SBWN; Secretary, Department of Social Services and (Social services second review)

[2015] AATA 946

SBWN; Secretary, Department of Social Services and (Social services second review) [2015] AATA 946 (9 December 2015)

Division	GENERAL DIVISION
File Number	2014/1051
Re	Secretary, Department of Social Services
APPLICANT
And	SBWN
RESPONDENT

DECISION

Tribunal	Miss E A Shanahan, Member
Date	9 December 2015
Place	Melbourne

The Tribunal sets aside the decision under review and substitutes its decision that the Respondent did not meet the qualifications for new start allowance between 14 January 2009 and 19 February 2012 based on her assets.  There are no special circumstances identified to support waiver of the debt of $39,264.96.

.....[sgd]..............................................

Miss E A Shanahan, Member

SOCIAL SECURITY – pensions, benefits and allowances – new start allowance – full disclosure of assets not made – claim of domestic violence in the form of financial control of both income and Trust assets – claimed ignorance of such financial matters – questions of witnesses’ credit – assets estimated at $867,666.40 – decision of the Social Security Appeals Tribunal set aside

Legislation

Social Security Act 1991

Cases

David Smith and Secretary, Department of Family and Community Services [2004] AATA 9
John Edstein and Secretary, Department of Family and Community Services [2004] AATA 68

Andrew Briggs and the Department of Employment and Work Place Relations and William Briggs and the Department of Employment and Work Place Relations [2007] AATA 38

REASONS FOR DECISION

Miss E A Shanahan, Member

9 December 2015

1. On 27 February 2014 the Secretary, Department of Social Services (the Secretary) lodged an application with the Administrative Appeals Tribunal for a review of the Social Security Appeals Tribunal’s (SSAT) decision of 28 January 2014.  The SSAT found that SBWN’s (the Respondent) total assets as at 14 January 2009 were $249,616, and as this amount was below the asset limit for a single non-home owner there was no basis on which to cancel the Respondent’s new start allowance.  The SSAT did however note that details of her bank accounts were not sought by Centrelink and were therefore not available to the SSAT.  It was considered possible that at some point in the period in question the Respondent’s total assets did exceed the assets limit but on the evidence before them they were unable to reach such a conclusion. 

2. At the hearing, the Secretary was represented by Ms Thiagarajan of counsel instructed by Sparke Helmore Lawyers. The Respondent was self-represented but assisted by her friend Deirdre and her 23-year old son, Sam. The Tribunal was provided with the T-documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) – Exhibit A3. The Respondent’s ex-husband, the Respondent, her friend Deirdre and her son Sam gave evidence before the Tribunal. Both parties tendered additional documentation, the details of which are appended to this decision.

3. A Confidentiality Order in accordance with s 35 of the AAT Act was in effect as the Respondent did not want the details of her private life made public. For this reason her ex-husband has been identified in that manner, her son merely by his first name and the friend assisting her in the running of her case also identified only by her first name.

4. At the commencement of the hearing Ms Thiagarajan made a short opening statement followed by the Respondent who asked to be permitted to read her prepared opening statement.  Arrangements had been made in accordance with the Respondent’s wishes for her and her ex-husband not to confront one another, either in the hearing room or in the surrounds of the Administrative Appeals Tribunal.  Arrangements had been made for the ex-husband to give his evidence at 10.30am and for the Respondent to be in a nearby conference room assisted by Deirdre and her son and an Administrative Appeals Tribunal case officer with electronic equipment that would allow the Respondent to hear her ex-husband’s evidence and for her friend Deirdre to make the necessary notations so that she could then cross-examine him.

5. I asked the Respondent to précis her opening statement, given the arrangements that had been made.  The Respondent commenced reading her statement and managed to get to the beginning of the second paragraph at which time she fell back into her chair and lost consciousness.  After a short pause, I left the bench and attended to the Respondent, removing her from her chair and placing her in the right lateral position on the floor and ascertaining that her pulse rate was slow, her blood pressure on palpation lower than one would anticipate but that it rapidly reversed with an increase in heart rate and a fullness of the pulse commensurate with normal readings.  The Respondent regained consciousness in approximately one minute and was transferred to a sick room on the hearing room floor.  When she was fully recovered and claimed to be feeling normal, I interviewed her in the presence of her son, her friend, the instructing solicitor for the Applicant and counsel for the Applicant.  I recommended that the hearing be adjourned despite her apparent full recovery.  The Respondent was adamant that we should continue as she had waited some 18 months or more from the commencement of the case for a hearing date to be listed.

