NQDQ; Secretary, Department of Social Services and (Social security second review)
[2025] ARTA 1564
•29 August 2025
NQDQ; Secretary, Department of Social Services and (Social security second review) [2025] ARTA 1564 (29 August 2025)
Applicant:Secretary, Department of Social Services
Respondent: NQDQ
Tribunal Numbers: 2024/4764, 2024/4766, 2024/4767
Tribunal:Senior Member T Hamilton-Noy (second review)
Place:Melbourne
Date:29 August 2025
Decision:The Tribunal sets aside the decision under review and substitutes its decision that:
(i)The Respondent was a member of a couple from 10 August 2023, within the meaning of subsection 4(2) of the Social Security Act 1991;
(ii)The Respondent’s parenting payment is to be cancelled from 10 August 2023;
(iii)The Respondent owes a debt of parenting payment of $1,870.40 for the period 10 August 2023 to 11 October 2023; and
(iv)The debt is recoverable.
Statement made on 29 August 2025 at 9:08am
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 201(1A) – 201(1B) of the Social Security (Administration) Act 1999.
Catchwords
Member of a couple – de facto relationship – parenting payment cancellation – parenting payment debt – no grounds for waiver or write off of debt
Legislation
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114
Dranichnikov v Centrelink [2003] FCAFC 133
Groth and Secretary, Department of Social Security (1995) 40 ALD 541
Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Melvin v Secretary, Department of Social Security [2016] FCA 375
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary, Department of Social Security v Coralie Hales [1998] FCA 219
Secretary, Department of Family and Community Services and Sekhon [2003] FCA 76
Secretary, Department of Family and Community Services and VBH and Another [2006] AATA 1Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Statement of Reasons
Background
This matter relates to a decision by the Applicant to find that the Respondent was partnered for social security purposes from 10 August 2023 and to raise and recover a parenting payment debt from her based on her level of income.
Following an internal review by Centrelink, the decision was reviewed by the Administrative Appeals Tribunal (AAT) at first review and was set aside. On 3 June 2024, the AAT found that the Respondent was not a member of a couple between 10 August 2023 and 11 October 2023 and set aside the decision to raise and recover a parenting payment debt for that period in the amount of $1,870.40.
The Applicant sought second review of the AAT decision on 10 July 2024.
From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The Tribunal held a hearing in this matter on 27 May 2025 and 28 May 2025. A representative for the Applicant attended the hearing in person. The Respondent attended the hearing in person on the first hearing day and participated by conference telephone on the second hearing day; evidence was given by the Respondent on affirmation. Evidence was taken during the hearing from the Respondent’s alleged partner (AP), who appeared in person and also gave evidence on affirmation.
Legislation and issues
The legislation relevant to this review is contained in the Social Security Act (1991) (Cth) (the Social Security Act) and the Social Security (Administration) Act 1999 (Cth) (the Social Security Administration Act).
Because of the basis for the raising of a debt in this matter, the legal issues the Tribunal must consider are:
(i)Whether the Respondent was a member of a couple with AP, for social security purposes, from 10 August 2023;
(ii)If the Respondent was a member of a couple from 10 August 2023, whether there is any reason she shouldn’t be treated as partnered for social security purposes;
(iii)Whether the Respondent owes a debt to the Commonwealth for the period 10 August 2023 to 11 October 2023, due to her parenting payment not being payable from 10 August 2023; and
(iv)If there is a debt, whether the debt is recoverable by Centrelink.
Was the Respondent a member of a couple with AP from 10 August 2023 onwards?
The rate of parenting payment is determined by whether a person is partnered or is single. Where a person is single, section 1068A of the Social Security Act sets out the rate calculator to work out the person’s rate of payment. Where a person is partnered, their rate is worked out by the rate calculator in section 1068B of the Social Security Act.
Subsection 4(11) of the Social Security Act provides that a person is partnered if, in relevant part, they are a member of a couple. Subsection 4(2) of the Social Security Act states:
(2) Subject to subsection (3), a person is a member of a couplefor the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
(aa) both of the following conditions are met:
(i) a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901as a kind of relationship prescribed for the purposes of that section;
(ii) the person 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
(b) all of the following conditions are met:
(i) the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner);
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
Subsection 4(2) is subject to subsection 4(3) of the Social Security Act, which provides that:
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, or in a de facto relationship with, each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
In terms of the weighing up of the above factors, the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 stated (at [20]) that:[1]
It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
[1] Cited in Applicant’s Statement of Facts Issues and Contentions (SFIC) at paragraph 6.4.
The Tribunal must consider the total picture of the relationship created by the factors, with consideration given to those which weigh against a marriage-like relationship and those which weigh in favour of it (Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [46]).[2] The factors are objective in nature (Secretary, Department of Family and Community Services and VBH and Another [2006] AATA 1 at [94]),[3] and how the parties themselves view their relationship is not determinative of whether a marriage-like relationship exists (Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470 at [41]).[4]
[2] Cited in Applicant’s SFIC at paragraph 6.4.
[3] Cited in Applicant’s SFIC at paragraph 6.5.
[4] Cited in Applicant’s SFIC at paragraph 6.5.
Subsection 4(3A) of the Social Security Act states that the Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis. In Melvin v Secretary, Department of Social Security [2016] FCA 375,[5] the Federal Court stated (at [83-84]):
It was open to the Tribunal on the evidence to find that the appellant lived at Pawlett Way from time to time during the first period. They lived neither separately nor apart on a permanent or indefinite basis. They physically lived together from time to time. That of itself is not determinative. The meaning of the expression “living separately and apart” was considered at length by the Full Court of the Federal Court in SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 at [43]-[58] albeit in the context of provisions of the Migration Act 1958 (Cth). There is both a physical and mental element involved and the mental element is independent of whether the parties lived in the same hose. This cuts both ways. Characteristics of a relationship as not marriage-like may be reached even where the person live in the same house.
Moreover, the mental element supporting the existence of a marriage-like relationship may be inferred, despite the persons’ subjective evidence to the contrary, as here, from objective circumstances including those set out in s 4(3)(a)-(e).
[5] Referred to in Applicant’s SFIC at paragraph 6.3.
