Perry and Department of Family and Community Services

DECISION AND REASONS FOR DECISION [2001] AATA 282

ADMINISTRATIVE APPEALS TRIBUNAL      )
  )           1. No. N1997/1294
GENERAL ADMINISTRATIVE DIVISION          )          2. No. N2000/59

1.       Re      Secretary, Department of Family and Community Services
  Applicant
           And    Liana PERRY
  Respondent
2.       Re      Liana PERRY
  Applicant
           And    Secretary, Department of Family and Community Services Respondent
DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 9 April 2001
PlaceSydney

Decision The Tribunal – (1) Sets aside the decision of the Social Security Appeals Tribunal ("the SSAT") dated 11 August 1997, and substitutes therefore its decision to reinstate the decision of a delegate of the Secretary, Department of Social Security (as it then was) dated 20 October 1995 that a debt in the amount of $16,460.90, or some other amount arising from recalculation in accordance with paragraph (2) (below) be raised in respect of Liana Perry, and that the debt be recovered by withholdings from her social security payments; 2. Remits the matter to the Secretary, Department of Family and Community Services ("the Secretary"), to recalculate, if necessary, the amount of the debt arising from the employment of Mrs Perry, in accordance with these reasons for decision; 3. Affirms the decision of the SSAT dated 5 November 1999 that a family payment debt in the amount of $4,245.15 for the period 6 January 1994 to 22 June 1995 be raised and recovered by withholdings from Liana Perry's social security payments; 4. Remits the matter to the Secretary to determine the rate of withholdings to be made from time to time, from Liana Perry's social security payments.

..............................................
M T Lewis
Senior Member

CATCHWORDS
SOCIAL SECURITY – failure to give notice of employment and earnings – whether a member of a couple – whether Applicant not be treated as a member of a couple for purposes of the Act – whether the debt should be waived - whether withholdings would cause "severe financial hardship" - whether debt should be written off – whether Tribunal should set rate of recovery or remit for rate to be set by Department
Social Security Act 1991 ss4, 24(1), 1236, 1237AAD
Beadle v The Director General of Social Security (1985) 7 ALD 670
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Harris v Director-General of Social Security (1985) 7 ALD 277
Minister of State and Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Re Reid and Director-General of Social Services (1981) 4 ALN 1
Re Secretary, Department of Social Security and Porter (1997) 48 ALD 343
Re Secretary, Department of Social Security and "SRJ" (AAT 10970, 29 May 1996)
Re "SRL" and Secretary, Department of Social Security (AAT 12875, 11 May 1998)
Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533

REASONS FOR DECISION

Mrs M T Lewis, Senior Member

There are two applications for review. The first relates to a decision of the Social Security Appeals Tribunal ("the SSAT") made on 11 August 1997 that set aside a decision of a delegate of the Secretary, Department of Social Security as it then was ("the Department") dated 20 October 1995. The decision of the delegate was to raise and recover a debt of Liana Perry (Mrs Perry) of $16,460.90. On 14 March 1996 an authorised review officer affirmed the decision of the delegate. Subsequently, the SSAT set aside the decision and remitted it to the Department for reconsideration with directions that recovery of that part of the debt that relates to Mr Perry's period of employment at Missionholme Nursing Home be written off. The Department applied for review by this Tribunal on 24 September 1997 stating that "write off was not the correct and preferable remedy". Mrs Perry applied for review by this Tribunal stating that the debt should have been waived rather than written off. Her application for review was lodged on 14 January 2000, and on 24 January 2000 a Direction was issued by the Tribunal extending the time for lodging the application to 14 January 2000.
The second decision under review relates to a decision of the SSAT dated 5 November 1999 that, by majority, affirmed a decision of an authorised review officer dated 30 October 1998 that recalculated the amount of a family payment debt at $4,245.15 for the period 6 January 1994 to 22 June 1995 and determined that a debt of that amount be raised and recovered from Mrs Perry.
At the hearing the Tribunal had before it the documents lodged by the Department pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered on behalf of Mrs Perry –

A statutory declaration made by Liana Perry dated 2 June 2000 (exhibit A)
Statement of financial circumstances of Liana Perry as at 30 June 2000 (exhibit B)
A statutory declaration made by Edward Perry dated 5 June 2000 (exhibit C)
A statutory declaration made by Jean Ward dated 2 June 2000 (exhibit D)
A statutory declaration made by Kaye Elizabeth Maher dated 2 June 2000 (exhibit E)

Oral evidence was given by Liana Perry, Edward Perry, Jean Ward and Kaye Maher.

This review relates to four specific periods:

The first was prior to 18 May 1992 when Mrs Perry received wife's pension and family payment. The issue in respect of this period relates to her husband's full-time work, and whether as a consequence Mrs Perry owes a debt of $1,506 to the Department.
The second period was between 21 May 1992 and 15 January 1993, when Mrs Perry received a sole parent's pension. During this period she earned $884.60 at the Newtown school. The Department's case was that she owed a debt of $79.80 for this period because she failed to notify when her earnings went above $67 per week. However, it was Mrs Perry's case that her earnings, when calculated over the entire period, were well below the limit that she could have earned without it affecting her pension.
The third period was from 15 January 1993 to 17 November 1994. Again the debt arose because of her failure to notify the Department of her husband's earnings. Her own personal income did not exceed the limit.
The fourth period was from 17 November 1994 to 29 June 1995. Her husband was working reduced hours at that stage. A debt of $5,057 arose because she was then only entitled to part payment of wife's pension. Also during this period she sustained a family payment debt of $4,245.15 for the period 6 January 1994 to 22 June 1995.

It is Mrs Perry's case that the Tribunal should apply s24(1) of the Social Security Act 1991 (the "Act") to all those periods except for the second, and that during those periods she was not "a member of a couple". In that case the family payment debt would no longer exist and the Tribunal could also apply s1237AAD of the Act to waive the pension debt.
the evidence
Liana Perry
Mrs Perry was born on 30 April 1951. She met Edward Perry in 1975 or 1976 while they were both in prison in New Zealand, and they married on 23 February 1982 while still in prison. She had a nine year sentence for a drug related offence, and was discharged in June 1982 after a six year imprisonment. Mr Perry was discharged in March 1982 and returned to Australia immediately. Mrs Perry joined him in Australia in July 1982. Prior to her imprisonment in New Zealand Mrs Perry said she had a few "smaller convictions" in Australia for drug use.
Prior to her imprisonment in New Zealand Mrs Perry was a graphic artist. She said that she has been unable to obtain work as a graphic artist because of changes in the industry. She said that subsequently she has done courses in silk screen printing, animation, and picture framing, but she has not been able to obtain work apart from at her son's school and at Missionholme. She said she anticipated looking for employment when her children were older. Their daughter, Natalie, was born on 20 September 1984 and their son, Nickolas, was born on 17 November 1986. Both children attend a Performing Arts High School.
In a Statutory Declaration (exhibit A) Mrs Perry said –
Ted and I finally separated in July 1995, however he had been abusive towards me for many years prior to that final separation and it was always difficult to say whether we were in a relationship or not. During the period 1992 to 1995 Ted did not live at 8 Amy Street on a full time basis. He would spend substantial periods away from the house, often coming to the house for only short periods of time. He was having relationships with several other women during this time. When he did spend a night at the house, we did not sleep in the same room. He would sleep in one of the bunk beds in Nickolas's room or on a fold up mattress in the back room.
Ted was physically, psychologically and financially abusive towards me. He had a great deal of control over me and he constantly put me known. He would swear at me and insult me regularly. He would blame me for things which were not my fault and accuse me of things that I had not done. He was under the influence of drugs throughout the majority of this time and it was impossible to reason with him. He assaulted me on many occasions, often pushing me with his hand or body or throwing things at me. I was miserable and distressed most of the time. I was constantly worrying about money, where Ted was and what he would do when he came back.
Ted would often leave me and the children without any money and with hardly any food. He would come home a few days later and act like nothing had happened. I always tried to keep a brave face for the kids and not cry in front of them. I wanted to have Ted out of my life for good, but it was extremely difficult to make him leave. I did not have the money to make a new start. The tenancy on the house was in Ted's name for some time and he used this as a threat. Later the tenancy was changed to my name and even though I could have had him evicted, I knew this would probably just make things worse for me. Another threat he made was that he would take the children from me. He used to threaten me, saying "don't you dare leave me, if you do my parents will get the kids". As his parents are fairly wealthy and did not like me, I felt this was a real threat.
The children used to become very distressed about the situation between Ted and myself. Nickolas has always been very close to his father. He used to plead with me not to argue with Ted. He used to say "please don't fight with him" and "please forgive him". Nickolas was very scared that I would kick Ted out of the house. I did not want to cause more stress for my children, especially Nickolas who was a very sick child most of the time, so I reassured them that I would not kick their father out of the house.
Regardless of the difficulties, I tried to kick Ted out of the house many times. I kept telling him to go but most of the time he would merely laugh at me. His attitude was that he could come and go as he pleased, and that my money was his money.
I made notes of several specific incidents of violence in my diaries. One such incident occurred on 1 February 1992 when Ted pushed me down the stairs in front of Nickolas. On the same day he broke a bottle and held it up to my face. Glass from the bottle cut my knee and I have a scar from that. I thought Ted was going to kill me that day. The police took him way (sic) and locked him up until he cooled down. He came home later and was still angry. He had been using cocaine and had flipped out. He was jealous, paranoid and was imaging (sic) things I was doing behind his back.
On Friday 29 May 1992 another incident of violence occurred. Ted had been hassling me to get a drivers licence for some time. However he always made sure that I did not have the money to go ahead with driving lessons, so my learners permit usually expired before I was able to obtain a licence. He would then tell me I was stupid and useless because I could not get a licence. On that day I had obtained my learners permit again. He started screaming at me telling me I was stupid. He kicked me and I fell to the floor. He picked up the ironing board which was next to the fridge and hit me on the hip with it. I had bruises from this incident.
On Sunday 13 February 1994 Ted and I had an argument. I questioned him about his affairs with other women. He hit me in the face with an open hand. His hand struck my nose and I ended up with a black eye. I told the children that I had slipped in the shower.
I made notes in my diary that there were incidents of violence on the following dates: 9 August 1994, 17 December 1994 and 24 April 1995. However, I did not record details of these incidents and I cannot now recall what happened on these occasions. I did not make notes of all incidents of violence that occurred.
In April 1992 I took a job at the Newtown Primary School as a teacher's aide. I took this job because I wanted to be close to Nickolas. He has always had a lot of trouble at school because of his disabilities and I wanted to keep an eye on him. I did not think that I would be earning enough to have to declare it to the Department of Social Security. I used my maiden name and my sister's date of birth because I knew that I would not get the job if the Department of School Education did a check and found that I have a criminal record. Ted was aware that I was working at the school and he would usually take my earnings.
I applied for sole parent pension on 18 May 1992. At this time I considered that Ted and myself were separated. I had asked him to leave my house and after much conflict he had agreed to go. I think he believed that I would always take him back and that he could continue to control me. Things were not much different after I kicked him out. He would continue to come and go from the house as he pleased and still felt he had a right to be there. He continued to be abusive towards me and take my money.
On 8 July 1992, during the time when I was trying to enforce a separation from Ted, I changed my bank account at the St George Bank into joint names so that Ted could also use the account. It was at Ted's insistence that I did this. He said that he would contact the School about my past and made other threats about what he would do if I did not cooperate. I knew that he was having trouble with his other bank accounts and knew it would be less trouble for him to be joined on my bank account rather than operate his own account. I was aware that he was using the name "Berrots" to open the bank account. I did not find this unusual, as he often used that name and several other derivatives of his Greek name. I did not question why he wanted the account.
As soon as he had access to this account he would often take all my money from the account before I had a chance to withdraw it. He would get violent and aggressive about money as he needed it for drugs. Most of the time I did not challenge him because I did not want a scene in front of the kids. On at least one occasion I went to the main office of the Department of School Education to get a counter cheque from them so Ted could not get it.
On 18 January 1993 I started work at Missionholme on a casual basis. They had contacted me and asked me to work with the patients there, using my skills in art and craft. I usually worked from 9 am till lunch time each day. Occasionally I stayed to help feed the patients, but usually I left just before lunch. I never saw Ted there when I was working. I did not think my earnings were enough to affect my benefits. Most of my earnings were withdrawn from the St George bank account by Ted.
On 19 January 1993 I made a statement at the then Department of Social Security that Ted had again started living with me in a marriage like relationship from 15 January 1993. This was done at Ted's insistence. Things were no different between us. At the same time Ted signed a statement confirming that he was living with me again. I cannot recall the reasons why Ted wanted to do this. At the time I found it easier to give in than to fight him. He was particularly volatile at the time and this occurred shortly before a serious incident of physical violence on 1 February 1993.
I knew that Ted had a connection to Missionholme, but I never realised he was in the paid employment there. I thought he had done community service or periodic detention there. I never thought him capable of holding down a job. He was always coming and going from the house, it never occurred to me that he was working because he had always just come and gone as he pleased. I assumed his absences were due to his relationships with other women. I never benefited from Ted's employment.
There were several occasions in the years prior to July 1995 when the police came to the house looking for Ted. He was never there when they came and I told them I did not know where he was. They usually gave me a card with a contact name and I gave it to Ted when I saw him. I did not know why the police wanted to see him.
On 6 July 1995 I lodged a claim for the sole parent pension with the then Department of Social Security. I had had enough of Ted's abuse and I just went ahead and did it without telling him. Ted was seeing another woman at the time. When I told Ted what I had done there was a big fight, but I held firm and eventually he accepted it.
Prior to July 1995 Ted took most of my money most of the time and this made it very difficult for me. I had to borrow from my friends and neighbours on many occasions and it was stressful for me to know that I could not pay them back.
Nickolas suffers from serious health problems and has suffered these conditions throughout his life. It has been extremely difficult and stressful to care for him and cope with my financial problems and abuse from Ted. I receive a disability allowance for him. He suffers from asthma, eye problems, learning difficulties and coordination difficulties. He had a speech impediment when he was younger, although this is now improving. He has to wear glasses which he was constantly breaking when he was younger. Although one free pair of glasses is available every 2 years through Medicare, this is not usually sufficient. I have to spend a lot of time with Nickolas helping him with his homework and trying to improve his literacy. Last year his reading accuracy was assessed to be 18 months below his chronological age, with his spelling 3 years below his chronological age. He has also suffered bullying at school.
I suffer from arthritis in my left hand which causes me severe pain on an on-going basis and has been persistent for the last year. I take anti-inflammatory medication for this condition and am waiting for surgery.
I am currently on a low dose methodone program. I am scared of not coping if I go off the program.
In her oral evidence Mrs Perry said that the only time she and Mr Perry socialised was when they attended the Christmas Party at Missionholme. She said that during the period under review she did not have a sexual relationship with Mr Perry.
Mrs Perry said that during the period under review she did not have enough money, and indeed she still does not have enough but at least now she has control over her money. During that time she said she obtained money from Mr Perry occasionally, "a little bit here and there, but he was never reliable". She said that he stole money from her purse that was more than he gave her. She said she used to hide money but "he would tear the place apart looking". In about 1995 she sometimes had to obtain counter cheques from the Department so that her pension would not be paid into her account. Mrs Perry said that she borrowed $1,000 from her sister in New Zealand at a time when her rent payment was in arrears, she had unpaid electricity bills and no money for food. She has not repaid this loan. In addition she has obtained "a few dollars" from her sister in Sydney.

