RANY MAO and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 818
•23 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 818
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3591
GENERAL ADMINISTRATIVE DIVISION ) Re RANY MAO Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr R G Kenny, Senior Member Date23 October 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd].............................
Senior Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements – parenting payment – applicant not married at relevant time – applicant living in a marriage-like relationship at the relevant time – partnered rate of payment appropriate to applicant – overpayment of parenting payment – debt owed to the Commonwealth – no basis to write off or waive debt – decision affirmed.
Social Security Act 1991(Cth), ss 4, 1223, 1236, 1237A, 1237AAD
Social Security (Administration) Act 1999 (Cth), ss 68, 80, 81
Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
REASONS FOR DECISION
23 October 2009 Mr R G Kenny, Senior Member BACKGROUND
1. From 20 May 2002 until 25 September 2007 (“the overpayment period”), Ms Rany Mao (“the applicant”) received social security payments in the form of parenting payment in accordance with the Social Security Act 1991 (“the Act”). Those payments were made on the basis that she was not a member of a couple. On 10 October 2007, an officer of Centrelink, for the Secretary, Department of Education, Employment and Workplace Relations (“the respondent”), determined that Ms Mao had been living with Mr Justin Brown in a marriage-like relationship during the overpayment period. Accordingly, from that date, the rate of payment was reduced. The decision-maker also determined that, during the overpayment period, Ms Mao was paid $63,523.03 more than she was entitled to and that this was a debt due by her to the Commonwealth. The decision was affirmed by an authorised review officer on 26 October 2007 and, in turn, by the Social Security Appeals Tribunal (“SSAT”) on 27 May 2008. Ms Mao has applied for review of that decision by the Administrative Appeals Tribunal (“the Tribunal”).
HEARING
2. Ms Mao attended the hearing but was not represented. She came to Australia from Cambodia in 1983 and, although she is able to communicate reasonably well in English, she was assisted by an interpreter in the Khmer language. The respondent was represented by Mr Robert Hamilton, departmental advocate.
ISSUES AND LEGISLATION
3. It is not disputed that Ms Mao meets the qualifying criteria for parenting payments. The rate of those payments is reduced while the recipient is living as a member of a couple. Ms Mao and Mr Brown are not married to each other. In that case, the criteria for determining the nature of their relationship are set out in s 4(2)(b) of the Act. The only aspect of that provision which is in dispute is whether, in accordance with s 4(3) of the Act, Ms Mao and Mr Brown were in a marriage-like relationship during the overpayment period. That provision, in so far as relevant, reads:
4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) and subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i)any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i)whether the people hold themselves out as married to each other; and
(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and
(iii) the basis on which the people make plans for, or engage in, joint social activities;
(d) any sexual relationship between the people;
(e) the nature of the people's commitment to each other, including:
(i) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship.
EVIDENCE
4. Oral evidence was given in this matter by Ms Mao and by Centrelink officers, Penny Graham and Katherine Clay. Ms Graham has been an investigations officer with Centrelink for more than 14 years. Ms Clay has worked in that capacity for more than two years. In September 2007, each, separately, attended upon and questioned residents in the vicinity of the house where Ms Mao lived at that time. Further, they conducted an interview with Ms Mao on 25 September 2007. It was recorded and a transcript thereof was in evidence.
5. Mr Brown gave evidence at an SSAT hearing concerning a parenting payment overpayment to him, which was raised on the basis that he was living as a member of a couple with Ms Mao. His evidence is recorded in the SSAT’s reasons for decision and is encompassed in the SSAT’s findings of fact. The SSAT affirmed the decision concerning Mr Brown’s overpayment. Mr Brown was asked to provide a written statement to assist the Tribunal in Ms Mao’s hearing but declined to do so. In that situation, where relevant, I have taken account of the unchallenged statement of reasons and findings of fact of the SSAT in Mr Brown’s matter[1].
[1] Published by the SSAT on 3 June 2008.
