Salam Skaf and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 378

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/5287; 2011/5288

Re

Salam Skaf

APPLICANT

And

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

RESPONDENT

DECISION

Tribunal
Senior Member A K Britton

Date 5 June 2013

Place Sydney
The reviewable decision made on 3 June 2010 is set aside.
The decision is remitted to the Respondent for recalculation of the debt owed by the Applicant in accordance with these reasons for decision.
……………[SGD]…………………………….
Senior Member A K Britton
CATCHWORDS
SOCIAL SECURITY— Overpayment and debt recovery—Whether the applicant was a member of a couple—Financial aspects—Travel—Living arrangements and household responsibilities—social aspects—credibility of witnesses—Whether the debt should be written off—Whether the debt should be waived—Whether there are special circumstances
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) - ss 2A
Social Security Act 1991 (Cth) – ss 4;1236; 1237A; 1237AAD
Social Security (Administration) Act 1999 (Cth) – ss 196; 197
CASES
Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531
Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2010) 185 FCR 52
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Stubbs and Secretary, Department of Families and Community Services [2003] AATA 729
Secretary Department of Social Security v Hodgson (1992) 37 FCR 32
Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
Senior Member A K Britton
5 June 2013

Salam Skaf received social security payments calculated at the “single rate” between 1997 and 2011. Following a tip off, Centrelink conducted an investigation and concluded that Ms Skaf was a “member of a couple” with her husband, Mr Khalid Skaf. On that basis, the Secretary decided that between January 1997 and March 2011 (the debt period) Ms Skaf had been overpaid as her social security payments should have been calculated on the lesser, partnered rate. The Secretary decided to raise and recover a debt in the amount of the overpayment, about $220,000. Ms Skaf unsuccessfully challenged that decision in the Social Security Appeals Tribunal (SSAT) and now seeks review by the Administrative Appeals Tribunal.
Ms and Mr Skaf were married in 1987 and divorced in December 2011. In September 1996, they purchased and, with their three children, moved to a house in Greenacre, a suburb in Sydney’s south west (the family home). Each claim that Mr Skaf moved out of the family home in early 1997 and did not return until late 2010/early 2011, to live in a converted garage. Ms Skaf and the children have been living in the family home since 1996.
The parties agree that throughout the debt period Mr Skaf was a regular visitor to the family home. Each contend that the sole purpose of these visits was to see the children and collect mail. Each claim that throughout the debt period they did not socialise together, provide companionship to the other, or, apart from one occasion, have a sexual relationship.
Whether Ms Skaf was entitled to receive social security benefits calculated at the single rate turns on whether she was a “member of a couple” with Mr Skaf throughout the debt period, within the meaning of s 4 of the Social Security Act 1991 (Cth) (the Act). The Secretary contends that much of the evidence given by the Skafs is unreliable but accepts that by 1997 their relationship was strained and unhappy. The Secretary however submits that Ms Skaf was nonetheless a “member of a couple” for the purposes of the Act. Ms Skaf disagrees.
STATUTORY FRAMEWORK
Section 4(2) of the Act provides that a person is a “member of couple” for the purpose of the 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…
Section 4(3) instructs that in forming an opinion about the relationship between two people for the purposes of paragraph (2)(a), the decision-maker 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)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, or in a de facto relationship with , 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)       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 or a de facto relationship.
BACKGROUND TO THE PURPORTED SEPARATION
Ms and Mr Skaf were born, married and divorced in Lebanon. Shortly after marrying in 1987, Ms Skaf migrated to Australia to join her husband who had been living in Australia since 1976. Each claim that the marriage was unhappy from the start. Ms Skaf claims that her husband was unfaithful and verbally and physically violent towards her.
A few months after moving to the family home, Ms Skaf, who was then pregnant with her fourth child, lodged an application for a child support assessment with Centrelink claiming that she and her husband had separated on 10 January 1997. In a statement attached to that application she wrote:
I wish to advise the Department that my husband and I separated on 10 January 1997. He has moved to Punchbowl as we were fighting all the time. There was always arguments [sic]. He doesn’t say where he is going and what he is doing.
When did Mr Khalid Skaf leave the family home?
Before considering the evidence in relation to the matters listed in s 4(3) of the Act it is necessary to examine whether, as claimed, Mr Skaf left the family home in January 1997.
In their respective affidavits, the Skafs deposed that in early 1997, Mr Skaf went to live with his brother, Mohomad Skaf and his family in Mt Lewis, a neighbouring suburb to Greenacre. In a statement prepared for these proceedings, Mr Mohomad Skaf gave evidence to the same effect “ever since, my brother, Khalid Skaf separated from his wife in 1997, he resided with me at my homes […Punchbowl and then … Mt Lewis]”. However in oral evidence Mr Mohomad Skaf denied that his brother lived with him in either Punchbowl or Bass Hill, where he had been living immediately prior to the move to Mt Lewis. While Mr Mohomad Skaf had difficulty recalling when he purchased the Mt Lewis property, documents produced in these proceedings reveal that it was around the time he sold his Punchbowl home: December 1997. After selling the Punchbowl property, Mr Mohomad Skaf and his family moved to rental accommodation in Bass Hill while the Mt Lewis home was being re built. He recollects this took about 18 months.
When questioned about the apparent inconsistency between his brother’s evidence and his claim of having moved directly to Mt Lewis after separating from his wife, Mr Khalid Skaf admitted he had told a “white lie”. He claimed that when he left his wife he went to live with a female friend in Castle Hill, a suburb in Sydney’s north west about 25 kilometres from the family home. He claimed he had not mentioned this before because it was “nobody’s business”. He also claimed that as soon as his brother and family moved to Mt Lewis, he joined them to be closer to work.
After Mr Khalid Skaf’s admission Ms Skaf was questioned about her understanding of where her husband was living following their separation. In oral evidence she stated that she understood that he had been living in Punchbowl with his brother. In a “sole parent review” form lodged in July 1997 Ms Skaf gave her husband’s address as her brother-in-law’s address in Punchbowl. In oral evidence Ms Skaf stated that she could not recall the day she and Mr Skaf “officially” separated or any particular incident that occurred on that day. She thought it was probably on the day of, or possibly a few days before, she lodged an application for a child support assessment (3 February 1997).
In these proceedings a number of friends and family members of Ms Skaf testified that the Skafs were separated throughout the debt period. None apart from neighbour, Mr Mirko Civadelic and the Skaf’s eldest child, a daughter, had any direct knowledge about the period prior to 2000.
In affidavit evidence Mr Civadelic, who is in his late seventies, stated that “a few months” after the Skaf family moved next door he learnt that Mr Skaf had left the family home. He stated from that time on, he only saw Mr Skaf occasionally. In oral evidence he stated that he learnt that Mr Skaf had left the family home when informed by Ms Skaf about 12 months after the family moved next door. It was apparent from Mr Civadelic’s oral evidence that he could not recall when Mr Skaf moved out of the family home.
In affidavit evidence the Skaf’s daughter deposed that her parents lived together at the family home for only a few months. In oral evidence she stated that a few months after moving to the family home her father moved into her uncle’s house at Mt Lewis. . On further questioning she said she could not be sure if it was a few months after moving to the family home. At that time she was about seven-and-a-half-years of age.
The emergence of the evidence that Mr Skaf did not move to Mt Lewis in early 1997 casts doubt on the reliability of the claim that he permanently left the family home at that time. If, as is now claimed, he had been living in Castle Hill for at least two-and-a-half years, January 1997 to mid-1999 (the earliest date he could have moved to Mt Lewis based on his brother’s estimate that the Mt Lewis house took about 18 months to rebuild), neither his wife, brother nor children, knew where he was staying. While it is perhaps unremarkable that he might have wanted not to advertise that he had left his family to live with another woman, it seems improbable that for such an extended period his immediate family would have had no knowledge of where he was residing.
