Parker and Secretary, Department of Social Services (Social services second review) - [2019] AATA 1307

Parker and Secretary, Department of Social Services (Social services second review) [2019] AATA 1307 (17 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/4848
Re:Michelle Parker
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes

Date:17 June 2019
Place:Perth

The decision under review is affirmed.
...........................[sgd].............................................
Member C Edwardes
CATCHWORDS
Social Security – sole parent payment – single parenting payment – member of a couple – Centrelink debt raised – Family Court affidavits – ‘marriage like relationship’ – de facto partner – overpayment – debt recovery – special circumstances – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth) – ss 4(2), 4(3), 4(4), 4(5), 249, 500, 1223(1), 1236, 1237A, 1237A(1), 1237AAD
Social Security Act 1991 (Cth) – as at 1 July 1995 4(4), 4(5), 249
Social Security (Administration) Act 1999 (Cth) – ss 68(2), 142(1), 179(1)
Administrative Appeals Tribunal Act 1975 (Cth) – s 25(1)
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050
Re SRWW and Department of Family and Community Services [2001] AATA 495
Re Gerhardt and Department of Employment, Education and Training [1996] AATA 173
SECONDARY MATERIALS
Guide to Social Security Law, Department of Social Services, version 1.254.
REASONS FOR DECISION
Member C Edwardes
17 June 2019
BACKGROUND

This is an application for the review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 25 July 2018 (T2 2-14, R1). The AAT1 set aside the decision under review and remitted the matter for reconsideration in accordance with the following directions:
·The Applicant was overpaid sole parent pension in the amount of $20,546.21 for the period 28 December 1995 to 19 March 1998.
·The Applicant was overpaid parenting payment in an amount to be ascertained for the period 20 March 1998 to 14 April 2000.
·
In order to ascertain the amount of the parenting payment overpayment, Centrelink is to ascertain the income of Mr Richard Connell (Mr Connell) for the period

20 March 1998 to 14 April 2000.
·The debts arising from the overpayments are to be fully recovered from the Applicant.
INTRODUCTION
The Applicant was the recipient of social security payments on the basis that she qualified as a single person. She received a Sole Parent Pension (SPP) and Parenting Payment (single) (PPS) for the period 28 December 1995 to 14 April 2000 (T28 297, R1).
The Applicant met Mr Connell in 1995 and in due course moved into a living arrangement with him. They were in a de facto relationship and first lived together at a house owned by Mr Connell’s parents, and later in Margaret River at a property owned by Mr Connell

(the Margaret River property) (T7 142, R1).
They have one child together from that relationship, born 26 July 1996 (T7 142, R1).
The Applicant stated that during the relationship she worked and supported her partner, Mr Connell, by paying for his deep sea diving qualification. Mr Connell stated that he paid substantial amounts of money to support the family during the debt period (T7 142, R1).
The Applicant has stated that she sustained a serious head injury in 2007 as a result of a horse riding accident, and is currently on a Disability Support Pension (T7 142, R1).

The Tribunal has also received evidence that the horse injury occurred in 2006

(T27 292, R1).
As a result of information being brought to the attention of Centrelink, in the form of the transfer of property into the Applicant’s name, it was determined the Applicant had not provided accurate information in respect to her circumstances (T27 290, R1).

On 27 October 2017, Centrelink determined that the Applicant had been a member of a couple (MOC) in a relationship for the period from 1995 until 2000 (T27 291, R1).
Centrelink therefore determined that the Applicant was overpaid SPP and PPS to the amount of $24,500.67 as a result of finding the Applicant was in a MOC relationship for the period from 1995 until 2000 (T27 291, R1).
The Applicant requested this decision be reviewed, and on 15 February 2018 the Authorised Review Officer (the ARO) made the following key findings (T28 297, R1):
·
You received Sole Parent Pension and Parenting Payment (single) from

28 December 1995 to 14 April 2000 as a single person.
·
The department commenced an investigation into your circumstances on

26 June 2016.
·
You attended an administrative interview with the department on

19 July 2017.
·On 24 October 2017 the department decided you were a member of a couple with Mr Richard Connell for the period the [sic] 28 December 1995 to 14 April 2000.
·Debts were calculated as you had not declared you were a member of a couple with Mr Richard Connell.
·During the period 28 December 1995 to 19 March 1998 you received Sole Parent Pension totalling $20,546.21.
·You were entitled to receive $0.00.
·On 24 October 2017 the department decided you had a debt of $20,546.21 to repay and sent you a debt notice.
·
The department raised a further debt for the period 20 March 1998 to

14 April 2000 you received Parenting Payment (Single) totalling $19,830.11.
·You were entitled to receive $15,975.65.
·On 24 October 2017 the department decided you had a debt of $3,954.46 to repay and sent you a debt notice.
·
An error was identified for the debt for the period the 20 March 2018 to

14 April 2000.
·The debt was recalculated from $3,954.46 to $19,830.11.
On 11 May 2018, the Applicant applied to the AAT1 for a review of the ARO decision

