Secretary, Department of Family, Community Services and Indigenous Affairs Secretary, Department of Education, Employment and Workplace Relations and Meaghan Brown
[2013] AATA 345
[2013] AATA 345
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2742
Re
Secretary, Department of Family, Community Services and Indigenous Affairs
Secretary, Department of Education, Employment and Workplace Relations
APPLICANTS
And
Meaghan Brown
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member
Date 27 May 2013 Place Sydney The decision of the Social Security Appeals Tribunal dated 4 June 2012 is set aside and in substitution of that decision I affirm the decisions of Centrelink to raise and recover debts totalling $134,520.85 as overpayments to Ms Brown in respect of Parenting Payment at the single rate, Pensioner Education Supplement, Child Care Benefit and Child Care Rebate, and Family Tax Benefit.
..........................[sgd]..............................................
Ms N Isenberg, Senior Member
CATCHWORDS
SOCIAL SECURITY – whether a person is a member of a marriage-like relationship - whether a person is a member of a couple – consideration of all of the circumstances of the relationship – decision under review set aside
LEGISLATION
A New Tax System (Family Assistance)(Administration) Act 1999 ss 25, 56C, 71(2), 71(C), 97, 101
Social Security Act 1991 Pt 5.4, ss 4(2)(a), 4(3), 1223, 1237A, 1237AAD
Social Security (Administration) Act 1999 s 66AStudent Assistance Act 1973 s 39
CASES
Beadle and Director General of Social Security (1984) 6 ALD 1
Ford and Secretary, Department of Family and Community Services (2003) 72 ALD 718
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Secretary, Department of Family and Community Services and WAP [2000] AATA 7SECONDARY MATERIALS
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REASONS FOR DECISION
Ms N Isenberg, Senior Member
Between 3 June 2005 to 16 May 2011 the applicants (“Centrelink”) paid Meaghan Brown a series of benefits - Parenting Payment including Pensioner Education Supplement, Family Tax Benefit and Child Care Benefit, and Child Care Rebate - on the basis that she was not a member of a couple. Centrelink subsequently determined that Ms Brown was at all relevant times either a member of a couple with Shane Jackson, or that she and Mr Jackson were married and not living separately and apart. It decided to raise and recover a debt totalling about $134,500. That decision was affirmed on internal review by an authorised review officer but the Social Security Appeals Tribunal (“SSAT”) decided to set aside the decision. Centrelink seeks review of that decision.
CONDUCT OF THE HEARING
The hearing was conducted in the absence of Ms Brown, when she neither appeared at the Tribunal nor was available by phone. No reason for her failure to appear or make contact with the Tribunal was forthcoming. Further, despite earlier directions given by the Tribunal Ms Brown had filed no evidence. I gave lengthy oral reasons at the hearing as to why I considered it appropriate to proceed nonetheless.
Centrelink had provided extensive documentary evidence, and relevant portions of that evidence were brought to my attention over the several hours during which the hearing took place.
LEGISLATION
The Social Security Act 1991 (“the Act”) contains calculators to determine at what rate a person is to be paid certain benefits, including those paid to Ms Brown. The maximum basic rate payable to a person who is partnered is less than that for a person who is not a member of a couple. Additionally, in the case of a person who is partnered, their partner’s income is taken into account when the rate payable is calculated.
In considering if a person is a member of a couple s 4(3) of the Act provides that all the circumstances of the relationship are to be considered, in particular:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b)the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c)the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, 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) the length of the relationship; and
(ii) the nature of any companionship and emotional support that the people provide to each other; and
(iii) whether the people consider that the relationship is likely to continue indefinitely; and
(iv) whether the people see their relationship as a marriage-like relationship or a de facto relationship.
In relation to married couples, the Act provides that a person is a member of a couple if the person is legally married to another person and is not living separately and apart from the other person on a permanent or indefinite basis: s 4(2)(a).
ISSUE BEFORE THE TRIBUNAL
The issue before the Tribunal is whether Ms Brown owes a debt to the Commonwealth in respect of benefits paid to her as a single person for the period 3 June 2005 to 16 May 2011 (“the debt period”). In order to determine that issue, I must decide:
·whether she was in a marriage-like relationship with Mr Jackson and therefore a member of a couple for the period 3 June 2005 to 14 August 2009; and
·whether after their marriage on 15 August 2009, she was living separately and apart from Mr Jackson on a permanent basis till 16 May 2011.
CONSIDERATION OF THE EVIDENCE
Centrelink contended that Ms Brown and Mr Jackson were in a marriage-like relationship from 3 June 2005 till 14 August 2009, and that after their marriage on 15 August 2009 until 16 May 2011 they were not living separately and apart on a permanent basis. In particular, Centrelink contended that Mr Jackson lived with the Respondent at 58 Birdsville Crescent, Leumeah, New South Wales (”the Leumeah premises”) from 3 June 2005 till 16 May 2011 (the entire debt period)
Subsection 4(3) of the Act requires the Tribunal to have regard to all the circumstances of the relationship. This is recognition that the factors which lead to a conclusion that a marriage-like relationship exists “are multifarious, and defy a neat encapsulation of exclusive objective tests”: Secretary, Department of Family and Community Services and WAP [2000] AATA 7.
In fairness to Ms Brown I set out below the précis of her evidence before the SSAT as to the history of her relationship with Mr Jackson, with appropriate privacy deletions.