Mr Mohomad Skaf, whom I accept as a witness of truth, puts the date of the separation of his brother and sister-in-law, at the time his brother moved to Mt Lewis. His evidence was clear that there was a period where his brother would stay with him for a period and then return to the family home (Transcript of Proceedings, 26 February 2013, page 76):
These two get into problems together, so I asked him to come and just to cool it down, come and stay there in my place, and then they go back, but the problems were going on and on.
That evidence is also consistent with Ms Skaf’s recollection (Transcript of Proceedings, 27 February 2013, page 129):
He used to go and come, stay for a few days and come; but when he left the house officially, when we had the big fight, when he said to me, “I’m not living with you. That’s it. This is the end of it,” whatever. And the second day or the same day, I can’t remember, his brother told me, “Salam, it’s all right. I’m going – don’t worry, Khalid is going to live with me. He’s going to – I’m sure he’s not going to come back now. And what I want you to do, I want you to keep thinking positive. You have four children to raise up.” And I want to speak to him – always to think positive, to have four children. It’s not right to keep fighting and living.
Counsel for Ms Skaf, Mr Santisi, submitted that the evidence of Mr Skaf not living with his brother from January 1997 is not inconsistent with him permanently leaving the family home at that time. Mr Santisi contended that Ms Skaf was entirely reliant for her knowledge of her husband’s whereabouts on what he told her and in those circumstances she mistakenly assumed that he was living with his brother. The difficulty with that argument is, as the evidence reveals, Ms Skaf was in regular contact with her brother-in-law. There is no evidence and nor is it suggested that Mr Mohomad Skaf misled his sister-in-law into thinking that his brother was living with him; or, that she did not tell him when his brother left the family home. While I accept that by early 1997, if not before, the Skaf’s relationship was marred with conflict and Mr Skaf was probably often absent from the family home for significant periods I am not satisfied that from that time on, he resided elsewhere. In reaching that finding I have taken into account the contemporaneous evidence of Ms Skaf claiming that her husband left the family home in January 1997 and the evidence given by the daughter and neighbour. I place little reliance on their evidence: the daughter was a young child at the time and reliant on what she was told by her parents; it was plain from his oral evidence that the neighbour was uncertain about when Mr Skaf moved from the family home.
In making that finding I have also had regard to the tax returns filed by Mr Skaf and records of the Australian Taxation Office which indicate that between 2000 and 2009 a person (not Ms Skaf) was listed as his de facto and between 2006 and 2011 his residential address was given as his brother’s address in Mt Lewis. That proves little given Mr Skaf’s practice of routinely providing incorrect information to government agencies and other organisations about his residential address and other personal details. In addition I note that the ATO’s records of Mr Skaf being in a de facto relationship between 2000 and 2009 conflicts with the evidence he gave in these proceedings of being in an exclusive relationship with another woman from about late 2006.
Nonetheless I accept that at some point Mr Khalid Skaf left the family home to reside with his brother. Identifying when that occurred is a difficult task because of the conflicts in the evidence and the unreliability of some of it, especially that given by Mr Khalid Skaf and Ms Skaf.
As noted Mr Khalid Skaf could not have joined his brother in Mt Lewis before mid-1999. Mr Mohomad Skaf could not recall how long he and his family were living in Mt Lewis before they were joined by his brother, but said it was some time after the move. Mr Khalid Skaf, on the other hand, claimed it was as soon as his brother moved to Mt Lewis. I prefer Mr Mohomad Skaf’s account because it has not been tailored to suit his brother’s account and, unlike Mr Khalid Skaf’s evidence, it is not self-serving.
The question that remains, however, is how long after moving to Mt Lewis was Mr Mohomad Skaf joined by his brother. There is little firm evidence on this point. Mr Mohomad Skaf’s recollection was that by the time Ms Skaf underwent surgery in mid-2000 she had separated from her husband. Because I believe Mr Mohomad Skaf to have been a truthful witness, I accept that a separation had occurred prior to, or around that date.
Although there is evidence that suggests that Mr Khalid Skaf may never have left the family home, which I will discuss below, I have concluded that it is more likely than not that he resided for a period with his brother at Mt Lewis. Although not possible to pinpoint the date of that move, given Mr Mohomad Skaf’s evidence was that his brother did not move in directly after he and his family had moved to Mt Lewis but some time afterwards, I find that the move probably took place around mid-2000. I am satisfied that Mr Skaf left the family home on or about 1 July 2000.
When did Mr Khalid return to the family home?
It is agreed that Mr Khalid Skaf had returned to the family home by March 2011.
Mr Mohomad Skaf testified that he had asked his brother to move out of Mt Lewis due to the imminent arrival of a daughter-in-law from Lebanon who would be joining the family. Mr Mohomad Skaf testified that he brokered an agreement with Ms Skaf to allow his brother to return to the family home and live in the garage, on the condition that he not “intefere with her life”. She said that while initially reluctant she eventually agreed to this arrangement.
Mr Mohomad Skaf’s grandson, Mr Muhammad Tehseldar, testified that he had shared a bedroom with Mr Skaf in his grandfather’s house from about 2008 until he moved out to return to the family home. He stated that he understood that the reason Mr Skaf moved out was because of the arrival of his grandfather’s new daughter-in-law from Lebanon. He claimed that on many occasions he observed his grandfather and Mr Khalid Skaf arguing about the latter’s “family problems”.
Ms Skaf claimed that the reason she acquiesced to her brother-in-law’s request was because of a “big drama” in the street involving drugs and the “kids were scared and needed [their father] badly”. Mr Skaf, neighbours and the Skaf’s daughter corroborated Ms Skaf’s account of there being problems in the local area in 2010.
Mr and Ms Skaf testified that Mr Khalid Skaf initially slept in the lounge room in the family home and, after a period, moved into the garage. Each testified that since that move he has lived apart from the family and has about the same amount of contact with Ms Skaf as he did when living with his brother.
Ms Skaf’s health problems
To put the relationship between the Skafs in context, it is necessary to sketch in some details about Ms Skaf’s health throughout the debt period.
On 28 June 2000, Ms Skaf underwent surgery for the removal of a benign tumour in her left shoulder. In 2003 she required further surgery to remove a regrowth and was left significantly impaired, suffering nerve damage, a “dropped shoulder”, muscle loss and weakness in her left shoulder and arm. Ms Skaf reported that for some months after that operation she suffered excruciating pain and was unable to care for her children. She claimed that throughout that period she relied heavily on her then 11-year-old daughter and, to some extent, on assistance provided by her husband and sister-in-law (Mohomad Skaf’s wife).
In 2004, Ms Skaf was referred to a pain clinic by her treating neurologist. Her symptoms persisted and in 2007, she consulted doctors at the American University in Beirut who confirmed the opinion of her treating doctors that no further viable treatment was available.
In June 2011 shortly after being advised by Centrelink that an investigation was being conducted into the veracity of her claim of being separated from her husband, Ms Skaf commenced treatment for depression and anxiety.
WERE THE SKAFS SEPARATED DURING THE DEBT PERIOD?
In determining the central question, namely whether Ms Skaf was living separately and apart from Mr Skaf on a permanent or indefinite basis throughout the debt period I must have regard to the matters listed in s 4(3) of the Act. Those matters are non-exhaustive and consideration must also be given to whether there are other matters relevant to that question together with the total picture of the relationship that emerges from these factors. (Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546 at 559). The Act gives no guidance about the relative weighting to be given to these factors. Rarely, if ever, will a single matter be determinative. Whether Ms Skaf was living separately and apart from Mr Skaf on a permanent or indefinite basis can only be decided after assessing the totality of the evidence (Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 32 FCR 164).