In Staunton-Smith, the Federal Court stated (at [37]-[39]):[6]
Addressing the subject of "separation" Watson J. said in In the Marriage of Todd (No.2) (1976) 9 ALR 401:-
“In my view ‘separation’ means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existent of the marriage by both spouses in public and private relationships. When it is asserted that a separation has taken place it may be necessary to examine and contrast the state of the marital relationship before and after the alleged separation. Whether there has been a separation will be a question of fact to be determined in each case” (p403)
The Full Court of the Family Court (of which Watson J was a member) expressed in the Marriage of Pavey (1976) 10 ALR 259 its general agreement with that statement of the law with two qualifications. It said that it was appropriate to use the word “breakdown” instead of “destruction” (p262) and it considered “the nurture and support of the children of the marriage” as a constituent element of the marital relationship. (p263)
The matter of greater significance to be derived from Pavey’s case is the insistence by the Full Court that the composition of the marital relationship for each couple varies from case to case. This accords with the views that this Court and the Tribunal have expressed when considering various provisions of the Social Security Act: in every case it will be necessary to have regard to the particular circumstances of the people whose lives and lifestyles will be affected by the decision of the Department; it is wholly inappropriate to fall back on standards, conventions or “role-models”.
[6] Referred to in the Applicant’s SFIC at paragraph 6.2.
The Applicant’s position in this matter is that the Respondent was a member of a couple with AP from 10 August 2023 and that there is no special reason for her to not be treated as such from that date. The Applicant submits that the Respondent has been inconsistent in her evidence about her relationship with AP and that, given this, greater reliance should be placed on objective, independent evidence and on contemporaneous evidence given by the Respondent during the debt period. The Applicant submits that the financial aspects of the relationship, the social aspects of the relationship and the nature of the commitment between the Respondent and AP, in particular, weigh in favour of a finding that they were members of a couple from 10 August 2023. Written submissions provided to the Tribunal noted, in particular, that the Applicant was seeking the Tribunal place weight on the following aspects of the relationship in making its decision:[7]
a.There was a significant pooling of financial resources between the Respondent and [AP], evidenced by the joint ownership and joint liability with respect to the [family home], substantial payments from their joint bank accounts towards a house owned by [AP’s] brother and an on-site caravan of which the Respondent and [AP] are both principal occupants and the sharing of day-to-day household expenses.
b.The Respondent and [AP] held themselves out as being partnered to various institutions, including the Agency, and participated jointly in activities, including holidays.
c.There was a significant level of commitment between the Respondent and [AP], evidenced by the Respondent’s reliance on [AP] in times of need, the joint ownership of the [family home] and sharing of an on-site caravan, the Respondent’s expectation that [AP] would look after her children in the event of her death, and the Respondent’s view of the relationship as a de facto relationship that may continue indefinitely.
[7] Applicant’s SFIC at paragraph 6.37.
The Respondent gave oral evidence at the hearing about her relationship with AP, which is set out in some detail below. Prior to the hearing she provided the Tribunal a statement about her relationship with AP, which set out the following relevant information for the consideration of the Tribunal:
In May 2022 I lost my father to a long battle to illness who was living with me during this time. I was also in a dispute with my employer at the same time due to my availability with my son starting school as I am a single mother and don’t have any family assistance, my father was to[o] ill and the only people that were able to help was my old neighbour who has now moved and a friend I was introduced to through her as my son started school with her daughter. Not long after all this was taking place, I then lost our family dog whom I had had since 2011 and my uncle in the same week. I was struggling with all these events taking place. I made some questionable decisions through this period but obviously never put my son at face of any of these. I admittedly turned to alcohol and had sexual relations with a few randoms with no intent of future relations. I at some point had sex with [AP], and we both believe the time line to my conceiving [daughter] was in line as there wasn’t anyone else at that point.
The Respondent went on to make submissions about medical difficulties she had experienced during her first pregnancy and the difficulties she faced with her second pregnancy. Her submissions then continued as follows:
[AP] was arranged to take me [to the hospital for the birth] but there was confusion on the hospitals behalf with their calendar. As I was urgently booked in and a follow up scan cancelled due to being booked in, it was arranged that I was taken to [second] hospital to proceed. Upon arrival I was placed straight in a room and hoked (sic) up to the monitoring where they said her heart rate was dangerously low and I needed to go straight into emergency caesarean. I was then unexpectedly in hospital for 3-4 days and also told I wouldn’t be aloud (sic) to drive for a further 6 weeks so needed to make on the spot arrangements for my son, which is when [AP] moved in to my house to assist as my neighbour whom I relied on for help also had a seizer (sic) and was banned from driving. After my first visit to the hospital with my kidneys, I was very affrayed (sic) for my future and that of my son and unborn daughter. The infection and the pain was unbearable. I honestly feared for my life. Im (sic) not sure if it was the right decision now but I added [AP] to my home loan and title for future occurrences. My mother and me have argued since as she knows [AP] isn’t and hasn’t been apart (sic) of my life and believes he doesn’t deserve to have access to my belongings and the fact I don’t know him well enough. Now that my mind and health is in a better place, I do believe I may have made a mistake, but if it comes to the future of my children, then I haven’t but that doesn’t mean we are in a committed relationship. Since he has been here, he sleeps at the other end of the house as my son has attachment issues I am working through with his OT as we have been alone and together for so long. He sleeps next to me every night in my bed while I have been cleaning my belated fathers stuff out of the room he was in so [AP] can have that. Otherwise he has been in my sons room or on the theatre room couch. As for a sexual relationship. That has been the last thing on my mind as I am still receiving from the emergency c.
…..
Starting and pursuing a new relationship is the last thing on my mind at the moment with [AP], and he understands that this is not the right time for us… [AP] and I currently live like housemates and with our routine, we don’t even see each other much as he is home late and leaves early. I am to some aspect lucky he has been here though as the small amount I get from him weekly has helped us get by currently.
The Respondent’s alleged partner AP also provided a written statement to the Tribunal prior to the hearing, noting in the statement that he had been requested by the Respondent to provide a statement addressing the relevant factors regarding their relationship “and why we are currently not in one”. The Respondent’s alleged partner set out the following information in the statement:
Financial Aspects of the Relationship:
While I have been trying to assist [the Respondent] financially – particularly during her pregnancy and the period following the birth of our child – it has placed increasing strain on my own finances. This support has been driven by a sense of responsibility rather than a reflection of an ongoing romantic relationship.
Nature of the Household:
We are currently not living together as of 12/4/2025 as she has asked me to find new accommodation and we have not established a shared household. Our lifestyles on day-to-day basis are quite different, which has led to ongoing challenges and incompatibilities. I currently feel obligated to help her sustain living cost to ensure a roof over my daughters head though she has refused some help despite not being in the position too (sic) which has lead (sic) to unpaid payments ect. (sic) I only know as I received a call from the bank as my name is on the loan.
Social Aspects of the Relationship:
Socially, we lead very separate lives. Our values and approaches to life have often clashed, leading to frequent disagreements and emotional distance. This has made it difficult to maintain any form of consistent connection beyond co-parenting responsibilities, which in honesty, has mostly been placed on [the Respondent], like hearing/health appointments regarding [daughter] due to my work commitments.