6. In the circumstances and given that the ex-husband was present in the hearing room surrounds it was determined to proceed to take his evidence while the Respondent benefited from the extra time to fully recover and collect her thoughts. 

   BACKGROUND TO THE APPLICATION

7. The Respondent separated from her husband on 13 January 2009.  She and her three children then left the marital home and rented a house some 5 to 10 kilometres distant.  On 14 January 2009, she lodged a claim for Newstart Allowance (NSA).  Her claim was accepted on 11 February 2009 with payment of the allowance to commence on 10 April 2009.  The Respondent challenged the imposition of the so-called liquid assets waiting period successfully and a NSA payment from 21 January 2009 was instituted.

8. On 8 March 2013, Centrelink advised the Respondent that her NSA had been cancelled from 14 January 2009 because the value of her assets was above the allowable limit.  The Respondent requested a review of this decision on 5 April 2013 (T27).

9. On 13 September 2013 the Centrelink authorised review officer (ARO), Kendall Lewis, spoke with the Respondent by telephone regarding the debt that had been raised in the amount of $39,264.96 and in particular explored the question of waiver due to special circumstances and arrangements for the repayment of the debt.  On the same date Mr Lewis made the decision to affirm the earlier determination to cancel her claim for NSA and confirmed the debt owing.  The basis of the decision had been the Respondent’s 50 per cent interest in the Jolusa Unit Trust (the Trust) and the correct attribution percentage arising therefrom.

10. Based on the information provided to Centrelink by numerous parties it had been determined that in the period between 21 January  2009 and 19 February 2012 the total of the Trust’s attributable assets was $810,000.00, resulting in SBWN’s assessable assets as being $405,000.00.  This, in addition to other assets she had previously declared, gave her a total of assets in the sum of $664,616.00.  The asset limit for NSA for a single person was at that time, $296,250.00. 

11. The ARO noted that the divorce settlement arrangements of 20 February 2012 had been effected.

12. On 21 November 2013, the Respondent lodged an application for review of the decision of the ARO by the Social Security Appeals Tribunal (SSAT).  This application was not received by the SSAT until 10 December 2013 (T42).

13. On 28 January 2014, the SSAT heard evidence in person from the Respondent and her accountant.  At the hearing, the Respondent gave evidence that she had been the victim of longstanding financial and emotional abuse at the hands of her ex-husband and that she had no knowledge of the setting up of the Trust and the Trustee Company and the purchases in the name of that Trust of several properties and other investments.  She stated that her ex-husband would hurl documents before her and demand that she sign them.  She always did but had no idea what they were. 

14. The Respondent had completed income tax returns each year stating that she received, by way of trust distribution, income from the rental of investment properties, although she had never received any such money.  The Respondent did give evidence to the SSAT that she had received a settlement figure of $650,000.00 as a result of her divorce but that she had expended legal fees of $180,000.00 employing five different legal firms during the process of the divorce.

15. The SSAT was satisfied that the Respondent was completely ignorant of her legal entitlements relating to the Trust and had no control whatsoever over the Trust or the company.  The SSAT also accepted that the Respondent was now solely responsible for the costs relating to her three children and concluded that her attribution percentage in relation to the controlled private trust was zero per cent.

16. As a result the SSAT Member determined that as at 14 January 2009 the Respondent’s total assets were in the order of $249,616.00 which was below the asset limit for a single non-homeowner.  The SSAT did however add the rider that given that Respondent’s inheritance from her father’s estate and the provision of spousal maintenance by her ex-husband during the period under consideration it was possible that at some point in the period under review her total assets had exceeded the asset limit.  However, as there was no evidence before the SSAT at that time to reach such a conclusion, the debt of $39,264.90 was set aside.

