Patterson and Department of Families, Community Services and Indigenous Affairs
[2006] AATA 689
•9 August 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 689
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2005/61
GENERAL ADMINISTRATIVE DIVISION ) Re JULIE MAREE PATTERSON Applicant
And
And
DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
1st Respondent
DEPARTMENT OF EMPLOYMENT AND WORKLACE RELATIONS
2nd Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-Time Member) Date9 August 2006
PlaceHobart
Decision The decision under review is affirmed. ..............................................
Part-Time Member
CATCHWORDS
Social Security - family allowance - sole parent pension - parenting payment single - eligibility - whether living as member of a couple - whether in a marriage-like relationship - debts - recovery of debts - waiver - Social Security Appeals Tribunal (SSAT)
Social Security Act 1991 and Amendments , Sections 4, 249, 503, 838, 1064, 1223, 1237A, 1237AAD
Social Security (Administration) Act 1999
Guide to Social Security Law
McDonald and DGSS (1984) 6 ALD 6
Re SDSS and Villani (1990) 20 ALD 49
Erdmann and SDSS (1996) AATA 10939 (17 May 1996)
Petty and DGSS (1982) 4 ALN N214
SRQ and SDSS (1998) AATA 12954 (3 June 1998)
Re Waterford and DGSS (1980) 3 ALD 63
Jones and Dunkel (1959) 101 CLR 298
Cassarotto and Australian Postal Commission (1989) 17 ALD 321
Staunton-Smith v SDSS (1991) 25 ALD 27
Roberts & SDSS (1987) 12 ALD 723
Cahill & SFCS (2005) AATA 1147
Anderson & SDSS (1993a) 31 ALD 155
REASONS FOR DECISION
9 August 2006 Associate Professor B W Davis AM (Part-Time Member) Decisions Under Review:
1. A decision of the Social Security Appeals Tribunal (SSAT) dated 12 April 2005 that the applicant has a Family Payment/Allowance debt of $17,798.90 for the period 16 January 1997 to 30 June 2000;
2. A decision of the SSAT dated 12 April 2005 that the applicant has a Sole Parent Pension debt of $11,295.40 for the period 9 January 1997 to 19 March 1998; and
3. A decision of the SSAT dated 12 April 2005 that the applicant has a Parenting Payment (Single) debt of $50, 861.32 for the period 2 April 1998 to 30 July 2003.
Issues:
4. Was the applicant living as a member of a couple with her husband, Danny Richard Patterson, during the period 6 January 1997 to 30 July 2003; and
5. If the answer is yes, should the debts which result from the applicant being a member of a couple be recovered by the Commonwealth?
Legislation:
6. The relevant legislation is the Social Security Act 1991 and Amendments, especially sections 4, 249, 503, 838, 1064, 1223, 1237A and 1237 AAD. Note also the Social Security (Administration) Act 1999 and the Guide to Social Security Law.
Standard of Proof:
7. The standard of proof is on the balance of probabilities and to the reasonable satisfaction of the Tribunal.
Background:
8. The applicant, Julie Maree Patterson, was granted Sole Parent Pension (SPP) from 21 March 1996, with Special Benefit paid from 13 March 1996 to 20 March 1996 and Family Payment (FP) at a higher rate from 28 March 1996. These circumstances were reviewed by the respondents in January 1998 and at that time it was decided she was not living in a marriage-like relationship.
9. On 22 March 1998 the applicant was advised the SPP had been replaced by Parenting Payment (PP) which would be paid from 2 April 1998. Her circumstances were further investigated on 28 April 1999 and it was again determined that she was not living in a marriage-like relationship at the time.
10. On 17 February 2003, following public denunciation, the respondents commenced a more detailed investigation of the situation. On 4 September 2003 the applicant advised she had reconciled with her husband in July 2003. On 18 September 2003 a delegated office of the respondent determined that Julie Patterson had been living in a marriage-like relationship with Danny Richard Patterson since 6 January 1997 and informed the applicant of this finding.
11. On 3 October 2003 the respondents determined that the applicant had a Parenting Payment (Single) debt of $50,867.55 for the period 2 April 1998 to 30 July 2003 and there was also a Sole Parent Pension debt of $11,295.40 for the period 9 January 1997 to 19 March 1998. In addition there was a Family Payment/Allowance debt of $17,798.90 for the period 16 January 1997 to 30 June 2000, as a result of her husband’s earnings.