6. There were material inconsistencies in Ms Mao’s evidence. That, and her demeanour in giving evidence, lead me to find that she was not a witness of truth and that her evidence is unreliable. To the extent that her evidence differs from oral and other evidence available, I have placed reliance on the latter.
7. Ms Mao came to Brisbane in January 2002 with her three children. She had been living in Perth where she was divorced from her husband who moved to Brisbane and wanted Ms Mao to move there to facilitate his seeing the children. She first travelled to Sydney where, she said, she met up with her ex-husband and they drove to Brisbane. He assisted in finding a rental house for Ms Mao and the children in Pelsart Street, Belmont. In evidence was a rental agreement for Pelsart Street in which the tenants’ names are recorded as Ms Mao and her ex-husband.
8. One of the inconsistencies in the evidence relates to the time when Ms Mao met Mr Brown. Ms Mao said that she met Mr Brown in a Brisbane night club in about April 2002. She denied meeting him in Sydney before she came to Brisbane. In her interview with Ms Clay, Ms Mao said that she met Mr Brown in Sydney. Further, Mr Brown’s evidence to the SSAT was that he met Ms Mao in Sydney.
9. Ms Mao said that Mr Brown often visited her at Pelsart Street and sometimes stayed overnight. Mr Brown would sleep in the lounge room and would share a meal with Ms Mao and the children. Ms Mao said that she did not know where Mr Brown lived. Centrelink records show his address in 2002 as Pelsart Street. On 5 August 2002, Mr Brown completed a “Living Arrangements” form stating that he had lived in the same premises as Ms Mao since January 2002, and intended to continue sharing the accommodation for another two months. Ms Mao moved from Pelsart Street in early 2003. A “Refund of Rental Bond” form was completed and signed by both Ms Mao and Mr Brown on 13 January 2003. Both are listed as tenants of Pelsart Street in that document. Mr Brown used Pelsart Street as his mailing address during 2002 and Pelsart Street is the address in Queensland Transport records for that period. It was not disputed that Pelsart Street was also the address for Mr Brown with Baycorp Advantage. On 20 May 2002, Mr Brown completed an application for work with Golden Circle Limited. Therein, he gave Pelsart Street as his address and nominated Ms Mao as his “girlfriend” and the person to be contacted in the event of any emergency. Ms Mao knew that he sometimes used her name because no other members of his family lived in Brisbane.
10. Ms Mao next lived in Daramalan Street, Boondall for about 10 months. A copy of the rental agreement, dated 3 January 2003, shows Ms Mao as the tenant. However, a claim for the return of bond monies was completed by Ms Mao and Mr Brown and both were listed as having been tenants at Daramalan Street. Centrelink records show his address in 2003 was Daramalan Street. It was also his mailing address and the address in Queensland Transport records. It was not disputed that Pelsart Street was also the address in 2003 for Mr Brown with Baycorp Advantage. Again, Ms Mao said that Mr Brown continued to visit her at Daramalan Street and sometimes stayed overnight, sleeping on the lounge. At times, she said, he was accompanied by his friends and they would sometimes share a drink together and stay for a meal with Ms Mao.
11. Towards the end of 2004, Mr Brown purchased a house at Muller Road, Boondall. Ms Mao moved into the house because Mr Brown offered her cheap rent. She said that she was the tenant and he was her landlord. Mr Brown used Muller Road as his mailing address. Ms Mao said that he moved into the house in June 2007 because he had injured his back and was not able to attend work. She said that he asked her to move out but then agreed that they share the premises. In evidence were rent certificates for 2006 declaring that Ms Mao was renting the Muller Road house from Mr Brown. It was signed by her as the tenant and by Mr Brown as the landlord. She had signed no lease documents and paid no bond but claimed rent allowance while at Muller Road. The rent certificate dated 26 September 2006 records rental of $230 per week. Another such certificate records rental of “$270 since November 2003”. Ms Mao was not able to explain this discrepancy. Queensland Transport lists the address of both Ms Mao and Mr Brown as Muller road in October 2004. Mr Brown accepted, at the SSAT hearing, that he had not declared any rental monies from Muller Road in his taxable income.