17. The Secretary lodged an application for review of the SSAT decision by the Administrative Appeals Tribunal on 27 February 2014. 

    EVIDENCE BEFORE THE TRIBUNAL

    The Respondent’s ex-husband

18. The Respondent’s ex-husband gave his evidence on Oath and confirmed that he had married the Respondent on 22 June 1991. They had separated on 13 January 2009 and were divorced in late 2011.  He currently works as a Safety Standards Officer with Tigerair having until the age of 60 been an international airline pilot.  Following the 1989 pilot dispute in Australia he had worked from 1990 until 2012 in South-East Asia and China.

19. The ex-husband identified the Trust as a fixed trust established on the advice of an accountant which was intended to be for the benefit of the entire family, with the long term view of converting it into a self-managed superannuation fund.  He and his ex-wife had discussed this with the accountant who came to their home, as he was then their next door neighbour in Victoria.  The accountant had explained the functioning of the trust and the company Salujo Pty Ltd (Salujo).  Under the terms of the Trust, he and the Respondent each held 10 shares of the total share issue of 20.  The ex-husband identified the signatures of his ex-wife, himself and their then accountant Mr B. Sheehan on the original Trust Deed. 

20. The initial investments made on behalf of the Trust were Ord Minnett shares and investment in an adventure capital company known as Blue Peak.  These initial investments were made on the recommendation of an accountant/financial adviser in Hong Kong as the family were then living in Thailand where the ex-husband was employed by Thai International.

21. In 1991 a property in the rural town where the family were to live was purchased for the sum of $135,000.00.  This property was sold in 2013 in order to raise the monies for the divorce settlement and fetched $350,000.00. 

22. The couple had decided they would invest in property as a means of providing rental income in the first instance.  This house had been inspected by both of them and both had agreed to the purchase.  The property was paid for in cash.  A further investment property was purchased for the sum of $220,000.00 and the contract for this purchase had been signed  on behalf of both parties by the Respondent alone as the ex-husband was in Thailand and unable to participate in the actual mechanism of signing the contract.  This particular property adjoined the family home and both properties were rented.  The last purchased house was said to have only been rented until 2006.  The rent from both properties was banked with the Salujo Rental Account of the National Australia Bank (NAB).  The ex-husband and the Respondent were signatories to that account.  The Respondent accessed the account via an ATM card.  The rental income was used for expenses relating to the properties and then distributed to other family accounts used for the payment of school fees, household costs etc.

23. Ms Thiagarajan showed the ex-husband a cheque book full of cheque stubs.  The ex-husband identified this as the Salujo account chequebook.  He was asked to identify the writing on the stubs, which he did.  Of those stubs examined, the majority had been entered by the Respondent.  When informed that the Respondent had stated she had no access to the rental account the ex-husband said that was clearly incorrect. 

24. The ex-husband explained that the rental income went first to the Trust and then to other accounts, in accordance with the Trust Deed.  The ex-husband stated that he had paid all the bills and dealt with all the financial matters as his ex-wife was quite happy to leave it to him.  They had discussed this arrangement.  He denied that he had been very controlling, although he stated that in the initial stages of the Trust he attended to all the accounts himself, however  when he was away working in Asia the Respondent was responsible for these financial tasks.

25. The ex-husband contended that the Respondent had made enquiries trying to track down whether he had funds in banks overseas but her searches were unsuccessful.  The ex-husband said the failure had been due to the fact that he had no such accounts.  The only accounts he had were with NAB and these had been identified and formed part of the T-documents.  He had never banked with the Commonwealth Bank but thought that his ex-wife had one account with that bank relating to money from her father’s estate.

26. The ex-husband was asked what had happened to the investment properties held in the Trust.  He said that the Federal Magistrates Court of Australia had made a final order dated 20 February 2012 wherein he was to pay his ex-wife $650,000.00 for which she would transfer all her shares and office in Salujo; all her rights, title and interest in the Trust and all her rights, title and interest in what had been the marital home.  The Court directed that both investment properties were to be sold, monies in joint bank accounts were to become the property of the ex-husband and any joint tenancy of the parties in real or personal estate was severed.