12. The applicant requested a review of these decisions on 14 January 2005 and after the determinations were affirmed by the original decision-maker, the matter was referred to an Authorised Review Officer (ARO) on 20 January 2005, who also affirmed the decisions on 4 March 2005, subject to a minor reduction in Parenting Payment debt from $50,867.55 to $50,861.32.
13. On 15 March 2005 the applicant sought review by the Social Security Appeals Tribunal (SSAT). After a very detailed investigation of a wide range of evidence, with the applicant and her husband being cross-examined separately, the SSAT decided on 12 April 2005 the couple had been living in a marriage-like relationship and the respondent’s decisions should be affirmed. The applicant then sought de-novo review by the Administrative Appeals Tribunal on 17 May 2005.
The AAT Hearing:
14. The AAT hearing was conducted in Hobart on 12 July 2006. The applicant was represented by Ms Georgina Munday of the Hobart Community Legal Service and the respondents (DFCS&IA/DEWR) by Mr Brian Sparkes. The applicant and her husband Danny Patterson were present and gave evidence and a number of other witnesses were called.
15. The applicant Julie Maree Patterson was sworn and invited to present her case. She stated she had married Danny Patterson in February 1985, when she was 18, but separated from him in February 1996 because of his alcoholism, abuse and threats of violence to her and her three children who were 10, 7 and 3 years of age at the time. He initially continued to live in the house they had shared, provided by his employer the Clarence City Council near the council’s depot at Mornington. She had taken out a twelve month restraint order against her husband Danny, but was so fearful of him that she and the children spent six weeks in a woman’s shelter. She was subsequently offered a housing commission home at 20 Bass Street, Warrane, and has resided there ever since.
16. She was questioned about her reconciliation with Danny Patterson and described the circumstances leading to this. She said that after 12 months separation she had permitted her husband to visit the children, initially at relatives homes, but then at Bass Street, as their son Jamie was having emotional problems which remain ongoing today. Also in 1996 the couple had entered into a voluntary agreement about child support. He was on a regular wage and she was receiving welfare benefits. It was decided she could access money from their joint account, opened several years prior to meet household needs and sometimes give him a proportion of the amount. Although Mr Patterson did not pay maintenance money regularly, he did help out by buying a car for her to transport the children and assisted with other expenses relating to the family.
17. During the period 1996-2003 she and the children had resided at 20 Bass Street, Warrane, together with her brother Brett Lynch, who lived there much of the time. Danny Patterson did not reside there between 1996 and 2003, living at a number of other addresses, including that of his friend Peter Jacobson at Kellevie. She did not know the details of these arrangements.
18. Under cross-examination she responded to a number of questions about the financial arrangements between herself and her husband. She had told the Social Security Appeals Tribunal (SSAT) she withdrew approximately $280 per fortnight from their joint account. Counsel for the respondent challenged her to identify such a pattern in a range of bank statements submitted as evidence to the Tribunal. She could not do so, but said the amount withdrawn depended upon the amount of wages her husband received, but admitted she sometimes drew virtually all of this out, giving him a proportion. Counsel said it was obvious from her replies she was changing the evidence as she went along, but had virtually sole access to what was a longstanding joint account. She had also told the SSAT she had opened a personal account for family payments, but this had never occurred.
19. Asked about social relationships, the applicant said that although a few friends knew of their circumstances and predicaments, she and her husband rarely went out together after they became reconciled in July 2003 because of Danny’s alcohol problems and his tendency to become extremely aggressive and violent after a few drinks. He had given up alcohol consumption about four or five months ago but after a few drinks on his birthday, 24 June 2006, became violent again causing damage to the house. She doubted he would ever really give up drinking, the status of the marriage continued to be poor and there had not been any sexual relationship for several years.
20. She was further questioned about Danny’s visits to 20 Bass Street, Warrane, prior to their reconciliation in June 2003. She admitted his visits had become more frequent over time between 1997 and 2003, he sometimes ate there and parked a council vehicle there one week in three when he was on duty for council call-outs, but not permitted to garage the vehicle outside the municipality. Asked how this operated when he claimed to be residing at Kellevie she said his friend Peter Jacobson brought him to Clarence and took him home as the need arose. Mrs Patterson stressed he did not stay overnight at 20 Bass Street during their period of separation from early 1996 to July 2003.