Mrs Perry said that she wanted to help at Nickolas's school so as to be close to him. She said that when Nickolas started school he had many difficulties including problems socialising. She volunteered to help in the classroom, using her skills as an artist, and later she was offered a temporary part-time position as a teacher's aid. She said when she came to complete the form required of a new employee she realised that the Education Department would check and find that she had a criminal record in relation to drugs, and she feared that she would not get the job. She said she then completed the form in her maiden name, using the name Leigh Anna Osborne, and her sister's birth date. She said when she completed the form the headmistress signed it before she had completed the details of her name, and Mrs Perry then completed the details and despatched it to the Education Department.
Mrs Perry started work at Nickolas's school on 3 April 1992. She admitted that her children were enrolled in the school in the name of "Perry" and she was known by the school staff as "Perry". She said that the school staff did not see the attendance forms she completed, although the headmistress was required to sign them. She insisted that the staff did not know she was using the name "Osborne" but they knew her maiden name was "Osborne".
Mrs Pery said she did not declare the income from the school to the Department because she thought as a result of the Department checking about her employment it would lead to the disclosure of her real name to the Education Department. (The Tribunal notes [N1997/1294, T46, p178] that Mrs Perry said she told the Department initially that she used the name "Osborne" to avoid detection of her husband's criminal record). She said she knew the amount she was allowed by the Department to earn without effecting her wife's pension, but thought she was not doing anything wrong because she was not earning "any great amount of money". She said she pleaded guilty in Court to the charge of obtaining a benefit to which she was not entitled because she understood that if she pleaded guilty to the smaller amount the Department would not pursue the large debt of some $16,000. She said that subsequently she was convicted in respect of the small amount and acquitted in relation to the large debt. She said she had not realised at the time that there would be any separate attempt to recover the debt.
Mrs Perry could not recall whether she had received the notice dated 16 March 1992 about the increase in her wife's pension and requesting that she advise within 14 days if she started work (N1997/1294, T7, p37). She agreed that she did not advise the Department of her employment at the school. Mrs Perry claimed sole parent pension on 18 May 1992 (N1997/1294, T5). She did not declare in that application that she was known by the name of "Osborne", nor did she disclose her employment at the school. In that claim form she identified a Commonwealth Bank account into which pension was to be paid, and that was the only bank account disclosed by Mrs Perry. However, her Department of Education records show that her wages at that time were paid into a different bank account, and in cross-examination she agreed that she had at least one other bank account at that time that had not been disclosed. She said she did not disclose her bank accounts to the Department because she did not want to alert them to the fact that she was working. Throughout cross-examination on this issue Mrs Perry insisted that the reason she did not reveal this information was her fear that her criminal record would be traced and her children would find out about it. She agreed that she could have dealt with the problem merely by providing her pay slips to the Department, but she said "I really didn't think that far about it". Later in her evidence she admitted that after she had commenced employment at the school she had a conviction relating to growing marijuana. She also said that in the 1980s she had a conviction relating to the possession and administration of drugs. She considered that offence would have been less than ten years before the commencement of her employment at the school.
In cross-examination, Mrs Perry's attention was drawn to a letter addressed to her from the Department dated 20 September 1993 (N1997/1294 T7, p40-42) in which she was requested to advise within 14 days if her and her husband's combined gross incomes went above $100 per week. She could not recall whether she had received that letter, and complained that her mail is often delivered incorrectly because one of the postmen was often drunk and confused. (The existence of the drunk postman was subsequently confirmed by Ms Ward in her evidence). Mrs Perry said in respect of their combined income that she did not know at the time that Mr Perry was working.
Mrs Perry provided a statement of her financial circumstances as at 30 June 2000 (exhibit B). That included a debt to Grace Bros. for $4,189.79, which she explained was a computer she bought at the insistence of Mr Perry for him and the children. In cross-examination she said the purchase was probably made in early 1994. She said she has not made any payments on that debt for some time. Amongst the liabilities was a debt to Westpac of $621.34 that she explained were bank charges incurred by Mr Perry writing cheques on her account that "bounced". She said that each dishonoured cheque incurred a $35 fee, and over time these accumulated. She has already made payments of $530 in relation to that debt.
Mrs Perry said that Mr Perry had many bank accounts closed by the bank because he had passed "false cheques". She said he knew she had a bank account and "hassled" her to share that account, and she agreed. She said –
This happened with Ted with many, many things in my life. He controlled everything. He controlled my Grace Bros card. He controlled my bank accounts. He controlled the mail that came in. He controlled the money in the house. He just – he's a bully, all right? So I said yes. I didn't know what he wanted it for, but I knew he didn't have an account any more and it was easier for him to get one that was already opened. He didn't have to have, … references from other banks if he could just get into one that was already there. He knew this, so, yes, okay, I let him in.

Mrs Perry said that this occurred before the time when Mr Perry used her Westpac bank account to write cheques that "bounced".