Any Sexual Relationship:
There has been no sexual relationship between us since the pregnancy. The relationship during that time was based on medical and emotional support rather than romance or intimacy and has been still ongoing as she is currently facing more health issues which has lead (sic) her to asking me for help where the children are concerned while she attends appointments etc, but I haven’t been able to assist with some of these times as they conflict with my work commitments.
Nature of the Commitment:
There is no current romantic commitment between us. My focus has been on supporting [the Respondent] during and after her pregnancy, primarily for the wellbeing of our child. However, the combination of emotional strain, lifestyle differences, and financial pressure has made it clear that a committed relationship is not viable.
I am currently working to establish myself independently and am subcontracting to a company that provides the majority of my work. The hourly rate I receive is before tax, GST, and any other deductions. My commitments to even my daughter has unfortunately been minimal at times, which has also caused disagreements. Additionally, my past lifestyle and struggles have impacted my ability to move forward in a stable and supportive way. I am actively working on rebuilding my life, lifestyle and improving my circumstances.
As noted above, considerations of whether a person is partnered for social security purposes requires the Tribunal to weigh up a range of factors. Having regard to the submissions and evidence before it, the Tribunal makes the following findings about each of the relevant factors.
The financial aspects of the relationship
The Tribunal accepted from the Respondent’s evidence at the hearing, and from the documents before it, that the Respondent purchased her current home in September 2015 and, at the time of the purchase, secured a mortgage of $361,000 over the property. The Tribunal accepted that the Respondent was the sole owner of the property from the time of purchase in September 2015 to August 2023.
It was not disputed, and the Tribunal accepted, that the Respondent joined AP to the title of the property in August 2023. Legal title for the property reflects both the Respondent and AP’s names on the title as of 10 August 2023. The Tribunal found that that, on or about 10 August 2023, AP was added to the title of the Respondent’s home.
The Tribunal further accepted that, at the time of joining AP to the title to the property, the Respondent and AP refinanced the mortgage in the amount of $338,000. A mortgage statement for the period commencing on 3 August 2023 reflects AP’s name on the mortgage statement, along with the Respondent, and the Tribunal found from this evidence that the re-mortgaging and joining AP to the home’s mortgage arrangements occurred commensurate with the time his name was added to the title for the home.
Both the Respondent and AP were asked about AP becoming a joint tenant to the property as of August 2023. The Respondent’s evidence was that it had been a lengthy process and that she had only had a brief conversation with AP about changing the mortgage to add him. The Respondent told the Tribunal that she had spoken to a mortgage broker, but that she had “not really” received any advice about the risks. She then stated she wasn’t thinking about it at the time, her brain wasn’t in the right place and she made decisions that she now regrets. The Respondent gave evidence that she wasn’t aware the joint tenancy meant that her 50% interest in the property would go to AP rather than her children, stating in response that she had had a very bad mindset. She gave evidence that she has not taken steps to take AP off the title, stating to the Tribunal that she can’t afford to do so, but is thinking about potentially doing it.
AP’s evidence at the hearing was that the Respondent had been worried about her health and that they “didn’t really discuss” the remortgaging. When asked for his comment about his name being on the mortgage documents, AP stated that he had just gone along with whatever the Respondent wanted him to do. When it was observed that the arrangement meant that AP was liable to repay hundreds of thousands of dollars, he then stated it was for his daughter, was probably the right thing to do and that it may affect his credit rating down the track. Later in his evidence at the hearing, AP stated that he was able to access the mortgage account (to check the Respondent’s stated financial situation), but had never bothered to look at the account.
The Tribunal finds that the decision by the Respondent to add AP to the title of her home as of August 2023 was a significant financial decision for her, that had implications for not only her management of the mortgage (to which AP was added) but also for inheritance of the property. The Tribunal considered that both the Respondent and AP attempted to downplay the significance of this decision in their evidence at the Tribunal hearing. The Tribunal had great difficulty accepting that there had only been minimal discussion between them about this decision or that AP was impervious to the financial implications of being added to the title and the mortgage, to the extent that he had not considered being liable for significant amounts of money or was so disinterested as to not have accessed the mortgage account. The Tribunal found that both the Respondent and AP did not give full and frank evidence about their decision to add AP to the title and mortgage for the Respondent’s home in August 2023.
Both the Respondent and AP gave evidence of an arrangement for AP to pay $350 weekly to the Respondent upon being added to the mortgage for the home. The mortgage statement for the property shows AP transferring $477.21 into the account on each of 17 August 2023, 24 August 2023 and 31 August 2023. The Tribunal is prepared to accept that these amounts roughly correlate with the amounts identified by both the Respondent and AP in their evidence at the hearing, however, notes AP’s evidence that he also paid cash on occasion.
Both the Respondent and AP also gave evidence at the hearing about shared arrangements for household bills. The Respondent stated that she added AP to some of the household commitments, she thinks to a lot of the utility bills, but when asked directly whether AP was responsible for half of the bills, responded by stating that it “depends how you look at it”. AP’s evidence was that he thinks his name was on the electricity account, possibly the water bill and that they had a shared insurance policy because his name was also on the mortgage. The Tribunal noted that the rates notice for the property, issued on 21 August 2023 and contained in the papers before the Tribunal, continued to reflect only the Respondent’s name on the notice. Insurance policy information, also contained in the documents, reflected both the Respondent and AP holding a joint insurance policy for the home.
In addition to the above financial arrangements, the various bank statements before the Tribunal indicate transfers of money between the Respondent and AP. These included regular transfers of $1,000 from AP to the Respondent between July 2023 and July 2024, which the Respondent described as being for when she needed extra help. When asked about other transactions, the Respondent was unable or unwilling to provide an explanation for these. For example, when it was observed that there were constant payments from AP to the Respondent as of July 2023, the Respondent stated “okay” but did not otherwise provide an explanation. When asked about a transfer of $3,500 on 14 August 2023, the Respondent stated she had no idea about it. Similarly, when asked about a transfer identified as “[AP] ute”, she also stated she had no idea.
Other transactions indicated amounts totalling $2,965 from the Respondent to AP between 15 January 2025 and 9 February 2024, which the Respondent stated she probably hadn’t realised AP was getting behind in his payments and that these were for his car. AP’s evidence was that these amounts would also have related to a roadworthy certificate.
AP was asked during the hearing about other transactions showing in the various accounts and agreed with observations that he had made seven transfers in October 2023 totalling $6,960. He agreed this was much more than the $350 per week he had earlier given evidence about, and stated it was because the Respondent was behind in so many payments; she has always been behind, “probably bills and stuff like that”. AP also agreed that further amounts totalling $3,750 had been transferred in May 2024, and stated he had continued to help as much as he could.