12. Ms Mao said that, while Mr Brown was at the Muller Road house, he occupied one of the children’s bedrooms. She prepared meals for herself and the children but not for Mr Brown who did his own cooking. Later, she also said that, after June 2007, she cooked for all of them and that they ate their meals together. Ms Mao described Mr Brown as being very fond of the children and said he took all of them on outings from time to time to shops, movies and swimming. Mr Brown’s mother, father and brother came from Sydney for Christmas and stayed at the Muller Road house.
13. A son was born to Ms Mao in May 2004. His surname is Brown. She said that she selected that name because it was easy to remember and because it contrasted with her own name which, in Cambodia, means “black”. She said it was a coincidence that her son has the same surname as Mr Brown. She did not consult with Mr Brown about the use of his name for the child. A further inconsistency in Ms Mao’s evidence relates to the identity of the child’s father. On the first day of the hearing, Ms Mao’s evidence was that she had not, at any time, been in a sexual relationship with Mr Brown and that he could not be the boy’s father. She maintained that position before the SSAT and in her interview with Ms Clay and Ms Graham. She said that she had sexual intercourse with two men she met in a night club around the time that her son was conceived. She did not know their names but believed that one of them was the father. However, on the second day of the hearing, Ms Mao said that she had been in a sexual relationship with Mr Brown, particularly when she wanted to borrow money from him. She also agreed that sexual intercourse occurred at a time whereby Mr Brown could be the boy’s father.
14. Mr Brown conveyed Ms Mao to the hospital for ante-natal treatment. Initially, in his evidence at the SSAT, he denied this but, when shown ATM withdrawals at the hospital, he agreed that he had done so.
15. Ms Mao had required treatment in 2003 for an injury to her leg as a result of an incident in Cambodia. She said that Mr Brown would accompany her to the hospital on those occasions. Ms Mao was also in hospital for two weeks in 2003 and she said that, during that period, the children were looking after themselves. She agreed that, at the time, they were aged 12, 10 and 7 years. She said that a friend of hers stopped by on two occasions to look after any shopping the children needed. In evidence, after saying several times that she did not know the friend’s name, she said it was “Pia”. Ms Mao said she did not usually leave the children alone with Mr Brown but said that this may have occurred when she was in hospital in 2003.
16. Royal Women’s Hospital records relating to the birth of her son, dated 1 May 2004, have Mr Brown listed as Ms Mao’s “husband” and as living at the Muller Road house. Ms Mao said that she had been asked to nominate her next of kin and did not know who she could nominate. She denied providing staff with Mr Brown’s name. Ms Mao believed that the information written on her file was taken from an earlier hospital entry completed when she had an operation on her leg in 2003. Also in evidence was a hepatitis B vaccination consent form, dated 1 May 2004, relating to her son. Therein, Mr Brown is described as the “parent” of the boy and as the “partner” of Ms Mao. The document has been signed by each of them.
17. Ms Mao and Mr Brown travelled together to Cambodia in May 2006. Mr Brown paid their fares. Incoming passenger cards relating to their return to Australia are dated 24 May 2006. Therein, Mr Brown’s address is given as the Muller Road house. Ms Mao said that the Cambodian trip was for the purpose of introducing Mr Brown to her cousin but that no relationship developed between them.
18. Ms Mao has been in the practice of frequenting night clubs and the casino for the purpose of gambling. Sometimes, she and Mr Brown went together and at other times they would meet at the venue. At times, when she needed money to gamble with, she would borrow a couple of hundred dollars from Mr Brown. This occurred on, approximately, a monthly basis. At times, Mr Brown would give her his credit card and she would use it to make withdrawals from ATMs. She repaid these monies which were treated as a loan. However, she still has a debt outstanding to Mr Brown in the amount of $2,000 to $3,000. After Mr Brown moved in to Muller road, Ms Mao no longer went to the Casino or to night clubs except on special occasions such as her birthday.