On the issue of Mr Perry controlling the mail, Mrs Perry said that he had a Post Office box at Rosebery and also one at Alexandria, and she thought he had mail redirected there because she said "I never ever saw any statements from this account" referring to the Westpac account. She had previously said in cross-examination that she had ignored the notices about the fee on the cheques and "they kept sending me more mail, more mail, and each time I got a letter the price had gone up".
In cross-examination Mrs Perry said that at the time she was recruited to work at Missionholme she understood that Mr Perry was doing community service there. She said he told her about it and she attended a Christmas party there with him in late 1992. At that time she understood from talking to the matron that there was a temporary vacancy for someone "that did the therapy with the old people". Mrs Perry said that at the time Mr Perry "was trying to get in good with me" so that she would agree to him returning to live at home, and that is why he gave her an introduction to Missionholme. She was subsequently offered the position. Her employment there was from 18 January 1993 to 16 February 1993, for fifteen hours a week with very occasional extra hours. She agreed that she gave details of the joint bank account, in the name of "L Osborne and E Berrots" to Missionholme when she worked there in a temporary capacity.
Mrs Perry's attention was drawn to her advice to the Department dated 19 January 1993 that she and Mr Perry resumed living together in a "marriage like relationship" on 15 January 1993 (N1997/1294, T9). Her evidence was that she had made that statement at the insistence of Mr Perry but that their marriage relationship had not resumed. It was put to Mrs Perry that it was not in her financial interests to make that statement if it was not true, because she knew it would have the effect of reducing the amount of pension she received. Her response was uninformative, incoherent and defensive. She referred to finally "kicking him out", but apparently she did not seek sole parent pension until 6 July 1995 (N1997/1194, T19). On that date she claimed sole parent pension, and stated that the separation occurred on 2 May 1995. Again she did not disclose her employment at the school. She also agreed that she did not disclose all her bank accounts on that claim.
Mrs Perry was asked in cross-examination what was different about her relationship with Mr Perry when she was on wife's pension and when she was on sole parent pension. She was unable to explain the difference, except to say that when she agreed to change to wife's pension it was the result of him "hassling" her. She preferred to be on sole parent pension. She said when she agreed to change to wife's pension she "kept thinking things could improve but they can't". At those times she was trying, for the sake of the children, "to make a go of things". She now feels that she has given him a lot of chances and she cannot give him any more.
Mr Perry has been in receipt of disability support pension and Mrs Perry has received wife's pension since 1989. During a period in the 1980s Mrs Perry was in receipt of supporting parents benefit. She said that they have had a "rough relationship" from the start and they have separated three or four times since she returned from New Zealand in 1982. Their first separation was for four to six weeks when her daughter (who was born on 20 September 1984) was a baby. She said that the reason for the separation was "drugs" and "women". They then lived together again for "a few years" until Nickolas was aged four or five years. During that period there were "always fights and always problems". That was about 1992. Mr Perry left the house for "a few months" but "he would always pop his head in". She said he slept at her house overnight occasionally during that period, but he did not sleep with her. She said that there was a period during the separation when he was trying very hard to have her agree to his returning to live with her. She said he was not living at her house at the time of the Christmas party at Missionholme at the end of 1992, but he did return home some three or four months later. When he returned home she said that they rarely had a sexual relationship but at times they shared the same bed although at other times he slept in a separate room or stayed away overnight. He kept his clothes in the main bedroom. He remained living there, "he used the premises and our relationship" until mid 1995 "when things just got so ridiculous". She said "we had some of our worst fights leading up to that". She said that since he left in June or July 1995 he "has not returned". However he still "pops around", without warning, a few times a week. She also said on occasions she has asked Mr Perry to come over when she has had to go out. She considered that he has now accepted the separation. She said that their relationship is now "tolerable", although he "stands over me a little bit" when he visits. She said she is planning to obtain a divorce. She said that hitherto her children, particularly her son, have asked her not to divorce Mr Perry.
During the times when Mr Perry was living at her home she said she cooked and washed for him, "he would come in and just take over when he felt like it, watch television or just help himself to whatever". She said that he contributed financially from time to time, but she could not rely on it. During that time she relied on financial assistance from philanthropic organisations. She said there were times when she would not let him into the house, but he would break a door or a window to get in.
Mrs Perry named four women with whom she knew Mr Perry had had a sexual relationship. She said some of these women had telephoned her home looking for Mr Perry, and had advised her that he had said he was not married any more. She also said she had not felt free to have a relationship with any other man and that "he would have killed me".
Mrs Perry said she knew that Mr Perry had incurred a very large social security debt because of working while in receipt of benefit during the 1980s. She said she did not believe he would "dare do it again".
Mrs Perry said that by 28 September 1995, when she completed a sole parent review (N2000/59, T125), she had declared her casual work for the Education Department and had recorded her St George bank account. She had opened a new bank account in her name alone and stopped using the joint bank account. She also said by that time she had Mr Perry's name removed from the joint account. However, later in her evidence she agreed that by 28 September 1995 the account was still open.
In relation to her health, Mrs Perry said that she is on the waiting list for an operation on her left thumb that at present is very painful. She said she suffers from "very bad migraines", she is a carrier for hepatitis C and at one stage she also had hepatitis B.
Mrs Perry said that Nickolas still gets asthma attacks, but both his asthma and his speech impediment are improving with age. He is still "very slow" with his school work, and he needs a lot of help and supervision from her with this. He has poor co-ordination and "walks with a turn". He needs frequent replacement of his glasses despite receiving a free pair every two years that Mrs Perry keeps only for "emergencies" because they are "daggy".
Edward Nickolas Perry
Mr Perry admitted to having been working in the 1980s as a caretaker at a time when he was receiving social security payments. He said he was imprisoned because of that overpayment, and "I am paying it back".
Mr Perry noted in his statement (exhibit C) that in the period 1992 to 1995 he was "heavily involved in drugs" and was "addicted to heroin and used other drugs, including cocaine". He stated –
Throughout the period 1992 to 1995 I was abusive towards Liana. I am not proud of my actions during that time. I lost reason on many occasions due to my drug use. Money was all that mattered to me. There were many fights during this time. Liana confronted me about my drug addiction, the other women I had relationships with and my abuse of her money. Eventually I think she got sick of fighting and stopped confronting me. I stood over Liana and controlled her. I was verbally abusive towards her on many occasions and was physically violent towards her several times. I could always get her to do what I wanted her to do. I knew that she would want to keep the peace and not disturb or upset the children. If I wanted her to do something I would hassle her until she did it. I never asked, I would just tell her what to do and stand over her. She was passive most of the time and did lots of things she didn't want to do because I pressured her.
There were times when I assaulted Liana. Although I cannot recall the dates that particular incidents occurred, I remember there were times when the police came to the house. I recall one occasion when I had been using cocaine and I threatened Liana with a broken bottle. I was hearing things at the time and I was very ill for 2 weeks due to cocaine psychosis. I lost touch with reality. The police came on that occasion and arrested me. I was charged with drug offences.
On another occasion Liana rang her sister to help her because I was being violent. The police attended and I convinced them to go away by saying that everything was ok.
I have had various bank accounts. I recall that I had a bank account at the Commonwealth Bank at Redfern. When I started working at Missionholme I was having my salary paid into this account. However, they closed my account because I kept cashing cheques which bounced. I desperately needed a bank account to have my salary paid into. Liana had an account at St George Bank. I knew it would be less trouble for me to become a party to her account than open my own. I did not tell her that I needed the account to have my salary paid into. I am sure that at this time she did not know what was happening. I think she just wanted to keep the peace and that is why she allowed me to be on her account.
I told Liana that I was doing periodic detention and community service at Missionholme. I did not want her to know that I was working, because I feared she would dob me in to the Department of Social Security. Also, I did not want to have to pay child support. However, there were tax benefits for me if I was married, so I told Missionholme that I was still married to Liana. At the time however, I did not consider that we were still married in the true sense.
During the time working there, I recall that some of the staff at Missionholme asked me about my wife. I explained that she was an artist. They mentioned that they might have some work for her at Missionholme and may contact her. As I worked night shift, I never saw her at work.
I cannot recall the exact circumstances of our separation in 1992 and reconciliation in 1993. I am aware that Liana and I notified the Department of Social Security in January 1993 that we had reconciled. In my mind however, there was not much change in our relationship during these years and I think there was a financial reason why I sought to reconcile with Liana. My attitude towards her did not change much during these years.
During this time I believe the police were looking for me. It suited me to use … Erskineville as my official address, but I actually considered my home to be my parents' house at … Maroubra. I spent most of my time at my parents' house. I also spent considerable time with a woman in Glebe. I was having a relationship with that woman. I also spent time at a house in Bondi Junction.
Throughout this period Liana and I were not living as a normal married couple. I had a relationship with our children, but I was not a partner to Liana. I kept some of my belongings at … (Erskineville), including a few boxes of things in a wardrobe, but I did not consider it to be my home.
Liana and I did not share our finances in the way that a normal married couple might be expected to. I stole money from her without her consent. She did not voluntarily give me her money or wish to share her money with me. Although we had a joint bank account, I usually took most of the money out of the account whenever it was available. I left her only small amounts of money for herself and the children. I was heavily addicted to drugs at the time and was reliant upon money to support my habit. I also stole items of value from the house and hocked them for drug money.
During this time we did not socialise like a husband and wife. Occasionally we went to the shops together, watched TV or did similar things with the children, but these occasions were rare. There were times when I felt bad and tried to make friends with Liana. I recall that on one such occasion I invited her to a Christmas function at Missionholme. That occasion occurred before she had worked there.
I was verbally abusive towards Liana if she opened any mail which came to the house with my name on it. As far as I am aware therefore, she did not open any mail which had both our names on it or which she thought I would want to open. During this time I cannot recall Liana seeing any bank statements.
I treated Liana very badly during this period of time and I would not have liked to have been in her shoes. She was forced to do what she could to survive financially and support the children.

In his oral evidence Mr Perry said that he stole $500 of the money Mrs Perry's sister loaned her. He said he withdrew money from their joint account until there was nothing left. At a stage when he had his wages deposited into his own Commonwealth Bank account he found he could deposit a cheque and then draw on it through an automatic teller machine before it was cleared. He said this was the way he obtained money he needed for drugs. Ultimately this strategy caused him to be "kicked out from the Commonwealth Bank…". He said he then used Mrs Perry's Westpac Bank account by finding out her PIN number and using her card after writing "rubber cheques". He understood that Mrs Perry is now responsible for repaying that money.
In cross-examination Mr Perry was asked whether he thought it risky to have his Missionholme wages paid into the joint bank account to which Mrs Perry had access in case she withdrew it for herself or the children. He said "Oh, I ran the show". When asked to clarify that, he said –
… because of Liana's fear of my actions and my behaviour at the time, I more or less could do what I wanted to, you know. I never considered, with regret now, at the time I didn't consider it any different. You know, I just thought, you know, there would be no problems. There were problems occasionally. Liana would jack up and that but you know I finally got my way anyhow.

He acknowledged that some of his money from that account went towards maintaining the children, and paying rent and electricity. He said "I didn't take all the money. Everything didn't go into my arm". He said that at the time Nickolas had "a lot of disabilities … and I had to make the effort too there to a certain extent…".

