debts raised against Ms Nguyen for overpayment of PPS and FTB.  I therefore propose to reformulate the second and third decisions under review to reflect my determination of the proceedings before me.  In doing so, I do not imply any criticism of the formulation by the SSAT of its decisions; the issue of Ms Nguyen’s income during the relevant period was not canvassed before the SSAT, and in those circumstances it acted quite correctly in making its decisions subject to the qualifications it expressed.

68.     There has been no evidence as to the level of Ms Nguyen’s income as at 20 April 2006, and I therefore regard the qualification in the SSAT’s first decision as appropriate to the determination of the review of that decision.

Decision

69.     The tribunal affirms the first decision under review.

70.     The tribunal sets aside the second decision under review and in place of that decision decides that there was no overpayment to the respondent of parenting payment single during the period 10 November 2000 to 1 August 2005, and directs the first applicant to expunge the debt of $54,618.98 raised against the respondent for overpayment of parenting payment single.

71.     The tribunal sets aside the third decision under review and in place of that decision decides that Ms Nguyen was not overpaid family tax benefit for the tax years ended 30 June 2001 to 30 June 2005 inclusive, and directs the second applicant to expunge the debt of $49,488.90 raised against the respondent for overpayment of family tax benefit for those four years.

I certify that the 71 preceding paragraphs are a
true copy of the reasons for the decision
herein of Deputy President D G Jarvis

Signed:         .....................................................................................
           L. Wunderer  Associate

Date/s of Hearing  19 and 23 July, 1, 14 and 16 August, 4 and

5 September, and 5 and 17 October 2007

Date of Decision  27 November 2007
Counsel for the Applicant         Mr S Kayal
Solicitor for the Applicant          Duc Mai Lawyers
Counsel for the Respondent     Mr R Prince
Solicitor for the Respondent     Australian Government Solicitor