27. Prior to the Federal Magistrates Court’s decision the lawyers for the ex-husband and the Respondent had obtained property valuations.  The $650,000.00 settlement determination was based on the valuations of the two investment properties and the marital home.  The latter was valued in 2012 as $620,000.00 but was only half built and carried a mortgage of $300,000.00.

28. Evidence was given regarding dental treatment for the eldest son in late 2009.  The ex-husband had been asked to obtain private dental insurance cover to fund what turned out to be very expensive treatment in the order of $15,000.00.  The ex-husband said he was unaware of the planned date for the surgery. As he had not obtained such cover he asked that the procedure be delayed a few months until cover could be effected.  He apparently endeavoured to cancel the procedure but the Respondent arranged for the facio-maxillary surgery to proceed on 10 December 2009. She paid for the procedure. 

29. The ex-husband agreed that he had not paid the youngest son’s private school fees due in January 2015.  The reason he gave was that he could no longer afford these fees as his income as a Safety Standards Officer was far less than that he had enjoyed as a pilot.  His net income was now $5,000.00 a month of which $1,400.00 was paid in child support and $1,500.00 for the mortgage on his home.  He said he had informed the school that he could not afford the fees and had suggested his son attend a public school.

30. The ex-husband agreed that he was paying more in the way of child support in 2015 than before as he had incurred a debt when the Respondent claimed that she had 100 per cent care of the children whereas previously it had been 75 per cent her care and 25 per cent his care. He explained that his home only had one room above the garage completed and as he resided in that room it was difficult for the children to stay. 

31. In response to a question posed by the Tribunal the ex-husband stated that when he had been employed by Asian airlines he had paid tax on his earnings in those countries, most recently in China.  In accordance with Australian taxation law he had paid the top rate of tax on his declared rental income in Australia.  

32. The ex-husband became distressed and tearful toward the end of his evidence and expressed the desire for the ongoing litigation to be over for the children’s benefit.

33. The Respondent’s advocate Deirdre posed a few questions in cross-examination confirming that the ex-husband had lapsed with the child support payments and that he had cancelled the families private health insurance in 2002 and did so on the advice of the Royal Childrens’ Hospital medical staff as he would be treated at all times as a public patient.  The ex-husband had taken out dental cover for the eldest son in 2009 and had then handed over responsibility for continuing payment to his son who is now 23 years old. 

34. The ex-husband had provided a statement dated 13 May 2015 outlining his evidence.  This also confirmed that the original $50,000.00 investment in Ord Minnett and $50,000.00 investment in Blue Peak Venture Capital fund had been signed over to the Respondent in October 2010.  The funds at that time totalled $130,500.00.  The data relating to the rental properties was set down.  The first of these, purchased for $135,000.00, was sold in August 2012 for $350,000.00 and the value of the property at the time of their separation was estimated to have been between $290,000 and $315,000.00. 

35. The second property was subdivided into two lots and sold in October 2013.  Lot one which included the house sold for $390,000.00 and Lot two was sold for $195,000.00. The proceeds of the sales were reduced by $75,000.00, being the cost of the subdivision, and the total value of the property in January 2009 was estimated to be between $500,000 and $550,000.00.  The total amount paid to the Respondent was $682,337.55 of which $32,337.55 was interest paid due to the late settlement of the sale of the second investment property as indicated in the Court Order.  The marital home was valued at $650,000.00 in February 2012.

    The Respondent’s opening statement

36. The Respondent’s friend Deirdre read the Respondent’s opening statement to the Tribunal for transcript purposes.  This outlined her claim of domestic violence or domestic abuse in terms of financial control and addressed many matters which are not strictly relevant to the application.  For example, her ex-husband’s breach of contract fines by various airlines which he has not paid, the absence of central heating in their house when they first purchased it and what she perceived as being fobbed off by solicitors and lawyers for the Secretary in that the lawyer with whom she was dealing changed on three occasions.  It is however noted by the Tribunal that throughout the entire process counsel was overseeing the progress of the matter and counsel for the Applicant had always been Ms Thiagarajan.