Mr Perry said he worked at Missionholme using the name of "Berrots". He had only limited identification in that name. Therefore it was easier to have a joint account with Mrs Perry than to open a new account when his access to the Commonwealth Bank was denied. In cross-examination Mr Perry denied suggesting to Missionholme that they might employ Liana when she attended the Christmas party with him in 1992. He said that there was no job available for her at that time.
At the end of Mr Perry's evidence in chief, his solicitor asked –
Q. Mr Perry, you are describing behaviour by you over this period of time which is very bad. Why have you chosen to come here today and provide that evidence?
A. Well I mean, you know, negative behaviour, you know, doesn't stay negative all the time. I mean it's been some time ago. I've realised the harm that has occurred to Liana and not only that she is now paying for a debt that wasn't her fault and I feel that's unfair. If anyone should be punished it's me. I went before a law of court, I was found guilty, I did periodic detention. Liana went before a law of court, she was found not guilty, then I noticed social security are a law unto themselves. They can override it which I think stinks so that's why I feel that I should do what I can to help bring the truth to the surface and maybe someone can see reason.
Mr Perry admitted having had a post office box at Alexandria, but did not recall or would not disclose the reasons for that.
Mr Perry said he made a statement to the Department dated 19 January 1993 to the effect that he and Mrs Perry were then living in a marriage-like relationship (N1997/1294, T10). He did this because he knew it was "quite easy" to obtain counter cheques from the Department "under special circumstances, such as marriage and children" and so he persuaded Mrs Perry to state that they were living together. He said that at times he needed money for drugs "before the cheques came". He said he received "quite a few" counter cheques, using excuses including "medication, food, non-payment of rent".
Mr Perry denied using the Erskineville house as his "base" during the years 1992 to 1995, but said it was "partially a base". He said he had some property there and his children were there, and for a time the property was rented in his name, but he also lived between the home of his parents and his girlfriend. He denied ever sleeping in the same bedroom as Mrs Perry during that time, and said he sometimes slept on the couch and sometimes in Nickolas's room. If he used Mrs Perry's bedroom he said she was not there. When asked whether he "never" slept in the same bedroom he said "I can't say never but no, the answer is no".

In relation to a question about the purchase of the "household computer", Mr Perry said he "bought it in a pub". He later said it was a laptop computer that he bought in a pub, and that there were also "about six broken down computers" bought second hand that were at the house. He then recalled that Mrs Perry bought a computer some years ago on her Grace Bros account. He said "I resold it" for $800, having advertised it in the Trading Post.
Mr Perry said that his relationship with his son was "very close", but that over the years his relationship with his daughter "has become a bit strained". He could recall taking Nickolas on outings very occasionally, but he could not recall a time when Mrs Perry also attended. He said that he never presented to the children's school that he and Mrs Perry were separated. He considered that divorce "is frowned upon" and he would avoid it if he could.
Mr Perry admitted to four relationships he had with other women, and their names were those indicated by Mrs Perry in her evidence. One relationship was in the early' 90s, one was "on and off" throughout the '90s, one was in 1994 and 1995, and one was "after '95 right up to about two years ago". He said in relation to the first relationship that it was not permanent but he stayed overnight and at weekends. However, he considered his parents' place was his permanent address. The first woman was "a regular sexual partner". The next relationship which lasted on and off throughout the '90s, he described as a "drug sexual relationship". He stayed with the last two for "substantial periods of time". However, he was always making an effort to see his children on a weekly basis and therefore sometimes he would stay at Erskineville. In relation to the woman he saw in 1994 and 1995, he said she left her partner and gave Mr Perry "12 months to finally move in on a full basis, not on a temporary basis". He said he told her he "found it very hard to let go because of my children and my son in particular". He said he contributed a bit towards the running of that household but not much, and he stayed there "for quite a bit of time". He said ultimately he was not prepared to start a new relationship as he feared that would cut his relationship with his son. He said his children were his only anchor in his life.
Mr Perry said that during the period of particular difficulty in their relationship an Apprehended Violence Order ("an AVO") would automatically have "done away my bail". He said he had been physically violent towards Mrs Perry on three occasions during a ten year period, but he noted that she too had been physically violent towards him. He considered that Mrs Perry would not have known how to go about seeking such an Order, nor was it part of their sub-culture.
Mr Perry admitted that at times he tried to be a better husband and father, but "it went up and down like a yoyo".
Mr Perry said that he suffered from hepatitis C, and during his last episode, about three years ago, he was admitted to hospital because his liver was grossly enlarged and he understood that he might have died then. Mrs Perry brought the children to see him in hospital at that time. He also said that Mrs Perry suffers from bad migraine headaches, and when she has them she cannot take care of the children. Their daughter contacted his parents on one such occasion and they found him. He "went there (to Erskineville) and did what I could". He said if Mrs Perry became ill he would be prepared to assist her.
Jean Ward
Ms Ward is a neighbour of Mrs Perry. She and her family moved there 14 or 15 years ago, a few weeks before the Perry family arrived. Initially the Perry's seemed like "a pretty okay family". However Ms Ward said that after a few years "I saw things as they really were". She observed that Mrs Perry seemed to be "very frightened" and wary "if he (Mr Perry) was around". Ms Ward said that Mrs Perry has only "second hand junk" in the house. She considered that Mr Perry was very "intimidating".
In her written statement (exhibit D) Ms Ward said, inter alia –
I recall the period 1992 to 1995 and can provide my impressions of the relationship between Liana and Edward during this time. From my observations I do not believe that Liana and Edward had a normal, supportive marriage during this time. Edward abused Liana financially, physically and emotionally during this time. I believe that Liana tried to make the relationship work for the sake of the children. On many occasions I told Liana that she should leave Edward. On one occasion I threatened to call the Department of Housing to have him evicted because I was concerned for the welfare of Liana and the children.
It was difficult to say whether Edward was living in the house …. during that time. He was always coming and going. I would often hear Liana and Edward fighting. I would hear her saying things such as, "you've taken my money again, you bastard". I would hear yelling and Liana saying "I haven't got it" or "It's our food money".
On many occasions I would hear the kids crying, screaming and begging. I recall asking Liana what was wrong with the children and she told me that they did not want Edward to have to leave.
As well as observing Edward's behaviour myself, Liana confided in me about Edward's abusive behaviour. She never indicated to me that Edward was working, or that she had suspicions he was working. I believe that she would have told me if she had known he was working. Therefore I believe that she did not know Edward was working. As Edward was coming and going all the time, there was no way of telling from his movements whether he was working a regular job or not.
In early 1993, there was an incident when the police attended … due to Edward's behaviour. … I understand that a female friend of Liana's was staying at the house and Edward became jealous of the friend. He knocked at my front door and was standing there, dripping wet, dressed in only a towel. He ran through my house and climbed over the fence into Liana's back yard. Although I cannot recall much about this incident, I believe Edward was under the influence of drugs at the time.
I recall another incident when I called the police because Edward was being physically violent towards Liana. … Liana came to my house and asked me to call a phone number of a woman in Glebe and ask for Edward to come home to help her take Natalie to the doctor. I rang the number and Edward went home. I heard him screaming and smashing things and I yelled over the back fence that I was going to call the police and there was going to be trouble. I believe Edward assaulted Liana on this occasion and I called the police. I cannot recall what the outcome of this incident was.
….
I never saw Edward playing with the children during this time. There is a large park across the road from our houses and I never saw him take them there. Although he occasionally bought things for the kids, I never saw him contribute to their care in a practical or financial way. Liana did everything for them and continues to be their primary caregiver. Liana did all the cooking and cleaning.
…
Liana has struggled financially for many years and continues to be in the position where she has to borrow from me. Liana regularly borrows items such as milk, cereal, bread, tobacco and other items from me, as well as small amounts of money. I never ask for these to be returned, as I know that Liana is in a very precarious financial situation and finds it difficult to survive on her income. … I have never seen Liana in new clothes and I do not think that she spends much money on herself. I believe the children place a huge financial burden on her. The children have their friends over at the house and Liana has to provide food and drinks for these children.
Ms Ward said that during the period 1992 to 1995 she had never known Mr and Mrs Perry to socialise together. Mrs Perry used to stay at home, and Mr Perry used to boast to Ms Ward "about these women". She also said that she found him to be very "intimidating" – "he intimidates everybody". Ms Ward said she was a qualified drug and alcohol counsellor, and had observed Mr Perry to be under the influence of drugs most of the time.
Ms Ward said she did not know whether Mrs Perry had taken her advice to leave Mr Perry. She said Mr Perry was not often home and "sometimes I wouldn't see him for weeks". She considered that he was not at home for long enough "to be a father or contribute". She said he would "pop in and take … whatever he wanted which was usually her money or whatever he needed for himself…". Ms Ward said her cheque book was delivered to the Perry's address in error. Mr Perry took the cheque book, forged her signature and drew cheques for $60,000. The police were involved in that incident.
When asked whether she considered Mr and Mrs Perry were living apart or whether she was merely involved in "a lousy marriage" Ms Ward said –
… a lousy husband at least provides and supports his family and is there with them, for them. This guy did none of that. So, no, I don't think… it was just… a lousy marriage, no. This woman was physically, emotionally abused, she was ditched all the time for other women, she was never ever provided for and all she had to do was try and hold her head up and look after those two kids to give a decent life and believe me she's done a damn good job.

Ms Ward said that Mr Perry did not "beat the kids up". Indeed, he used to buy gifts for them.

In relation to her knowledge about the family's employment, Ms Ward said –
… my belief is if I knew that somebody was ripping off the system I'd be the first one to dob them in, I'm very against that sort of thing. Now, if I had any inkling of what was going on or what was supposed to be – if it was happening next door I would have been the first one to ring and dob in, I've done it before to other people.

Ms Ward said that she did not know what work Mr Perry did. She said she saw him as "a no hoper" and she assumed that he did not work.