(T29 309-312, R1).
On 25 July 2018 the AAT1 made the following determination (T2 14, R1):
The tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the following directions:
·Miss Parker was overpaid sole parent pension in the amount of $20,546.21 for the period 28 December 1995 to 19 March 1998.
·Miss Parker was overpaid parenting payment in an amount to be ascertained for the period 20 March 1998 to 14 April 2000.
·In order to ascertain the amount of the parenting payment overpayment, Centrelink is to ascertain Mr Richard Connell’s income for the period 20 March 1998 to 14 April 2000.
·The debts arising from the overpayments are to be fully recovered from Miss Parker.
On 26 September 2018 the Applicant applied to the General Division of the Administrative Appeals Tribunal for review of the AAT1 decision dated 25 July 2018 (T1 1).
ISSUES FOR DETERMINATION
The issues before the Tribunal for determination in this matter are:
·Whether the Applicant was, for the period from 1995 until 2000, a MOC with Mr Connell;
·Whether the Applicant was, for the period from 1995 until 2000, overpaid social security payments, and if so, what the quantum was; and
·Whether the Applicant, if she was overpaid social security benefits, is required to repay those overpaid social security payments.
RELEVANT LEGISLATION AND PRINCIPLES
The Tribunal notes the relevant legislation in the Social Security Act 1991 (Cth) (the Act) and the Social Security (Administration) Act 1999 (the Administration Act) at the time of consideration of the matter.
The jurisdiction of the AAT is established by s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), which states:
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In summary, s 25(1) of the AAT Act states that the jurisdiction of the Tribunal is given to it by other ‘enactments’, which grant it jurisdiction to review certain decisions made under those enactments.
Section 142(1) of the Administration Act gives the AAT jurisdiction to conduct a Tier 1 Review. It provides:
(1)Subject to section 144, application may be made to the AAT for review (AAT first review) of:
(a)a decision of the Secretary, the Chief Executive Centrelink or an authorised review officer made under section 126 or 135; or
(b)a decision under this Act made personally by the Secretary or the Chief Executive Centrelink.
Section 179(1) of the Administration Act provides that an application may be made to the AAT for a Tier 2 Review:
(2)Application may be made to the AAT for review (AAT second review) of a decision of the AAT on AAT first review made under subsection 43(1) of the AAT Act.
(Original emphasis.)
Accordingly, this Tribunal has jurisdiction under s 179(1) of the AAT Act to review the AAT Tier 1 Decision.
Section 4(2) of the Act sets out when a person is considered to be a ‘member of a couple’:
Member of a couple -- general
(2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent basis; or
(c)all of the following conditions are met:
(i)     the person is living with a person of the opposite 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 subsection (3)), a marriage-like 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 for the purposes of section 23B of the Marriage Act 1961.
(Original emphasis.)
Section 4(3) of the Act further provides:
Member of a couple -- criteria for forming opinion about relationship
(3)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, 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 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.
Section 4(4) of the Act also provides[1]:
[1] Taken from the Social Security Act 1991 (Cth), as at 1 July 1995.
(4)If:
(a)a person claims, or is receiving, sole parent pension; and
(b)a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c)the claimant or recipient is not legally married to the other person; and
(d) at least one of the subparagraphs is satisfied:
(i)     a child of both the people also lives in the residence;
(ii)    the people have joint ownership of the residence;
(iii)    the people are joint lessees of the residence and the original duration of the lease was at least 10 years;
(iv)   the people have joint assets with a total value of more than $4,000;
(v)    the people have joint liabilities totalling more than $1,000;
(vi)   the people have at any time been members of the same couple;
(vii)     the people have at any time shared another residence with each other;
the Secretary must not form the opinion that the claimant or recipient is not living with the other person in a marriage-like relationship unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient is not living in a marriage-like relationship with the other person.
Section 4(5) of the Act states[2]:
[2] Taken from the Social Security Act 1991 (Cth), as at 1 July 1995.
(5)If:
(a)a person claims, or is receiving a sole parent pension; and
(b)a particular residence has been, for a period of at least 8 weeks, the principal home of both the claimant or recipient and a person of the opposite sex; and
(c)the claimant or recipient and the other person are legally married to one another; and
(d)the claimant or the recipient and the other person:
(i) are living separately and apart on a permanent basis; or
(ii) claim to be living separately and apart on a permanent basis;
the Secretary must not form the opinion that the claimant or recipient is living separately and apart from the other person on a permanent basis unless, having regard to all of the matters referred to in subsection (3), the weight of evidence supports the formation of an opinion that the claimant or recipient and a person is living separately and apart from the other person on a permanent basis.
Section 249 of the Act states[3]:
[3] Ibid.
(1)Subject to subsection (1A), a person is qualified for the sole parent pension if:
(a)the person:
(i)     is not a member of a couple; or
(ii)    is a member of a couple whose partner has been in gaol for a continuous period of at least 14 days; or
(iii)    is a member of a couple who is living separately and apart from his or her partner; or
(iv)   is a member of a couple who is unable to live together with his or her partner in a matrimonial home because of the illness or infirmity of the partner where the illness or infirmity:
(A)   results in the partner being unable to care for a child; and
(B)is, in the opinion of the Secretary, likely to continue indefinitely; and
(b)the person has at least one SPP child (see sections 250 and 251); and
(c)at least one of the following conditions is satisfied:
(i)     if the person has only one SPP child – that child became an SPP child while the person was an Australian resident;
(ii)    if the person has 2 or more SPP children – one of those children became an SPP child while the person was an Australian resident;
(iii)    if the person has ever been a member of a couple – the person was an Australian resident immediately before the person became a person to whom paragraph (a) applies;
(iv)   the person had been an Australian resident for a continuous period of at least 5 years immediately before the day on which the person lodges the claim;
(v)    the person has, at any time, been an Australian resident for a continuous period of at least 10 years;
(vi)   the person has a qualifying residence exemption for a sole parent pension.
Note: For “Australian resident” and “qualifying residence exemption” see section 7.
(1A)A person is not qualified for sole parent pension if:
(a)the person is living with a person of the opposite sex (the partner); and
(b)the relationship between the person and the partner is, in the Secretary’s opinion, a marriage-like relationship; and
(c)either the person or the partner is under the age of consent applicable in the State or Territory in which they live.
Note:    subparagraph 4 (2) (b) (iv) provides that a person cannot be a member of a couple if the person or the person’s partner is under the age of consent. Subsection 249 (1A) is necessary to prevent such a person from being qualified for sole parent pension.
Overpayment
Section 1223(1) of the Act states:
(1)Subject to this section, if:
(a)a social security payment is made; and
(b)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.
Waiver
Section 1237(A) of the Act provides that:
(1)Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
(1A)Subsection (1) only applies if:
(a)the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
Special Circumstances
Section 1237AAD of the Act provides that:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(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.
Write Off
Section 1236 of the Act provides for the possibility of writing off or delaying recovery of a debt for a period:
(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.
(1B)For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:
(a)there is no proof of the debt capable of sustaining legal proceedings for its recovery;
(b)the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(c)the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.
Change in circumstances

Section 68(2) of the Administration Act relevantly provides:
(2)The Secretary may give a person to whom this subsection applies a notice that requires the person to do any or all of the following:
(a)inform the Department if:
(i) a specified event or change of circumstances occurs; or
(ii) the person becomes aware that a specified event or change of circumstances is likely to occur;
…
The Act does not define what is meant by the term ‘special circumstances’. However, a considerable body of case law exists to assist the Tribunal in relation to this issue.