Insofar as those factors are relevant I will deal with them as they are set out in the provision:
(a) Financial aspects of the relationship
The evidence reveals that the financial affairs of the Skafs were closely intertwined throughout the relevant period.
(i) Any joint ownership of real estate or other major assets and any joint liabilities
The Skaf family home has been jointly owned by Mr and Ms Skaf since 1996. Tendered in these proceedings is a copy of an affidavit sworn by Ms Skaf in October 2012 purportedly filed in proceedings before the Family Court of Australia. Ms Skaf deposed that after their divorce they entered into terms of settlement which: (i) gave her the exclusive right to occupy the family home until their youngest son reached 25 years of age; (ii) provided that the property would then be sold and the proceeds split: 55 per cent (Ms Skaf); 45 per cent (Mr Skaf). A copy of the terms was not produced in these proceedings.
In 1999, with Ms Skaf’s agreement, Mr Skaf sold the Lakemba apartment where the family had lived before moving to the family home. In oral evidence, each claimed that after using the proceeds of that sale to discharge the mortgage on the family home, the balance of $13,000 was split between them: $8,000 to Ms Skaf and $5,000 to Mr Skaf.
No reference to those payments was made in Mr Skaf’s affidavit evidence, or in the record of the interview with Ms Skaf conducted by Centrelink officers in April 2011. During that interview Ms Skaf told Centrelink that all the moneys from the sale of the Lakemba property were used as a deposit for the family home in Greenacre.
Apart from the family home there is no evidence of Mr and Ms Skaf having joint ownership of any major asset.
(ii) Any significant pooling of financial resources especially in relation to major financial commitments
There was also evidence of pooling of resources in relation to major financial commitments.
According to Mr Skaf, when notified by the Child Support Agency in July 1997 that he was required to pay child support in the sum of $1025 per fortnight, he approached Ms Skaf and explained that he could not afford that amount and also continue to meet the mortgage repayments on the family home of $1200 per fortnight. On his account, they agreed to a reduction in the child support payments to $650 per fortnight in lieu of Ms Skaf making any contributions towards the mortgage repayments.
Mr and Ms Skaf testified that throughout the debt period Mr Skaf paid half of the water and council rates and insurances associated with the family home. Each claimed that Mr Skaf made these payments and deducted Ms Skaf’s share from the $650 per fortnight paid to her in cash for child support throughout the debt period. Their evidence was to the effect that Mr Skaf made those deductions without consulting with, or providing a breakdown to, Ms Skaf. Neither explained why these sums were deducted in this way when it would have been easier and more efficient to reduce the child support to a specific sum that would take into account these payments for water, rates and insurances.
It is clear from the evidence that Mr Skaf was at all times making the actual payments for water, rates and insurances demonstrating, at least, his investment in the joint property. If their joint evidence is accepted, it also shows a significant pooling of resources.
Each claimed that in addition Mr Skaf paid the school fees and other major expenses associated with the children.
Between May 1999 and December 2005 Ms Skaf held private health cover with NIB. In December 2005 Mr Skaf took out health insurance for the family with a work-based fund. Ms Skaf is covered by that policy. Documents produced by the fund reveal that Ms Skaf is described as “partner” under the policy. Mr Skaf claims that Ms Skaf reimbursed him for her share of the premiums. How she did this was unexplained. Nor was the basis of the calculation of Ms Skaf’s share of the contribution explained.
Payments for travel
On a number of occasions during the relevant period, Mr and Mrs Skaf travelled together on significant trips. Although they gave accounts that were internally inconsistent in some respects, there is some evidence that Mr Skaf paid for these trips. These trips evidence both a close financial relationship between Ms Skaf and Mr Skaf but also a significantly closer social relationship than they claim was the case during the relevant period.
Travel to Lebanon in October 1999
In October 1999 Mr and Mrs Skaf and their four children visited Lebanon for three months. Each testified that while they travelled to and from Lebanon together, on arrival they stayed with their respective families. According to Ms Skaf, Mr Skaf had originally planned to take their two eldest children to Lebanon earlier in the year and she persuaded him to postpone that trip until October when she planned to be in Lebanon for her brother’s wedding with their two youngest children. She claimed that the reason she requested Mr Skaf to delay his trip was because she had some misgivings about his ability to properly care for the children who were still quite young. Both claim that Mr Skaf did not attend his brother-in-law’s wedding.
In evidence given to the SSAT and in these proceedings, Ms Skaf claimed that she paid for her trip from the $8000 she had allegedly received from the balance of proceeds of the sale of the Lakemba property. The irresistible inference is that her evidence either in her record of interview with Centrelink or in this Tribunal on this point was false.
Family holiday to Queensland in January 2007
In January 2007 the Skafs and a number of other families travelled to Queensland for a one week holiday. In the record of interview, Ms Skaf said that Mr Skaf paid for the holiday including her airfare. In oral evidence she said that she reimbursed him for her airfare and her share of the accommodation.
Travel to Lebanon in December 2007
In December 2007 the Skafs and their four children again travelled to Lebanon. During this visit Ms Skaf sought a further medical opinion about her neck and shoulder problems. Each claimed that while Mr Skaf accompanied Ms Skaf to and from Lebanon they spent no time together. He claimed that during the trip he travelled to Syria and Turkey and otherwise stayed with his own family, about 20 kilometres away from where Ms Skaf was staying. He claimed that the reason he accompanied Ms Skaf to and from Lebanon was so that if it she did undergo surgery he would be available to escort the children back to Australia.
In the record of interview Ms Skaf is recorded as saying that her husband paid her airfare as she could not afford to do so. In oral evidence she claimed that he lent her, and she subsequently repaid, the money for her fare. No documentary evidence was adduced in support of these claims.
Travel to Lebanon in June 2009
In June 2009 Ms Skaf travelled to Lebanon with her daughter to visit her sick mother. On interview Ms Skaf told Centrelink that Mr Skaf purchased and paid for the airfares. In oral evidence she said that she had borrowed $2,000 from Mr Skaf, which she repaid in two or possibly three instalments. Again there is no documentary evidence to support this claim.
Travel to daughter’s wedding in December 2011
The Skafs’ daughter was married in Lebanon in December 2011 (outside the debt period). Ms Skaf and her daughter each claim that they had originally planned that Ms Skaf would attend the wedding without her other children. The daughter claimed that as the date of the wedding approached her brothers expressed disappointment that they would not be attending and she raised the issue with her father and requested that he pay for them to attend; he agreed. She said she understood that a maternal uncle had paid for her mother’s airfare.
Ms Skaf and her daughter testified that they first learnt that Mr Skaf would be attending the wedding when he arrived in Lebanon, about two weeks after their arrival. The daughter testified that before the wedding her father told her he would try to get time off work but that this may not be possible. He gave evidence to the same effect. Mr and Ms Skaf each deny discussing with each other whether Mr Skaf planned to attend the wedding.
Dealings with financial institutions
The objective evidence concerning the Skaf’s banking and other arrangements with financial institutions suggests a much closer relationship than they are willing to admit.
Throughout the debt period Ms Skaf held a Commonwealth Bank account in her own name (into which her Centrelink payments were made). The account was opened in October 1997. That evidence is, of course, consistent with Ms Skaf’s claim that she and Mr Skaf had separated. But it would also be obvious to a person claiming Centrelink payments calculated on the “single rate” that payments paid into a joint account would not go unquestioned. Other evidence is much more significant.
Mr Skaf arranged for an additional card on his MasterCard to be issued to Ms Skaf shortly after she arrived in Australia. Ms Skaf claimed in oral evidence that Mr Skaf told her she could only use the card in emergencies. She claimed that she seldom used the card but at some point the children started to use it to make online purchases. Mr and Ms Skaf testified that Mr Skaf became annoyed about this practice and instructed Ms Skaf to destroy the card. According to Mr Skaf, he suggested to Ms Skaf that she apply for a “small MasterCard” for the children to use.
Included in the section 37 [Administrative Appeals Tribunal Act 1975 (Cth)] documents is material produced by the Commonwealth Bank of Australia under direction of the Secretary (ss 196 and 197 of the Social Security (Administration) Act 1999 (Cth)). It includes a copy of an online MasterCard application in Ms Skaf’s name dated 16 July 2007. In oral evidence, Ms Skaf said that she applied for the card over the phone and, at some point during that conversation, her cousin Roy took over the call because she was experiencing language difficulties.
