PAULA SINCLAIR Applicant And SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS First Respondent SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

[2007] AATA 1501

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1501

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200600873

GENERAL ADMINISTRATIVE DIVISION		)
Re		PAULA SINCLAIR

Applicant

And

And

SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

  First Respondent

SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Second Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date22 May 2007

PlaceBrisbane

Decision The Tribunal affirms the decisions under review.

......................[Sgd]........................

Member

CATCHWORDS

SOCIAL SECURITY – overpayment of parenting payment and family tax benefit – marriage-like relationship – applicant found to be in marriage-like relationship during relevant periods – no administrative error by Commonwealth – no special circumstances to justify waiver – decisions under review affirmed

Social Security Act 1991 (Cth) ss 4, 1068, 1223, 1237A, 1237AAD
A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) ss 71, 97, 101
A New Tax System (Family Assistance) Act 1999 (Cth) s 58

WRITTEN REASONS FOR ORAL DECISION

3 July 2007   Mr RG Kenny, Member

Background

1.      At the end of the hearing of this matter on 22 May 2007, I advised Paula Sinclair (the applicant) of my decision orally.  On 5 June 2007, she requested written reasons.  What follows is a statement of the reasons given in response to that request.

2. This matter relates to overpayments of parenting payment and family tax benefit. The amount of parenting payment debt was $21,489.96 and this related to the period from 29 July 2003 to 28 August 2006. That overpayment of parenting payment was raised under s 1223 of the Social Security Act 1991 (the SS Act). The amount of family tax benefit debt was $6,562.54 and this related to payments made in the 2003/4, 2004/5, 2005/6 financial years and in the period from 1 July 2006 until 28 August 2006. That overpayment of family tax benefit was raised under s 71 of ANew Tax System (Family Assistance) (Administration) Act 1999 (the FAA Act).

3. A factor relevant to the calculation of the rate of those payments is whether or not the recipient is a member of a couple: see s 1068-B of the SS Act and s 58 of the  New Tax System (Family Assistance) Act 1999.  A recipient who is partnered is entitled to a lesser payment than a recipient who is not partnered.  In this case, the respondent made the decision that, during the periods noted above, Ms Sinclair was living in a marriage-like relationship with Glenn Enticknap and was, therefore, a member of a couple and entitled only to the partnered rate of parenting payment and family tax benefit.  Both parenting payment and family tax benefit were paid at the single rate and, accordingly, she was overpaid in the total sum of $28,052.50.

Issues for Determination and Legislation

4. Whether or not a person is a member of a couple depends upon the application of s 4 of the SS Act. Under s 4(2) thereof, a person will be a member of a couple if he/she is in a relationship with another person of the opposite sex; is not married to that person; and the decision-maker is of the opinion that they are in a marriage-like relationship. It is not disputed and I am satisfied that Ms Sinclair and Mr Enticknap are not married to each other. Subsection 4(3) of the SS Act lists a range of factors which are relevant in determining the nature of the relationship between two people. These are the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, the sexual relationship between them and the nature of their commitment to each other. When consideration has been given to each of those factors, all of the circumstances are considered together to determine whether the parties were in a marriage-like relationship.

5. In the event that Ms Sinclair was in a marriage-like relationship at the relevant times, a further issue will be whether she was overpaid parenting payment and/or family tax benefit and whether any such overpayment is a debt due by her to the Commonwealth. In the event that such a debt arises, consideration must be given to whether the debt may be waived under the relevant provisions of the SS Act and the FAA Act.

Decision of the Social Security Appeals Tribunal

6.      The respondent’s decisions were reviewed by the Social Security Appeals Tribunal (SSAT).  In the very detailed reasons it published for its decision, the SSAT made the following findings of fact:

(i) At all material times Ms Sinclair was in receipt of family tax benefit and parenting payment on the basis that she was not a member of a couple.

(ii) Ms Sinclair and Mr Enticknap are the parents of Kyle born on 22 April 2001.

(iii) Ms Sinclair is pregnant with the baby due in December and it is likely that Mr Enticknap is the father.

(iv) Ms Sinclair and Mr Enticknap have used the same address throughout the relevant period and have resided at these addresses together, although he has been away from his home base for work purposes.