In Angelakos and Secretary, Department of Employment and Workplace Relations (2007) 100 ALD 9, the Federal Court stated at [33]:
...There is less risk of overstatement if the words ‘unusual’ or ‘uncommon’ are emphasised. Those words indicate, correctly in my view, the fact that there must be something that distinguishes the case from the ordinary or usual case...
The Tribunal also notes the policy contained in the Guide to Social Security Law
(the Guide) (T4 107-121, R1). The Tribunal is cognisant of the Tribunal’s position in relation to how it adopts the policy in the Guide, as stated by Brennan J in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. His Honour stated (at 643):
In point of law, the Tribunal is as free as the Minister to apply or not to apply that policy. The Tribunal’s duty is to make the correct or preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.
Justice Brennan further explained how the AAT might apply government policy when reviewing decisions (at 645):
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.
EVIDENCE
The matter was heard on 17 April 2019. The Applicant failed to appear and the Respondent was represented by Mr Bishop from Mills Oakley.
Mr Bishop made a submission to hear the matter in the absence of the Applicant. The Tribunal determined that the matter would be adjourned to another date in order to provide procedural fairness for the Applicant, as there was limited prejudice to the Respondent.
The Applicant and the Respondent have requested to have the matter determined on the papers. The Tribunal agreed.
The following exhibits were tendered into evidence:
·Exhibit A1 – Statement by Michelle Parker dated 27 October 2005;
·Exhibit A2 – Statement by Michelle Parker dated 27 October 2005;
·Exhibit A3 – Statement by Richard Connell dated 25 October 2005;
·Exhibit R1 – T documents (T1-35 1-418); and
·Exhibit R2 – Statement of Facts, Issues and Contentions (SoFIC).
The Tribunal has reviewed all of the material before it, and is satisfied that all relevant evidence was before it and that both parties were provided with an opportunity to address the evidence in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Respondent made the following contentions in the SoFIC (R2):
Was the Applicant paid in excess of her correct entitlement to PP?
18.Section 249 of the Act provided that a person was qualified for PP if they were not a member of a couple. Subsection 249(1A) set out that a person was not qualified for sole parent pension if they were living with a person of the opposite sex in a marriage-like relationship.
19.Section 500 was inserted into the Act by the Social Security Legislation Amendment (Parenting and Other Measures) Act 1997 (no. 197, 1997), and commenced from 20 March 1998, being the start date of the PPS debt period. It set out the qualification requirements for parenting payment at that time, with section 503 setting out how to calculate it. The rate of parenting payment for a partnered person was worked out using the Rate Calculator at the end of section 1068B of the Act. Amongst other things, it required that the partner's income be taken into account in determining a person's rate of payment.
20.Therefore, in order to determine the Applicant's eligibility to receive PP and PPS during the debt periods, it is necessary to consider whether the Applicant and Mr Connell were members of a couple at that time.
21.Prior to 1 July 2009, the relevant relationship was a "marriage-like" relationship. From 1 July 2009, the relationship is a "de facto" relationship. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Reform) Act 2008, which relevantly commenced on 1 July 2009, substituted the term "de facto relationship" for "marriage like relationship".
22.Subsection 4(3) of the Act prescribes criteria for determining whether a person is a member of a couple. In particular, it provides that, in forming an opinion about the relationship between two people, the Secretary (and the Tribunal on review) 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 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.
23.The Tribunal must consider all the circumstances of the case and make an objective assessment based on the evidence, although the parties' subjective view of their relationship may be relevant.
24.The Tribunal in VBH and Secretary, Department of Family and Community Services [2006] AATA 1 at [94] stated:
The s 4(3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.
25.In Boskoski and Secretary, Department of Social Services [2014] AATA 915, Deputy President Constance observed at [63]:
63. In considering the various criteria set out in subsection 4(3) it is necessary to take an objective view of the facts. However the subjective views of the parties may be relevant in considering aspects of the relationship, such as the commitment of each party to the other.
26.The Federal Court in Staunton - Smith and Secretary, Department of Social Security (1991) 32 FCR 164 stated at [20]:
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.
27.The Tribunal in Sperring and Secretary, Department of Employment and Workplace Relations [2007] AATA 1050 stated at [70]:
…being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
28.The assessment of a person’s credibility is frequently of vital importance in determining whether a person is a member of a couple.1 If the person's evidence is inconsistent with objective or independent evidence before the Tribunal, the Tribunal should generally place greater reliance on that objective/independent evidence.
Financial aspects of the relationship
29.In Pelka and Secretary, Department of Family and Community Services [2006] FCA 735 at [52], the Federal Court stated, in part, as follows:
"A relevant constructional question that arises under the first ground is the meaning of the term 'pooling of financial resources' in s 4(3)(a)(ii). The ordinary meaning of the word 'pool' in this context is set out in the New Shorter Oxford English Dictionary thus:
'Put resources into a common stock or fund; share in common, combine for the common benefit'.
This, in my opinion, is the sense in which the noun 'pooling' is used in paragraph 4(3)(a)(ii). It plainly involves something more than financial cooperation or separate contributions to different elements of household expense…"
30.The Secretary contends that the financial circumstances of the Applicant and Mr Connell, as set out in their respective affidavits, are indicative of them being members of a couple during the debt periods. The Applicant gave significant sums of money to Mr Connell to assist him in obtaining qualifications in deep sea diving, and contributed to repaying the loan on his Margaret River property. The Applicant also sought and was awarded a property settlement on the basis of having been in a de facto relationship with Mr Connell. The relevant quotes of the Applicant's affidavit evidence for the purpose of the Family Court proceedings are as follows:
(a)"during our relationship I worked and supported the Respondent assisting him in paying for his qualifications as a deep sea diver. That money came from an inheritance to me…” (T7/142)
(b)"I came into the relationship initially with a property settlement of $50,000 from Martin, which went towards clearing any loan from the house where I am currently residing in Margaret River." (T7/142)
(c)"After my contributions, and the length of the relationship, as well as my health conditions, I believe that I am entitled to a fair percentage of the net assets which have accumulated over the years" (T7/143).
(d)"my grandfather had a trust which was $5,000 for our children and so we used this money to hire a sea container to bring all our furniture (and some of [Mr Connell's] parents furniture which was stored) over from Newcastle to Margaret River." (T10/156)
(e)"there was another $20,000 which was gifted by my mother's friend to me for [my son] to help with his autism, however this money was not used for [my son]…and this money was used for [Mr Connell's] deep sea dive courses." (T10/156)
31.The relevant quotes of Mr Connell's affidavit evidence for the purpose of the Family Court proceedings are as follows:
(a)"…in approximately 1997-1998, the Applicant received approximately $40,000 from Martin Dick by way of property settlement. She did not want the money in her bank account as she was claiming a Centrelink pension which was means tested and so gave this money to me to put towards the Mortgage on the Elizabeth Street property…" (T8/148)
(b)"I financially supported the Applicant's children from her former relationship for the duration of our relationship." (T8/148)
(c)"After our relationship ended, for the benefit of the children, I have provided substantial assistance to the Applicant, including by allowing her to live rent free in the Elizabeth Street Property." (T8/148)
(d)"During the time we lived together, I paid for the significant majority of expenses. I paid rent to my parents when we lived at the house in Kotara. I paid all the bills. I also contributed to pay the mortgage and all outgoings on the [Margaret River property]…" (T12/190)3