The form states Ms Skaf’s annual income to be $74,100, roughly Mr Skaf’s income at that time. In oral evidence Ms Skaf said she could not explain how that figure came to be in the form and pointed out that it was inconsistent with the description she gave of her occupation being “home duties”. Counsel for the Secretary, Ms Dobraszczyk contends that it is fanciful to suggest that Ms Skaf did not provide this information and says that it is suggestive of Ms Skaf holding herself out to be a member of couple. Mr Santisi submits that the form does not suggest the existence of a couple and furthermore absent better evidence about how the document was created the document is unreliable.
On its face, the fact that Ms Skaf applied for the card is consistent with her claim to have separated from Mr Skaf. It is troubling, however, that the information concerning Ms Skaf’s income is evidently false. This may be due to some sort of misunderstanding on Ms Skaf’s part or it may have been due to her deliberately misleading the bank with the suggestion that she had a substantial income. Giving her the benefit of the doubt and assuming that she did not intentionally falsify her application, the most obvious inference to draw from the claim that her income was about $74,000 is that she expected Mr Skaf to provide financial support for the repayments to MasterCard. That, of course, would suggest that the couple were not separated.
According to the Skafs, Mr Skaf often paid for purchases made on the card, by, or on behalf of, the children.
Joint bank accounts
According to Mr Skaf, prior to 1997 he and Ms Skaf held a joint savings account with the Commonwealth Bank, which he closed when they separated. There is no record of such account in the documents produced under direction by the Commonwealth Bank. Throughout the debt period Mr Skaf held a number of bank accounts in his own name and a joint account with his mother.
Mr Skaf produced no evidence of a joint account being closed after 1997. His claim that the account had been closed was intended, doubtless, to corroborate Ms Skaf’s claim that they had separated in 1997. The absence of independent documentary evidence of a joint account is telling. I do not accept Mr Skaf’s evidence on this point.
Authority to operate Mr Skaf’s accounts
On 7 May 2009 Mr Skaf signed an “Authority to operate”, which granted Ms Skaf access to one of his Commonwealth Bank accounts, namely the account into which his salary was paid. Four days later he signed an authority granting Ms Skaf access to a term deposit held by Westpac in his name.
In these proceedings Mr Skaf explained that he gave Ms Skaf these authorities because he was considering accepting an offer of work in the United Arab Emirates and wanted Ms Skaf to have access to his funds in case his children needed money while he was away. In support he pointed to a “job offer letter” offering him a position as General Supervisor for “our projects in Dubai”. The letter issued on Polygon Contracting letterhead stated that the offer expired on 8 May 2009.
In oral evidence Mr Skaf claimed that the offer arose following a conversation with a cousin in Lebanon, a few years earlier, about the possibility of obtaining work in the UAE. He said that he did not submit a job application to, and knew nothing about, Polygon Contracting, before the offer arrived. He said that he understood the position offered, General Supervisor, involved supervising workers on a construction site and driving a lorry. Mr Skaf is employed as a train guard supervisor and claims that he is licensed to drive lorry trucks. He said that after some consideration he decided not to take the position because, among other things, unlike his position with State Rail it was not a permanent position.
Mr Skaf was cross-examined about the purported job offer and it is submitted his evidence was not plausible. The job offer expired on 8 May 2009. Yet on 7 May, when Mr Skaf was presumably still considering his position or had already decided not to go to the UAE, he decided to authorise Ms Skaf to operate his account. The job offer did not require him to be in the UAE by 8 May, it only required him to make his decision by then. Had he decided to accept the offer, this would have been the logical time (if any) to give Ms Skaf the authority. I found his evidence on this point implausible, further undermining the overall credibility of his evidence.
But whatever the motivation for the decision to authorise Ms Skaf to operate those accounts, it indicates a high level of trust between the Skafs. Even if accepted it was to provide a safety net for the children, providing an authority to his wife was not the only option available. It was open to him for example to have provided the authority to his brother, Mohomad with whom he was residing at the time.
The final major piece of evidence to be noted in respect of the financial arrangements of the Skafs is that all the financial records, i.e., bank accounts and MasterCard statements, relating to accounts in the names of Salam Skaf, Khalid Skaf or the joint account of Khalid Skaf and his mother, were sent to the same address: the family home. This also suggests a united family household between the Skafs.
It is particularly significant, in my view, that neither took steps, nor planned, to disturb the joint ownership of the family home. Mr Skaf continued to contribute to its upkeep.
Despite the lack of supporting evidence I accept that throughout the debt period Mr Skaf paid Ms Skaf the sum of $650 per fortnight in cash. Whether he made deductions from that sum to recoup Ms Skaf’s share of expenses is possible but more doubtful. Most importantly, as Ms Skaf conceded, despite the difficulties in their relationship there were no major problems about issues of money notwithstanding the informal nature of these financial arrangements.
Whether these payments were actually for “child support” from a separated parent or not must be open to doubt. The fact that the payments were made is not, of itself, decisive. It is common for husbands to give wives a weekly sum of money for housekeeping or for them to retain a certain amount of “pocket money”, especially if the wife takes primary responsibility for the house and care of the children.
I do not accept, however, that Ms Skaf received $8000 following the sale of the Lakemba property and used this to finance her 1999 trip to Lebanon. Nor do I accept that she repaid her share of costs for subsequent trips. Not only did Ms Skaf omit to mention this claim in the interview (as did Mr Skaf in his affidavit evidence) but it was apparent from her evidence that she had a poor grasp of the particulars: the cost of the travel, the amount borrowed and the method of repayment. In my opinion this evidence points to a pooling of financial resources as well as a belated attempt to tailor their evidence to meet the evidentiary problem that such pooling of resources caused for them.
In conclusion, while there are some aspects of the financial arrangements between the Skafs that suggest that they were living separately and apart, such as the “child support” payments, the financial aspects of their relationship reveal a high level of cooperation and interdependence throughout the debt period and are an indicator that they were not living separately and apart from each other on a permanent or indefinite basis.
(iii) Legal obligations owed by the Skafs to each other in respect of the other person
Apart from Mr Skaf’s obligation to provide child support there is no evidence of the Skafs owing any legal obligations to each other during the relevant period.
(iv) Basis of any sharing of day-to-day household expenses
In her record of interview Ms Skaf said that in addition to child support, Mr Skaf also paid some of her medical bills and, on occasions, grocery bills. In these proceedings each denied that Mr Skaf had paid for any household expenses apart from the utility bills discussed above. When questioned about this, Mr Skaf admitted that, on occasions when his wife had been unwell, at his daughter’s request, he purchased food and groceries. On his account, however, he always deducted any amount so spent from child support paid to Ms Skaf.
Ms Skaf testified that apart from travel costs, on no occasion throughout the debt period did she ask Mr Skaf for any money in addition to child support.
(b) Nature of the household
(i) Joint responsibility for providing care or support of children
While some inconsistencies exist, the evidence given by the Skafs is to the effect that apart from short periods when Ms Skaf was unwell or overseas (in 2009), she took primary responsibility for the care of their children. Mr Mohomad Skaf and Ms Skaf gave evidence to the effect that initially Mr Khalid Skaf had been reluctant to provide assistance to his family and did so only after the intervention of his brother. Except for that initial period, the evidence reveals that Mr Skaf was a constant and supportive figure to his children throughout the debt period.
(ii) Living arrangements
The Skafs claimed that after they separated, Mr Skaf visited the family home on a regular basis but apart from short periods when Ms Skaf was unable to care for the children because she was ill or overseas, did not stay overnight until his return in late 2010/early 2011.
Throughout the debt period, however, Mr Skaf either gave his address to relevant organisations as that of the family home or omitted to tell them that this was no longer his address. This conduct affected records relating to his driver’s licence; car registration (in July 1999 Mr Skaf notified the Roads and Traffic Authority that he had changed his address to the family home); bank accounts, including those opened in the debt period (a joint account with his mother, opened in 1997 and a cash investment account opened in 2005); a passport application made in 1999, passenger arrival cards completed in 2008 and 2009 as well as Medicare records. In addition Mr Skaf did not notify his employer that he was not residing at the family home or had separated from his wife.