(v) Ms Sinclair and Mr Enticknap have no joint assets or liabilities and their financial affairs are quite separate.

(vi) On occasions Mr Enticknap picks Kyle up from childcare and looks after him when Ms Sinclair is working, but has not played a prominent role in raising him.

(vii) Ms Sinclair and Mr Enticknap have consistently applied for rental properties with both names on the lease.

(viii) At times Mr Enticknap has referred to his relationship with Ms Sinclair as de facto.

(ix) Ms Sinclair has referred to Mr Enticknap as the father of her child.

(x) Ms Sinclair has made no formal claim for child support but, although Mr Enticknap pays no child support, he provides her with the regular use of one of his cars.

Evidence in relation to those Findings of Fact

7.      The first two and the ninth of those findings are not disputed.  I will consider the evidence in relation to each of the remaining findings.  In doing so, it is significant to my findings that I formed the opinion that Ms Sinclair was an unreliable witness.  Her evidence was confusing, conflicting and inconsistent in various ways concerning her arrangements with Mr Enticknap. 

8.      The third of the SSAT findings can no longer stand as Ms Sinclair has since given birth to the child.  The SSAT considered that it was likely that Mr Enticknap was the father of that second child.  In that regard, Ms Sinclair’s evidence was inconsistent.  She variously stated that he was not the father, that he was the father and that she was uncertain as to who was the father.  Ms Sinclair said that Mr Enticknap did not accept that he was the father of Ms Sinclair’s second child, born on 11 December 2006.  However, she also said that his name appears on the birth certificates for each of the children and that he had been willing to and did sign those certificates as the father.  Ms Sinclair’s evidence concerning the circumstances at the time of the conception of that second child was difficult to follow.  She demonstrated great reluctance in advising where she was living at the time of conception and whether or not she had engaged in sexual relationships with other men at the time.  Her evidence was that sexual intercourse between her and Mr Enticknap occurred on only two occasions resulting, on each occasion, in her becoming pregnant.  Mr Enticknap gave evidence at the SSAT hearing but chose not to do so at this hearing, even though he was a person who may have been able to support Ms Sinclair’s evidence.  Mr Enticknap’s evidence at the SSAT was that they had had a continuing sexual relationship of some eight months duration after they first met in 2000.  Ms Sinclair gave birth to her first child on 22 April 2001 and then received parenting payment and family tax benefit at the single rate.

9.      Following its receipt of the first of three anonymous “tip offs” about Ms Sinclair’s living arrangements in April 2002, the respondent requested information from her in that regard.  Ms Sinclair completed documentation confirming that she was living in a relationship with Mr Enticknap.  She completed a form for the respondent in June 2002, declaring that she was in that relationship as a member of a couple.  She also nominated him as her partner, living at the same address, in a further document completed by her for the respondent in August 2002.  In the period from June 2002 until March 2003, the parenting payment was paid to Ms Sinclair on the basis that she was a member of a couple with Mr Enticknap. 

10.     In March 2003, Ms Sinclair completed a statement in which she declared that she had separated from Mr Enticknap and also completed a further claim for parenting payment. In her evidence, she agreed that she had signed the form and that she had ticked a “yes box” which indicated that Mr Enticknap regularly stayed at her address.  On the same page of the document, she described him as her “ex-partner”.  In her evidence, she said that she had not completed that part of the form despite conceding that she had ticked the “yes box” which gave the same information.  I reject her evidence in that regard.  It will be seen below that Ms Sinclair and Mr Enticknap continued to share premises over the next three years and I am satisfied, on the material before me, that Mr Enticknap is the father of Ms Sinclair’s second child.  

11.     The fourth finding of the SSAT relates to the use by Ms Sinclair and Mr Enticknap of the same residential addresses during the overpayment period.  There is evidence that Ms Sinclair and Mr Enticknap entered into leasing agreements for particular premises.  In particular, this occurred for the leasing of a Dunstan Drive residence in which Ms Sinclair lived from July 2003 until April 2005.  That address was given by Mr Enticknap as his residential address as at November 2003 to a financial institution, Baycorp Advantage; to another financial institution, GE Automotive Financial Services, in February 2005; and to Queensland Transport for motor vehicle registration purposes in February 2005.  Prior to moving to that address, Ms Sinclair had lived in a Mein Street residence and that address was given by each of them, as their previous address, in their tenancy agreement in relation to the Dunston Drive residence. 