19. Ms Mao was referred to a loan application made to Cash Converters for $1,500 by Mr Brown in which he described himself as “married” and nominated “Rany Brown” as his “spouse/partner/friend”. Ms Mao said that Mr Brown had applied for the loan on her behalf and that she paid him back an amount each month until the debt was repaid. She would leave the payments at the Muller Road house for him to collect at the same time as he collected the rent money. Mr Brown said that he helped Ms Mao in relation to the return of bond monies because of difficulties she had with English and that he assisted her with the loan application as she would probably be unsuccessful on her own
20. In evidence was a summons to Ms Mao’s son to attend the Brisbane District Court as a witness to give evidence in a matter involving Mr Brown. In that document, Mr Brown is described as the “guardian” of Ms Mao’s daughter. Also in evidence were letters, dated 16 November 2007, written by a child safety officer with the Queensland Department of Child Safety. Therein, it is stated that there was a risk of harm to her children if Ms Mao “chose to return to a relationship with Mr Brown”. Ms Mao said she had not understood those letters.
21. Mr Brown, at the SSAT, confirmed that he and Ms Mao had established a joint account with the Commonwealth bank and that this was to assist Ms Mao to save money. He said that the account was not set up so that they could purchase a house together and that the account was not used. He denied living with Ms Mao and having a sexual relationship with her. He described her as being like an older sister and someone he could trust.
22. The SSAT found, and Mr Brown agreed, that he had made false statements in rental bond forms and in loan application forms, and had also done so in Australian Taxation Office documentation. Ms Mao advised that Mr Brown is presently serving a term of imprisonment for an offence relating to her eldest daughter. She has maintained contact with him through prison visits every week.
23. Ms Mao said that she has no savings and lives from fortnight to fortnight on the monies paid to her by Centrelink. Her children are in good health and doing well at school. She is currently repaying the debt to Centrelink through deductions from her parenting payment.
Penny Graham and Katherine Clay
24. Ms Graham and Ms Clay were advised by neighbours close to the Muller Road house that a male and a female (with children) lived in the house and had done so as a family for three to four years. They were also told that Mr Brown had been seen at times leaving from and returning to the premises with the children. Ms Clay was advised that the vehicle was a blue Ford Falcon which, upon checking, was found to be owned by Ms Mao. Ms Clay also accessed documents relating to the loan taken out by Mr Brown for the purchase of the Muller Road house. She said that these documents showed that it was an “owner/occupier” loan and not an investment loan. Ms Graham spoke by telephone to a Pastor Berryman and was advised that Ms Mao attended church with her family, which included a partner. The pastor described them as having the appearance of a “loving couple” and believed that they were the parents of Ms Mao’s youngest child. Both Ms Mao and Mr Brown agreed that they attended church together on occasions. Ms Mao said it was to pray for her sister who had health problems.
25. Ms Clay said that her investigations revealed that Ms Mao had met Mr Brown in Sydney and that they had travelled to Brisbane together where they lived at Pelsart Street. She noted payment records which revealed that Ms Mao often paid the rates on the Muller Road house. Ms Mao agreed that she did from time to time when she was behind in her rent. Neither Ms Graham nor Ms Clay was able to find any documentation which supported the existence of a lease or rental arrangement between Ms Mao and Mr Brown.
26. Surveillance was conducted on the Muller Road house from 6 June 2007 until 15 June 2007. The associated report described Mr Brown driving the children to school, carrying groceries to the house, garaging the car and checking the mail. The car was registered to Ms Mao.