It would appear that the only organisations Mr Skaf advised throughout the debt period that his residential address was not the family home were the ATO and the Child Support Agency.
There is no evidence to indicate that the Skafs notified any other organisation with which they had dealings, such as the children’s school, of their separation. Ms Skaf claimed that that she did not inform any of the medical practitioners she consulted throughout the debt period that she was separated, as the issue did not arise. The one exception appears to be family dentist, Dr Michela Nazha who in an undated letter stated that he was aware that Mr Skaf and his wife had been separated for “quite a long time”.
(iii) Basis on which responsibility for housework is distributed
Mr and Ms Skaf each claimed in these proceedings that the only contribution made by Mr Skaf to the housework throughout the debt period was the upkeep of the exterior of the house and the garden.
This evidence is not decisive one way or the other. It is a matter of common knowledge that in Australia women generally do more housework than men. In some cultures, the division of domestic labour is quite strictly demarcated. I do not have evidence about Lebanese Muslim culture and, in any case, there are probably individual variants within that culture. Regardless of culture, it is unremarkable for a wife who is not in paid employment, to take on most of the housework.
Notwithstanding those general considerations, Ms Skaf’s evidence is again internally inconsistent. In her record of interview, she is recorded to have said that her husband “did the cook” and that when she is sick he “helps more … he takes care of everything”. In oral evidence, however, each claimed that while Mr Skaf provided a greater level of assistance in those periods when Ms Skaf was ill, any assistance provided was limited to the care of the children. Ms Skaf claimed that apart from a BBQ lunch to feed those who had assisted him renovate the garage, Mr Skaf never cooked at the family home. These accounts cannot stand together.
While I accept that Ms Skaf took primary responsibility for the housework and care of the children throughout the debt period, I find that Mr Skaf shared some of the responsibilities for the children and during those periods when Ms Skaf was unwell or overseas provided some domestic assistance. Although by itself not decisive, this evidence suggests that the Skafs were not living separated and apart.
(c) Social Aspects of the Relationship
(i) Holding themselves out as married to each other
In many of the documents created on the basis of information provided by Mr and Ms Skaf to various agencies and institutions throughout the debt period the Skafs are described as married. For example, Mr Skaf is listed as Ms Skaf’s husband in her passport application made in September 2003; the admission records of Auburn Hospital made in May 1997; the records of Canterbury Hospital made in 2000 and 2003 and a Bankstown Hospital registration form in relation to visits made by Ms Skaf in 2000, 2003, 2004, 2006 and 2009. Those records also list Mr Skaf as the “person to notify” in cases of emergency and his address given as the family home.
As noted ATO documents record Mr Skaf as being in a de facto relationship with someone other than Ms Skaf.
(ii) Assessment of friends and regular associates about the nature of the relationship
In the record of interview, Ms Skaf is recorded as saying when asked whether people saw her and her husband as a couple: “It depends … I’m very, very secretive”. In oral evidence she said she did not have time to see people and spends all her time with her children or managing the house but conceded that some people knew about her position. When asked why she had not mentioned this to Centrelink she claimed that she must have forgotten.
A number of people gave evidence in these proceedings that they were aware that the Skafs were separated. These included Ms Simone Younis who met Ms Skaf in 2000. She testified that she did not see Mr Skaf on the ten or so occasions she and her daughter stayed overnight at the family home between 2000 and 2006; or, during any of her regular weekly visits to the family home. She claimed that Mr Skaf attended the children’s soccer matches (but not training) and usually stood at the opposite end of the field to Ms Skaf and herself. Ms Younis was a member of the group who travelled to Queensland with the Skaf family in 2007. On her account it was apparent during that holiday they were not a happy couple: they were neither affectionate towards, nor spent time with, each other. On her account although a “private person” Ms Skaf eventually confided in her that she was separated from her husband.
Ms Noha Salame has known Ms Skaf for about seven years. They met through their children’s school. She testified that before her children moved schools four years ago, she saw Ms Skaf two to three times a week and now sees her every three to four months. She testified that at some point (she could not recall when) she asked, and Ms Skaf confirmed that she was separated.
Ms Rosa Ronaldi and Ms Skaf met in 2007. Ms Ronaldi testified that during the eight months in 2010 she and her partner lived next door to the family home she observed Mr Skaf visiting from time to time to pick up mail and to take the children to and from school. She said that when they became neighbours she and Ms Skaf became close and Ms Skaf revealed that she was separated from her husband. On her account, she observed “a lot of friction” between the Skafs.
Ms Ronaldi’s partner, Mr Giulino Leotta, testified that he first met Mr Skaf when he and Ms Ronaldi were having coffee with Ms Skaf in the family home and Mr Skaf dropped in to collect mail. A tiler, Mr Leotta testified that in about December 2010 he assisted Mr Skaf to tile the garage in the family home.
Ms Skaf testified that she told her parents that there were problems in the marriage when she visited Lebanon in late 1999. She claimed that they encouraged her to return to Lebanon and leave him to raise the children. She apparently did not reveal to her parents then that she had already separated from Mr Skaf.
Mr Skaf claimed that his mother was aware there were problems in the marriage when he visited Lebanon in 1999. According to Ms Skaf, in about 2000, her mother-in-law, who lived in Lebanon, stayed with her at the family home for probably two to three to weeks and then stayed with her other four sons, who all lived in Sydney. Mr Skaf said the reason his mother came to Australia in 2000 was to help sort out the problems in the marriage.
Mr Skaf’s current partner testified that in late 2006 she learnt that Mr Skaf was separated from his wife and living in Mt Lewis. She confirmed that she visited him on a number of occasions after he returned to the family home.
Ms Skaf claims that throughout the debt period her mother-in-law and Mr Mohomad Skaf were the only members of her husband’s family with whom she was in regular contact. She claimed that Mohomad was the only one of Mr Skaf’s four brothers who was aware of the separation.
At some point in the debt period an invitation, addressed to “Mr Khalid Skaf and family” was sent to the family home to attend the wedding of one of Mr Skaf’s nephews (not one of Mohomad’s sons). Ms Skaf claimed that she attended the wedding with her children but did not socialise with her husband. If, in fact, Ms Skaf and Mr Skaf had separated, it seems strange that so little news of the rupture in their relationship appears to have reached the wider family living in Australia especially given that the mother-in-law stayed in the family home for a few weeks and then went on to stay with other sons.
(iii) Basis on which the Skafs make plans for, or engage in, joint social activities
Each claimed that throughout the debt period they did not socialise or eat together. Each also claimed that any conversation between them was limited to matters involving money, the family home and their children. Ms Skaf claimed that Mr Skaf did not even acknowledge her birthday. Each claimed that this situation continued after Mr Skaf’s return to the family home. Ms Skaf said that from time to time she socialised with Mr Mohomad Skaf and his family but that Mr Khalid Skaf was never present on these occasions.
A body of plausible evidence suggests that the relationship between the couple was unhappy and lacking in warmth and apart from the trips discussed above, the Skafs did not engage in or plan social activities together.
The weight of evidence indicates that throughout the debt period Mr and Ms Skaf held themselves out as married except to close friends, members of their immediate family, people they had consulted about their “difficulties” and a number of government agencies such as Centrelink, the Child Support Agency and the ATO. It is telling that even her close friends were unaware for some time that Ms Skaf was separated.
Overall, the evidence indicates that the Skafs held themselves out as married to some “official” bodies and revealed to a small circle that they were separated. Their conduct in their private lives suggest that from at least 2000 they had little social contact and interaction.
(d) Any sexual relationship
Both Mr and Ms Skaf claimed that, apart from one occasion while holidaying in Queensland in January 2007, they were not in a sexual relationship during the debt period. Each claimed that even before they separated there were problems in their sexual relationship, which each attributed to a physical condition suffered by Ms Skaf.
Each testified that when they arrived in Queensland, they decided to see if their relationship could be restored for the sake of their children. Each claimed that the only occasion they slept together was on the first night of the holiday and after that Mr Skaf slept on the lounge. Ms Skaf claimed that during the night her medical condition emerged and Mr Skaf shouted and abused her. During the holiday, the family stayed in a two-bedroom apartment that had been booked in advance by Mr Skaf. This suggests that at the time Mr Skaf intended to share a bedroom with Ms Skaf for the entire holiday, which is obviously inconsistent with separation.