Ms Ward said that she had not seen any evidence of Mrs Perry suddenly having money available to her, and indeed Mrs Perry was often depending on Ms Ward and Ms Ward's daughter for assistance in providing food. She has not observed any improvement or deterioration in Mrs Perry's financial problems since Mr Perry left the household. Ms Ward could not recall precisely when Mr Perry left but she did recall a time when "there was a hell of a lot of goings on" and Mr Perry's parents came and his belongings were removed. However, despite this Mr Perry continued coming to the house "banging on the door and yelling and screaming from the street". She said she knew that Mr Perry had not moved his "gear" back to the house, but "he's always been over there … seeing the kids".
Kaye Maher
Ms Maher said she was a close friend of Mrs Perry, whom she met some 15 years ago through visiting her mother who lived close to Mrs Perry. In her written statement (exhibit E) Ms Maher said –
I observed the way Edward Perry ("Ted") treated Liana in the years prior to when he permanently left her house in 1995. He was abusive towards her. I tried to go to see Liana on every opportunity I could, because I knew she needed someone to talk to about Ted. However I did not like going there as he was often insulting and rude to me and I did not like the way he treated her….
Many times when I was at Liana's house I would hear him verbally abusing her and putting her down…
On many occasions I saw Liana had bruises. … eventually she would tell me the truth – that Ted had hit her….
I believe Liana was very scared of Ted. She did not question many of the things Ted did and I would challenge her about this. I can remember her telling me that she did not want any more trouble than what she already had. She knew that he was seeing other women and he openly boasted about that. When he was away from the house I believe Liana thought he was with other women. Liana never on any occasion told me that Ted was working or that she suspected he was working. I think she only suspected that he was with other women.
On many occasions I saw him visit the house only very briefly. He would walk into the house and grab Liana's purse, take her money and then leave. I used to say, "how come he does that?". Liana would say, "don't worry about it, he's gone now". I asked Liana why she didn't hide the money. She said that she had tried that before, but he had messed up the house trying to find the money. I never saw Ted ask her for money – he would just take it.
… I believe that the constant abuse had an effect on Liana's self esteem and psychological state. On a number of occasions she asked me questions like, "do you think there is something wrong with me?" and "do you think it is my fault that he goes off with other women?". She told me that he would blame her for his behaviour, saying that she drove him to seeing other women.
I believe there were many occasions when Liana did try to kick Ted out of the house. There were also times when Ted would deliberately pick a fight with her and then say he was leaving her. It was very difficult to say whether they were together or separated, as they did not have a normal relationship.
Liana had trouble trying to feed the children. On many occasions I bought her milk and other items. I lent her money on occasions. This assistance continues to the current day.
My impression of Ted during the years prior to when he finally left the house in 1995, was that Liana and the children were not an important part of his life. He saw them now and then, but the major focus of his life was elsewhere. When he did see Liana he was abusive towards her.
In her oral evidence Ms Maher said that she saw Mrs Perry four or five times a week during the period between 1992 and 1995, sometimes just briefly. She said she avoided visiting if she knew Mr Perry was at home because "I thought he was the worst person on earth". Ms Maher said she used to advise Mrs Perry to tell Mr Perry to leave the house but Mrs Perry said "I can't do that".
Ms Maher said that during the period 1992 to 1995 she did not think that Mr Perry slept in the house. She said that while there was evidence of his belongings hanging in the house, they remained in the same position for "a couple of weeks". She said she did not notice any change in the presence of his belongings in the house before and after 1995.
Ms Maher said that between 1992 and 1995 Mrs Perry often borrowed small amounts of money from her so that she could buy bread and milk. She said that Mrs Perry complained to her of having financial problems. Mrs Perry complained that she was "too frightened of him" to do anything about making him leave if he did not contribute financially.
When asked about her knowledge of the relationship at the time of their separation in 1995, Ms Maher said that Mrs Perry was aware that Mr Perry has relationships with a number of different women. She said –
Liana didn't like to say too much about it… She used to break down and have a bit of a cry on my shoulder just saying how she wanted things, how she'd like things to be and really I do think that maybe if he had pulled his socks up and never, you know, going out with these women and that, that the kids, … that's why he'd always come back to the house for the kids and I think for the kids they might have been able to make a go of it if he wasn't racing out and splurging money on these ladies… But … he never had money in his pocket or he always said he never had anything if she ever asked. She'd say leave me a couple of dollars … leave something before you go. What do you just come …. around here for and he says, "I come to see the kids", and she said, "Well, leave something for the kids", and he'd say, "I'll come around tomorrow"…

Ms Maher said she did not know that Mr Perry was working. However, she then said that she understood "at one stage he was supposed to be working", and thought it was part-time, but did not know the period of his employment or where he worked. She could not remember how she gained that information. In cross-examination Mrs Maher was asked whether she knew if Mrs Perry was working. She said –
No, not that I know of. I don't know. I think she had a job at one stage. Look, I don't know for certain. I think she had a job at one stage. I don't know and there's no good of asking me where or anything like that. When it comes to remembering things I can't even remember my kids birth dates, that's what my brain's like.

In relation to the source of her knowledge about Mrs Perry working she said "It's probably come up in a conversation". Her response then became quite obscure, and again she complained of a poor memory.

Mrs Maher understood that before Mr and Mrs Perry "split up" Mr Perry did not sleep there, but he visited during the day. She thought he might have stayed with his parents, "in between his girlfriends". She said she did not know when Mr and Mrs Perry "split up".
other evidence
Mrs Perry does not dispute that she was employed by the Department of School Education as a casual teacher's assistant from 3 April 1992 to December 1995. She used the name "Liana Osborne" for the purpose of receiving her income. She did not declare her income to the Department during that period. She was in receipt of sole parent pension from 21 May 1992 to 28 January 1993.
Mr Perry was employed as a nursing assistant at the Missionholme Nursing Home between 1992 and 1995 for more than 30 hours per week and therefore he ceased to qualify for payment of disability support pension. Hence, during the same periods Mrs Perry did not qualify for wife's pension. Mr Perry received his salary in the name of "Edward Berrots". His employment decreased to less than 30 hours per week from 17 November 1994 (N1997/1294, T56).
Mrs Perry opened a St George bank account in the name of Lee Ann Osborne on 4 June 1992. That account was converted to a joint bank account on 8 July 1992 in the name of Lee Ann Osborne and Edward Berrots, being an alias used by Mr Perry. Mr and Mrs Perry had their wages paid into that joint bank account.
Mrs Perry was employed from 18 January 1993 as an activities officer at the Missionholme Nursing Home. She was employed in the name of Lee Ann Osborne and her salary was paid into the St George joint bank account.
During the period from 17 November 1994 to 29 June 1995 Mrs Perry was paid wife's pension at a rate that did not take into account the combined earnings of herself and Mr Perry.
On 6 July 1995 Mrs Perry advised the Department that she separated from Mr Perry on 2 May 1995. Since that time she has been in receipt of sole parent pension.
relevant legislation
The Tribunal is required in the first instance to consider whether Mrs Perry, during the relevant period, was a member of a couple. Section 4 of the Social Security Act 1991 outlines the circumstances to be considered when determining whether a person is a member of a couple. Insofar as is relevant s4 provides –
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 or indefinite basis; or
(b)…
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) …., 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.
It was submitted for Mrs Perry that if the Tribunal found under s4(3) that she was in fact a member of a couple at the relevant time, then s24(1) should be applied. Section 24(1) of the Act provides –
Where:
(a)a person is legally married to another person; and
(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.
The consequence of Mrs Perry being a member of a couple would be that Mr Perry's income would be included in the calculation of their combined income for the purpose of identifying whether she was entitled to wife's pension. If that was the case then it must be ascertained whether she was entitled to the full rate of payment and whether, because of their combined income, she was entitled to all or any family payment she received for the period 6 January 1994 to 22 June 1994. The calculation of the amount of the debt was not at issue, save for the period between 21 May 1992 and 15 January 1993 when she was working while in receipt of sole parent's pension.
consideration of evidence, submissions and findings of fact
It was submitted for Mrs Perry that the credibility of Mrs and Mr Perry should not be degraded because of their past criminal records and false statements to the Department. Since the beginning of the debt recovery action Mrs Perry's evidence has been consistent across a number of issues. These include her lack of knowledge about Mr Perry's employment, the times when she and/or Mr Perry were working, her reasons for working at the school and her opening of the joint bank account. It was submitted that Mrs Perry pleaded guilty to one criminal charge of misrepresentation and she was acquitted of another charge relating to Mr Perry's employment. It was submitted that punishment through criminal conviction is sufficient to satisfy the public interest, and punishment is not an appropriate objective in these proceedings. It was submitted for the Department that debt recovery and reparation are not punishments and are additional. Mrs Perry's punishment was $51 in costs; she had a $1,000 recognisance and she was not gaoled or fined.
It was conceded for Mrs Perry that it was unlikely that disclosure would have effected her employment at the school, although it was a genuinely held fear on her part. It was submitted that she believed that her earnings at the school were below the level that would effect her entitlement. It was submitted that Mrs Perry made the false statements on her social security forms in the belief that she needed to protect her position at the school. Her employment at the school enabled her to be close to her children, and it gave her social acceptance and something worthwhile to do with her art skills.
It was submitted for the Department that neither Mrs Perry nor Mr Perry was a credible witness. They both have criminal records and they have both failed to advise the Department of their own and each other's employment. It was submitted that Mrs Perry consistently concealed her employment, her bank accounts, another name she used and the involvement of "Mr Berrots" in her St George Bank account. The Tribunal should be reluctant to accept that either Mr or Mrs Perry could corroborate the other's evidence. It was submitted that Mrs Perry could have disclosed information that she had withheld without jeopardising her job at the school. It was also submitted that most of her pays were in excess of the "free" area.
It was submitted for the Department that Mr Perry's non-disclosure of the commencement of his employment and of his income is a matter for which he pleaded guilty in Court, which was effectively a judicial confession. Liability for the debt was clear on the basis of Mr Perry's knowledge alone. For liability to be excused there would need to be evidence of Mrs Perry's lack of knowledge of her husband's employment. It was submitted that by the 1992 Christmas party Mrs Perry must have known of his employment, and it was the responsibility of both to disclose the employment. The Tribunal's decision about Mrs Perry's knowledge of Mr Perry's employment depended on her credibility and there was no objective evidence from an independent source.
It was submitted for Mrs Perry that the weight of the evidence pointed to her lack of knowledge about Mr Perry's employment at Missionholme. She has consistently contested this issue over the last four years. Indeed her evidence was that she would have "kicked him out of the house" had she known he was earning and not giving her money despite her financial struggle. It was submitted that Mr Perry did not want to share his earnings or pay child support and that these were the actions of a drug addicted, desperate and cunning person. Due to his irregular and inconsistent coming and going from the house it was reasonable that Mrs Perry did not know of his employment. His lifestyle did not indicate that he had regular work. She had learned not to question his actions or ask about his life. Moreover, as Mr Perry had already been convicted and gaoled for a similar offence she thought it very unlikely that he would do such a thing again. It was submitted that Mrs Perry was credible in her evidence that she had no reason to look at her bank statements. She withdrew what she could and did not need to read a bank statement to see that she had no money left. This was characteristic of someone of her lifestyle.
The Tribunal is not reasonably satisfied of the credibility and overall reliability of the evidence of Mr or Mrs Perry. The Tribunal finds that both Mr and Mrs Perry deliberately concealed their respective employment by not using their own names and by not disclosing the fact of their employment, their income from employment and the existence of some bank accounts that might have given evidence of that employment. This careful orchestration to conceal is inconsistent with the Applicant's evidence that she used the name of "Osborne" because she was concerned not to disclose to the school her history of criminal convictions for drug offences. Even if that was one of the reasons for using a different name, the Tribunal nonetheless is reasonably satisfied that it was also part of a system of deceit so as not to disclose her employment to the Department.
Although the Tribunal doubts the reliability of some of Mrs Perry's evidence, it is not necessary to discount all her evidence on that basis. The Tribunal finds that Mrs Perry was genuine in the concern she expressed for her children and their welfare, and she has made extraordinary efforts to be a responsible and caring parent. The Tribunal is also prepared to accept much of her evidence about the quality of her relationship with Mr Perry.
The Tribunal accepts the submissions for the Department that the recovery of a debt is separate from criminal action that has already occurred, arising out of the charges of misrepresentation. Whether or not Mrs Perry genuinely believed that her "guilty" plea in respect of the charge relating to her own employment would put an end to the recovery of the debt, that is certainly not the reality. The Department has a right to recover an overpayment in certain circumstances. As will be outlined later in these reasons, there are various sections of the Act that provide for recovery, waiver or writing off the debt; recovery is not designed to be a punishment.
The Tribunal is not reasonably satisfied that Mrs Perry believed that her income, when averaged over a twelve month period, would not be in excess of the amount she could earn annually. Even if she did believe so, she had a responsibility to inform the Department that she was employed and that her weekly income had exceeded a specified amount. The Tribunal accepts the Respondent's submission that most of Mrs Perry's pays were in excess of the "free" area. As a result of her withholding this information an overpayment has occurred.
It was conceded for the Department that Mr Perry was not living in the house from 18 May 1992 to 17 January 1993 and Mrs Perry was entitled to receive supporting parent's pension during that period, subject to her earnings. It was submitted that the calculation of overpayment in relation to Mrs Perry's employment was correct, and that when one is employed only for a restricted period, as was Mrs Perry at Missionholme, the amount of earnings is nonetheless spread over the whole year. It was submitted for Mrs Perry that the calculation had not been made in accordance with the process outlined by the High Court in Harris v Director-General of Social Security (1985) 7 ALD 277, and if the proper process had been applied there would be no overpayment.
The Tribunal is concerned that there was insufficient evidence provided in order to check the calculations. Therefore, the Tribunal will remit the matter to the Respondent with the direction that the part of the overpayment relating to Mrs Perry's employment be recalculated in accordance with the principles set down by the High Court in Harris.
Mr Perry has already pleaded guilty in criminal proceedings in respect of misrepresentation to the Department regarding his employment. His failure to disclose that information caused an overpayment of wife's pension to Mrs Perry. The Tribunal accepts the submission for the Department that Mr Perry's failure to disclose his employment is sufficient to cause the debt to be raised in respect of wife's pension, as it was the responsibility of both Mr and Mrs Perry to disclose Mr Perry's earnings. The real issue for Mrs Perry in these proceedings is whether she had knowledge of Mr Perry's employment.
Mrs Perry's knowledge of Mr Perry's employment
The Tribunal has considered the evidence on this issue carefully. The Social Security Appeals Tribunal (T2, p7) noted that –
The Director of Public Prosecutions was unable to prove the elements of the offence in the presence of cogent evidence of her lack of knowledge of her husband's employment, the evidence falling "far short" of establishing the knowledge of that employment.