21. Counsel for the respondent queried whether the date of reconciliation in July 2003 was pure coincidence at a time when Centrelink was engaged in a detailed investigation of the couple’s relationship and pattern of welfare benefits. Mr Patterson had been observed at 20 Bass Street, Warrane, on a number of occasions and there were claims the couple were living together by neighbours and others, but no confirmation had been possible during earlier Centrelink visits. It was the documentary evidence which enabled a clearer view of the situation to be gained.
22. Mrs Patterson was asked whether there was any domestic violence at the present time. She said nothing more than the outburst at his birthday party on 24 June.
23. Mrs Patterson stood down as witness and her husband Danny Richard Patterson was sworn. Mr Patterson said the reason July had left him in early 1996 was his ceaseless drinking and the resultant violence it engendered. He could ‘wipe out a carton of beer in two nights’, was at times caught drink-driving and had spent periods of time in prison for other offences including robbery and in 1981 was sentenced to imprisonment for murder, later reduced to manslaughter, serving five years for that crime. When he went drinking ‘he went the whole hog’.
24. Mr Patterson said he had never sought counselling and thought his own affairs were for himself and nobody else. In response to a query, he confirmed that the drinking had resulted in him having little memory for dates and events and there seemed to be some intellectual problems as well, but he could cope when given orders, so his employment continued.
25. He was asked where he resided after his wife and family had moved out of the Mornington cottage. He said he stayed there several months, then resided at a number of addresses over the remainder of the separation period of about six years. He could not remember the details, but it included flats and a house in Bellerive, Lindisfarne and Warrane, as well as Kellevie. There were no records as he sometimes paid cash rent in shared accommodation and when he moved he just ‘chucked everything’, before reaching the new address. He later tried to get in touch with one or two people who had rented properties to him but they had sold up or moved on.
26. Mr Patterson was asked why he had continued to use 20 Bass Street, Warrane as his postal address during the separation period. He said it was convenient and more reliable than Kellevie as far as mail deliveries were concerned. He had considered hiring a mail box, but there was a waiting list. He said he commenced revisiting 20 Bass Street about April 1997, as far as he could remember, mainly to see his kids, but also because his council vehicle was parked there during call-out periods.
27. He was asked why his friend Peter Jacobson had sometimes transported him to and from Kellevie on call-outs during the period he resided there. He said it was because he was drunk and did not want to get caught by the police. He admitted this implied he still drove the council vehicle in Clarence, but knew the police rarely stopped such transport.
28. Mr Patterson admitted he had claimed his wife as a dependant in several tax returns he had submitted, but had not bothered about making returns in every year. He had also asked his employer, the Clarence City Council, to use the Kellevie address for a period after reconciliation with his wife. It was put to him this was a subterfuge to give an impression of separation at a time their relationship was undergoing investigation. He denied this accusation, saying it was an attempt by others to ‘set him up’.
29. He could not explain why his wife had told the SSAT she was withdrawing about $280.00 a fortnight from their joint account when the amount varied according to his earnings and their household and family needs. Basically it was left to her to decide.
30. Mr Patterson said his troubles with the police were well known, but some false accusations had been made by neighbours and others.
31. Having completed his evidence Mr Patterson stood down as witness and three other individuals appeared for the applicant, namely her brother Brett Andrew Lynch and two friends, Leah Shannon Wright and Peter Vernon Jacobson, the latter residing at Kellevie.
32. Brett Andrew Lynch was sworn and stated he had lived off an on at 20 Bass Street for about ten years, but had moved out in August 2005. He had visited Danny Patterson at a number of addresses during the separation period and was aware Danny was visiting 20 Bass Street for meals and to pick up his car during call-outs, but did not think he stayed overnight. Under cross-examination he admitted there were several periods when he was either in prison or staying with friends and could not vouch for what went on at such times. Although he knew something of the relationship between his sister and Danny Patterson, he had not been called to give evidence at the SSAT hearing.