The bank statements also indicated that the Respondent transferred $100,000 out of the mortgage account on 21 August 2023, described as “moving”. When asked about this transaction at the hearing, the Respondent stated that it was a personal loan for “somebody” she was lending money to. When asked who that was, the Respondent stated it was AP’s brother, and related to a personal thing they discussed that she was happy to help him with and was nothing to do with AP. The following day, a further amount of $60,000 was transferred for “moving”. The Respondent stated that this was to the same person potentially, for a personal matter. The Respondent stated that there was no written agreement and the individual in question has intended to return the amount to her a few times and she’s said she doesn’t want the money. The Respondent stated that she hasn’t asked for the money to be returned because she doesn’t want to spend any more from an account that is already overdrawn. In addition to the two lump sum amounts, the Respondent transferred additional amounts on a more regular basis totalling $100,000. When asked about these, the Respondent stated “okay”.
AP was also asked about transfers from the mortgage account and, while agreeing that he had a joint offset account with the Respondent, stated that he thinks the Respondent lent the amount to his brother as she is friends with his brother. AP’s evidence was that he has no idea what the amounts were for, but were something to do with his brother’s house. AP stated that he tries to stay out of it a lot and has had no discussion with his brother about this amount. While the Respondent had mentioned transferring a further $60,000 to his brother, he had said to do what had been arranged. AP agreed that a total of $260,000 was transferred from the account to his brother and that his brother had mentioned it was for the house. AP stated that repayments had not been made; they are expected but he doesn’t know when as he has asked the Respondent to leave him out of it. The Tribunal had some difficulty accepting that AP would not be involved in such discussions, given the transactions involved a significant amount being moved from the offset account in which he had an interest to his brother’s account.
The Respondent gave evidence at the hearing that she had been “trying to sort out” registration of a child support case as of October 2023, but it had been “cancelled through Centrelink”, as there had been a decision made that she was re-partnered. AP’s evidence was consistent that there was no formal child support agreement. Based on the consistent evidence of the Respondent and AP, the Tribunal finds that no child support case has been registered by the Respondent for AP to pay child support to the Respondent.
The evidence before the Tribunal suggests a significant financial commitment between the Respondent and AP as of 10 August 2023, which included a decision for AP to be added to the title to the Respondent’s home and for him to become jointly responsible for the mortgage on the home. AP also gave evidence of having been responsible for some of the household utilities and for the insurance for the home.
In addition, the various transfers between the Respondent and AP’s bank account suggests they were financially supporting one another, from July 2023 for at least the following 12 months. This included for ad hoc items, in addition to more regular payments AP was making to the Respondent over that 12 month period. Additionally, the Respondent has provided a significant amount of money to AP’s brother to assist him with his house, an amount that remained unpaid as of the date of the Tribunal hearing.
The Tribunal finds that all of the above circumstances relating to the financial aspects of the relationship – and in particular the joining of AP to the title to the property and the mortgage, the provision of money to one another and the significant amounts transferred from the Respondent to AP’s brother – strongly support the presence of a de facto relationship between the Respondent and AP as of 10 August 2023.
The nature of the household
The Respondent and AP both gave evidence at the Tribunal hearing that they had met through the Respondent’s brother. The Respondent has provided varying information as to whether this had been during her childhood or more recently. Similarly, AP gave evidence at the hearing that he had known the Respondent since 2016. He then stated he had known the Respondent’s brother and had known the Respondent since childhood; then described this as “just before 2016”. When it was observed that he is 40 years of age and was not a child in 2016, AP agreed with this observation. The Tribunal found from the evidence given by the Respondent and AP that they have known each other since at least 2016 and possibly for a longer period than that. The Tribunal accepts the Respondent and AP met through the Respondent’s brother.
The Tribunal is prepared to accept the Respondent’s evidence that AP, the Respondent’s brother and another friend had moved into her house as of July 2017. The Respondent gave evidence at the hearing that there had been a fight between AP and her brother and she had asked them to leave. Her evidence about any subsequent periods that she and AP resided together was unclear and unconvincing. For example, when asked about a form she had completed for Centrelink on 8 June 2022 in which she stated she was sharing accommodation with AP who was a “friend/housemate”, the Respondent did not respond directly, but stated that AP had lived with her for a period during the COVID-19 pandemic.
AP was similarly unclear in his evidence about his residence in the house, initially telling the Tribunal he had moved into the property in around 2016 or 2017. When asked how long he had been in the property for, he stated until early 2017, or mid-2017. He stated he had not moved back in since then; and then gave evidence of having been there on and off since their daughter was born.
As noted above, the Tribunal has accepted that AP was added to the title to the property on or around 10 August 2023. Their daughter had been born on 28 July 2023 and the evidence before the Tribunal suggests that AP had moved into the residence to assist with the Respondent’s son, while she was in hospital for the birth. AP’s brother provided a letter, which was contained in the documents before the Tribunal, dated 4 February 2024 which stated that AP had lived with him “up until his recent settlement…on the 10/08/23” and that, prior to that, AP had been living with him rent free for quite a few years. While AP’s brother’s evidence was unable to be tested at the hearing, it was consistent with other evidence before the Tribunal that, as of 10 August 2023, the Respondent and AP were residing together in the home, with two children. Similarly, an email provided by the Respondent’s former neighbour stated that AP had moved in with the Respondent to support her and, while also unable to be tested at hearing, also was consistent with the evidence before the Tribunal that AP was living with the Respondent as of 10 August 2023.
The Respondent described the home as a four bedroom house with a study and the Tribunal accepted this evidence as correct. Both the Respondent and AP gave evidence of having had separate sleeping arrangements during their time living together and, in the absence of any evidence to the contrary, the Tribunal is also prepared to accept this evidence as correct.
There was some evidence before the Tribunal of the sharing of household tasks. This included the Respondent’s evidence at the hearing that AP had assisted with the housework after she gave birth to their daughter by caesarean section. The Tribunal considered that the Respondent provided minimal information in response to questions asked of her and was unwilling or unable to provide details of household arrangements in her evidence to the Tribunal. The Respondent did, however, give evidence that, following an accident in her own car, she uses AP’s car to drive the children around and to attend medical appointments. The Tribunal noted that this evidence differed from AP’s evidence, that the Respondent has one car, a ute, in her name that she uses.
AP’s evidence at the hearing about the household arrangements was that he cleans his own room and does his own washing; he helps with one child and with the other one “if he has to”, but he is trying to focus his attention on his daughter; he is “not really” maintaining the garden, but does the lawn occasionally; he buys his own groceries and helps if the Respondent asks for food; and that he has had to drop [the Respondent’s son] to school, but doesn’t assist with play dates or extracurricular activities. AP gave evidence that, with respect to their daughter, he changes nappies when he has to and helps with feeding.