In those proceedings the standard of proof was beyond reasonable doubt. In the matter now before the Tribunal, I must be satisfied on the balance of probabilities that Mrs Perry had the necessary knowledge; that is, the standard of proof is now considerably lower. Although it is conceivable that Mrs Perry thought Mr Perry's association with Missionholme was because of "community service" associated with his criminal conviction, that evidence must be balanced with other evidence before the Tribunal and with the Tribunal's concern about Mrs Perry's credibility.

For most of the period of Mr Perry's employment his wages were being paid into the joint bank account in the names of "Osborne" and "Berrots". While it is possible that he withdrew the money immediately so that Mrs Perry did not have access to it, it is unlikely that she would have remained unaware of the money being paid into the joint bank account for some three years. Although Mr Perry could well have attempted to conceal the bank statements from Mrs Perry, the Tribunal is not reasonably satisfied that he could have sustained that deception for such a long period. Mr Perry had already been convicted some time previously of receiving social security payments to which he was not entitled while he was working. However, given his apparent disregard of lawful behaviour the Tribunal is not reasonably satisfied that his previous conviction was sufficient to convince Mrs Perry that he would not offend in this way again.
The Tribunal gives considerable weight to the fact that during the period 1992 to 1995 Mrs Perry was experiencing significant financial problems. In addition she was distressed that Mr Perry persisted in taking money from her when already she did not have sufficient for food and was unable to pay rent and telephone bills. She was frightened of Mr Perry and found him intimidating. The Tribunal finds that these circumstances added to her unpreparedness to disclose to the Department that he was working, as that would increase her vulnerability and her financial problems. Her evidence was that if she knew he was working while she was struggling to survive financially she would have "kicked him out". However Mrs Perry absorbed a huge amount of physical, emotional and financial abuse from Mr Perry before she finally insisted on their separation. In those circumstances her knowledge of his working and failing to support her financially was merely one of a litany of abuses that she tolerated at the time. The Tribunal finds that for some time she knew of his employment and his associated failure to made adequate financial contributions to the household.
The Tribunal notes the evidence of Ms Ward that if she knew of Mr or Mrs Perry working she would have "dobbed them in". If the Tribunal was to accept that evidence, then I am merely left with the conclusion that her knowledge was defective. On her evidence, Ms Ward had made assumptions that Mr Perry would not have been working because he was a "no hoper". In those circumstances it would have been quite feasible for Mrs Perry to conceal from Ms Ward the fact that Mr Perry was working. Indeed, that may well have been necessary to maintain Ms Ward's preparedness to provide financial assistance when Mrs Perry was desperate.
Ms Maher's evidence about her lack of knowledge about Mr or Mrs Perry working was less convincing that that of Ms Ward. Ultimately, Ms Maher was unable to recall when or how she first became aware of Mr Perry working, or, for that matter, of Mrs Perry's employment. Both Ms Ward and Ms Maher have obviously been compassionate and concerned for the welfare of Mrs Perry. The Tribunal finds that this could have affected the evidence they gave.
While there is a possibility that Mrs Perry did not know of Mr Perry's employment at Missionholme throughout the period at issue, it is more probable than not that she had that knowledge and did not disclose it to the Department. Having considered the evidence, the Tribunal finds that both Mr and Mrs Perry deliberately withheld the disclosure of information to the Department about their respective employment and each other's employment.
Relationship between Mr and Mrs Perry

It was submitted for Mrs Perry that the threat of physical violence would always have been in the relationship. The Tribunal's attention was drawn to the demeanour of Mr Perry under cross-examination, as an example of his intimidating attitude. Mrs Perry did not seek an Apprehended Violence Order ("an AVO") because she did not feel safe approaching the police or taking any other course of action. It was also reasonable to conclude that an AVO would not have restrained Mr Perry. It was submitted that financial abuse was also occurring in the relationship. Mr Perry stole from her on a regular basis, leaving little money for her to support the family. He rarely contributed to the financial support of the family and he had no qualms about leaving her with severe financial burdens. It was submitted that Mrs Perry purchased a new computer because of pressure from Mr Perry. Subsequently she sold the new computer, incurring a debt.
It was submitted that there were no major joint assets or liabilities. There were a number of debts that Mr Perry left for Mrs Perry to take responsibility that could not be considered to be joint financial ventures. The joint bank account was to Mr Perry's advantage and occurred as a result of his bullying. As evidenced from the St George Bank statements, large withdrawals were made from locations acknowledged by Mr Perry. This shows that he was not a resident in the marital home and he was consistently making large withdrawals. It was submitted that Mr Perry's statement that "I got my way!" indicated that he had no fear of losing money to Mrs Perry by having a joint bank account with her. It was submitted for Mrs Perry that day to day financial concerns were not shared in an equitable way.
It was submitted that Mrs Perry's evidence showed she was responsible for the day to day care of the children, and for washing and cooking. It was conceded that there was some sharing of child care, particularly Nickolas's education. However the fact that Mr and Mrs Perry, as biological parents, continued to have a role in the lives of their children is not indicative of a continuing marriage relationship: Re Secretary, Department of Social Security and "SRJ" (AAT 10970, 29 May 1996).
It was submitted for Mrs Perry that the living arrangements reflected that Mr Perry did not consider her house to be his home. He spent long periods away from home and various witnesses did not consider that he lived there full time. There was no consistent socialising between the parties. These were two people who did not enjoy each other's company. Neither could recall a sexual relationship for a number of years. It was submitted that their inability to recall was consistent with it having been a long time ago. Mr Perry had an exclusive sexual relationship with one woman in 1994-5 that he considered almost became a permanent relationship. At other times he had relationships with two other women during the relevant period. It was submitted that the loss of exclusivity of a sexual relationship with Mrs Perry was an indication of a breakdown in their relationship. It was submitted that he had "affairs" with other women despite expressing traditional views on marriage and stating that he does not believe in divorce.
It was submitted that the household duties which Mrs Perry continued to perform for Mr Perry should be viewed as her effort to maintain the peace rather than an indication of commitment, respect or love, and it was consistent with other conflict-minimising behaviour during that period. It was submitted that incidents where one of the parties was ill and was assisted by the other were one-off occasions that were within the bounds of a relationship of a once-married couple.
It was submitted for Mrs Perry that Mr Perry no longer wanted to have a relationship with her. Mr Perry stated that his children were his anchor but he could exist without a relationship with Mrs Perry and this was consistent with the evidence of other witnesses. Mr Perry's attempts to continue to control her behaviour and in particular, to restrict her entering into a new relationship, was illustrative of his attempts to control her, as evidenced by Ms Ward. It was submitted that a violent abusive relationship could not be seen as a marriage relationship. The marriage between Mr and Mrs Perry had none of the hallmarks of marriage. There was no emotional support and no commitment, and they did not voluntarily spend time together. Instead there was control, intimidation and abuse.
It was submitted that welfare laws could not condone physical and psychological abuse of women in domestic violence relationships. The situation of Mrs Perry was the antithesis of a committed relationship and she had few alternatives to leaving the marriage. It was submitted for Mrs Perry that consideration of the indicia in s4(3) of the Act should be addressed so as to provide an holistic understanding of the relationship.
It was submitted for the Department that the first indicia of Mr and Mrs Perry being a member of a couple was the existence of a joint bank account. Additionally, Mr Perry contributed to the welfare of the children to some extent. He had a significant role with his son, including involvement in his son's computing studies, attending parent/teacher interviews and interacting with parents of other class members. It was submitted there was evidence of a sense of caring that Mrs Perry exhibited towards Mr Perry insofar as she prepared his meals and washed his clothes. He assisted her when she suffered from migraine headaches and she took their children to see him when he was in hospital. It was submitted for the Department that it was "very curious" that neither Mr nor Mrs Perry could remember when they last had sexual intercourse. It was conceded that both parties were consistent in their evidence that Mr Perry had sexual relationships with other women during the period when Mrs Perry alleges she was not a member of a couple.
It was submitted for the Department that both Mr and Mrs Perry had negative feelings about the other party having extramarital relationships and that neither party was indifferent to the other now. It was submitted that any argument as to Mr Perry not wanting to pay child support during the relevant period was irrelevant. As far as his social security affairs were concerned he was still living with his wife.
It was submitted for the Department that on 19 June 1993 both Mr and Mrs Perry stated in writing that they had resumed a marriage-like relationship. Her evidence that this was done so that Mr Perry could obtain counter cheques was contradicted by Mrs Perry continuing this state of affairs for the next 2½ years.
The Tribunal has considered the indicia in s4(3) of the Act, the evidence, and the submissions of the parties. In this case the Tribunal must determine whether the relationship between Mr and Mrs Perry during the relevant period was an abusive and pathological marriage relationship or whether it did not meet the indicia in s4(3).
The Tribunal finds that throughout the period under review Mrs Perry hoped to be able to improve and even resolve their differences. Her evidence was that for the sake of their children, she did not want to separate. Moreover, on the evidence of Ms Ward and Ms Maher, Mrs Perry received advice from them that she should leave Mr Perry, but for a long time she resisted that. Indeed, at times she was quite upset about Mr Perry's behaviour and she shared with Ms Maher "how she'd like things to be". Ms Maher understood from Mrs Perry that "if he had pulled his socks up … they might have been able to make a go of it".
Taking into consideration the totality of the evidence the Tribunal finds that during the period under review Mrs Perry continued to stay in the abusive relationship because she still had a commitment to the marriage and lived in hope of an improvement. The Tribunal does not accept that Mrs Perry stayed in the relationship merely because she was afraid to leave Mr Perry. Indeed when ultimately she decided to separate she caused Mr Perry to vacate despite him not wanting to acknowledge the relationship was over. He has come to a greater level of acceptance of that more recently. The Tribunal finds that Mrs Perry had the capacity to achieve the separation when she had finally decided that there was no future in the relationship. Until that time Mr Perry remained in the house and they both continued to have an emotional commitment to the marriage notwithstanding the grossly dysfunctional state of the relationship.
In considering the evidence of Mr and Mrs Perry and Ms Ward and Ms Maher, the Tribunal notes that each of them had a clear knowledge of the issues that had to be proved in these proceedings and finds that in subtle ways their evidence was tailored towards that goal. The Tribunal finds that Mr Perry continued to live at the house despite being away for days at a time, and it was not until 1995 when his parents arrived to assist in the removal of his belongings that he ceased living there. This is not negated by Mr Perry's evidence, even if the Tribunal was to accept it, that during the time he had a relationship with one woman he spent a considerable amount of time at her house and contributed financially to that household although he did not pay any rent.
The Tribunal finds that Mr Perry's financial abuse of Mrs Perry was entirely unreasonable, but notes that her response when he attempted to take money from her purse was to ask him to leave some because she needed to buy food for the children. At least at some times there was tacet acceptance of his behaviour insofar as Mrs Perry knew it was occurring and she did not take measures to stop it. At other times it led to arguments between them, some of which were overheard by Ms Ward. Indeed, it is likely that the only effective measure she could have taken to stop it was to terminate the relationship and insist that he moved out, and ultimately that is what she did. In the time leading up to their separation Mrs Perry allowed Mr Perry to bully and control her. There is no doubt that his behaviour was intimidating, but his intimidation was not such that prevented Mrs Perry ultimately from taking constructive action to achieve the separation. At all relevant times she had knowledge of her entitlement to sole parents pension if they separated.
The Tribunal accepts that it would not have been easy for Mrs Perry to take the necessary steps to separate from Mr Perry, but she demonstrated that ultimately she was able to do so. While the evidence as to the details of their separation is sparse, there is no indication that she received any outside assistance at that time, except from Mr Perry's parents who helped remove his belongings. The Tribunal is reasonably satisfied that the separation occurred when it did because only then was Mrs Perry ready to make that decision, that ultimately was hers alone to make.
Having taken an holistic approach to consideration of the evidence as it applies to the indicia in s4(3) of the Act, the Tribunal is reasonably satisfied that at all relevant times Mrs Perry was a member of a couple.
Should s24 of the Act be applied in Mrs Perry's favour?
It was submitted for Mrs Perry that, relying on a decision of the Tribunal Re "SRL" and Secretary, Department of Social Security (AAT 12875, 11 May 1998), if she was found to be a member of a couple then she should have the benefit of s24(1) of the Act not to be treated as a member of a couple. It was submitted that the term special reason in s24 should be interpreted the same way as the term special circumstances in s1237AAD. The Full Federal Court in Beadle v The Director General of Social Security (1985) 7 ALD 670 is the leading case on the issue of "special circumstances". In that case it was held that the circumstances do not have to be unique but they have to have the quality of unusualness that could be described as special. It was also submitted that having a violent, abusive husband and not having control in the relationship should be seen as a special circumstance both under s24 and s1237AAD.
In "SRL" (supra) the Tribunal decided to exercise its discretion under s24(1) to treat the Applicant as not being a member of a couple. The Tribunal said –
To not do so, would, in the Tribunal's opinion, impair the welfare of the Applicant and lead to an unjust outcome, as it was Mr D, and not the Applicant who was responsible for the fraud which led to the Applicant's overpayment. Exercise of the s24(1) discretion, so that the Applicant is not treated as a member of a couple for the purposes of the 1991 Act, means that the Applicant was not qualified for wife pension during the period in question and therefore received an overpayment which, according to s1223(1) of the 1991 Act, is a debt due to the Commonwealth.
Thus, the second issue is whether the debt should be recovered. … The Tribunal considered the application of s1237AAD to the Applicant's case. First, with regard to paragraph (a), the debt arose because of the Tribunal's decision to exercise the discretion under s24(1) to treat the Applicant as not being a member of a couple, and not because of a false statement or representation, or failure or omission to comply with a provision of the 1947 Act. Secondly, with regard to para (b), the Tribunal has already referred to the unusual or extraordinary character of the circumstances of the Applicant's relationship with Mr D.