33. Mrs Leah Wright was sworn and said she had known the applicant for more than eight years, she had met Julie Patterson because their sons were paperboys. She had visited Julie once or twice a week since 1998 and was aware of the separation but they did not discuss this in depth. She did not witness Danny Patterson at 20 Bass Street, but only visited there normally for morning coffee. She was aware Danny sometimes visited when drunk because the children would report his arrival and a possible need for refuge.
34. Peter Vernon (‘Jake’) Jacobsen said he lived at Kellevie but also had a property at Montagu Bay, Hobart. He had worked with the Clarence City Council for 27 years and knew Danny Patterson as a workmate and friend for twenty years. He was aware of Danny’s alcoholism and family circumstances and this was why he sometimes provided accommodation and loaned a car from time to time. During call-out periods he often drove Danny to 20 Bass Street and later collected him there because Danny was almost always under the influence of alcohol. He considered Danny a reliable workmate who often spoke about his love of his children. Under cross-examination he said he could not recall particular dates or events or Danny’s residence at various addresses, but did agree than from 1997 onwards Danny’s visits to 20 Bass Street became more frequent and by 2000 he was there almost every evening.
35. In closing submissions Ms Georgina Munday for the applicant said there was sufficient evidence to show no marriage-like relationship existed from separation in early 1996 to full reconciliation in July 2003. At no time during this period did Mr Patterson stay overnight at 20 Bass Street, Warrane.
36. The Secretary had argued there was an onus change in the law prior to 2000 relating to sole parenting payment, but section 4(5) of the Act had been repealed by Schedule 1 of the Social Security Administration and International Agreements Consequential Amendments Act of 1999 and the applicant submitted that the entire issue of family allowance and payment was now governed by section 4(3) of the Social Security Act 1991. In Staunton-Smith v DSS (1991) the Federal Court found that the Tribunal must consider circumstances indicating a marriage-like relationship, but also those that did not, before making a determination.
37. The financial relationship between Julie and Danny Patterson was one crucial to each party in caring for their personal needs but more particularly their children, hence there was little focus on whose names were listed on a bank account. The reality was that Mrs Patterson operated the joint account, but Mr Patterson later had his own personal account and credit card.
38. Clearly the applicant was granted a housing commission home on the basis of her separation with three children and fears of her husband, but she did not deny Mr Patterson gradually increased his visits there, while himself residing at a number of different addresses. His use of 20 Bass Street as a postal address was a matter of convenience for him, as was his use of the home for parking a council vehicle, but this should not be construed as a sign they were living together.
39. Section 3 of the Family Violence Act 2004 (Tas) sets out is purpose, which is to “... ensure the safety, psychological wellbeing and interests of people affected by family violence are paramount considerations”. Julie Patterson had suffered years of such abuse and it was counsel’s contention that even if found to be in a marriage-like relationship, any debts arising from such a period of trauma should be waived.
40. In closing submissions for the respondents Mr Sparkes said the issue before the Tribunal was whether Mr and Mrs Patterson were members of a couple living in a marriage-like situation or whether they were living separately and apart on a permanent or indefinite basis. The SSAT had conducted a comprehensive and exhaustive analysis of the evidence and concluded that the original decision to raise debts against Mrs Julie Maree Patterson was correct ie that the couple were not living separate and apart in terms of criteria set out in section 4(3) of the Social Security Act 1991.
41. Counsel for the applicant raised issues of onus of proof on the respondent but there is nothing in the Social Security legislation that places the onus on either party, matters must be determined on the evidence available, pro and con. But if, for example, Mr Patterson asserted he was living elsewhere at particular points in time, it is essential for him to provide information justifying that claim. This also raised the issue of credibility and the respondents would argue there were substantial queries about credibility in this case, particularly in respect of statements by some witnesses about addresses, car parking and transport during call-outs.
42. The SSAT noted that Mr Patterson was using 20 Bass Street as both his postal and residential address, claiming this as an inducement to visit his children, but in reality reflecting a gradual increase in the number and duration of visits there. The SSAT was not satisfied by these explanations of the relationship, eventually concluding the couple were living in a marriage-like relationship.