32.Further, in a report produced for the purpose of the Family Court proceedings, the Applicant's treating psychologist, Ms Hudson, verified a pooling of financial resources. Her report of 20 August 2013 provided in part (T10/180):
"[The Applicant] referred to the house as hers and Richard's describing that they had bought it together, although Richard had not stayed at the house often for some time.”
33.Similarly, the Applicant's mother confirmed the Applicant's financial contribution to Mr Connell during the debt period, noting in her own affidavit evidence that the Applicant contributed a substantial amount to repaying the loan on Mr Connell's Margaret River property. Her affidavit for the purpose of the Family Court proceedings provided in part (T11/184):
"[The Margaret River property] was heavily mortgaged, so Michelle, at Richard's request invested into that property $50000, which was her final payment form the house she and Martin Dick owned at Caves Beach Newcastle, $19000, a gift towards [child 1]'s autism treatment, from Cassia Jay, and $5000 from Michelle's Grandfather, my father Norman Minton also towards [child 1]'s health and care. This amount of $74000 was transferred into Richard Connell's bank account, as an act of faith to assist himself, Michelle and their family towards the complete ownership of the property at Margaret River".
34.The Secretary contends that the Applicant's account that she "lied" in the Family Court proceedings cannot be given weight in circumstances where it is verified by a number of third parties, including her own mother and treating psychologist.
The nature of the household
35.The Secretary contends that the nature of the household shared by the Applicant and Mr Connell, as described in their respective affidavits, is indicative of them being members of a couple during the debt periods. The Applicant and Mr Connell had a son together, born on [date omitted], and they shared parental responsibilities whilst living together, in various locations, throughout the debt period. The relevant quotes of the Applicant's affidavit evidence for the purpose of the Family Court proceedings are as follows:
(a)"This is a de facto relationship of seventeen (17) years length and there is one child of the relationship, being [child 2] born [date omitted]…" (T7/142)
(b)"[Mr Connell] and I met in 1995 and commencing living together shortly after as a de facto couple." (T7/142)
(c)"Before [child] was born [Mr Connell] took us to Margaret River to visit his house he owned which is now the family home. We used to holiday over in Margaret River. He wanted to settle all of us in Margaret River. We eventually relocated to Margaret River in 1998 when [child 2] was 2 1/2 years of age" (T10/156).
36.The relevant quotes of Mr Connell's affidavit evidence for the purpose of the Family Court proceedings are as follows:
(a)"In late 1995, the Applicant and I moved into my parents' house in Newcastle and commenced living in a de facto relationship. We lived there for approximately three years." (T8/146)
(b)"The Applicant's two children from her former relationship…were living with the Applicant and lived with us for the duration of our de facto relationship." (T8/146)
(c)"In December 1998 we moved to Margaret River with the three children. We lived in the [Margaret River property]. In about March 2000 I found out that the Applicant had an affair in about December 1999 with [name omitted]. Shortly thereafter, in about April 2000, I moved out of the [Margaret River Property] and ended our relationship" (T8/146)
37.The Applicant's brother, [name omitted], a Sergeant of Police, verifies the Applicant and Mr Connell's accounts above, reporting in his own affidavit that the couple started living together "sometime [in] 1995", adding that, "it was apparent that they were living in a de facto relationship". Mr Parker further notes that the Applicant and Mr Connell had a son together, left Newcastle in 1998 and moved into the Margaret River property (T9/152).
38.Similarly, Ms Richards, the Applicant's mother, provides a consistent account in her own affidavit, noting:
"[The Applicant] met Richard Connell and they started living together in 1995, at [the Merewether] address. At that time she had breast surgery, I was asked to stay with them, and assist, as she was unable to care for the children, in her condition, Richard was unable to help her because of his work situation.
They moved from Merewether to Kotara, and rented a property owned by Richard's parents who owned other properties in Newcastle, but lived in Margaret River Perth. Michelle got pregnant and gave birth to her and Richard's son in 1996. The child was called [child 2].
I stayed at that residence after the birth to assist in the care of her three sons. It was at that time when Richard's mental and physical abuse began towards Michelle. His attitude towards me was also mentally abusive, he resented everything I did, and at one time threw me out of the house. They left Newcastle in 1998, and moved to Margaret River, Perth into Richard's own house, [the Margaret River property]." (T11/184)
39.The Secretary contends that the Applicant's account that she "lied" in the Family Court proceedings cannot be given weight in circumstances where it is verified by a number of third parties, including her own mother and brother.
Social aspects of the relationship
40.The Secretary contends that the evidence in respect of the social aspects of the relationship shared by the Applicant and Mr Connell is indicative of them being members of a couple during the debt periods. On the basis of the evidence provided by a number of third parties in the Family Court proceedings, it is clear that the Applicant and Mr Connell held themselves out as being in a de facto relationship with each other. It is also evident that their friends and families assessed them as such. Evidence includes:
(a)A report from the Applicant's treating psychologist, Ms Hudson, dated 20 August 2013, that confirmed the Applicant had referred to Mr Connell as "her de facto " [sic], noting that they "had been together since 1994". Ms Hudson further reported that the relationship had been "very important" to the Applicant, and that it had only become somewhat more casual from 2009 onwards, despite Mr Parker still holding expectations that the Applicant would be faithful to him at that time (T17/247).
(b)An affidavit from Mr Connell's mother that confirmed, "during 1999, we would see the Richard (sic) and the Applicant quite regularly for family social occasions, including the children's birthdays, and the birthdays of my two other grandsons…" (T14/209).
(c)An affidavit from Mr Parker, the Applicant's brother, that confirmed it was "apparent [the Applicant and Mr Connell] were living in a de facto relationship" during the debt period (T9/152).
(d)An affidavit from Ms Richards, the Applicant's mother, verifying the de facto relationship between the Applicant and Mr Connell (T11/184-185).
(e)An affidavit from Mr Dick, the Applicant's ex-partner, verifying the existence of the relationship between the Applicant and Mr Connell. Mr Dick confirmed that Mr Connell had contacted him in mid-2000, sounding upset, to advise that the Applicant had cheated on him (T13/203).
Sexual relationship
41.As noted in the AAT1 decision, it is not in contention that there was a sexual relationship between the Applicant and Mr Connell during the debt periods (T2/9). Mr Connell stated in his affidavit that he and the Applicant started a sexual relationship in mid-1995, and their child, [child 2], was born in 1996 (T12/189).
42.The Secretary contends that the existence of a sexual relationship during the debt periods is indicative of the Applicant and Mr Connell being members of a couple.
Nature of the commitment to each other
43.The Full Federal Court in Pelka and Secretary, Department of Families, Community Services and Indigenous Affairs (2008) FCAFC 92 at [30] stated that the nature of the commitment has to be qualitatively different from the commitment that either party to the relationship had to another person. Mutuality of the commitment is essential: Pelka and Secretary, Department of Family and Community Services[2006] [sic] FCA 735 at [46] and Pencev and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 404 at [61].
44.The Secretary contends that the evidence in respect of the nature of the commitment to each other is consistent with the Applicant and Mr Connell being members of a couple during the debt periods. In her affidavit, the Applicant reported her relationship with Mr Connell to have spanned for some 17 years. They had a child together, relocated together and renovated the property they resided in together (T15/230- 231). Whilst the relationship may be described as dysfunctional, particularly in the years following the debt period, it was nonetheless a genuine de facto relationship. The Applicant's evidence to the AAT1 was that she had hoped Mr Connell would marry her, and "it would be a happy family" (T2/10).