The Tribunal ultimately determined in that matter that there were special circumstances which made it desirable to waive recovery of the debt and that it was more appropriate to waive than to write off the debt.

Mrs Perry sought to rely on Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531. The Federal Court held that s24 required the decision maker to focus on one person, not the couple, and to assess whether, for a special reason, that person should not be treated as a member of a couple. Mrs Perry also sought to rely on Re Secretary, Department of Social Security and Khaleda Begum (AAT 12798, 15 April 1998). On the basis of that decision it was submitted that both the degree of control and the choice available to Mrs Perry were relevant considerations in deciding whether the discretion in s24 should be applied. The situation in the current matter was likened to Re "SRL" (supra). Both involved domestic violence. In Re Begum the Tribunal held that not to exercise discretion would impair the welfare of the wife and lead to an unjust outcome because it was the husband and not the wife who was responsible for the fraud that led to the overpayment.
Mrs Perry sought to rely on the decision of the Federal Court in Groth v Secretary, Department of Social Security (1995) 40 ALD 541, that concluded, at 545, that in determining that something unfair, unintended or unjust had occurred, it must be some feature out of the ordinary. Mrs Perry also sought to rely on the Tribunal's decision Re Reid and Directory General of Social Services (1981) 4 ALN 1. On the basis of the principles elucidated in that case, it was submitted that a decision maker must respond to the particular circumstances of the case if application of the general rule would be unjust, unreasonable or otherwise inappropriate.
It was submitted for the Department that Parliament has already made provisions for married couples who live separately and apart. It followed that persons who could not qualify under those provisions should not be able to qualify under s24 of the Act. It was submitted that s24 is for use in those cases where a couple is prevented from enjoying the pooling of resources and expenses within a marriage, for example as a result of illness or one person being overseas. Thus it should act prospectively, not retrospectively by taking account of alleged circumstances that could have been notified by the parties at the time. It was submitted that the approach outlined by the Tribunal Re "SRL" (supra) was not an appropriate exercise of s24 discretion. In that matter it was only as a result of exercising discretion under s24 of the Act that the debt could be waived. It was submitted that "SRL" was distinguished by the Tribunal Re Secretary, Department of Family and Community Services and Cheryl White [1999] AATA 534. The Tribunal notes that it was distinguished on the facts.
The Tribunal notes that the decision Re Reid and Director-General of Social Services (1981) 4 ALN 1 has considered the nature and scope of the discretion conferred by s29(2)(b) of the Social Services Act 1947, which was similar in terms and context to s24(1) of the Act. In that decision it was stated (at N2) –
The requirement that there must be a "special reason" to justify making an exception from the general rule regarding computation of income laid down by s29(2) connotes in our view that there must be some factor or factors in the circumstances of the particular case which take it outside the common run of cases … As we said in Re Ivovic and Director-General of Social Services (1981) 3 ALN 61 in relation to a similar discretion under s115(4A) of the Act, we consider that in exercising the discretion under s29(2) of the Act
"the decision-maker must have regard to whether, by exercising the discretion in a particular case, he will be achieving or frustrating ends or objects which are conformable with the scope and purpose of the social Services Act 1947… Thus while keeping the general rule laid down by s29(2) in mind, the decision-maker must nevertheless be prepared to respond to the circumstances of a particular case if for any special reason the application of the general rule would be unjust, unreasonable or otherwise inappropriate having regard to the scope and object of the Act".
In the decision of the Federal Court in Secretary, Department of Social Security v Le-Huray (1996) 138 ALR 533, Jenkinson J (at 542), in considering the circumstances capable of constituting a "special reason" held that –
the "scope and purpose" of s24(2) is to enable the welfare of dependent children by family payment subvention to be advanced in circumstances where the application of s1069-H2 would not advance, but would impair their welfare.

In that matter there was minimal intermingling of the financial resources between Ms Le-Huray and her partner who provided little if anything in support of Ms Le-Huray's children.

The Tribunal Re Secretary, Department of Social Security and Porter (1997) 48 ALD 343 considered the application of s24(1) in relation to "an illness separated couple". While the circumstances in that matter were quite different from those in the present case, there are some helpful and general observations made by Senior Member Hotop, as he then was, that bear consideration here, (at 351) viz.-
Section 24(1) of the Act … confers a discretionary power … which is exercisable by this tribunal on review – in effect to waive the application of the abovementioned general rule in a particular case if satisfied that, for a "special reason" in that case, such waiver would be appropriate. That discretionary power must, however, be exercised for the purpose for which it was conferred and having regard to the scope and object of the Act as a whole. The Act is welfare legislation whose general object is to make provision, by way of social security payments, for those who are in genuine need thereof. The purpose of s24(1) of the Act is to preclude the application of the abovementioned general rule in a particular case if, for a "special reason" in that case, such application would not promote, but would instead impair, the welfare of the relevant "member of a couple" in receipt of social security and, therefore, would not accord with the general object of the Act: see Le-Huray… at ALR 542.

While in Porter (supra) and in Le-Huray (supra) the issue related to family payment, the rule to include the income of both partners in the calculation of the appropriate payment and whether the Tribunal should use the discretionary power in s24(1) to waive the application of that rule, in essence, is the same. The Tribunal must decide whether to use its discretionary power in s24(1) to exclude Mr Perry's income at Missionholme from the consideration of whether Mrs Perry was entitled to the payment of wife's pension, or alternatively sole parents pension. The Tribunal rejects the submissions for the Department that s24(1) was not designed to be used in cases such as Re "SRL" and that it has a prospective rather than a retrospective application.