Prior to, and throughout, the debt period Mr Skaf had a number of extra-marital relationships. Infidelity of itself, does not prove separation.
The evidence of their lack of a sexual relationship while not determinative is suggestive of the Skafs living separately and apart.
(e) Nature of the Skafs’ Commitment to Each Other
(i) Length of the relationship
The Skafs had been married for 24 years before their divorce in 2011.
(ii) The nature of any companionship and emotional support provided to each other
In these proceedings each denied providing the other with any form of companionship throughout the debt period. Each claimed that even when they both attended an activity such as a school or family function they did not attend together.
The evidence about the nature of the support provided by Mr Skaf during those periods when Ms Skaf was unwell is in conflict. In her record of interview, Ms Skaf stated that when she was unwell, her husband provided a much greater level of care than to which she now admits.
Ms Skaf testified that throughout the debt period she saw many medical specialists about her shoulder/neck condition. She claimed that Mr Skaf sometimes accompanied her to those appointments which were located some distance away or were in areas with which she was unfamiliar. On her account he usually stayed in the waiting room but on occasion came into the surgery to act as translator.
In oral evidence, Mr Mohomad Skaf stated that he had to pressure his brother to accompany Ms Skaf to hospital and provide her with help when she was sick. He recalled impressing upon his brother that even if his relationship was over he had a duty to take care of his children especially when his wife was unwell.
This evidence has the ring of truth and suggests that Mr Skaf provided some rudimentary physical support and care for Ms Skaf but little emotional support or nourishment.
(iii) Whether the Skafs considered their relationship was likely to continue indefinitely / is a marriage-like relationship
The weight of evidence suggests that the relationship between the Skafs had irretrievably broken down by 2011. They divorced in November 2011 while in Lebanon attending their daughter’s wedding. Each testified that Ms Skaf initiated the divorce and her brother acted as intermediary. On her account, when she realised that her husband was also in Lebanon for the wedding, she thought that she might as well sort out the issue of divorce while she was there. When that irretrievable breakdown took place, however, is less easy to identify.
In the records and her affidavit, Ms Skaf stated that she did not seek a divorce prior to 2011 because she (i) saw no need to do so as she had no intention of re-marrying; (ii) was concerned that Mr Skaf might take the children; (iii) felt “cultural shame” on account of being separated; and (iv) was concerned it might reflect badly on her daughter.
In oral evidence Ms Skaf claimed that it was her understanding that in Lebanon, the father automatically gains custody of any children, on divorce and, that this was also the case in Australia unless the woman went to court and “fight and fight”. In cross-examination she said that when she eventually divorced her husband in 2011 she was no longer concerned that Mr Skaf would take the children as they were older, the youngest being about 14 years of age, and could decide for themselves where they wanted to live.
When questioned about the apparent discrepancy between her claim of deciding not to divorce because it might reflect badly on her daughter and her actions of obtaining a divorce two weeks before the wedding, Ms Skaf replied that by that time her daughter and her fiancé were committed to each other and the formalities involved with the wedding had largely concluded.
Ms Skaf denied in these proceedings that the decision of the SSAT, handed down about a month before the divorce, played any role in her decision to obtain a divorce. It is possible that she had an ulterior motive for this as well as the obvious one but it is impossible to be certain. There is no independent evidence to contradict her claim that under Lebanese law a father has a stronger claim to custody of the children than a mother. If her claims about that are correct, or she is telling the truth about her subjective beliefs, and she and the children lived in Lebanon, it would have been reasonable for her to delay a divorce. But, of course, they did not.
Whatever the respective rights of parents concerning child custody under Lebanese law, it is difficult to accept that anyone who made reasonable inquiries could conclude that mothers in Australia have to “fight and fight” to obtain or retain custody of children. Further undermining the plausibility of this claim is the fact that Mr Skaf never made any such demands for custody, but rather agreed to pay Ms Skaf child support.
In any event, it seems that the divorce in 2011 reflected the reality that the relationship had by then broken down. The delay in seeking the divorce suggests, possibly, that the ultimate breach took place later than the Skafs now claim.
Attempts at reconciliation
Throughout the debt period the Skafs made a number of attempts at reconciliation. On two, possibly three, occasions, largely at the instigation of Mr Mohomad Skaf, they consulted a Sheik about their relationship. The evidence is unclear about when this occurred. Ms Skaf said the first meeting was probably a few years after the separation; Mr Khalid Skaf said he met with Sheikh Taj El-Din Alhilaly alone and then later with Ms Skaf.
In addition, each saw Mr Mustafa Arja who described himself as a community counsellor in the Lebanese Muslim community. Mr Skaf met Mr Arja through work in about 2000 and at some point told him about his marital problems. He could not recall when these discussions took place. Neither could Mr Arja who also gave evidence in these proceedings.
Mr Arja also met with Ms Skaf on one occasion and concluded that she was not enthusiastic about divorce. While the evidence is unclear, this meeting probably occurred sometime after Mr Arja became what he described as a “community counsellor” in around 2006.
In a letter dated 28 July 2011 Sheikh Taj El-Din Alhilaly wrote that he attempted “many times to resolve marriage difficulties” between the Skafs but their problems could not be resolved on account of “health and physical reasons”.
While there is evidence of long-term commitment (probably centred around their mutual desire to support the children), there is also persuasive evidence that the relationship broke down at some stage, requiring the intervention of family and independent mediators to foster attempts, ultimately unsuccessful, at reconciliation. The evidence suggests that the efforts at reconciliation took place in 2000 or after. It is notable that there appear to have been no such efforts for three years or more after Ms Skaf claims that she and her husband separated.
It is evident that Mr Mohomad Skaf went to considerable efforts to encourage reconciliation. It is also evident that the Lebanese Muslim community to which Ms Skaf and Mr Skaf belonged also placed a high value on supporting the marriage. It is likely that all those people would have understood that in the period around 2000 Ms Skaf was not well-equipped for an independent life in Australia. Her English language skills were not strong, she had had no training for a professional career and she had primary responsibility for caring for the children.
Had the couple really separated in 1997, this evidence suggests that the family would have intervened immediately. As I have stated, the weight of evidence indicates that Mr Skaf did not leave the family home on a permanent basis until he moved to live with his brother at Mt Lewis.
(iv) Whether the Skafs saw their relationship as a marriage like relationship
Each claim that they saw the relationship was at an end when Mr Skaf left the family home, which they say occurred in early 1997. That claim is inconsistent with, among things, their actions in consulting with Sheiks and Mr Arja after that date and their claims of not disclosing their separation to their parents until they visited Lebanon in late 1999. I accept that at some point the Skafs did not consider their relationship to be a marriage‑like relationship. On the available evidence I am unable to make any reliable finding as to when that occurred.
MS SKAF’S CAPACITY WHEN INTERVIEWED BY CENTRELINK
At the request of her solicitors, forensic psychiatrist, Dr Richard Furst was asked to provide an opinion about Ms Skaf’s capacity to be interviewed in April 2011. Dr Furst assessed Ms Skaf and examined the record of interview and a number of medical reports.
In a report prepared in July 2012 Dr Furst wrote that when he assessed Ms Skaf (in July 2011 and July 2012) she presented as anxious with signs of depression. He opined that her level of depression in April 2011 “may well have impaired her capacity to be interviewed”. He also thought it possible that she was suffering from the side effects of the antidepressant medication she commenced taking a couple of days before the interview. He wrote that although Ms Skaf thought that she understood the questions being asked of her, her responses indicate that some of her answers were illogical, incorrect or unresponsive and it was likely that she was confused during parts of, if not the entire, interview.
Ms Skaf was referred to psychologist, Dr Carmello Pollicina, in August 2011 by her GP under a mental health plan. Dr Pollicina was also asked to provide an opinion about Ms Skaf’s capacity to be interviewed. In a report dated 30 June 2012, Dr Pollicina expressed a similar opinion to that held by Dr Furst.