    The Respondent’s oral evidence

37. The Respondent gave evidence under Oath and was cross-examined by Ms Thiagarajan.  She was asked to confirm her evidence given to the SSAT that she had no knowledge of the existence of the Trust account and was unaware that she was a beneficiary who held an interest in the Trust.  The Respondent stated that she agreed that she had signed the documents but did not understand what she was signing and had no actual recollection of the establishment of the Trust or of signing any of the documentation.  In relation to the signing of such things as tax returns, she stated that as she was always at the Royal Children’s Hospital with her son Sam, those years had become a blur.  She did not understand that she had a 50 per cent interest in the assets of the Trust.  She also stated that she had signed the various documents to take the pressure off her children and had only amended her tax returns when she understood the importance of these as outlined in the Applicant’s Statement of Facts and Contentions.

1. In terms of the inspection of the marital home and the various investment properties before they were purchased, the Respondent could not remember having inspected any of these nor could she remember that she alone had signed the contract of purchase on one of the properties as her husband was overseas.

2. The Respondent was taken to the application she had made for payment of Parenting Payment Single in which she had declared her interest in the Trust.  In response she said she knew her husband had mentioned the Trust but she had no idea of its details or what it entailed.  It was brought to the Respondent’s attention that in her completion of the real estate details she had submitted to Centrelink on 28 January 2009 she had initially answered question five regarding; How many properties in Australia do you or your partner own or have an interest in? by writing three and had overwritten this with one (T11, page 53).  Given this answer suggested that the Respondent knew of the ownership of properties in the name of the Trust, she responded again by stating she did not understand the significance of this ownership.  Ms Thiagarajan dealt with numerous statements and entries such as the valuation of one of the properties at $300,000.00 although the SSAT recorded this as $105,000.00 without SBWN correcting this error. She described this as an oversight as was her failure to disclose the valuation of the second property as $550,000.00.

3. On direct questioning the Respondent agreed she had a Commonwealth Bank account relating to her position as executor of her father’s estate.  She denied other accounts but it was brought to her attention that summonsed banking records showed that she had kept multiple Commonwealth Bank accounts and had done so since 1998.  She agreed the accounts were in her name alone and had been established by her.  When opening these accounts she had declared her ownership of a car, a 50 per cent interest in the marital home and rental income from investments. 

4. The Respondent was taken to her parenting payment single application wherein she had declared that she had worked at Raintree Cottage and the income derived.  She said this was in 2006. 

5. The Tribunal asked the nature of the son Sam’s congenital heart disease and was informed that it was pulmonary atresia for which he had what the Tribunal assumes was two Blalock-Taussig shunts performed in Thailand, and then at the age of eight had a Fontaine correction performed at the Royal Children’s Hospital.

   Evidence of Deirdre

6. Deirdre had provided a Statutory Declaration dated 9 April 2015 (Exhibit R3). This details her friendship with the Respondent over a period of 17 years and provided her views of the relationship between the Respondent and her ex-husband.  In cross-examination by Ms Thiagarajan, she agreed that the Respondent asked her to make a declaration in relation to what she knew of the relationship between the Respondent and her ex-husband prior to their divorce.  She agreed that she had no knowledge of their financial affairs first hand and had relied on what the Respondent had told her.  She did not see any bank statements until after the couple separated.

   The Respondent’s son, Sam

7. Sam had provided a Statutory Declaration dated 28 May 2014 (Exhibit R5) and a witness statement dated 6 September 2015 (Exhibit R4).  In his evidence before the Tribunal he advised that he had suffered a stroke in January 2015 and cannot recall what he wrote in his declaration of 2014.  He confirmed that he had written the witness statement of 6 September 2015 (Exhibit R4) and he had done it with reference to the Centrelink statements and documents. When directly challenged that his mother had drafted the statements he immediately answered; yes she did and then on reflection; no she didn’t.  He endeavoured to explain this in terms of the help she had given him while he was at school as a result of which he had a similar writing style to his mother. 