43. Mr and Mrs Patterson’s evidence was clearly inconsistent on a number of matters and different from versions given to the SSAT. Even if there were two households at some points in time, this is not conclusive given that other factors have to be weighed in accordance to the Act. The blurring of financial arrangements is a case in point, the reality is that the applicant managed the account, doling out money to Mr Patterson at times, but it was a joint account throughout and the couple were financially interdependent.
44. The respondents also note that the couple held themselves out as married and each provided some care and mutual support, even though it has been a stressful and sometimes violent relationship. There is no evidence about a sexual relationship, so that aspect remains open. It does appear likely Danny Patterson lived at Kellevie with Peter (Jake) Jacobson at intermittent periods, perhaps totalling two years of the six to seven year reconciliation period, but the remainder is a blank as to where Mr Patterson actually resided.
45. It was still necessary for the Tribunal to consider the totality of the evidence. Certainly the documentation indicates a close relationship between the couple at the time welfare benefits were being paid on the basis of supposed separation. This tends to indicate that Julia Patterson and Danny Patterson were not living separately and apart on a permanent and indefinite basis. They were operating as a couple in a marriage-like relationship and therefore the decision of the SSAT, dated 12 April 2005, should be affirmed.
Analysis:
46. The matter before the Tribunal is a de novo merits review of an administrative decision and the Tribunal, in arriving at a correct and preferable decision is bound to apply the law. The Tribunal must take into account all available evidence, statutory and policy provisions and any relevant prior case decisions. (For confirmation see Re Drake & Minister for Immigration and Ethnic Affairs (1979) 24 ALR 557, Re Drake (No 2) (1979) 2 ALD 634 and Re Walsh and SDFCS (2002) AATA 881 (4 October 2002).
47. The applicant has claimed there is an onus of proof on the respondents to demonstrate their claims are valid. This contention is incorrect, there is no onus of proof, matters must be decided on the evidence (see McDonald and DGSS (1984 6 ALD 6).
48. The law applicable in the current case is found in the Social Security Act 1991 (the Act) and the Social Security (Administration) Act 1999 (the Administration Act), as enacted at the relevant times.
49. The principal legislation in respect of the applicant’s case is to be found in section 4 of the Act. In relation to people who are legally married, subsection 4(2) is significant:
“4.(1) In this Act, unless the contrary intention appears:
...
“member of a couple” has the meaning given by subsections (2), (3), (3A), (6) and (6A)
...
4.(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”
50. This confirms that the issue in this matter is whether the applicant was living separately and apart from her husband (Danny Patterson) at the relevant time, on a permanent or indefinite basis. The determination must be in accordance with criteria set out in subsection 4(3) of the Act:
“4.(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 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”
51. In forming an opinion about the applicant’s relationship for the purposes of paragraph 4(2)(a) of the Act, the Tribunal must not only consider all factors set out in subsection 4(3) of the Act, but note that this list is not necessarily exhaustive (See Staunton-Smith v SDSS (1991) 25 ALD 27):
“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”.
52. Whether the applicant and her husband consider themselves to be living separately and apart is not determinative of this issue (see Roberts and SDSS (1987) 12 ALD 723):
“In assessing all the circumstances, the parties’ subjective perceptions of themselves and their relationship will not be a determining factor because the actual objective circumstances must be looked to as in the case of Re Tang and Director-General of Social Services (1981) 3 ALN N83 and Re Pearce and Director-General of Social Security (1983) 5 ALN N142 cited (but perhaps erroneously) in Re Johnson and Secretary, Department of Social Security (unreported, No 2354, 11 October 1985).
53. Turning more directly to the current case, the Tribunal notes there were several investigations by Centrelink into the Patterson’s domestic circumstances after their separation in March, but each of these investigations concluded that the couple were not living together, although Danny Patterson was frequently at 20 Bass Street, Warrane. It was not until comprehensive documentary evidence was available to Centrelink in October 2003, that the respondents concluded Julie Patterson and Danny Patterson had been members of a couple during the period 6 January 1997 to 30 July 2003. The Tribunal must now test that conclusion.
54. At the outset and without forming an initial opinion, it is helpful to note comments made by the ARO on 4 March 2005 and conclusions reached by the SSAT on 12 April 2005.