The Tribunal noted that the above evidence was broadly consistent with information provided by the Respondent in a “Separated under One Roof” form dated 26 October 2023, in which she indicated that: she and AP did not share a bedroom and that AP had assisted with cleaning and looking after the children since 28 July 2023.
The Tribunal has accepted that the Respondent and AP have not shared a bedroom while living together and finds that this suggests they were not in a de facto relationship as of 10 August 2023. However, other factors relating to the household, including the sharing of household duties and AP’s assistance with caring for the children, is suggestive of a de facto relationship as of 10 August 2023.
The social aspects of the relationship
The Tribunal had been provided hospital records relating to the Respondent’s second birth in July 2023. The “Patient Details” screen of the hospital where the Respondent gave birth lists AP as the Respondent’s contact from 12 April 2023. AP’s relationship to the Respondent is described in the screen as “husband/male partner”. When asked about the information in the patient details screen at hearing, the Respondent stated in response that it was probably around the time her kidney was failing and she had put AP as her emergency contact.
The Respondent disputed a record made by the hospital dated 31 July 2023 which reflected that “Discussion with [Respondent] and partner-contraception”; the Respondent disputed that AP had been present during the discussion. The Respondent agreed she had spoken to the nurse about contraception but disagreed with the Applicant that this evidenced an intention for her to resume or continue a sexual relationship with AP. AP also denied having attended appointments at the hospital with the Respondent.
The Tribunal did not accept that the hospital records reflected AP as the Respondent’s partner because she had nominated him as her emergency contact. Nor did the Tribunal accept that the hospital’s records erroneously reflected AP as having attended an appointment with the Respondent when he had not. Rather, the information from the hospital taken as a whole indicates that the Respondent and AP held themselves out as partners to the hospital and that AP had been present at the hospital with the Respondent on at least one occasion.
The Tribunal further noted that the Respondent has represented herself to Centrelink as partnered at various points in time, and as not a member of a couple at other points in time. The Tribunal accepted, from the submissions provided by the Applicant, that the Respondent:
·Completed a claim for parenting payment (single) on 8 June 2022. In the form, the Respondent stated she had never married or lived with a partner. AP was listed in the claim form as a “friend/housemate” from 8 July 2017 and the Respondent indicated in the form that AP was paying rent of $100 per week.
·Completed an “Income and Assets” form on 5 August 2023, in which she stated she was partnered with AP.
·Completed a “Newborn Child Declaration” form for her daughter, who was born on 28 July 2023, on 28 August 2023. In the declaration, the Respondent stated that she was partnered with AP and that he is the biological father of her daughter.
·Submitted a claim for parental leave pay on 28 August 2023, in which she stated she had “never married or lived with a partner” and had not had a partner at any time since 1 July 2022. In the form the Respondent stated it was difficult to apply for child support because the father of her son was unknown.
·Completed a “Relationship Details – Separated Under One Roof” form on 5 September 2023. In the form, the Respondent stated AP was her ex-partner and then described her relationship with AP as her “partner”.
·Completed a “Partner Details” form, signed by both the Respondent and AP on 5 September 2023. In the form, the Respondent stated she had been de facto from 10 August 2023 and was, at the time of completing the form, living in the same home as AP.
·Submitted a claim for parenting payment (partnered) on 10 September 2023, in which the Respondent stated she had been partnered from 10 August 2023;
·Completed a “Relationship Details – Separated Under One Roof” form on 26 October 2023. In the form, the Respondent stated that AP is her ex-partner and is her “friend/housemate”. The Respondent stated in the form that she and AP have a joint home loan; have no intention to separate because “security for the children; only pays $350 week for all”; and that: “We were never together / just sexual relations / friends”.
·Completed a claim for parenting payment (single) on 27 October 2023, in which she stated she had never married or lived with a partner. AP was described in the form as “friend/housemate”.
·Completed a “Relationship Details – Separated Under One Roof” form (the Tribunal noted that the form contained the Respondent’s details but appears to have been signed by AP on 28 October 2023). AP is recorded in the form as the Respondent’s ex-partner and is described as a “friend/housemate”. A comment is made in the form that: “never been in a relationship but have had intercourse”.
·Completed a “Mod S – Separation details” form on 31 October 2023. In the form, the Respondent states that she separated from AP on 28 July 2023. In response to the question, “Do you live in the same home as your ex-partner?”, the Respondent ticked both yes and no.
In addition to the above forms, the Respondent had contacted Centrelink on 28 August 2023, to register her daughter’s birth and to update her details. The Tribunal had been provided a transcript of the contact and noted that, during the call, the Respondent had indicated she was currently “not really single anymore”, that the child’s father had stepped in to help and they were going to try things; but it was not reconciling and was sort of just the beginning. The Respondent indicated in the call that the person in question was staying in the same home as her, in a separate bedroom, and that she was changing her son’s name because one of her concerns had been around her children having different surnames. When asked about this contact at the Tribunal hearing, the Respondent agreed that she and AP had been trying things and, when asked if they were in a relationship, responded, “Obviously”.
The Tribunal accepted the Applicant’s submissions that the Respondent has given varying representations about her relationships to Centrelink. She provided, however, information to Centrelink in four forms in the relevant period indicating she was partnered with AP: an income and assets form completed on 5 August 2023, a newborn declaration form completed on 28 August 2023, a partner details form completed on 5 September 2023 and a parenting payment (partnered) claim form on 10 September 2023. Her phone call to Centrelink on 28 August 2023, while not providing clear information of the arrangements around her relationship, also indicated she and AP were in a relationship at that point in time, and she acknowledged this in her evidence at the hearing. The Tribunal found on the evidence before it that the Respondent represented herself to Centrelink as partnered with AP commensurate with the Applicant’s position that she was partnered from 10 August 2023.
Also contained in the papers provided to the Tribunal were a range of income tax returns prepared by AP. The Tribunal noted from these that, in the 2016/17, 2017/18, 2018/19, 2019/20 and 2020/21 financial years, AP had indicated in the returns that he had no dependents and no spouse. In his 2021/22 income tax return (completed on 13 November 2023), AP declared that the Respondent was his spouse during the year. In the 2022/23 income tax return, AP declared that he had one dependent child and that the Respondent was his spouse during the financial year, from 1 July 2022 to 23 August 2022. For the following financial year, in 2022/23, AP declared he had one dependent child but no spouse during the year.
AP was asked about the information in his income tax returns during the Tribunal hearing and gave evidence that the accountant had assumed things. He stated he had never signed anything for income tax return purposes, before then stating that he agreed he had lodged and signed the returns. AP told the Tribunal he had said to his accountant he was living with the Respondent, but had never said he was in a relationship with her. He denied having declared a spouse for the full financial year in 2021/22 or having declared the Respondent as his spouse in the 2022/23 financial year. As to whether he had given his accountant instructions to amend the information, AP stated he probably should address that.