8. On direct questioning Sam agreed he had no personal knowledge of the existence of the rental properties but did know that his parent’s owned two houses. He had no direct knowledge of his father’s behaviour other than that he was controlling in relation to his mother.

   DOCUMENTARY EVIDENCE

9. There is a substantial amount of documentary evidence relating to divorce proceedings, the purchase and sale of properties, valuation of these properties and the provision of details of the Respondent’s ex-husband’s salaries and employment, the son Sam’s medical conditions and treatment and supporting statutory declarations and statements from friends of the Respondent in relation to her claimed domestic violence or abuse.  In addition there are a considerable number of summonsed bank records relating to the Respondent’s financial affairs and tax return statements for the Trust, the company Salujo and the individual returns of the Respondent and her ex-husband.  The Trust Deed has been provided along with reports from the accountant involved in its establishment and conduct thereafter.  The documentary evidence that is strictly relevant has been referred to above.

   RELEVANT LEGISLATION

10. The relevant legislation is contained in s 1027 of the Social Security Act 1991 (the Act). The Simplified Outline to Part 3.18 of the Act states:

    For an asset or income to be attributed to an individual:

    (a)the company must be a designated private company or the trust must be a designated private trust (sections 1207N and 1207P); and

    (b)the company must be a controlled private company in relation to the individual or the trust must be a controlled private trust in relation to the individual (sections 1207Q and 1207V); and

    (c)the individual must be an attributable stakeholder of the company or trust (section 1207X).

11. Section 1207V in relation to controlled private trusts provides:

    (1)For the purposes of this Part, a trust is a controlled private trust in relation to an individual if the trust is a designated private trust and:

    (a)the individual passes the control test set out in subsection (2); or

    …

    Control test

    (2)For the purposes of this section, the individual passes the control test in relation to a trust if:

    …

    (d)the aggregate of:

    (i)     the beneficial interests in the corpus or income of the trust held by the individual (whether directly or indirectly); and

    (ii)    the beneficial interests in the corpus or income of the trust held by associates of the individual (whether directly or indirectly);

    is 50% or more; or

    …

12. Section 1207X provides:

    …

    Trust

    (2)For the purposes of this Part, if:

    a trust is a controlled private trust in relation to an individual; …

    …

    then:

    the individual is an attributable stakeholder of the trust unless the Secretary otherwise determines; and

    if the individual is an attributable stakeholder of the trust--the individual's asset attribution percentage in relation to the trust is:

    (i)     100%; or

    (ii)    if the Secretary determines a lower percentage in relation to the individual and the trust--that lower percentage; and

    if the individual is an attributable stakeholder of the trust--the individual's income attribution percentage in relation to the trust is:

    (iii)   100%; or

    (iv)   if the Secretary determines a lower percentage in relation to the individual and the trust--that lower percentage.

    SUBMISSIONS

13. Ms Thiagarajan submitted that on the evidence before the Tribunal the Respondent’s assets clearly exceeded the NSA limit of $269,250 and while the Respondent stated she didn’t remember the actual events regarding the establishment, function and financial activities of the Trust, the Trust Deed clearly stated that she had a 50 per cent interest in the Trust, in that she held 10 of the 20 units.

14. The Trust Deed made it clear that it was a fixed trust with no discretion and that the income was to be divided equally between the two unit holders.  It was submitted that in light of the Deed, the control test outlined in s 1207V(2)(d) was satisfied and therefore what the Respondent knew regarding the Trust was irrelevant.  She had signed the tax returns and at all times was entitled to a 50 per cent share of the Trust investments and income.  It was submitted that her entitlements were acknowledged by the Federal Magistrates Court whose decision reflected this entitlement in their final Orders.

15. Ms Thiagarajan addressed the case law citing the matters of David Smith and Secretary, Department of Family and Community Services; Andrew Briggs and William Briggs and Secretary, Department of Workplace Relations and John Edstein and Secretary, Department of Family and Community Services all of which found the applicant to be entitled to the benefit of the trust despite them all being discretionary trusts.  In the matter before the Tribunal it was argued there was no basis for a discretionary attribution as the entitlements were all legally fixed in accordance with the terms of the Deed. 