55. In outline summary, the ARO’s decision was that on the balance of probabilities Mr Patterson was residing at 20 Bass Street from at least 6 January 1997. He had used that address for a wide variety of purposes and both his employer and the Tasmania Police considered it his residence. Regardless of where he was actually residing from January 1997, there was not an emotional or financial estrangement or breakdown in the marriage, such that Mrs Patterson was living separately and apart on a permanent or indefinite basis.
56. The SSAT considered a very wide range of evidence and interviewed Danny Patterson and Julie Patterson separately before deciding to affirm the decision(s) under review. Their view of the situation can be briefly summarised as follows:
(a) Bank accounts and a loan for a car indicate Mr and Mrs Patterson were not financially independent in the period January 1997 to July 2003;
(b) The Tribunal formed an opinion they were residing at the same address and Mr Patterson assisted with care of the children;
(c) There was little difference in social interaction during the alleged period of separation and since reconciliation, Mr Patterson held himself out as being married throughout the period;
(d) The Tribunal left open the question as to whether there was a sexual relationship; and
(e) Commitment to each other was demonstrated throughout the relevant period and again they are living together as a couple.
57. The SSAT also investigated whether debts should have been raised against Mrs Patterson in respect of Sole Parent Pension, Parenting Payment and Family Payment/Allowance at various stages in the period January 1997 to 30 July 2003. The Tribunal found in each case the debts existed and should be recovered.
58. Turning now to de novo review by the AAT itself, there are a number of matters to be investigated prior to making a determination. In particular there is a need to consider the criteria and sub-criteria of s4(3) of the Social Security Act 1991, dealing with forming an opinion about what may be or not be a marriage-like relationship:
(a) financial aspects of the relationship; (b) the nature of the household; (c) social aspects of the relationship; (d) any sexual relationship between the people; and (e) the nature of the people’s commitment to each other
Financial Aspects of the Relationship:
59. The SSAT concluded financial arrangements of the couple were fully intertwined and their principal bank account remained a joint account throughout. Mrs Patterson remained a signatory between January 1997 and July 2003 and accessed the account regularly. Mr Patterson took out a loan specifically for the purpose of providing Mrs Patterson with a car. He also aided her in meeting expenses relating to the children and claimed her as a dependent for taxation purposes in several tax returns from 1996 to 1999. The SSAT concluded that Mr and Mrs Patterson were not financially independent in the period January 1997 to July 2003 and having re-examined the evidence the current Tribunal concurs with that assessment.
Nature of the Household:
60. The SSAT formed an opinion the couple were both residing at the same address throughout the period January 1997 to July 2003. The present Tribunal does not consider this to be necessarily correct. On the evidence it does seem possible Mr Patterson resided at Kellevie and some other locations for portion of the separation period, however it is equally clear he spent an increasing amount of time at 20 Bass Street, Warrane, and was to be found there almost every evening, apart from party weekends, from perhaps 2000 onwards. There was a fractious relationship between the couple, but nonetheless much of the claimed separation during 1997-2003 was spent together. The fact there was a residential gap at times is not conclusive of separation, given the proportion of time the couple were engaged in contact and interaction.
Social Aspects of the Relationship:
61. Both parties have stated that although some friends were aware of reasons for separation and subsequent reconciliation, they generally held themselves out to be a married couple in dealing with employers, financial institutions and the Australian Tax Office. Given Mr Patterson’s violence following alcohol consumption, they rarely socialised, but when they did so, they went as a couple.
Sexual Relationship:
62. The SSAT left open the possibility of a sexual relationship, but the applicant openly stated to the current Tribunal there had not been a sexual relationship for several years and she had not formed a new relationship with anyone else. She considered the marriage remained very tenuous.
Commitment to Each Other:
63. Mr and Mrs Patterson have been married since 1985 and are at present living as a couple. Even during the separation period there was interaction between them to provide support for their children. Whether this was the sole reason is debatable, given that both individuals had their own social problems and there were few places they were aware of to seek outside support. There was a form of mutual dependence, then and now, which engendered a marriage-like relationship even during claimed separation.
64. On the basis of all the evidence presented and the balance of probabilities, the Tribunal has concluded that the couple were not living separate and distinct during the period January 1997 to July 2003. There may have been residential separation at times, but overall many factors indicate a marriage-like relationship existed. They were not living apart on a permanent or indefinite basis. This means Mrs Patterson may not have been qualified to receive some of the welfare benefits claimed, in which case the debts raised by Centrelink will have to be repaid, however this aspect must be further tested.