The Tribunal noted that the information presented in the various income tax returns varied over different financial years and found from this that AP likely had some active input into the information his accountant was preparing on his behalf. AP signed and declared information in the income tax returns as correct. The Tribunal finds that AP represented himself to the ATO as partnered in the 2021/22 and 2022/23 financial years.
In addition to the principal place of residence, the Tribunal accepted that as of August 2023 the Respondent owned two lots in a caravan park, a two hour drive from the principal home. The caravan park provided information to the Applicant in December 2024, stating that the Respondent was the principal occupant of two sites and AP was the “principal occupant number two” of one of the sites. The Respondent’s evidence about this arrangement was that she thinks she put AP down as an occupant; she did not otherwise provide an explanation for the circumstances around this.
Both the Respondent and AP gave evidence of spending little to no time together at the caravan park. The Respondent gave evidence that AP had been there at times, and that he and his brother and a few people have used the caravan park. AP also gave evidence of having stayed there with his brother. When the Applicant put to the Respondent at the hearing that bank statement transactions indicated that she and AP had travelled at the same time to the caravan park, the Respondent stated that AP may have been there. She denied that they had ever travelled in the same car together to the caravan park.
The Respondent was also asked during the hearing about her ownership of a jet ski and she stated it was owned just by her and that she had not used it with AP. When asked about a boat registration in both names, the Respondent stated she thought AP had wanted to get his boat licence. The Tribunal noted that AP also gave evidence of having obtained his boat licence and that he told the Tribunal he had used the Respondent’s boat once or twice.
The Tribunal placed some weight on the Respondent’s ownership of a caravan site which is accessible to AP for his use, and on a joint application to Vic Boat Trading, as evidence suggesting shared leisure activities between the Respondent and AP.
Overall, the Tribunal considered that the social aspects of the relationship indicated the presence of a de facto relationship between the Respondent and AP as of 10 August 2023. In particular, the Tribunal considered that their representation to the hospital where the Respondent gave birth, AP’s representation to the ATO and the Respondent’s various representations to Centrelink of a de facto relationship were all indicative of a de facto relationship between the Respondent and AP as of August 2023.
Any sexual relationship between the Respondent and AP
The Respondent gave birth to her first child, a son, on 8 March 2016. The Tribunal accepted that the birth certificate registered on 21 June 2016 contained no father’s details. The Tribunal accepted that the Respondent had prepared a Newborn Child Declaration for Centrelink in respect of her son, in which she stated she had no partner and that, at the time, the child’s surname and second given name were undecided.
Information provided by Births, Deaths and Marriages states that the Respondent’s son’s birth certificate was amended on 29 November 2023 to add AP as the father on the birth certificate. The Respondent’s bank statements reflected two payments made for DNA testing and, when asked about the first payment at the hearing, the Respondent stated that she had started the process and “then it was all cancelled”. She stated she had “probably” paid an additional amount of $431 for DNA testing.
At the hearing, the Respondent initially gave evidence to the Tribunal that AP was not listed as the birth father on her son’s birth certificate as of 29 November 2023. When taken directly to the information provided by Births, Deaths and Marriages, the Respondent stated she is not sure how that is, because there was no further birth certificate issued. The Respondent stated she had never given permission for the birth certificate to be amended, because it wasn’t done properly. The Respondent then stated that the whole thing “got dropped” and then stated she has been depressed and anxious.
When asked to clarify her evidence about the DNA testing and whether she had thought AP may be the father, the Respondent stated she doesn’t believe so, and then stated that they have had sex in the past. When asked about her statements to the AAT at first review that she and AP had had sex only once, the Respondent stated she has a pretty shady memory. The Respondent also gave evidence at the hearing that she had wanted both of her children to have the same surname and that it had caused arguments between herself and AP.
AP was also asked about the amended birth certificate and stated he is not the child’s biological father. When asked if he was aware the child’s birth certificate had been amended, AP stated that the Respondent had want to, after complications with their daughter, and had asked him if he could help with the other child “down the track”. AP gave evidence that he hadn’t seen the results of DNA testing. He agreed he was curious about the results, but stated he hadn’t asked. When asked if he accepted the birth certificate had been amended because the information was true, AP stated it may be, he doesn’t know. AP then stated that he doesn’t really know the reasons for the DNA test, that it was “possibly” to check if he was the child’s father, and that he hadn’t felt the need to ask the Respondent about the results.
The Tribunal had great difficulty accepting the evidence given by the Respondent and by AP about the circumstances in which a DNA test was sought and their lack of awareness of the outcome of the testing. The Tribunal considered it implausible that the Respondent would seek a DNA test if she did not suspect AP was the father of her son, born in March 2016. Further, the Applicant has noted, in written submissions provided to the Tribunal, that in order to apply for a subsequent registration of a child’s parent, the person must provide a certified copy of either the results of a DNA-based parentage test approved by the National Association of Testing Authorities or a court order directing Births, Deaths and Marriages to add the father to the birth certificate.[8] There was no such court order provided to the Tribunal. The Tribunal considered that the most plausible explanation for the DNA test and subsequent change to the child’s birth certificate was that the Respondent and AP were in a sexual relationship as of mid-2015 when the Respondent became pregnant, that they sought a DNA test to confirm AP was the father upon having a second child together and moving in together, and that the results of the DNA test allowed AP’s name to be added to the child’s birth certificate.
[8] Applicant’s SFIC at paragraph 6.27, referencing information contained at
The Tribunal finds that the Respondent and AP had a sexual relationship prior to 2016 and, because of this, finds that the Respondent provided incorrect information to the AAT at first review when she stated that she and AP had had sex on one occasion before she became pregnant with her daughter (in late 2022).
The Respondent and AP’s daughter was born on 28 July 2023. The Applicant gave evidence at the hearing that she and AP had had a sexual relationship as of November 2022, not long after her father passed away. The Tribunal accepted this evidence as correct. Neither the Respondent nor AP gave evidence at the hearing of having had a sexual relationship as of August 2023, although there is a reference in a hospital record to the Respondent having discussed contraception with a nurse following the birth of her daughter. The Tribunal finds that this is suggestive of an ongoing sexual relationship and that this weighs somewhat in favour of the presence of a de facto relationship as of August 2023.