Conclusion
45.The Secretary contends that the Applicant and Mr Connell were members of a couple during the debt periods for the reasons set out above, having regard to the factors contained in subsection 4(3) of the Act. The debt period of 28 December 1995 to 14 April 2000 is appropriate as it reflects the period where there is agreeance in the affidavit evidence of the Applicant and Mr Connell residing together. After April 2000, Mr Connell purported the de facto relationship to have ended, and it appears as though he spent considerable periods away from the Margaret River property due to working commitments.
46.The Secretary therefore contends that, during the period 28 December 1995 to 14 April 2000, the Applicant was not eligible to receive PP and PPS on the basis that she was a member of a couple with Mr Connell, who received unverified employment income. The Secretary agrees with the findings of the ARO and contends that the Applicant was overpaid PP and PPS in the following amounts:
(a)$20,546.21 for the period 28 December 1995 to 19 March 1998; and
(b)$19,830.11 for the period 20 March 1998 to 14 April 2000.
47.The Secretary contends that the Tribunal should set aside the AAT1's findings in respect of the PPS debt, noting that it cannot be assumed parenting payment at the partnered rate was payable to the Applicant in circumstances where Mr Connell's actual income cannot be verified.
48.Section 1223(1) of the Act states:
(1) Subject to this section, if:
(a) a social security payment is made; and
(b) 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.
Is the debt owed to the Commonwealth recoverable?
50.Director of Social Services and Hales (1998) 47 ALR 281 sets a precedent for the expectation that money paid to individuals who are not entitled to it will be recovered, specifically:
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 lead to the overpayment and the circumstances of the persons concerned.
51.There are only two mechanisms available under the Act that allow for a properly raised overpayment of social security payment not to be recovered: waiver and write- off under Part 5.4 of the Act.
Waiver
Administrative error
52.Section 1237A of the Act states:
(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
(1A) Subsection (1) only applies if:
(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(c)if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
53.The existence of an administrative error is not sufficient to meet the requirement and the debt must arise from administrative error to the exclusion of all else (see Re Gerhardt and Secretary, Department of Employment and Training (1997) FCA 815).
54.Selway J in the Full Federal Court decision of Sekhon and Secretary, Department of Family and Community Services [2003] FCAFC 190 at [35] said:
The ordinary or usual interpretation of the phrase 'attributable solely to' is that it refers to the single or sole cause of the relevant act or event. The word 'attributable' means 'capable of being attributed'. It involves an objective assessment of causation. The words 'a debt attributable solely to an administrative error' can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error…
55.In Ward and Secretary, Department of Families and Community Services (2000) AATA 212, Deputy President Forgie held at [47]:
This means that the Secretary's duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth's administrative error. It makes no difference that those other errors or factors are minor.
56.In this instance, the Secretary contends that sole administrative error on the Department's part cannot be established. The debts arose due to the Applicant representing herself to the Department as a single person, rather than being a member of a couple with Mr Connell.
Special Circumstances
57.Section 1237AAD of the Act states:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(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.
58.The term 'special circumstances' is not defined in the Act however it has been extensively considered in case law.
59.The Federal Court has indicated that a finding of special circumstances requires something unfair or unjust that, in the circumstances, makes the case unusual or uncommon (Groth and Secretary, Department of Social Services (1995) 40 ALD 541, 545 per Kiefel J; Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25, [33] per Besanko J). In making that assessment, it is relevant to consider how the overpayment came about (Dranichnikov and Centrelink (2003) 75 ALD 134, [66]).
60.Beadle and Director-General of Social Security (1984) 6 ALD 1 states:
…An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusual ness that permits them to be described as special…
61.Timothy Davy and Secretary, Department of Employment and Workplace Relations 2007 AATA 1, at [80], states, in part:
…."special circumstances" are not merely directed to the person's own circumstances. Rather, they are directed to those that are "special circumstances…that make it desirable to waive". That necessarily requires a consideration of the person's individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it…he has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement…the system of administration of the Social Security Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1238AAD of the Act…
62.The Secretary contends that the Applicant's circumstances are not sufficiently out of the ordinary such that they could be considered special for the purposes of section 1237AAD of the Act. In any event, the Secretary contends that the Applicant cannot satisfy subsections 1237AAD(a)(i) and (ii) of the Act. That is, there is evidence of the debt arising wholly from the Applicant knowingly making a false statement and failing or omitting to comply with provisions of the Act, and therefore section 1237AAD cannot apply.
63.The Applicant represented herself as a single person to the Department when she purported otherwise in the Family Court proceedings to obtain a financial gain. She did not suffer from a cognitive impairment during the debt period such that she was hindered in her ability to advise the Department of changes in her circumstances. The Applicant also failed to advise the Department of the Margaret River property being transferred into her name on 5 February 2014. It was only when the Department contacted her on 5 July 2016, being more than two years after the transfer, that she agreed to same (T35/362).
64.There is no definition of “knowingly” in the Act. However, a number of Tribunal decisions have considered the meaning of the word in this context. Deputy President Forgie in Re Callaghan and Secretary, Department of Social Security (1996) 45 ALD 435 commented at [48]:
There is nothing in section 1237AAD which suggests that the word "knowingly" should be given any meaning other than that a person has actual knowledge, rather than constructive knowledge, that he or she is making a false statement or representation or that he or she is failing or omitting to comply with a provision of the Act. That actual knowledge is to be ascertained by reference to the statements of the person as to his or her actual state of knowledge at the time and to events surrounding the false statement or the act or omission.
65.In Cox and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 350, the Tribunal cited Re Callaghan and concluded at paragraph [38]:
Whilst it is clear from this passage that actual (as compared to) constructive knowledge is required, the Tribunal has recognised that the presence of actual knowledge may be inferred from the circumstances where a debtor had the opportunity to gain that knowledge, and there were no obstacles preventing him acquiring that knowledge: see also Anderson and Department of Family and Community Services [2002] AATA 239; (2002) 68 ALD 494, Secretary, Department of Family and Community Services and Temesgen [2002] AATA 1290; (2002) 72 ALD 563 at 564-565 and Balancio and Secretary, Department of Family and Community Services [2003] AATA 466; (2003) 74 ALD 204 at 209.
Write off
66.Section 1236 of the Act provides for the possibility of writing off or delaying recovery of a debt for a period:
(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.
(1B) 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;
(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.
67.The Secretary submits that section 1236 has no application in the matter on the basis that none of the circumstances described in paragraphs 1236(1A)(a)-(d) exist. The debt is currently being repaid by way of fortnightly withholdings from the Applicant's disability support pension.
Order Sought
68.The order sought by the Secretary is that the Tribunal sets aside the decision under review and, in substitution, decides that the Applicant was overpaid the following PP and PPS debts due to the Commonwealth:
(a)$20,546.21 for the period 28 December 1995 to 19 March 1998; and
(b)$19,830.11 for the period 20 March 1998 to 14 April 2000.