The Debt Situation:
65. Is there a sole parent pension debt?
Section 249 of the Act, as it was prior to 20 March 1998, set out qualifications for sole parent pension if the individual was not a member of a couple. Sections 284 and 285 required the recipient to advise Centrelink if circumstances changed, including marriage or living with someone as if married. A letter was sent to the applicant on 12 August 1996 asking about her marital status, she did not respond but later signed a statement on 16 May 2000 to the effect she was not living with her husband. But as the SSAT and this Tribunal has found, she had commenced reconciliation with Danny Patterson in January 1997, thus she was receiving payments to which she was not entitled. The debt raised by Centrelink against her, covering the period 9 January 1997 to 19 March 1998, is therefore valid.
66. Is there a parenting payment debt?
On 20 March 1998 sole parent pension debt was replaced by parenting payment, the rate being determined by section 503 of the Act which states:
“...
(c)a persons parenting payment is worked out using:
(d)if the person is not a member of a couple – the Pension PP (Single) Rate Calculator at the end of Section 1068A (see Part 3.6A); or
(e)if the person is a member of a couple – the PP (Partnered) Rate Calculator at the end of Section 1068B (see Part 3.6A)”
Mrs Patterson was paid parenting payment (single) from 2 April 1998 to 30 July 2003 on the basis of her claim not to be a member of a couple, however her entitlement should have been treated as if she was a member of a couple, with parenting payment calculated taking her husband’s earnings into account. Income details from Mr Patterson’s employer returns indicated she was entitled to a small amount of basic parenting payment up to July 2000, but thereafter his income completely precluded any parenting payment. Since she was overpaid by a considerable amount, there is now a recoverable debt to Centrelink.
67. Is there a Family Payment/Allowance debt?
Until 1 July 2000 s838 of the Act set out qualifications for family payment, which involved a comparison of family income for a stated period, relative to a permitted income ceiling. The income of a partner would be taken into account. The relevant tax year was the one immediately prior to the date payment was being calculated, however where a person failed to advise Centrelink of a change of circumstances, the tax year changed to the one in which the assessment actually occurred. Mrs Patterson was sent a letter on 25 November 1996, querying her marital status, but no response was received. This meant that in assessing entitlement to family payment in 1997, she was assumed single, when her rate should have been based on Mr Patterson’s income for 1996-1997 and similar in subsequent years. The SSAT correctly concluded that Mrs Patterson had been overpaid family payment and hence a debt to Centrelink had arisen which she must repay. The current Tribunal agrees with this assessment.
68. Should the debts be waived?
Sections 1237A and 1237AAD of the Act provide limited discretion to the Secretary to waive debts in certain circumstances. The debt may be waived for administrative error, but no such error has been detected here. Counsel for the applicant claimed there were special circumstances, because the applicant had suffered trauma and difficulties over many years, but no formal submission to be tested was made in this regard. In any event waiver is confined to situations where the debtor has not knowingly made false representation or inadvertently failed to comply with the Act. In the current case there remain some ambiguities about evidence, failure to provide requested information and issues of credibility, thus the debts cannot be waived under Section 1237AAD.
69. To summarise the situation:
(a) Having conducted a de novo review of all available evidence the Tribunal has concluded on the balance of probabilities that Julie Maree Patterson and Danny Richard Patterson were not living separate and apart during the period 6 January 1997 to 30 July 2003, but engaged in a marriage- like relationship.
(b) It follows that welfare payments made to the applicant as a single person must be reassessed on the basis she was a member of a couple. Such an exercise has been conducted by Centrelink and indicates considerable overpayment has occurred. The debts raised by Centrelink on the applicant must therefore be recovered by the Commonwealth.
Decision:
70. The decisions made by the Social Security Appeals Tribunal on 12 April 2005 are correct, hence the decision under review is affirmed.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-Time Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 12 July 2006
Date of Decision 9 August 2006
Counsel for the Applicant Ms G Munday
Solicitor for the Applicant Hobart Community Legal Service
Counsel for the Respondent Mr B Sparkes
Solicitor for the Respondent Centrelink Legal Services
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