It is difficult to place significant weight on these reports for a number of reasons. First, neither practitioner assessed Ms Skaf at the time of her interview or beforehand. They attempted to draw conclusions from their observations of her after the event: when she knew that she was not only under investigation but that Centrelink doubted her account. It does not follow that more recent assessments of Ms Skaf’s capacity reflect her state of mind at the time of the Centrelink interview. Second, Dr Furst offered the opinion that Ms Skaf’s level of depression when interviewed “may well have impaired her capacity”. The foundation for this opinion, presumably, was the history given by Ms Skaf about her level of depression at the time of the interview. By the time she was assessed by Dr Furst not only did Ms Skaf know that she was under investigation but because of this she may have been motivated to exaggerate her levels of anxiety and depression.
Third, Dr Furst did not explain in what respect Ms Skaf’s capacity “may well have been impaired”. Is it suggested that her capacity to give honest answers was impaired? Is it suggested that her capacity to understand the questions was impaired? Is it suggested that her capacity to remember facts was impaired? Dr Furst’s description of some of the answers given by Ms Skaf as “irrational”, “illogical” or “unresponsive” and therefore indicative of confusion and incapacity is a highly sympathetic interpretation. He was not, of course, present at the time to witness the manner in which the answers were given.
Another way of looking at those answers is that Ms Skaf found it difficult to give honest answers to some questions without incriminating herself and therefore prevaricated and obfuscated when challenged on those points. It is notable that she appeared to have no difficulty answering questions that apparently did not cause her embarrassment.
For similar reasons, the opinion of Dr Pollicina must be given little weight.
No doubt the record of interview was a stressful experience for Ms Skaf. In my opinion, however, of itself it does not evidence any significant incapacity to understand and respond honestly to the questions asked. A reading of that document reveals that Ms Skaf was able to recall the details of many events that occurred over an extended period. Read as a whole I did not gain the impression that many of the answers given by Ms Skaf were illogical or unresponsive, or no more so than some of the answers she gave in these proceedings.
THE CREDIBILITY OF MS SKAF AND MR SKAF
It goes without saying that the Skafs are not independent witnesses. If the decision under review is affirmed, Ms Skaf will be liable to repay a debt of close to a quarter of a million dollars. Given that he is the joint owner of the only asset of any value held by Ms Skaf, Mr Skaf’s disavowal of any interest in the outcome of these proceedings cannot be accepted.
Reliability of Mr Skaf’s evidence
By his own admission, Mr Skaf gave untruthful evidence under oath to the SSAT and in his affidavit prepared for these proceedings. In addition on numerous occasions throughout the debt period he knowingly gave untruthful information about his place of residence and marital status to government agencies and other organisations.
His actions in applying for family health insurance in 2006 and declaring that Ms Skaf was his partner, is but one of several examples of his preparedness to provide untruthful information for gain. I accept that it does not automatically follow that none of his evidence can be accepted; nonetheless it means that it must be subject to careful scrutiny, especially where it is implausible, unsupported or is contradicted by other evidence.
Reliability of Ms Skaf’s evidence
The answers Ms Skaf gave in her record of interview in March 2011 and the evidence she gave in these proceedings are inconsistent in several important respects. This raises doubts about the veracity of much of her evidence. As I have indicated above, I do not accept that these inconsistencies are attributable to lack of capacity due to depression and anxiety at the time of the interview.
CONCLUSIONS
The task of forming an opinion about whether the Skafs were living separately and apart from each other on a permanent or indefinite basis, throughout the debt period, is made difficult because of, among other things, the paucity of independent evidence to support many of their claims and significant conflicts in the evidence.
I accept that the marriage was not a happy one for much of the debt period. I also accept that throughout that period the Skafs provided each other with little companionship, emotional support and apart from the trips to Lebanon and Queensland did not socialise together. I also accept that apart from one occasion the Skafs did not have a sexual relationship during the debt period and that Mr Skaf had sexual relationships with other women.
Balanced against those factors are those that suggest that the Skafs were not living separately and apart from each other, on a permanent or indefinite basis. They include the high level of financial cooperation and some pooling of resources; their conduct of holding themselves out as married to all but a small circle; the frequency of their contact and attempts at reconciliation.
I agree with the proposition advanced by the Secretary that the phrase “living separately and apart” is not synonymous with “residing separately and apart”. While the Macquarie Dictionary and the Oxford English Dictionary Online give these definitions of the word “live”:
to dwell or reside: to live in a cottage (Macquarie)
make one’s home in a particular place or with a particular person (Oxford English Dictionary Online )
Each also provide a number of broader definitions, which in the context of the statutory provision in which the phrase appears, in my opinion are more apt:
to pass life (as specified): they lived happily ever after (Macquarie)
to spend one’s life in a particular way or under particular circumstances (Oxford English Dictionary Online)
That interpretation is consistent with the breadth of matters that must be taken into account in forming an opinion about whether a person is a member of couple within the meaning of s 4(2)(a) of the Act.
While the living arrangements of the Skafs are relevant, co-habitation is not determinative. Mr Skaf’s actions in moving out to live with his brother signified a significant rupture in the relationship with his wife. While the considerations are finely balanced, in my opinion that action tilts the balance towards a finding that the Skafs were living separately and apart from each other on a permanent or indefinite basis from 1 July 2000 to 14 March 2011. As noted I am not satisfied that Mr Skaf took that step and resided away from the family home prior to 1 July 2000. Despite those factors which indicate that the Skafs were not members of a couple prior to that date, having regard to the evidence as a whole I am not satisfied that Ms Skaf was living separately and apart from Mr Skaf on a permanent or indefinite basis before 1 July 2000.
Quantum of debt
Given my finding that Ms Skaf was a member of a couple with Mr Skaf to 1 July 2000 she has received an overpayment for the period 6 February 1997 to 1 July 2000 (the revised debt period). The amount of that overpayment constitutes a debt due to the Commonwealth. On the material before me I am unable to accurately calculate the quantum of the revised debt and request the Secretary to undertake that calculation.
SHOULD THE DEBT BE WRITTEN OFF?
Section 1236 gives the decision-maker the power to write off a debt and provides:
1236 Secretary may write off debt
1Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
1AThe 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.
…
It is argued for Ms Skaf that the debt should be written off under this provision because she has no capacity to repay the debt on account of her poor health and consequent inability to find employment. This submission ignores s 1236(1C) of the Act which provides, for the purposes of paragraph (1A)(b), if a debt is recoverable by means of:
