Robinson; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor and
[2008] AATA 672
•1 August 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 672
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6202
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Applicants
And
TRACEY ROBINSON
Respondent
DECISION
Tribunal Mr S E Frost, Member Date1 August 2008
PlaceNowra
Decision The decision of the Social Security Appeals Tribunal is set aside and instead I decide that Tracey Robinson is not to be treated as a member of a couple until 9 February 2007. I remit the matter to the Secretaries to calculate the amount of any overpayment of family tax benefit and child care benefit.
.................[sgd].............................
Mr S E Frost
Member
CATCHWORDS
SOCIAL SECURITY – whether member of a couple – respondent married – whether during any period following marriage the respondent was living apart from her husband on a permanent or indefinite basis – whether a special reason exists in the particular case why the respondent should not be treated as a member of a couple – whether overpayment of benefits – whether any debts should be written off or waived – the decision of the Social Security Appeals Tribunal is set aside and instead it is decided that the respondent is not to be treated as a member of a couple until 9 February 2007 and matter remitted for calculation of overpayment of family tax benefit and child care benefit
Social Security Act 1991 – s 4, 24
A New Tax System (Family Assistance) Act 1999 – s 3
A New Tax System (Family Assistance) (Administration) Act 1999 – s 71, 71C, 95, 97, 101
REASONS FOR DECISION
1 August 2008 Mr S E Frost, Member Introduction
1. It is not always the case that a person who is married is a “member of a couple” for the purposes of the social security law.
2. Tracey Robinson married Paul in June 2006, but says that she did not become a member of a couple until many months later. This is because, at the time they married in the United Kingdom, Tracey and Paul were living on opposite sides of the world. Tracey was living in Australia, but Paul was living and working in the United Kingdom. In February 2007, when he was offered a position with the Royal Australian Navy, Paul applied for a visa. He eventually moved to Australia on a permanent basis in July 2007.
3. On this basis, Tracey says that she was entitled to be paid family tax benefit and child care benefit as a single person even though she was married. Centrelink disagreed, but her appeal to the Social Security Appeals Tribunal (SSAT) was successful, the SSAT directing that Tracey was not to be treated as a member of a couple for the 2006/2007 financial year. The Secretaries, not content with that outcome, have applied to this Tribunal for a review of the SSAT decision.
Issue
4. The main issue is whether Tracey was a “member of a couple” within the social security law and the family assistance law, but there are subsidiary issues as well. In order to resolve the disagreement between the parties, I need to consider the following questions:
(i)Was Tracey, in my opinion, during any period after her marriage, living separately and apart from Paul on a permanent or indefinite basis?
(ii)If the answer to (i) is No, then – Am I satisfied that she should, for a special reason in the particular case, not be treated as a member of a couple?
(iii)Has she been overpaid any benefits?
(iv)If the answer to (iii) is Yes, then – Are the overpayments debts to the Commonwealth?
(v)If the answer to (iv) is Yes, then – Are there any grounds to write off or waive the Commonwealth's right to recover any part of the debt?
5. The Secretaries contended at paragraph 24 of their statement of facts and contentions that there was no dispute between the parties on the first issue, but the issue was specifically raised in the hearing and it is appropriate that I deal with it.
Issue 1 – Was she, in my opinion, living separately and apart from her husband on a permanent or indefinite basis?
6. This is the question posed by s 4(2)(a) of the Social Security Act 1991 (the Act), which applies for the purposes of the family tax benefit and child care benefit provisions because of s 3(1) of the A New Tax System (Family Assistance) Act 1999 (the FA Act). If it is my opinion that she was not living separately and apart from Paul on a permanent or indefinite basis after they married, then on the face of it, because she is married, she will be a “member of a couple” for the purposes of the Act.
7. In forming my opinion, I must comply with the provisions of s 4(3) of the Act. That subsection says that I must “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.
8. When people marry, they normally commence (or continue) to live together. They normally pool their financial resources and practise economies of scale, which allows them to live more cheaply as a couple than as two individuals living separately. This, no doubt, is the reason why the default position for a married person is that he or she is a member of a couple.
9. Sometimes a person’s circumstances do not fit that paradigm. Tracey’s circumstances, for example, were that she and her husband were unable to live together for a period of time after their marriage because, although she was living in Australia, he was not yet able to do so. He hoped to receive an offer of employment from the Royal Australian Navy, and he also hoped that he would be granted a visa to live in Australia. But until the Royal Australian Navy offered him employment and the Department of Immigration and Citizenship granted him a visa, he could not live in the country that his wife had chosen as her home.
10. He owned a property in the United Kingdom. He had borrowed money to carry out some renovations on that property so that he could put it on the market in preparation for his move to Australia. While he was servicing that loan, and although he was employed by the Royal Navy, he could not contribute much in the way of financial assistance to his wife in Australia. He made two short visits to Australia after their marriage, and when he came here on those two occasions, he apparently “gave some help with the shopping”, as the SSAT described the position in its reasons.
11. As far as the financial aspects of the relationship are concerned, there was no joint ownership of real estate or any other major assets, there was virtually no pooling of financial resources, and there was no sharing of day-to-day household expenses. In fact, during the period after their marriage when Tracey and Paul were living apart, there were in fact two households – one in Australia, and one in the United Kingdom.
12. As to the remaining factors in paragraphs (b) to (e) of s 4(3) of the Act, the consequences of their geographic separation are self-evident and do not, in my view, require any detailed analysis.