SUBMISSIONS
27. Ms Mao’s contention prior to the second day of the hearing had been that she was not in a relationship with Mr Brown, that he could not be the father of her son, and that he only visited the Pelsart Street and Daramalan Street houses as a friend, where he occasionally stayed the night in the lounge room. In the Muller Road house, the relationship was one of a landlord and a tenant who paid rent on a weekly basis. There was a limited social dimension to their situation as they occasionally went to a night club or to the Casino. She was given money from time to time but repaid this when she could. Ms Mao considered that she was not in a marriage-like relationship with Mr Brown and that she should have no debt to the Commonwealth. At the end of the hearing, Ms Mao maintained her position that she and Mr Brown were not living together although she conceded that she had been in a sexual relationship with him.
28. Mr Hamilton made a detailed submission to the effect that there was evidence which met the requirements of s 4(3) of the Act and that the decision ought to be affirmed. As will be seen below, I have accepted his submission.
CONSIDERATION
29. When applying s 4(3) of the Act, all the circumstances of the relationship between Ms Mao and Mr Brown must be considered. In Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252 at [24], it was stated that the Tribunal is:
to give regard to the specified criteria in a real sense, i.e. to ensure sufficient and adequate regard is given to all the specified criteria; and to take the criteria specified by the statute into account and to give weight to them as a fundamental element in the decision-making process.
30. In this matter, I have considered the relationship of Ms Mao and Mr Brown under the five headings listed in s 4(3) of the Act. However, evidence of some of the components of those headings has not been provided, because of Ms Mao’s claim that Mr Brown only visited the three houses where she lived on a casual basis until mid 2007.
Nature of the household/sexual relationship
31. I do not accept Ms Mao’s evidence that she first met Mr Brown in Brisbane. I am satisfied that they met in Sydney before Ms Mao came to Brisbane. That is what she told Ms Clay and Ms Graham, and what Mr Brown told the SSAT. I am also satisfied that Mr Brown lived at the house in Pelsart Street. On 5 August 2002, Mr Brown wrote that he had lived in the same premises as Ms Mao since January 2002 and intended to continue doing so. Those premises were Pelsart Street at that time. Mr Brown’s name appears on the rental bond refund document for Pelsart Street and both he and Ms Mao are listed as tenants of that house. Centrelink, Baycorp Advantage, Queensland Transport and Golden Circle Limited records show his address in 2002 as Pelsart Street. It was also his mailing address at that time.
32. I am also satisfied that Mr Brown lived at the house in Daramalan Street in 2003. The rental agreement shows only Ms Mao as the tenant, but the claim for the return of bond monies was completed by Ms Mao and Mr Brown and listed them both as having been tenants there. Centrelink, Baycorp Advantage and Queensland Transport records show his address in 2003 was Daramalan Street. It was also his mailing address at that time. Ms Mao was in hospital for two weeks in 2003 and she said that the children stayed at home. She said that a friend looked in on them on two occasions, but she also said that the children may have been left in the care of Mr Brown at that time. Given the age of the children at that time and Ms Mao’s concession in regard to Mr Brown being there, I consider that it is more probable than not that the children were not left without adult supervision and that this was undertaken by Mr Brown.
33. I am also satisfied that both Ms Mao and Mr Brown lived in the Muller Road house purchased by Mr Brown. I reject Ms Mao’s evidence that she was a tenant paying rent to him. Only two rent certificates were in evidence and they give conflicting information about the amount or rent paid. Ms Mao was unable to explain this and I am satisfied that this confirms the view that she was not paying rent. Mr Brown did not declare any rental money as taxable income. No lease documents for Muller Road were in evidence and there was no indication of the payment of any bond by her. I do not accept that Mr Brown moved into the Muller Road house in mid 2007 and find that he lived there from the time that Ms Mao did. Queensland Transport lists the address of both Ms Mao and Mr Brown as Muller Road in October 2004.