16. On the question of waiver on special circumstances Ms Thiagarajan submitted that in light of the false representations made by the Respondent in terms of her failure to declare her legal entitlement to the Trust income and her completion of the Parenting Payment Single application to Centrelink wherein she first wrote of her interests in three real estate properties and then overwrote this with the word one amounted to false representation which made write-off or waiver of the debt inappropriate.  Ms Thiagarajan also informed the Tribunal in the course of her submissions that she had sole carriage of the matter from the time of the Secretary’s appeal lodgement, although the actual instructors had changed in that 18 months.

17. The Respondent reiterated what had been said before and submitted that the Tribunal should take into consideration her position of being completely under the control of her ex-husband in relation to financial matters during their marriage. 

    TRIBUNAL’S DELIBERATIONS

18. The evidence before the Tribunal clearly outlines the Respondent’s status as an attributable stakeholder of the Trust and that she was at all times until the finalisation of the property settlement pursuant to her divorce a 50 per cent interest holder in the Trust and the rental income paid to Salujo.

19. The Tribunal accepts the Secretary’s assessment of the Respondent’s assets which form the document entitled Table of Assets 21 February 09 to 19 February 2012, provided to the Tribunal on the day of the hearing.  The assets were estimated based on multiple independent valuations of property and perusal of the bank accounts of the Respondent, her ex-husband, the Trust and Salujo.  The assets attributable to the Respondent on a minimal assessment on the evidence referred to was $867,666.40.  This figure vastly exceeds the single non-homeowner threshold of $269,250.00 which was the cut-off point for NSA eligibility in the period under consideration.  This is certainly in excess of the SSAT’s estimate of the assets at $249,606.00 based on the evidence of the Respondent at the SSAT hearing in January 2014. 

20. The requirements of s 1207 of the Act have clearly been met and the Respondent was not eligible for a NSA in 2009 or throughout the following three years. 

21. It therefore remains for the Tribunal to consider whether there are grounds under special circumstances (s 1237AAD of the Act) for waiving the debt of $39,264.96 which represents the payment of NSA to the Respondent between 21 January 2009 and 19 February 2012.

22. The Tribunal acknowledges the Respondent’s firm conviction that she has been the subject of what she terms domestic violence or abuse manifest by financial control.  However, the Tribunal does not find her to be a credible witness. 

23. Prior to her marriage at the age of 31 the Respondent had held responsible positions from the age of 17 until 1991 and worked again after her marriage.  She had worked in an administrative role in the employment of the Department of Foreign Affairs and Trade, serving in Kenya for some five years, Malaysia for approximately three years and then in Bangkok for two years.  She resumed work after the birth of her first and second children. Given this extensive experience it is difficult to accept that she had no knowledge of how to conduct financial affairs or the Australian taxation system. 

24. Throughout her evidence, both to the SSAT and to this Tribunal, the Respondent has declared her ignorance in relation to taxation matters, her exclusion from joint bank accounts, the requirement that she had permission of her ex-husband at all times for any financial transactions and that she herself did not have any bank accounts other than those in her children’s name and those arising from her role as an executor to her father’s estate.  The Tribunal cannot explain why she maintained that position when she was well aware that her banking records from the Commonwealth Bank of Australia had been summonsed and were available to the Tribunal.  Additionally, the cheque stubs of joint accounts held with her ex-husband were presented at the hearing and it was clear that she wrote many of the cheques. 

25. In October 2009 her ex-husband did change the joint accounts at NAB relating to the Trust, the company and what might be called the normal household accounts to his name but this was eight or nine months after the Respondent had left the marital home.

26. The summonsed documents reveal that the Respondent first opened a Commonwealth of Australia Bank account in her name in 1998 and further accounts in May 2005, April 2008, June 2008 and controlled, in her role as an executor of her father’s estate, the Trust account containing nearly $600,000.  This appears to have earned a considerable amount of interest and the original sum was not returned to her father’s estate solicitors until May 2009.