13. The opinion that I need to form, based on all the circumstances, is whether Tracey was living separately and apart from Paul “on a permanent or indefinite basis”. Since it was never intended that this arrangement would be permanent, the real question is whether she was living separately and apart from him “on an indefinite basis”.
14. That is not the same question as whether she was living separately and apart from him “for an indefinite period”. It is the basis on which, and not the period of time for which, they were living separately and apart, that is the critical issue.
15. The word “indefinite” is defined in the Macquarie Dictionary relevantly as follows:
1.not definite; without fixed or specified limit; unlimited …
2.not clearly defined or determined; not precise.
16. The basis on which Tracey and Paul were living separately and apart was that Paul did not have employment in Australia and he did not have a visa. Therefore he could not live in Australia with his wife. But it was always their position that once he had an employment offer and assuming he would be granted a visa, he would move here permanently. There was in that sense a “fixed or specified limit” to the basis on which they lived apart. It could not be said that there was anything “imprecise”, or “not clearly defined or determined”, about the basis of their living apart. Their geographic separation would end once those particular circumstances changed, and although they could not know when that would happen, they did know that they would be together once it did.
17. In my opinion, having regard to all the circumstances of the relationship, Tracey was not living separately and apart from Paul on an indefinite basis.
Issue 2 – Am I satisfied that she should, for a special reason in the particular case, not be treated as a member of a couple?
18. Section 24 of the Act empowers me to determine that Tracey is not to be treated as a member of a couple, despite my finding they were not living separately and apart on a permanent or indefinite basis, if there is a “special reason in the particular case”.
19. There is a combination of factors which satisfy me that there is a special reason why Tracey should not be treated as a member of a couple. She was prevented from living with her husband in Australia until he was offered employment with the Royal Australian Navy, and he was able to secure a visa. As a result, they had to maintain two separate households in two different countries. Because of her husband's financial commitments in the United Kingdom, Tracey was unable to rely on any contribution from him to the household she kept in Australia. In this respect she was in an unusual position by comparison with most individuals who automatically become a “member of a couple” immediately upon marriage.
20. Her marriage in June 2006 has had a bizarre impact in this case. If Tracey had not married then, her status as a member of a couple would have been determined by reference to the very same considerations set out in paragraph 7 of these reasons, but in answer to the question whether she and Paul were in a “marriage-like relationship”. In that case it would not have been difficult to conclude that she and Paul were not in a marriage-like relationship, taking into account all the circumstances of the case, including in particular those listed in paragraphs 4(3)(a) to (e) of the Act.
21. Should the fact of marriage have such a profound impact on a person’s status as a member of a couple? Ordinarily, the answer to that question would be: Yes. But the reason for that answer is that in the ordinary case, the husband and wife live together and pool their resources – in other words, they become a couple. That was not the case with the Robinsons. For practical purposes, they continued to live as individuals, with separate lives in opposite corners of the world. They had not become a couple in the way that most people do when they marry. They did not choose this state of affairs; it was necessary for them to live this way because Paul could not move here in the absence of an offer from the Royal Australian Navy and a visa from the Department of Immigration and Citizenship.
22. However, there is no special reason why Tracey should continue to be treated as not a “member of a couple” after February 2007. This is when Paul received an offer of employment with the Royal Australian Navy and sold his property in the United Kingdom. From 9 February 2007, when he sold the property, the way was clear for him, with his financial and other responsibilities in the United Kingdom behind him, and with a future in Australia presenting itself to him, to make the usual financial and other commitments of one member of a couple to the other.
Issue 3 – Has she been overpaid any benefits?
23. This is for the Secretaries to determine, based on a comparison between the amounts paid and the amounts that are payable in accordance with my conclusion in relation to Issue 2. To the extent that she has been paid at the single rate when she was entitled only to the lower partnered rate, she has been overpaid.
Issue 4 – Are the overpayments debts to the Commonwealth?
24. If there has been any overpayment, then the amount overpaid is a debt due to the Commonwealth – see s 71(2) and s 71C of the A New Tax System (Family Assistance) (Administration) Act 1999 (the FA Administration Act).
Issue 5 – Are there any grounds to write off or waive the Commonwealth's right to recover any part of the debt?
25. The provisions relevant to write off and waiver are s 95(2), s 97 and s 101 of the FA Administration Act.
26. It is not possible for the debt to be written off under s 95(2) because the debt is not irrecoverable at law; there is capacity to repay the debt; Tracey's whereabouts are known; and it is cost effective for the Commonwealth to recover the debt.
27. As far as waiver is concerned, s 97 requires not only administrative error but also severe financial hardship. Under the alternative in s 101, there must be, among other requirements, special circumstances (other than financial hardship alone) that make it desirable to waive the debt.
28. There is no basis upon which I could find severe financial hardship for the purposes of s 97 and nor are there special circumstances that would trigger waiver under s 101.
Conclusion
29. I set aside the decision of the Social Security Appeals Tribunal and instead I decide instead that Tracey Robinson is not to be treated as a member of a couple until 9 February 2007. I remit the matter to the Secretaries to calculate the amount of any overpayment of family tax benefit and child care benefit.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S E Frost, Member
Signed: .............[sgd]...................................................................
AssociateDate of Hearing 15 May 2008
Date final submissions received 4 June 2008
Date of Decision 1 August 2008
Advocate for the Applicants Ms J Maclean, Centrelink Legal Services
Advocate for the Respondent Self-represented
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