(Original emphasis and footnotes omitted.)

The Applicant made the following contention in a statement provided to the Tribunal:
‘I, Michelle Parker of [address omitted]. That I have not lived in a defacto [sic] relationship with Richard Connell for any period of time’ (A1). The Applicant further provided the same statement to the Tribunal with a different signed witness.
CONSIDERATION
Was the Applicant a member of a couple with Mr Connell?
Justice French (as he then was) in Pelka v Secretary, Department of Family & Community Services (2006) 151 FCR 546 discussed the statutory objective behind treating persons as being in a marriage-like relationship (at [62]):
The statutory criterion of “marriage-like relationship” is no doubt intended to ensure that there is no unfair discrimination in the payment of benefits as between those who are married and those who enjoy the benefits of marriage without its formalities. The formula is likely to be productive of difficulty in application and uncertainty in result. In this respect it is little better than its statutory ancestors to which reference was made earlier in these reasons. The real difficulty arises from the fact that, in the payment of various classes of benefit, there is a distinction drawn between married and unmarried people. So long as marriage is a basis for different levels of benefit there will be a policy imperative to apply the distinction to marriage-like relationships.
His Honour provided guidance as to how the AAT should interpret and apply the criteria in s 4(3) of the Act, and also noted the difficulty in applying the criteria in s 4(3) of the Act, at [46]-[47]. His Honour stated:
46.Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
(1)Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
(2)Must have regard to each of:
(i)     the financial aspects of the relationship;
(ii)    the nature of the household;
(iii)    the social aspects of the relationship;
(iv)   any sexual relationship between the people; and
(v)    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:
(i)     financial cooperation;
(ii)    cohabitation;
(iii)    a sexual relationship;
(iv)   cooperative household arrangements; or
(v)    mutual commitment.
The Tribunal finds that the judgment to be made is difficult. It is out of the range of obvious cases falling within the core concept of ‘marriage-like,’ and therefore conjures a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
His Honour also said the following, with respect to the AAT’s decision which was the subject of the appeal (at [61]):
…This conclusion did not proceed, as one might have expected, from a weighing of the various factors against each other. It is plain that there were matters pointing in different directions. A decision-maker in applying the matters set out in s 4(3) should acknowledge that they are non-exhaustive and at least indicate that consideration has been given to whether there might be any other factors relevant to the difficult judgment of whether a ‘marriage-like’ relationship exists. Each of the individual matters listed in s 4(3) is accompanied by a non-exhaustive list of factors. Again, the decision-maker in each case should consider whether there are any other factors relevant to the particular matter listed...
Section 4(2) of the Act, as outlined above, is a general provision regarding whether a person is ‘a member of a couple’. As the Applicant is not legally married to Mr Connell,
s 4(2)(b) of the Act requires the Secretary to assess whether persons are in a marriage-like-relationship (see s 4(2)(b)(iii) of the Act) with reference to s 4(3) of the Act.
The Tribunal therefore must weigh the criteria in s 4(3) of the Act to form a conclusion as to whether the Applicant was, at the relevant time, a MOC with Mr Connell. The Tribunal will also consider the ‘total picture of the relationship’, and any other factors which may be relevant to evaluating whether the Applicant is a MOC with Mr Connell.
Additionally, when evaluating the criteria in s 4(3)(a)-(e) of the Act below, the Tribunal does have regard to the policy statement in the Guide (T4 115, R1), which further explains the aspects of the person’s relationship that can be taken into account need to be considered under s4(3) of the Act.
The Tribunal also notes in Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050 (Sperring), Senior Member Isenberg was required to consider whether the respondent was a MOC under s4(2) and (3) of the Act for the purpose of calculating her entitlement to a parenting payment and family tax benefit.
In Sperring (at [52]), Senior Member Isenberg cited the following passage from
Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495, where the Tribunal emphasised the flexible approach which it should undertake in its approach, considering each matter on its merits:
The Tribunal notes that each individual case must be considered on its merits and in today's world, the indicia of a marriage or a marriage-like relationship and being a member of a couple has very different connotations, depending on the circumstances of the couple and the context in which their relationship occurs. It behoves decision-makers to look at the merits of the individual case and to be flexible in its findings about such matters.
Further, with respect to the weight to be given to the criteria in s 4(3) of the Act,
Senior Member Isenberg stated (at [54]):
In Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7, the Tribunal said that the provisions of section 4(3) of the Act provide objective criteria for determining if a person is a member of a couple. However, as there is no guidance as to how much weight is to be attributed to each criterion, it falls to the Tribunal to consider all of the circumstances of the relationship and what weight is to be accorded to those circumstances.
The Tribunal has examined the following rationale of AAT1 in respect to the weight placed on the Applicant’s affadavit filed with the family Court of Western Australia. The AAT1 stated (T2 4-5, R1):
14.According to Centrelink records, it received information that in accordance with a court order by the Family Court of Western Australia, a property at
[address omitted], Margaret River, which had been in Mr Connell’s sole name, was transferred to Miss Parker on 5 February 2014. This indicated to Centrelink that a relationship had existed between Miss Parker and
Mr Connell.
15.Centrelink recorded that it obtained affidavits from the Family Court in which Miss Parker stated that she was in a relationship with Mr Connell from 1995 to 2012 whereas Mr Connell stated that the relationship lasted from 1995 to 2000. Affidavits from third parties supported both sides of the claims.
16.During an interview on 19 July 2017, Miss Parker told Centrelink that she had never been in a relationship with Mr Connell and that she may have provided false and misleading information to the Family Court in order to win a settlement. She said at the interview that she viewed Mr Connell to be her landlord.
17. Miss Parker told the tribunal that she sought Legal Aid in relation to her issues with Centrelink but was unsuccessful.
18.Miss Parker told the tribunal that she had never lived with Mr Connell. Asked if she lied to the court, Miss Parker said “yes” but she was not lying now. The tribunal put it to Miss Parker that having admitted to lying to the court, there was a question over her credibility.
19.In a document entitled Evaluation Case Review, Centrelink recorded that debts had also been raised against Miss Parker in respect of disability support pension, rent assistance and family tax benefit. The document recorded that the review was completed 27 October 2017.
20.The review noted that Miss Parker had documented medical issues for which she was granted disability support pension. It referred to a report stating that Miss Parker has complex cognitive issues caused by a brain injury in 2006, which are permanent and affect her memory and ability to retain information on a daily basis. She has poor memory and concentration, forgetting what occurred the previous day; has ongoing cognitive deficits; high emotionality and sleep issues; and misrecognises people, meaning she approaches people she mistakenly thinks she knows.
21.The tribunal considers that Miss Parker’s condition should be factored in with regard to her recall of events from some years ago as well as more recently. Also, Miss Parker said that because of her brain injury she was not supposed to talk on a phone for too long as she got headaches. There was a break in proceedings for this reason during the hearing of 25 July 2018.
22.The Evaluation Case Review recommended that the matters involving Miss Parker should not be escalated further in light of her brain injury and the significant impact that has had on her cognitive and memory functions.
23.The affidavits presented to the Family Court were sworn documents. Miss Parker’s in particular was very detailed. The court found in her favour. The tribunal places significant weight on the affidavits as well as evidence given at hearing.
On the evidence before it, the Tribunal reaches the same conclusion as found by the AAT1, that the information provided by the Applicant in her affidavit should be given significant weight in determining whether the Applicant was in a MOC relationship with