34. The information obtained by Ms Graham and Ms Clay from neighbours in 2007 is consistent with a family living at Muller Road for three or four years with Mr Brown playing an integral role. That is also consistent with Ms Mao’s reference to Mr Brown as being fond of the children and taking them on sundry outings from time to time. It is also consistent with the surveillance report from June 2007 which described Mr Brown driving the children to school, carrying groceries to the house, garaging the car and checking the mail.
35. I do not accept Ms Mao’s evidence that Mr Brown slept overnight on occasions only. I am satisfied that she was in a long-term sexual relationship with Mr Brown at all relevant times. Clearly, she was untruthful about this at every stage of investigations into this matter, as well as before the SSAT and on the first day of hearing at the Tribunal. On the second day thereof, Ms Mao confirmed the existence of the sexual relationship and also to it being operative at a time when she conceived her son which was around July or August 2003.
36. Significantly, as early as 20 May 2002 in his employment application, Mr Brown nominated Ms Mao as his “girlfriend” and the person to be contacted in the event of any emergency. Ms Mao said she was aware that her name was used in some instances. In the loan application made to Cash Converters by Mr Brown, he described himself as “married” and nominated “Rany Brown” as his “spouse/partner/friend”. Royal Women’s Hospital records list Mr Brown as Ms Mao’s “husband”, and I am satisfied that this information was provided either by Ms Mao or by Mr Brown. The hepatitis B vaccination consent form, relating to her son, describes Mr Brown as the “parent” of Ms Mao’s son and as the “partner” of Ms Mao. The document has been signed by each of them, and I am satisfied that it reflects the reality of their relationship. That is also consistent with the observations of Pastor Berryman who saw them at church and described them as having the appearance of a “loving couple” and as being the parents of Ms Mao’s youngest child. The District Court summons described Mr Brown the “guardian” of Ms Mao’s daughter and the child safety officer’s letters to Ms Mao refer to the risk of harm in returning to a relationship with Mr Brown.
37. Detailed evidence was not taken of the domestic arrangements in any of the houses because of Ms Mao’s persistence that Mr Brown did not live there. However, Ms Mao agreed that Mr Brown sometimes shared meals with her and the children at each of the three houses. I accept this is correct, but find that it was the regular feature in the operation of the household. The description of Mr Brown’s activities during the surveillance and by neighbours of the Muller Road house, as provided to Ms Graham and Ms Clay, is that of a man undertaking a range of everyday domestic duties such as taking the children to and from school and shopping for groceries.
Financial aspects of the relationship
38. There is no evidence of any joint ownership of any major assets, joint liabilities or pooling of financial resources between Ms Mao and Mr Brown. However, they assumed joint responsibility for the lease of the Daramalan Street house. Mr Brown also used Ms Mao’s car. Further, there is evidence of a degree of merger of the financial circumstances of Ms Mao and Mr Brown. The cash converter loan for Ms Mao was taken out by Mr Brown. Ms Mao borrowed money from Mr Brown often on a monthly basis in the amounts of two to three hundred dollars. She currently owes money to him, but is not able to say how much this is. It is in the order of $2,000 to $3,000. Mr Brown has not requested repayment of those monies. Ms Mao had access to Mr Brown’s credit card and used it to withdraw monies at ATMs. Ms Mao made rate payments to the Brisbane City Council on the house at Muller Road; a function not usually performed by a tenant.
Social aspects of the relationship
39. As noted above, Ms Mao has been nominated variously in documents as Mr Brown’s “girlfriend”, as being “married” to him, as his “spouse/partner/friend”, as his “partner” and as “Rany Brown”. Similarly, Mr Brown has been nominated as Ms Mao’s “husband”. That information was provided by Ms Mao, Mr Brown or both of them. Pastor Berryman described them as a “loving couple” and as the parents of Ms Mao’s youngest child. The neighbours also described the “family” living at the Muller Road house. Clearly, Ms Mao and Mr Brown represented themselves as being partnered and were seen in that way by others. There is evidence of joint social activity between them. This includes the frequenting of night clubs and casinos in the past and, in more recent times, on special occasions such as birthdays; Mr Brown taking all of the children on various outings; members of Mr Brown’s family staying together with Ms Mao and Mr Brown at the Muller Road house for Christmas in 2006; and Ms Mao and Mr Brown also travelling to Cambodia together in 2006.