(a)deductions from the debtor's social security payment; or
(b)deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999 ; or
(c)setting off under section 84A of that Act;
the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.
“Severe financial hardship” involves something more than mere financial difficulties: see Re Stubbs and Secretary, Department of Families and Community Services [2003] AATA 729. While I accept that Ms Skaf will find it difficult to repay the revised debt, I do not accept that recovery would result in her being in severe financial hardship.
There is no evidence — and nor is it suggested — that the criteria set out in pars (a), (c) or (d) of s 1236(1A) apply.
It follows that the power to write off the debt cannot be exercised.
CAN THE DEBT BE WAIVED UNDER SECTION 1237A?
Section 1237A of the Act provides that the Secretary, or Tribunal acting as substitute decision-maker, must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth:
Waiver of debt arising from error
Administrative error
1Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
In Sekhon v Secretary, Department of Family and Community Services (2003) 132 FCR 126, Selway J discussed (at 135) the meaning of the phrase “attributable solely” in the context of s 1237A(1) of the Act:
The ordinary or usual interpretation of the phrase ‘attributable solely to’ is that it refers to the single or sole cause of the relevant act or event. The word ‘attributable’ means ‘capable of being attributed’. It involves an objective assessment of causation. The words ‘a debt attributable solely to an administrative error' can be paraphrased as meaning that the only cause that objectively can be ascribed to the relevant debt is an administrative error.
Adopting that approach, the question posed is, was “an administrative error made by the Commonwealth the only cause that objectively can be ascribed to some or all of Ms Skaf’s debt?”. If yes, and the overpayment was received in good faith,that part of the debt attributable to that error must be waived.
It is submitted for Ms Skaf that any overpayment (which is not conceded) is attributable to Centrelink’s decision to reverse its earlier decision that she was not a member of a couple and as such constitutes an “administrative error” for the purpose of s 1237A of the Act. It is also asserted that as Ms Skaf provided truthful information to Centrelink in her applications of February 1997 and July 1997 and was subjected to a “field assessment” in July 1997, any therefore responsibility for the improper characterisation of the relationship, falls to Centrelink.
For the reasons discussed above I am not satisfied that Mr Skaf permanently left the family home in January 1997. It was apparently on the basis of that claim and Ms Skaf’s declaration that she was not living in a “marriage like relationship” that the decision was made to calculate her rate of pension on the single rate. Even if accepted, as I understand Ms Skaf to contend, that it fell to Centrelink to have made comprehensive enquiries when she made her initiating application, it cannot reasonably be argued that the debt, for the period to 1 July 2000, arose solely as a result of Centrelink administrative error. It arose in part because of Ms Skaf’s claim that she was no longer living in a “marriage like relationship”.
Not being satisfied that the overpayment is attributable solely to an administrative error made by Centrelink, the power to waive the debt under s 1237A of the Act cannot be exercised.
SHOULD THE DEBT BE WAIVED BECAUSE OF SPECIAL CIRCUMSTANCES?
Section 1237AAD of the Act gives the decision-maker the power to waive all or part of a debt if satisfied, among other things, that “there are special circumstances (other than financial hardship alone) that make it desirable to waive [the debt]”.
I have considered whether in circumstances where the precise amount of the debt is unknown, it is appropriate to proceed to determine whether the power to waive the debt can and should be exercised. Given the passage of time since the reviewable decision was made and consistent with the directive that the Tribunal must pursue the objective of providing a mechanism of review that is not only fair and just but economical and quick (s 2A of the Administrative Appeals Tribunal Act 1975 (Cth)), I have decided it is appropriate to determine this issue and not further delay the completion of this review. Plainly the amount of the debt is relevant in deciding whether to exercise the power to waive the debt. While not possible to calculate the quantum of the revised debt with precision, I am comfortably satisfied that it would be around, if not slightly more than, $50,000.
The term “special circumstances” is contained in a number of provisions of the Act and has been the subject of exhaustive consideration by the Administrative Appeals Tribunal and the Federal Court. The Federal Court has consistently declined to adopt a prescriptive formula. (See for example French J in Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531 at 535.) Nonetheless, the Court has emphasised that the term denotes a requirement that there be “something to distinguish [the claimant’s] case from others, to take it out of the usual or ordinary case”: per Kiefel J in Groth v Secretary, Department of Social Security (1995) 40 ALD 541 at 545. This however is not to be interpreted as a requirement that the claimant’s circumstances be “extremely unusual, uncommon or exceptional”: per Hill J in Secretary Department of Social Security v Hodgson (1992) 37 FCR 32 at 42. Nor is there a requirement that the circumstances be unique to the individual: per Katzmann J in Fischer v Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (2010) 185 FCR 52 at 65.
Ms Skaf contends that there are a number of factors that when taken together, can be regarded as special circumstances that make it appropriate to exercise the power to waive the debt. These include:
Centrelink’s purported error in finding that she was not in a marriage like relationship in July 1997
Ms Skaf’s limited education and language skills
Ms Skaf’s on-going psychological conditions including depression and various physical conditions
Ms Skaf’s dire financial hardship.
I accept that Ms Skaf suffers from a number of health problems and may have difficulties repaying the debt. Nonetheless she has significant equity in the family home. Further it may be open to her to reach agreement with Centrelink that would allow the debt to be repaid by instalments. I am not satisfied that taken as a whole Ms Skaf’s circumstances are such “to take it out of the usual or ordinary case”.
It follows that the debt cannot be waived under s 1237AAD of the Act.
CONCLUSION
For the reasons given I have decided to set aside the reviewable decision made on 3 June 2010 and remit the decision to the Respondent for recalculation of the debt owed by Ms Skaf in accordance with these reasons for decision.

I certify that the preceding 165 (one hundred and sixty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton .

...................[SGD].....................................................
Associate
Dated 5 June 2013

Date(s) of hearing 26, 27 and 28 February and 26 April 2013

Counsel for the Applicant Frank Santisi

Solicitors for the Applicant Legal Aid Commission of New South Wales

Counsel for the Respondent Caroline Dobraszczyk

Solicitors for the Respondent Australian Government Solicitor

[2013] AATA 378

5 June 2013

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Financial Aspects

Living Arrangements

Social Aspects

Reliability of Evidence

Residency

Commitment to Relationship

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/5287; 2011/5288
Re	Salam Skaf
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

Tribunal	Senior Member A K Britton
Date	5 June 2013
Place	Sydney

Date(s) of hearing	26, 27 and 28 February and 26 April 2013
Counsel for the Applicant	Frank Santisi
Solicitors for the Applicant	Legal Aid Commission of New South Wales
Counsel for the Respondent	Caroline Dobraszczyk
Solicitors for the Respondent	Australian Government Solicitor