Mr Connell. The Tribunal notes that the affidavits were sworn documents, which were detailed in nature, and that the court found in the Applicant’s favour indicating to the Tribunal that the court considered the affidavit to be compelling and truthful at that time. The Applicant did not provide any detailed evidence to the Tribunal contrary to the affidavits, other than three short statements prepared by the Applicant and Mr Connell which briefly state that the Applicant and Mr Connell have not lived in a de facto relationship with one another for any period of time (A1, A2, A3). While these statements do contradict the evidence provided in the Applicant’s prior affidavits, the Tribunal does not consider these statements to be compelling evidence in light of the significant weight afforded to the Applicant’s affidavits.
Financial aspects of the relationship
The evidence contained in the affidavit of the Applicant for the purpose of Family Court proceedings in Western Australia provides an outline of the nature of her financial relationship with Mr Connell for the period between 28 December 1995 until 14 April 2000. In her sworn affidavit, the Applicant stated that (T7 142-143, R1; T2 6, R1; T15 216):
·The Applicant met Mr Connell in 1995 and commenced living together shortly thereafter as a de facto couple. At that time, the Applicant had two children from a previous relationship, and they all resided under the one roof.
·She describes the nature of her relationship with Mr Connell in the terms that ‘this is a defacto relationship of (17) years length…’ and stated that the relationship ended in 2012.
·In 1996, the Applicant and her partner Mr Connell had one child together, and the Applicant initially supported Mr Connell financially in order for for him to attain his deep sea diving qualification. On this point, the Tribunal notes that Mr Connell’s affadavit describes his usual occupation as ‘Deep Sea Diver’ (T8 145, R1).
The Applicant stated that her support of Mr Connell’s diving qualification cost the Applicant $20,000; funds which she obtained from an inheritance the Applicant received which had been intended to assist her with raising her son who has autism.
·The Applicant claimed that since obtaining his qualifications, Mr Connell had earned a ‘very good income’, and had the capacity to earn up to $10,000 per day.
·The Applicant had received $50,000 as a property settlement from a previous relationship, and she directed most of this amount towards the payment of
Mr Connell’s loans on a property which he owned in Margaret River (the Margaret River property). The Margaret River property was one of two properties in total which Mr Connell owned in the Margaret River region.
·The Applicant stated that the Margaret River property received rate notices; insurance documents; frequent flyer points statements, and tax returns addressed to Mr Connell (T15 216).
·The Applicant stated that Mr Connell paid the rates for the property the Margaret River property, and that she paid for water usuage and rent (T12).
The Tribunal also notes the affadavit of Mr Connell, which relevantly states that
(T8 146-148, R1; T12 189-199)):
·His relationship with the Applicant lasted five years, having met in 2004 while the Applicant was involved in a de facto relationship with another person, and ending in April 2000.
·The Applicant had made a contibution of approximately $30,000 to $40,000 towards the mortgage of the Margaret River property, and that Mr Connell had financially supported the Applicant’s two chidren from a previous relationship.
·For the period from 2000 until 2001, he continued to pay the utility bills, and had allowed the Applicant to reside rent free at the Margaret River property in lieu of paying child support. During their cohabitation, Mr Connell stated that he had paid ‘for the significant majority of expenses’ (T12 190, R1).
The Tribunal notes the Margaret River propety was transferred to the Applicant in a property settlement with Mr Connell.
The Tribunal notes that the Applicant’s treating psychologist stated in her report that the Applicant had referred to the house she was staying in as being purchased by both the Applicant and Mr Connell as a result of their resources being pooled (T10 180, R1).
Having considered the nature of the financial relationship the Tribunal is satisfied that
Mr Connell and the Applicant meet the criteria as both constituting members of a couple. The following factors have persuaded the Tribunal that this relationship is that of a MOC.
Nature of the household
The Applicant’s affadavit states that she and Mr Connell had one son together, who was born in 1996; and that she had a futher two children from a previous relationship
(T7 142, R1).
The Applicant stated that she and Mr Connell lived together in a de facto relationship shortly after meeting in 1995. They first resided in the Applicant’s home, then later moved into the home owned by Mr Connell’s parents. Finally, they moved to Margaret River where the Applicant lived together with Mr Connell and the three children in the Margaret River property (T7 142, R1).
The Applicant refers to the Margaret River property as the family home (T10 156, R1). The Applicant’s mother and her partner visited the Margaret River property on a number of occasions to visit the Applicant and Mr Connell (T11 184, R1).
Mr Connell worked away from home for large periods of time, and during these periods the Applicant was responsible for looking after both her children from her previous relationship and her child from the relationship with Mr Connell; in addition to attending to household functions (T10 156).
Mr Connell referred to the relationship with the Applicant as de facto from the period of 1995 in his affadavit to the Family Court (T8 146, R1).
The Applicant’s brother referred to the Applicant’s relationship with Mr Connell as de facto (T9 152, R1). The Applicant’s mother shared a similar view (T11 184, R1).
Having considered the factual nature of the relationship and the elements contained in
s 4(3)(b) of the Act, the Tribunal is persuaded that the nature of the relationship of the parties can be described as constituting a MOC.
Social Aspects of the Relationship
The Applicant referred to supporting affidavits from her mother and from her brother who is a senior Police Officer, which both attest to the length of time the parties had been in a relationship. This included reference to an invitation from the Applicant’s brother for both the Applicant and Mr Connell to attend the Applicant’s brother’s wedding together in 2008 (T15 216, R1).
The Applicant claimed Mr Connell’s family did not communicate with her, and that she did not know who his friends were (T2 9).
Mr Connell’s mother stated that ‘[d]uring 1999, we would see Richard and the Applicant quite regularly for family social occasions, including the Children’s birthdays…’
(T14 209, R1).
The Tribunal accepts the Secretary’s assessment that there are multiple third party accounts to the Family Court proceedings which describe the relationship between the Applicant and Mr Connell as being de facto in nature.
The Tribunal notes that the Applicant has referred to the relationship as being de facto in nature, and that for the early years of the relationship it was a meaningful relationship to her (T17 247, R1).
Sexual Aspects of the Relationship
The Tribunal notes that the parties have a child together, who was born in 1996 (T7 142). Their relationship started with casual sex in 1995, and it appears from her affadavit that the Applicant was having sexual relationships with other men during the early part of her sexual relationship with Mr Connell (T13 203).
A casual sexual relationship does not by itself indicate that the persons are members of a couple. However, a shared bedroom and the existence of a sexual relationship spanning a five year period weighs in favour of the Applicant being a member of a couple with
Mr Connell.
Mr Connell claims that the relationship ended in 2000 when he discovered the Applicant was having an affair (T12 190, R1).
Nature of the Commitment
The Applicant claimed in her affadavit that she and Mr Connell commenced living in a de facto relationship in 28 December 1995, and separated in 2012 (T7 142, R1).
She does not support Mr Connell’s contention that their relationship ended in 2000
(T12 190, R1).
The Tribunal concludes that the Applicant and Mr Connell appear to have had companionship and emotional support in the early years of their relationship.
The Applicant and Mr Connell appear to have shared common interests, and spent time with each other and their children.
The Tribunal notes that the Applicant described Mr Connell as a narcissist, whom she had lent money to but who did not repay her; who had promised to marry her but had not; and who had tortured and manipulated her (T2 10, R1).
The Applicant stated that she had made affadavits to the Family Court because
Mr Connell had told her to, and that these documents did not represent the true state of their relationship (T22 266, R1). The Applicant claimed that she and Mr Connell were never in a relationship, and further stated that the affadavits prepared for the Family Court were done for financial reasons (T22 265, R1).
The Tribunal accepts that the Applicant and Mr Connell had a child together, that the Applicant claimed the relationship spanned some 17 years, and that while Mr Connell worked away for extended periods of time during the course of the relationship the Applicant had indicated in her evidence to the AAT1 that she hoped one day they would settle down, become married, and be a happy family in due course (T2 10, R1).