12.     Ms Sinclair entered into a further tenancy agreement, in April 2005, at a residence in Mariner Boulevard.  While Mr Enticknap’s name does not appear in that agreement, he gave that address as his place of residence to Queensland Transport for motor vehicle registration purposes in April 2006 and to the financial institution, Baycorp Advantage, in May 2006.  Ms Sinclair gave that address as the place of residence for herself and Mr Enticknap in a childcare enrolment form in November 2005; and that address was also given by them in a joint application for a rental property with Robyn Whitfield Properties in July 2006.  Ms Sinclair said that the address where she lived was only used by Mr Enticknap for the convenience of him having a place for his mail to be collected and because he was the father of her child whom he visited from time to time.  I do not accept her evidence in that regard.  During those years, no other residential address was provided by Mr Enticknap except for a period of 12 months when he claimed that he was working in Gladstone and living with a relative.  

13.     The fifth finding of the SSAT is that Ms Sinclair and Mr Enticknap have no joint assets or liabilities and their financial affairs are quite separate.  In this case, there is no evidence of ownership of real estate or other property apart from motor vehicles owned by Mr Enticknap.  Significantly, he has made his motor vehicle available for Ms Sinclair to use on three days per week which points to a willingness to pool their resources.   

14.     The sixth finding of the SSAT is that Mr Enticknap collects their son from childcare and looks after him when Ms Sinclair is working, but has not played a prominent role in raising him.  In evidence, Ms Sinclair appeared reluctant to concede that Mr Enticknap collected their son from childcare but, ultimately, conceded that it might have occurred about once a month.  She variously said that he “never” looked after him when she was working; that he “could have done” and that it would have been “rare”.  She also said that he would not look after the children at night time although she also conceded that there were various times where he would stay in her house on a few nights per week but that she would not necessarily be there at the same time as she was in the habit of visiting friends.  I do not accept her evidence that she was not present but, even so, her evidence indicates that Mr Enticknap must have been looking after the children in any of her absences. 

15.     The seventh finding of the SSAT relates to joint applications for rental properties and this has been dealt with above.

16.     For the eighth finding of the SSAT, there is evidence before the Tribunal that Mr Enticknap described Ms Sinclair as his “de facto” to his employer in August 2003; in the loan agreement entered into with GE Automotive Financial Services, in February 2005; and in the joint application for a rental property in July 2006.

17.     In relation to the tenth finding of the SSAT, Ms Sinclair confirmed that no formal arrangement for the payment of child support by Mr Enticknap had been entered into.  She described an informal arrangement between them whereby he purchased things that she needed, from time to time, but provided no assistance with direct cash payments.  She denied that Mr Enticknap made contributions to rental payments at any of the premises where they had lived.  In his evidence to the SSAT, Mr Enticknap said that he made payments to Ms Sinclair in the amount of $50 per week.

Contentions

18.     Ms Sinclair’s submissions in this matter were that she had not been in a relationship with Mr Enticknap, that it was unfair of the respondent to require her to repay monies and that, if she was to be treated as having been in a relationship with Mr Enticknap, he should be made responsible for some proportion of the payments.

19. Mr Black’s submission included references to each all the matters listed in s 4(3) of the SS Act. He submitted that, when all of these factors were taken into account, the respondent’s decision that Ms Sinclair and Mr Enticknap were living in a marriage-like relationship during the relevant periods should be affirmed.