27. In her evidence before the Tribunal the Respondent claimed she could not recall many of the events that occurred during her married life, was totally unfamiliar with the Trust Deed and tax returns and considered as an explanation for certain actions she had taken as being an oversight.  She said she had neglected to return the monies in the trust account for her father’s estate to the solicitors, this being an example of an oversight.  It is noted that the estate of which she was a 25 per cent beneficiary paid her the amount $69,499.14 on 23 September 2009.

28. Perhaps more importantly when making an application for a credit card, apparently in 2006 (Exhibit A2), the Respondent had declared her annual income as $20,000.00 with additional income from rent at $12,000.00 and that she had a savings account of $50,000.00 with NAB.  She also declared real estate owned, other than her home, as having a value of $225,000.00.

29. In her submissions and evidence before the Tribunal the Respondent denied any knowledge of the purchase of investment properties even though she was the sole signatory to the purchase of one of these properties.  The Respondent had written the cheque for the deposit on this property.

30. In her application for the Parenting Payment Single in January 2009, in answer to question five which asks how many properties in Australia or outside Australia do you and or you partner own or have an interest in, she had initially written three and then overwritten this with number one.  

31. The above are examples of the documentary evidence regarding the Respondent’s knowledge of the existence of various bank accounts and her interest in the assets of the Trust.

32. Further examples exist in the history that the Respondent has at various times given to her treating psychologist, who has seen her in consultations every two to three weeks for one hour since 30 October 2008. In October 2012 the psychologist noted a stressful marital situation but did not find any evidence of a psychiatric disorder.  A further report in June 2014 stated the diagnosis had changed to that of post-traumatic stress disorder (PTSD) as a result of physical, psychological, emotional and financial abuse by her ex-husband.  This diagnosis of PTSD was proffered as an explanation for the Respondent omitting to advise Centrelink of her accurate financial position including access to her father’s estate monies for two years and the payments made by her ex-husband to her in the sum of $254,000.00.  These reports are the first indication that there had been any physical abuse involved in the marriage as the Respondent had not provided any written or oral evidence to that effect, other than her ex-husband’s demands for sexual intercourse when she was in an advanced state of pregnancy and in relation to her son Sam being taken skiing at Mt Kosciusko where the children were exposed to freezing temperatures (T44).

33. The psychologist has since diagnosed the Respondent’s collapse at the hearing on 25 September 2015 as being a panic attack, although it was clearly vasovagal syncopy (a faint).

34. In light of the conflicting evidence that the Respondent has given at various times in the course of this matter and as submitted by the Secretary the making of a false representation in the form of her Parental Payment Single application, it is entirely inappropriate to waive the debt.

35. In the Respondent’s statement and that of her son Sam’s (Exhibit R4), a request was made that Sam’s debt to the Commonwealth arising from his receipt of Youth Allowance paid on the basis of the Respondent’s eligibility for the NSA, be considered by this Tribunal and set aside.  The Tribunal has no jurisdiction to deal with the son’s debt there being no reviewable decision regarding that matter to the Tribunal’s knowledge. 

36. The Tribunal sets aside the decision of the SSAT of 28 January 2014.  The Respondent has a debt to the Commonwealth in the sum of $39,264.96 and there are no special circumstances or grounds for waiver of this debt under s 1237AAD of the Act.

74.     I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member.

...[sgd]..........................................

Associate

Dated 9 December 2015

Date(s) of hearing	24 September 2015
Applicant	In person
Counsel for the Respondent	Premala Thaigarajan
Solicitors for the Respondent	Sparke Helmore Lawyers

APPENDIX

Exhibit A1	Bundle of documents regarding the establishments of Salujo Pty Ltd and Trust Deed of Jolusa Unit Trust, banking data and a series of valuations of properties
Exhibit A2	SBWN credit card application dated approximately 2006
Exhibit A3	T-documents
Exhibit R1	Document regarding the payment for a breach of contract with China airlines
Exhibit R2	Document from STK Business regarding the ex-husband’s bank accounts
Exhibit R3	Statutory declaration of Deidre dated 9 April 2015
Exhibit R4	Statement of Sam dated 6 September 2015
Exhibit R5	Statement of Sam dated 28 May 2014