The nature of the commitment between the Respondent and AP
In Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] FCAFC 92 (Pelka), the Federal Court held (at [30]) that:[9]
The matter to which s 4(3) of the Social Security Act requires a relevant decision maker to have regard is the nature of the commitment of two people to each other. That regard is to include, in particular, four specific matters. Clearly, the Tribunal had regard to those four specific matters in terms. The essential requirement of the provision, however, is that the decision maker must have regard to the nature of the commitment of two people to each other. It is clearly relevant to that matter to have regard to the fact that a commitment that each of those persons has to each other is different from the commitment that each person has to any other person. The fact that the commitment that Ms Pelka had to Mr Kuhl was qualitatively different form the commitment that Ms Pelka had to any other person is clearly relevant to the nature of her commitment to Mr Kuhl. The same reasoning applies in relation to the commitment of Mr Kuhl to Ms Pelka. The Tribunal, as the decision maker, had regard to precisely the matter to which it was required to have regard, namely, the nature of the commitment of Ms Pelka and Mr Kuhl to each other.
[9] Cited in Applicant’s SFIC at paragraph 6.32.
In the “Separated Under One Roof” form completed by the Respondent on 26 October 2023, the Respondent stated that she and AP intended to continue sharing accommodation for six to 12 months, or for more than 12 months depending on their circumstances. The Respondent indicated in the form that AP had provided care and support to her during and after her pregnancy and after her father’s death; that AP had “been here to help not sure where or what the future may hold”; and that she and AP would get back together depending on their circumstances.
The Tribunal finds that the Respondent and AP have demonstrated a commitment to one another through the joining of AP to the title and mortgage for the family home and through their raising of a daughter together. The Tribunal accepted the Respondent’s evidence that AP was present at the birth of their daughter and that the daughter has AP’s surname. The Tribunal has found, above, that AP’s name was also added to the Respondent’s son’s birth certificate and accepted that AP is expected to provide for both children if the Respondent is unable to do so.
Conclusions about the relationship
Having regard to the comments in Pelka, as set out above, the Tribunal finds that the nature of the commitment between the Respondent and AP is notably different from the commitment the Respondent has to any other person. The Tribunal finds that this weighs heavily in favour of a finding that the Respondent was a member of a couple with AP as of 10 August 2023.
In addition to finding the Respondent’s relationship with AP is of a different nature to the commitment she has to any other person, the Tribunal considered that the evidence before it established that the Respondent and AP had a joint commitment to providing for both children as of 10 August 2023. To this end, they made arrangements for AP to be added to the title of the home and to become jointly responsible for the mortgage on the property. AP moved into the home while the Respondent was in hospital giving birth to their daughter and has contributed to household tasks and provides a level of care to the two children in the household. In the months following the birth of their daughter, there was evidence in the bank statements of them assisting each other financially as needed, in addition to the more regular payments AP was making to the Respondent. The Tribunal finds that the decision to join AP to the title and mortgage on the home was significant and is strongly indicative of the level of commitment between the Respondent and AP as of 10 August 2023. In addition, the large amount lent by the Respondent to AP’s brother also strongly suggests her commitment to maintaining a broader family unit as of August 2023 and is also indicative of a de facto relationship.
Subsequent to August 2023, AP was added to the Respondent’s son’s birth certificate as his father. Neither the Respondent nor AP gave clear or credible evidence about the circumstances in which this occurred and, for the reasons set out above, the Tribunal has considered the most plausible explanation for this is that AP is the biological father of the child and was in a sexual relationship with the Respondent prior to 2016, contrary to her evidence at the AAT first review hearing. The Tribunal notes that, even if it is wrong about this conclusion, the arrangements between the Respondent and AP for AP to provide care to both children if something were to occur to the Respondent, indicates the presence of a de facto relationship as of August 2023.
The representations by the Respondent, in and around August 2023, to Centrelink that she was partnered with AP provides a further indication that, at that time the Respondent perceived she was partnered with AP for social security purposes and is also indicative of the presence of a de facto relationship.
Taking into account the evidence as a whole, the Tribunal finds that the Respondent was in a de facto relationship with AP from 10 August 2023, within the meaning of subsection 4(2) of the Social Security Act.
Is a determination under section 24 of the Social Security Act able to be made?
Subsection 4(6) of the Social Security Act states that a person is not a member of a couple if a determination under section 24 is in force in relation to the person.
Section 24 of the Social Security Act provides the circumstances in which a person may be treated as not being a member of a couple. Subsection 24(2) states that:
(2) Where:
(a) a person has a relationship with another person, whether of the same sex or a different sex (the partner); and
(b) the person is not legally married to the partner; and
(c) the relationship between the person and the partner is a de facto relationship; and
(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
In Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, the Federal Court noted the focus of section 24 considerations as follows (at [41]-[42]):[10]
The case law canvassed by Senior Member Creyke in Holt’s case confirms, in my view correctly, that there is a particular focus under the Act on the practical ability of the resources of the partner being available for pooling with the resources of the person holding the pension. This fundamentally derives from s 1064-A2 of the Act which provides that where two people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis.
It stands to reason that if for some legal or other practical reason the partner member of the couple cannot be treated as sharing income and assets then there is a ground for exercising the discretion under s 24 so as not to treat the holder of the pension as a member of a couple who are capable of sharing resources. In that regard, in effect, the s 1064-A2 expectation that there will be pooling is negatived.
[10] Cited in Applicant’s SFIC at paragraph 6.44.
The Guide to Social Security at Part 2.2.5.40 guides a decision maker in the exercise of the section 24 discretion as follows:
In general, an income support payment is paid at a partnered rate where a person is a member of a couple in recognition that a couple living together typically pool resources and therefore have lower living costs in comparison to 2 single people living separately. Where a couple is unable to pool resources, it may result in extra expenditure causing financial difficulty, which would make it unfair to treat the person as partnered.
If there are practical or legal reasons a couple cannot share income and assets, then there MAY be grounds for exercising the discretion under section 24 provisions.
Generally, section 24 would NOT be appropriate where:
·a couple is able to pool resources but chooses not to do so, or
·if one or both members of a couple has access to other sources of support and either has not explored or realised the support or choose not to access it.
While the Tribunal is not bound by policy, it is able to take policy into account where relevant (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634). The Tribunal considered that the policy set out above is relevant to the Tribunal’s determination in this matter.
There was no evidence given by the Respondent at hearing, and was otherwise no documentary or other evidence before the Tribunal, that suggested to the Tribunal that it would be appropriate to make a section 24 determination. Rather, the evidence before the Tribunal was that the Respondent and AP were able to pool resources to secure a joint mortgage and were able to transfer money between themselves as needed. The Tribunal declines to make a section 24 determination, on the basis that there are no special reasons in this particular case for not treating the Respondent as a member of a couple with AP as of 10 August 2023.
Cancellation of parenting payment and the raising of a parenting payment debt
Because of the above findings of the Tribunal, the Tribunal has gone on to consider the raising and recovery of debts which resulted from the original finding in this matter that the Respondent was partnered with AP from 10 August 2023.