The Tribunal has already found, on the balance of probabilities, during the period 1993 to 1995, Mrs Perry had knowledge of Mr Perry's employment at Missionholme and therefore she had a responsibility to advise the Department of that fact. The Tribunal understands the difficulty that Mrs Perry probably had in divulging that information. However, this matter can be distinguished from Re "SRL" in that Mrs Perry had knowledge of her entitlement to sole parents pension and she demonstrated that she was able to achieve a separation from Mr Perry of her own volution without external assistance, once she was emotionally ready to do so. Although the circumstances in this case reflect severe personal, physical and financial abuse by Mr Perry, Mrs Perry was not prevented by some external force from separating from him and thus changing the implications of his employment on her entitlement to wife's pension or some other payment. Having taken into account the statute, the case law and Tribunal decisions regarding the discretionary power in s24(1) the Tribunal is not reasonably satisfied that a "special reason" exists in this case for the exercise of its discretion under s24(1) of the Act.
On this basis the Tribunal affirms that there is a debt owed by Mrs Perry to the Commonwealth in respect of the overpayments outlined in paragraph 3 of these reasons. That debt arose as a result of a false statement or representation, or failure or omission to comply with a provision of the Act. The issue now is whether that debt, or any part of it, should be written off or waived.
Whether the debt should be written off
The total amount of the debt is calculated by the Department to be $16,460.90. The SSAT determined that so much of the debt that relates to Mr Perry's employment at Missionholme be written off.
The relevant sections of the Act that provide for the recovery of a debt are set out hereunder:
1236(1)       Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(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)the debtor is not receiving a social security payment under this Act and 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)the debt cannot be recovered by means of deductions from a person's youth training allowance, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or
(b)there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c)the debtor is discharged from bankruptcy and the debt was incurred before the discharge 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.
(1C)     For the purposes of paragraph (1A)(b), if a debt is recoverable by means of deductions from a person's social security payment, the person is taken to have a capacity to repay the debt unless recovery by those means would cause the person severe financial hardship.
1236A (1)Sections 1237, 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC and 1237AAD apply to:
(a)debts arising on or after 1 January 1996; and
(b)the amounts of debts arising before 1 January 1996 that were outstanding at the start of that day.
1237AADThe 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 false representation; or
(ii)failing or omitting to comply with a provision of this 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.
In relation to Mrs Perry's current financial circumstances, Mrs Perry provided a statement as at 30 June 2000 about her financial circumstances (exhibit B) and she clarified some aspects of that statement in her oral evidence. Her weekly income was as follows –
Family payment  $153.60
Parenting payment  $188.70
Child support payment from Mr Perry $    5.40
Disability allowance for Nickolas       $ 38.20
Total  $385.90

Mrs Perry's weekly expenses were calculated as follows –

Rent (deducted from pension)  $ 58.95
Food and household supplies  $100.00
Pharmaceutical  $ 27.50
Methodone program  $ 30.00
Electricity  $ 25.00
Telephone (including internet)  $ 35.00
Repayments to Telstra for outstanding debt of $333.95       $10.00
Education exps. Incl. School fees, uniforms, books etc.       $ 35.50
Clothing and haircuts  $ 25.00
Entertainment, incl. Cable TV  $ 35.00
Transport  $ 5.00
          Total  $386.95

Existing liabilities for which Mrs Perry is responsible include –

Grace Bros. debt ( including interest payable on
Arrears)   $4,189.79
Westpac debt  $ 621.34
Debt to sister  $1,000.00
Telstra  $ 333.95
Optometrist  $ 100.00

The Tribunal notes that in addition to the abovementioned expenditure Mrs Perry has had an average of $14.85 per week withheld by the Department for debt recovery. That would place her income at some $15 per week less than her regular expenses, with no scope for repayment of debts to Grace Bros, Westpac or the optometrist. The Grace Bros. debt appears to be attracting a high interest component.

In considering the issue of debt recovery the Department acknowledged the case of Minister of State and Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 and accepted that the interests of the children do have to be noted. However it was submitted that they are not overwhelming interests and they need not push other considerations out of the way. They must be balanced against the public interest in recovering payments made by the Commonwealth to which a person is not entitled. It was submitted for the Department that Mrs Perry's need for surgery to her hand was not a serious medical condition. In relation to the son's disability, it was noted for the Department that child support allowance is being paid.
It was submitted for the Department that waiver was not appropriate in a case like this because the debts arose because of the failure of Mr and Mrs Perry to notify their commencement of employment and their income.
It was conceded that if the debt was not waived the Department was prepared to set a low rate so as to reduce Mrs Perry's financial hardship. The rate could be variable over time to take account of any change in her circumstances. It was submitted, however, that her current budget was excessive; cable TV was unnecessary and the telephone bills were too high. It was submitted that Mrs Perry's methadone treatment was stable and of a low dosage. There was no evidence that she was liable to relapse or that her family might break down. In terms of her future employment, it was submitted that under new legislation Mrs Perry's criminal record does not need to be disclosed to potential employers after ten years following her last conviction. In any event the argument that a person who had acted fraudulently and obtained a criminal conviction was not going to gain employment and thus should not owe a debt, was flawed.
It was submitted that given the ages of Mrs Perry's children there was not much caring left for her to do. Her disabled son was coping with his course in the performing arts and his interest in computers may assist him in gaining employment in computer assisted design and animation. It is unlikely that he will need financial support although he may continue to need other sorts of support.
It was submitted for the Department that the 1997 SSAT decision under review should be set aside and the 1999 decision under review should be affirmed. Both decisions should be remitted to the Department for recovery from Mrs Perry's continuing social security payments.
In relation to the write-off provisions in s1236(1A), the Tribunal finds that the debt is recoverable at law, Mrs Perry's whereabouts are known and she is receiving a social security payment under the Act. The only issue open is whether she has a capacity to repay the debt. The Tribunal notes that pursuant to s1236(3) there is nothing to prevent a debt that is written off from being recovered at a later time. The Tribunal notes that the SSAT has determined that the part of the debt owing by Mrs Perry relating to the employment of Mr Perry at Missionholme be written off. Pursuant to s1237AAD, the debt may be waived under certain circumstances, one of which is if it is determined to be more appropriate to waive than to write off the debt or part of the debt.
It was submitted for the Department that a standard ordinary waiver under s1237AAD was not possible unless it was decided, pursuant to s24 of the Act, that Mrs Perry should not be treated as a member of a couple. It was submitted for the Department that, whether she was guilty or innocent, Mrs Perry was caught by Mr Perry's obvious failure to notify.
It was submitted for Mrs Perry that waiver conditions under s1237AAD of the Act could apply to Mrs Perry because it was Mr Perry who was misrepresenting. Notwithstanding that Mrs Perry had misrepresented in a number of areas, the debt was a direct result of Mr Perry's misrepresentation.
It was submitted for Mrs Perry that she did not benefit from Mr Perry's employment. She did not know of it at the time. She is currently experiencing financial hardship and does not have the benefit of a good financial support network. It was submitted that as Mrs Perry is on a methadone program she has had a serious drug addiction, and that this was both a factor in her future health needs and her future employability. It was also submitted that her criminal conviction in 1997 would hold her back when seeking employment. It was conceded that the arthritic condition in her left hand was a limited liability as she was right handed.
It was submitted for Mrs Perry that her son has considerable disabilities and may have less employment opportunities and therefore his dependence on her may be for a considerably longer period than for other children. It was conceded however that he might be eligible for disability support pension at the age of 16 years. It was also submitted that both children have been subjected to considerable stress because of financial hardship and witnessing their father's violence. Further stress would be their father's gaoling and his current life threatening illness. The financial burden of the debt and the current legal problems are stressful.
On the findings of the Tribunal, Mrs Perry had knowledge of Mr Perry's employment. Therefore she had responsibility to disclose that to the Department and she failed to do so. The Tribunal has found that both Mr and Mrs Perry have made false statements and failed to comply with the requirement to advise the Department of their employment and their income, and therefore waiver under s1237AAD is not open.
Pursuant to s1236(1C) of the Act, a person is taken to have a capacity to repay the debt unless recovery would cause "severe financial hardship". There is no doubt that Mrs Perry is experiencing financial hardship, but the test is "severe financial hardship". Having considered the evidence regarding her financial position, the Tribunal accepts the submissions for the Department that some of Mrs Perry's expenditure is avoidable. If her telephone and cable TV expenses were removed, then the Tribunal finds that recovery would not cause "severe financial hardship" on a week by week basis, if the level of recovery were set very low. Currently that level is approximately $15 per week.
The Tribunal also notes that Mrs Perry's children are now of an age where she could obtain part-time employment to supplement her social security income without reducing the rate of her payments. In addition to using her artistic talents, that served her well in her employment at the school, she would be able to undertake unskilled work. The Tribunal finds that if Mrs Perry was so motivated she is likely to be able to obtain suitable part-time employment to supplement her income. The Tribunal notes that Mrs Perry has two large debts amounting to some $4,800, to Grace Bros. and Westpac. It would appear that no repayments have been made against those debts since 1998, and at least the Grace Bros. debt is attracting a high interest component. It is obvious that Mrs Perry is unable to repay those debts on her current income, whether or not she is repaying her debt to the Commonwealth regarding the overpayment. Ultimately it may be feasible for her to repay them if she undertook some employment. In any event, however, the Tribunal considers that those debts should not be allowed to take precedence over a debt to the Commonwealth. Moreover, although those debts are Mrs Perry's legal liability, on the evidence they have arisen through actions of Mr Perry. There was no suggestion that Mr Perry intended to repay the debts, or even to assist in so doing. That, of course, is a matter between Mr and Mrs Perry.
The Tribunal finds that recovery of the debt would not cause Mrs Perry or her children to be in "severe financial hardship". As she has a capacity to repay the debt write off is not appropriate, and therefore Mrs Perry's circumstances do not comply with s1236(1A)(b) of the Act.
It was submitted for Mrs Perry that if the Tribunal did not find it appropriate to apply s24(1) then the Tribunal should set a ceiling rate of withholdings as was ordered by the Tribunal Re McMahon and Secretary, Department of Social Security (AAT 12250, 30 September 1997).
The Tribunal notes the submission for Mrs Perry that an appropriate ceiling rate of withholdings could not be more than the current rate of $14 and $15 on each alternative week. The Tribunal also notes the submission for the Department that it was preferable that the Tribunal remit the matter to the Department to set a rate of recovery that her circumstances from time to time permit. It was submitted that this was preferable to the Tribunal determining the rate of repayment that may become inappropriate at some future time. The Tribunal considers that it is in Mrs Perry's interests to have the rate of recovery set and monitored from time to time by the Department rather than determined by the Tribunal. It is always open to Mrs Perry to appeal against the rate set. It would appear at the present time the existing recovery rate is minimal and achievable. Formally, therefore the matter will be remitted to the Department to determine the rate of recovery of the debt from time to time.

I certify that the 130 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed:         .....................................................................................
  Associate
Dates of Hearing  5 and 6 July 2000
Date of Decision                  9 April 2001
Representative for the Department of     Mr Kenny, Centrelink
Family and Community Services
Solicitor for Mrs Perry  Ms Neil, Redfern Legal Centre

[2001] AATA 282

9 April 2001

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Social Security Act 1991

Implied Terms

Unconscionable Conduct

Abuse of Process

Waiver of Debt