Factors in s 4(3) of the SS Act

20.     Reference has been made above to the financial aspects of the relationship between Ms Sinclair and Mr Enticknap.  In considering the nature of the household, it is significant that both provided common but varying addresses over several years.  I reject Ms Sinclair’s contention that this was done only because it was a convenient mailing address for Mr Enticknap or because he was the father of her children.  There is little evidence of the nature of the household of Ms Sinclair and Mr Enticknap.  However, Ms Sinclair’s relationship extended into Mr Enticknap’s immediate family.  In her evidence, she described frequent meetings with his brother and his mother whom she described as her “mother in law”. As to the social aspects of the relationship, little evidence was given but the SSAT recorded Ms Sinclair as advising that they went out together to dinner, the movies and the races.  Also, Ms Sinclair said that, at times, Mr Enticknap’s mother would pay for the rental of a beachside unit for Ms Sinclair and Mr Enticknap.  Both would attend and did so for the purposes of trying to “get back together”.  She made conflicting statements as to the arrangements on those occasions and said that they were always accompanied by other friends.  Ms Sinclair and Mr Enticknap have clearly had a sexual relationship which has resulted in the birth of two children.  There was inconsistency in Ms Sinclair’s evidence as to the extent to which she and Mr Enticknap stayed at the same premises overnight.  Mr Enticknap described a sexual relationship of eight months duration after they first met and Ms Sinclair’s documentation to the respondent in June and August 2002 identify a de facto relationship between them at that time.  I am satisfied that a sexual relationship between Ms Sinclair and Mr Enticknap spanned more than the two occasions of sexual intercourse as alleged by Ms Sinclair.  There was a commitment between Ms Sinclair and Mr Enticknap during the overpayment period.  This was demonstrated by the use of common residential addresses to each other.  It is also demonstrated by Mr Enticknap’s willingness to describe Ms Sinclair as his de facto.

21.     The respondent requested information about the relationship between Ms Sinclair and Mr Enticknap.  Responses, which gave no insight into the relationship, were provided by two medical practitioners.  Other responses came from three friends of Ms Sinclair.  These denied the existence of a de facto relationship between them.  Weight may have been given to these if it were not for the view that I took of the evidence of Ms Sinclair.  Furthermore, they were not called as witnesses and there was no opportunity to test the veracity of the information that they provided in their responses.

Marriage-like Relationship

22. Except for its third finding (as explained above), I adopt, on the evidence before me, the findings of fact made by the SSAT and the submissions made by Mr Black. These support the reasoning of and the decision made by the SSAT. Having considered all of the material before me in relation to the factors in s 4(3) of the SS Act and looking at the total picture of their relationship, I am satisfied that there was a marriage-like relationship between Ms Sinclair and Mr Enticknap during the period from 29 July 2003 to 28 August 2006. I find that Ms Sinclair and Mr Enticknap were members of a couple during that period. As such, Ms Sinclair should have been paid parenting payment and family tax benefit at the single rate during that period.

Debt to the Commonwealth

23. Under s 1223 of the SS Act, the overpayment of parenting payment in the amount of $21,489.96 is a debt due by her to the Commonwealth. Under s 71 of the FAA Act, the overpayment of family tax benefit in the amount of $6,562.54 is also a debt due by her to the Commonwealth. I have noted Ms Sinclair’s contention that the debt should be attributed, at least in part, to Mr Enticknap. However, that is not able to be done under the provisions of the SS Act and the FAA Act which ensure that the debt is borne by the recipient of the benefit. In this case, that was Ms Sinclair.

Waiver of debt

24. In particular circumstances set out in the SS Act and FAA Act, a debt may be waived. Under s 1237A(1) of the SS Act in the case of the parenting payment debt and s 97(1) and (2) of the FAA Act in relation to family tax benefit, the debt may be waived if it arose solely due to Commonwealth administrative error if the recipient received in good faith the payments that gave rise to the debt. Those provisions are not applicable in this matter as I am satisfied that the debts are not attributable to administrative error but to Ms Sinclair's failure to reveal her living arrangements with Mr Enticknap.

25. A debt may also be waived if there are special circumstances, other than financial hardship alone, which would justify doing so. This is under s 1237AAD of SS Act for parenting payment and s 101 of the FAA Act for family tax benefit. In order for it to be special, a case requires something to distinguish it from others and to take it out of the usual or ordinary case. Apart from the amount of the debt, which relates to financial hardship, no special circumstances have been described in Ms Sinclair’s case and I am also satisfied that the debts may not be waived on that basis.

Decision

26.     The decisions under review are affirmed.

I certify that the 26 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Mr RG Kenny, Member

Signed: ………………………………………………….....
  Legal Research Officer       

Date of Hearing  22 May 2007
Date of Decision  22 May 2007
Date of written reasons             3 July 2007
The applicant was unrepresented

Respondent’s representative    Mr M Black