Arising from the finding that the Applicant was partnered for social security purposes from 10 August 2023, Centrelink made a consequent decision to cancel the Respondent’s parenting payment, which was being paid to her at the single rate of payment as of 10 August 2023. The Applicant submits that as a result of the Respondent becoming partnered from 10 August 2023, her parenting payment ceased to be payable to her and her rate of payment was required to be worked out under section 1068B of the Social Security Act, being the PP (Partnered) Rate Calculator. The Applicant submits that as of 10 August 2023, the Respondent’s income included parental leave pay and was $1,730.30 per fortnight. This was above the income limit of $1,232.84 per fortnight (aside from any income also being earned by AP, which was also required to be taken into account under the Rate Calculator). The Tribunal accepted the Applicant’s submissions and found that, as of 10 August 2023, the Applicant’s combined income exceeded the limit for parenting payment to be payable to her.
Subsection 80(1) of the Social Security Administration Act provides for suspension or cancellation of a payment in circumstances where the social security payment is being or has been paid to a person to whom the payment is not payable. The legislation does not provide any guidance as to the circumstances in which the payment should be suspended rather than cancelled, or vice versa. The Tribunal accepted, however, that in circumstances where the Respondent’s parenting payment was not payable due to her level of income, the payment was properly cancelled as of 10 August 2023.
As the Respondent’s payment was cancelled from 10 August 2023, she was not qualified for the payments made to her from 10 August 2023 to 11 October 2023. The Tribunal accepted that, in this period, the Respondent was paid parenting payment totalling $1,870.40 to which she was not entitled.
Section 1223 of the Social Security Act provides that, where a social security payment is made and a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit, the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
The Tribunal finds that the Respondent owes a debt to the Commonwealth in the amount of $1,870.40, pursuant to section 1223 of the Social Security Act.
Whether the debt is recoverable from the Respondent
The Tribunal then considered whether the debt is able to be written off for a period of time or waived. In considering the non-recovery provisions, the Tribunal was mindful of the comments of the Federal Court in Secretary, Department of Social Security v Coralie Hales [1998] FCA 219, where the Court stated that:[11]
The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of the law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.
[11] Cited in Applicant’s SFIC at paragraph 8.2.
Subsection 1236(1A) of the Social Security Act allows for write off of a debt for a period of time where the following requirements are met:
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
Subsection 1236(1B) of the Social Security Act then provides that, for the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.
Subsection 1236(1C) of the Social Security Act provides the circumstances in which a debtor is taken to have capacity to repay a debt and states that:
(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a) deductions from the debtor's social security payment; or
(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or
(c) setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
The Tribunal is satisfied that the debt is recoverable at law, the Respondent’s whereabouts are known and, given the quantum of the debt, it is cost effective for the Commonwealth to take action to recover the debt. While the Respondent is not receiving parenting payment at present, her evidence at the Tribunal hearing was that she had lent amounts totalling $260,000 to AP’s brother, who has offered to repay these amounts to her but which she has declined. The Tribunal found from this evidence that the Respondent has the capacity to repay the debt without being placed into severe financial hardship. The legislative requirements for write off of the debt are not met and the debt is unable to be written off under section 1236 of the Social Security Act.
Section 1237A of the Social Security Act provides that a debt must be waived where there is sole administrative error by the Commonwealth and other specified circumstances are met. Subsection 1237A(1) states that the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
For the Tribunal to be satisfied that the debt is attributable solely to administrative error, it must be satisfied that administrative error is the sole cause and not merely one of multiple causes (Secretary, Department of Family and Community Services and Sekhon [2003] FCA 76 at [41]).
The Tribunal has noted in some detail, above, the different information the Respondent provided to Centrelink in forms she had completed, about her relationship with AP. The Tribunal concluded from the differing information provided by the Respondent to Centrelink that the debt in this matter has not arisen due to sole administrative error on the part of the Commonwealth. The Tribunal finds that the debt is unable to be waived under section 1237A of the Social Security Act.
Section 1237AAD of the Social Security Act provides that a debt may be waived in circumstances where:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
The term “special circumstances” is not defined in the legislation. The Courts and AAT have held that special circumstances relate to circumstances that are distinguishable from others (Groth and Secretary, Department of Social Security (1995) 40 ALD 541) and are distinguishable from the usual case (Dranichnikov v Centrelink [2003] FCAFC 133). Such considerations require the Tribunal to consider not only the Respondent’s circumstances, but to consider whether there are circumstances that make it desirable for the section to apply, having regard also to the general administration of the social security system (Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114).
The Respondent gave evidence at the hearing of various health issues she states she had been experiencing, including complications during her pregnancy, panic attacks while asleep and problems with her kidneys. She gave evidence of having been admitted to hospital around concerns about her kidney function. In written submissions provided to the Tribunal prior to the hearing, the Respondent stated that during her second pregnancy she was diagnosed with polyhydramnios and hydronephrosis and had been advised she had undiagnosed pre-eclampsia. A discharge summary following the birth indicates the Respondent was discharged to Hospital in the Home services and the Tribunal accepted this as correct.
The Respondent told the Tribunal that her credit card is full, she has overdue bills and that she had not been budgeting, which has affected her. She stated she is not in the right headspace and that since 2023 she has had no income to support her family. When discussing her current circumstances, she questioned having lent AP’s brother as much as $260,000.
The Tribunal accepted the Respondent has faced a number of health issues, both pregnancy-related and non-pregnancy related, and accepted that her Centrelink payment was cancelled from 10 August 2023. However, the Respondent has lent amounts totalling $260,000 to AP’s brother that are still owed to her, which have been offered to have been repaid and which she has declined. Taking into account in particular the amounts the Respondent has access to should she choose to exercise this, and the manner in which the overpayment arose, the Tribunal finds there are no special circumstances that would make it desirable to waive the debt in this matter. Waiver under section 1237AAD of the Social Security Act is not available to the Respondent.
There are no other provisions for non-recovery of the debt in Part 5.4 of the Social Security Act that apply in the circumstances of this case and, for this reason, the Tribunal finds that the debt is recoverable from the Respondent.
DECISION
The Tribunal sets aside the decision under review and substitutes its decision that:
(i)The Respondent was a member of a couple from 10 August 2023, within the meaning of subsection 4(2) of the Social Security Act 1991;
(ii)The Respondent’s parenting payment is to be cancelled from 10 August 2023;
(iii)The Respondent owes a debt of parenting payment of $1,870.40 for the period 10 August 2023 to 11 October 2023; and
(iv)The debt is recoverable.
Date of hearing: 27 May 2025 Solicitors for the Applicant: Ms J Vetter, HWL Ebsworth Lawyers Solicitors for the Respondent: Self-represented
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