The nature of commitment to each other
40. Ms Mao and Mr Brown were in a relationship from at least May 2002 and this has continued through relocations to different houses on two occasions. The situation has now changed because Mr Brown is currently serving a term of imprisonment. Despite that, Ms Mao visits Mr Brown in prison on a weekly basis and this indicates a continuing sense of commitment to him. Mr Brown has demonstrated a willingness to provide financial help to Ms Mao and this is also continuing in the sense that she still owes him a significant sum for which he has not yet sought repayment.
Marriage-like relationship
41. I have had regard to the circumstances of Ms Mao and Mr Brown, in accordance with the criteria in s 4(3) of the Act. I am satisfied that Ms Mao was in a marriage-like relationship with Mr Brown from at least 20 May 2002, when Mr Brown described Ms Mao as his girlfriend in his employment application, until parenting payment was cancelled from 25 September 2007.
Debt
42. Under s 68(2) of the Social Security (Administration) Act 1999 (“the Administration Act”), a notice may be given to a recipient of parenting payment requiring her, within 14 days, to advise Centrelink of a range of matters including if she starts to live with someone of the opposite sex. It is not in dispute that such notices were sent to Ms Mao during the overpayment period. Ms Mao did not advise that she was living with Mr Brown and continued to be paid parenting payment at the single rate. Under s 81(1) of the Administration Act, parenting payment ceases to be payable where there is a failure to so notify Centrelink. Under s 80 of the Administration Act, where a payment ceases to be payable, it can be cancelled. That is what happened in this matter. Further, the excess payments made to Ms Mao in the overpayment period constitute a debt owed by her to the Commonwealth under s 1223 of the Act. I am satisfied that the debt in Ms Mao’s case is $63,523.03.
Should the Debt be written off?
43. Section 1236 of the Act, in part, reads:
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.
1236.(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
44. The only component of that provision of potential relevance in this matter is that relating to lack of capacity to repay the debt. Ms Mao is currently repaying the debt to the respondent through deductions from her parenting payments and I am reasonably satisfied that there is no lack of capacity for the debt to be repaid albeit over a long period. In that situation, the debt should not be written off.
Waiver of Debt: administrative error
45. The matters relating to waiver of a debt due to sole administrative error by the Commonwealth arise under s 1237A(1) of the Act. The first element to be satisfied under sub-section 1237A(1) of the Act is that the debt must be attributable solely to an administrative error made by the Commonwealth. I am satisfied that was not the situation in Ms Mao’s case and that the debt cannot be waived on that basis.
Waiver: special circumstances
46. For waiver of a debt under s 1237AAD of the Act, it must be the case, amongst the other requirements of the provision, that there are special circumstances other than financial hardship alone that make it desirable to waive the debt. Additionally, the debt must not have arisen because the debtor knowingly, failed to, or omitted to comply with a provision of the Act. I am satisfied that Ms Mao knowingly omitted to comply with her obligation to notify Centrelink that she was living in the relationship with Mr Brown. I am also satisfied that there are no factors, either individually or taken together, in this case that enable it to be characterised as unusual or unfair[2] and I am satisfied that there are no special circumstances in the applicant’s case that would justify waiver of the debt under s 1237AAD of the Act.
[2] See Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545.
DECISION
47. The Tribunal affirms the decision under review.
I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R G Kenny.
Signed: .........................[Sgd]....................................................
Emily Clarke, AssociateDate of Hearing 14 January and 7 October 2009
Date of Decision 23 October 2009
The Applicant was self-represented
Advocate for the Respondent Mr R Hamilton
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