Having considered all the evidence before it, the Tribunal finds there was a level of commitment between the parties between the dates of 28 December 1995 until
14 April 2000 which satisfies s 4(3)(e) of the Act. The Tribunal notes that on
25 October 2017, Centrelink determined that the Applicant and Mr Connell were in a MOC relationship between 1995 and 2000 (T23 269, R1).
The Tribunal notes that in Sperring, Senior Member Isenberg stated (at [70]):
Determining whether a relationship is ‘marriage-like’ is a difficult task. The assessment is made somewhat easier by the common sense criteria identified in the legislation, as addressed above. As observed in Cullinane (where there was found to be a marriage-like relationship) being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.
On the evidence before it, the Tribunal cannot be certain as to the nature of the relationship of the Applicant and Mr Connell after the year 2000. The Tribunal also notes that as a consequence of a head injury suffered by the Applicant in 2006, she has a brain injury impairment rating of 20 points meaning she has qualified for a disability support pension (T27 292-293, R1).
The injury left her with poor memory and concentration, ongoing cognitive deficits, high emotionality, sleep issues, lack of recognition of people, and requiring ongoing psychological treatment (T27 292-293, R1).
The Tribunal notes that as a result of the Applicant’s brain injury, her ability to recall information and by extension to provide compelling evidence regarding her potential relationship with Mr Connell after the date of injury in 2006 may have been negatively impacted.
The Tribunal accepts that on the basis of the evidence before it, the Applicant was in a MOC relationship with Mr Connell from 28 December 1995 until 14 April 2000
(T28 299, R1).
Is the overpayment of $20,546.21 a debt owed to the Commonwealth?
The Tribunal finds the Applicant was in a MOC relationship from
28 December 1995 until 14 April 2000. The end date of the de facto relationship can be determined from affadavits filed by the parties for Family Law Court purposes.
The Tribunal places greater weight on the evidence presented to the Family Court.
As a consequence of receiving the sole parent pension, the Tribunal supports the finding of AAT1 that the Applicant was overpaid the pension amount of $20,546.21 in the period from 18 December 1995 until 19 March 1998.
The Tribunal notes the rationale of AAT1 (T2 12-13, R1):
69.As the tribunal has found that Miss Parker was a member of a couple living with her partner from 28 December 1995, the tribunal is satisfied that Miss Parker was not qualified for sole parent pension from that date. It is therefore also satisfied that she was overpaid $20,546.21 in sole parent pension from 28 December 1995 to 19 March 1998. The tribunal has reviewed the debt calculation for this period and is satisfied that it is correct.
70.With regard to parenting payment paid to Miss Parker from 20 March 1998 to 14 April 2000, the tribunal perused the documents for evidence concerning Mr Connell’s income in that period.
71.In his affidavit, Mr Connell referred to starting work for BHP in early 1996. He wrote that in December 1998 he decided he wanted to move to Margaret River where his parents lived as BHP was closing down and he was about to lose his job. This indicates he was employed with BHP when Miss Parker was in receipt of parenting payment single until December 1998.
72.According to his affidavit, during 1999 Mr Connell worked in Margaret River as a boiler maker and a vineyard worker. Miss Parker said that Mr Connell worked for his parents in their vineyard and always had plenty of money, although it was unclear the period to which she was referring.
73.Mr Connell stated that in 1999 he started training and working as a deep sea diver. This is consistent with Miss Parker’s statement in her affidavit.
74.The ARO recorded that Mr Connell’s income for that period has not been verified. The available evidence indicates he was employed during the time that Miss Parker was in receipt of parenting payment as a single person. It also indicates there were short periods when he had no income from employment, such as when he stopped working for BHP in Newcastle in 1998 and before he started paid work in Margaret River in 1999.
75.The first parenting payment debt raised by Centrelink of $3,954.46 represented the difference between the single and partnered rates of parenting payment. The higher amount of $19,830.11 assumes that no parenting payment was payable to Miss Parker. This cannot be ascertained without knowing Mr Connell’s income for the relevant period.
76. For this reason the tribunal directs Centrelink to ascertain Mr Connell’s income for the period 20 March 1998 to 14 April 2000 and then recalculate the overpayment.
The Tribunal finds on the evidence before it that a sole parent debt of $20,546.21 has been incurred by the Applicant to the Commonwealth. The Tribunal has not received sufficient evidence from either the Applicant or the Respondent which would allow it to make an accurate determination with regards to the PPS debt owed by the Applicant, having fully considered the circumstances of Mr Connell’s income. The Tribunal therefore concludes that the circumstances of Mr Connell’s income needs to be assessed by Centrelink, in order for the PPS overpayment to the Applicant accruing the PPS debt to be accurately calculated.
Waiver of the Debt
Can the debt be waived because of an administrative error on the part of the Commonwealth?
In relation to the meaning of the word ‘solely’ in s 1237A(1) of the Act, the Tribunal notes Re Gerhardt and Secretary, Department of Employment, Education and Training [1996] AATA 173, where Deputy President Forgie states (at [40]):
There is nothing… which indicates that any meaning should be given to “solely” other than its ordinary meaning. Applying those ordinary meanings to the sub-section mean that the Secretary must waive the right to recover the proportion of the debt that is attributable only to the Commonwealth’s administrative error. The Secretary’s duty to waive does not extend to those debts which are attributable to errors or other factors which are independent of the Commonwealth’s administrative error. It makes no difference that those other errors or factors are minor. If those other errors or factors follow as a result of the Commonwealth’s administrative error (i.e. they are incidental to the Commonwealth’s error), then it may be that the debt is attributable solely to the Commonwealth’s administrative error. Whether it is or is not attributable in that situation to the Commonwealth’s administrative error will be a question of fact.
The Secretary argues (R2 at [56]):
In this instance, the Secretary contends that sole administrative error on the Department's part cannot be established. The debts arose due to the Applicant representing herself to the Department as a single person, rather than being a member of a couple with Mr Connell.
Having reviewed the evidence before it, this Tribunal is unable to conclude that the debt in question arose solely because of administrative error on the part of the Commonwealth.
In fact it finds the debt arose out of a deliberate act of the Applicant to misrepresent her parenting status to the Commonwealth.
Can the debt be waived due to “special circumstances”?
In Re Davy and Secretary, Department of Employment and Workplace Relations (2007) 94 ALD 693, Deputy President Forgie stated (715-716 at [80]):
...The “special circumstances” are not merely directed to the person’s own circumstances. Rather, they are directed to those that are “special circumstances ... that make it desirable to waive”. That necessarily requires a consideration of the person’s individual circumstances but also a consideration of the general administration of the social security system. Waiver of the debt would mean that Mr Davy would have had the benefit of part of his DSP in circumstances in which he was not entitled to it... He has had the benefit of the money and there is no injustice in requiring him to repay the money of which he has had the benefit but not the entitlement... The system of administration of the SS Act does not visit any injustice for many if not all social security recipients but it did not lead to any injustice or unfairness on Mr Davy that is not visited, or potentially visited, upon all other recipients of social security payments under the Act. Therefore, I am not satisfied that there are special circumstances that make it desirable to waive the debt under s 1237AAD of the Act.
Having found the Applicant misrepresented her parenting status to the Commonwealth, the Tribunal finds no special circumstances exist.
Write off
The Tribunal notes that the Applicant is paying her debt to the Commonwealth through deductions from her disability support pension, made on a fortnightly basis. The Tribunal finds that s1236 of the Act does not apply to the Applicant under the current circumstances (R2).
DECISION
For the reasons outlined above, the Tribunal affirms the decision.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

..............................[sgd]........................................
Associate
Dated: 17 June 2019

Date(s) of hearing:

Decision on the papers

Applicant:

Representative for the Respondent:

In person

Mr C Bishop

Solicitors for the Respondent: Mills Oakley Lawyers