Ms Brown told the SSAT that she first met Mr Jackson when she was 12 years old. He was a friend of a friend. They developed a non-sexual relationship that lasted until she was about 15, when she met another person, CS, by whom she had her daughter, M, just 11 days before her 16th birthday. Mr S left her when she became pregnant and she thought that he had just walked away. She subsequently discovered that Mr Jackson had beaten him up when he had learnt about her pregnancy.
Ms Brown’s mother kicked her out after the birth of M and she went to stay with Mr Jackson and his parents at St Andrews for several weeks before moving to her sister's place at St Clair. Ms Brown told the SSAT that Mr Jackson was an alcoholic and violent; she was, and still is, very afraid of him. His family is associated with the Rebels bikie gang.
Between 4 July 1997 and 3 June 2005, when she moved to the Leumeah premises, Ms Brown lived at 10 different addresses, including a period of six months in the town of Wellington. Of these addresses, four she rented herself. The remainder were those of her sister and mother, several friends, and her son B's father, but not Mr Jackson's or his parents.
Ms Brown said that Mr Jackson claimed that her daughter M was his child. She said that she went to court and established this through DNA evidence but (sic) that Mr Jackson was given some access to her. On occasions, Mr Jackson and his parents have tried to keep M. This happened once while she was in Wellington and was the reason for her return to Sydney. The SSAT asked Ms Brown why M's birth had been registered with the surname of Jackson. She said that she had not made the registration; she had not registered the births of any of her children until it became necessary when they began pre-school. She could give no explanation for this. The SSAT drew her attention to the copy of M's birth certificate in the Centrelink papers, which showed her as the informant. She could not explain this.
An inspection of M's birth certificate shows that no father was notified. The registration was made on 9 May 2000, more than three years after M's birth. At that time Ms Brown is recorded as living at St Clair, and the home of her sister. It is the case that the birth of Ms Brown's son, D, who was born on 15 April 2005, was not registered as late as 20 July 2010. The SSAT was unable to reconcile the discrepancy in Ms Brown's account, and concluded that she certainly delayed the registration of her children's births but most probably did them herself. The SSAT was unable to say whether or not M was registered as Jackson under pressure from Mr Jackson, however it accepted Ms Brown's evidence that M is not Mr Jackson's daughter.
In 2002 Ms Brown was living in her own rented premises; Mr Jackson would come each fortnight to collect M. For some time her relationship with him was strained; she “hated him” and would not speak to him. When, however, his father died, she expressed sympathy and they began to talk. He said that he had stopped drinking, which she believed and their relationship led to the birth of D.
Ms Brown said that she gave up the Toongabbie unit and moved to live with several of her girlfriends and ultimately her mother, before moving to Leumeah, where she has lived ever since.
As I have said, I did not have the benefit of hearing from Ms Brown to form my own view about the reliability of her version of the relationship history. The SSAT considered she gave her evidence there fairly directly, although she showed some confusion about chronology and dates. She was also affected by emotion when describing parts of her relationship with Mr Jackson. The SSAT also found that Ms Brown had falsified two medical certificates that she had provided to it.
Also in fairness to Ms Brown, I have taken into account letters received by Centrelink from Mr Jackson and Ms Brown’s mother, which were read onto the transcript of a record of interview conducted by Centrelink officers and Ms Brown on 8 April 2011:
Mr Jackson wrote:
My name is Shane Harley Jackson. I have been informed that Meaghan Brown is under investigation regarding myself residing at her address, 58 Birdsville Crescent, Leumeah. I have never lived at this address in the six years she and my children have been there. My address is 3 Lennox Place, St Andrews where I have lived for the past five and a half years. I tend to visit these premises during the week and some weekends when I don’t work back, purely to spend time with my children and it is the only way to do so as there is no room for my kids to stay at my place with me – at my parent’s place with me. Usually when I stay weekends Meaghan isn’t there. The house is in my name due to the fact of Meaghan Brown being black listed and she needs a place for my children. I also had to put other things in my name for the same reason; electricity, phone. At no time have I resided at these premises. I often go to mow her lawns when needed and fix things that need to be fixed. I have given Meaghan copies of some letters I have with my address on them to show where I have been residing. Meaghan and myself have a civil relationship that works well with my children. We are not in a relationship as I have a girlfriend of three years whom has no problem with my arrangement with my kids. Please don’t hesitate to contact me. Shane Harley Jackson.
Ms Brown’s mother wrote:
To whom it may concern, I am the mother of Meaghan Brown and I am writing this letter to verify that my daughter lives at 58 Birdsville Crescent, Leumeah on her own with her three children for about six years. To my knowledge no one else has ever resided here at this address during this time. Meaghan has a civil relationship with Shane Jackson most of the time and he assists with child support in the way of rent, cuts the grass when needed and interacts with the children by way of taking them out on occasions and staying there with the children when Meaghan stays at my place or her auntie’s at Mona Vale. Gwynneth Brown. Neither Mr Jackson nor Ms Brown’s mother was available to give evidence before me. They also did not give evidence to the SSAT.
Against this background, each of the criteria set out in the Act was considered.
Financial Aspects of the Relationship
There was no evidence of joint ownership of real estate or other substantial assets. There was, however, evidence as to other financial aspects of Ms Brown’s relationship with Mr Jackson.
Ms Brown lived in the Leumeah premises owned by Ms Janette Hayes. These premises were leased to Mr Jackson, who paid the rent directly to Ms Hayes. Ms Brown’s evidence before the SSAT was that she attended to household expenses whilst Mr Jackson made the rental payments in lieu of child support. In her Record of Interview she said her name was not on the lease because she was “blacklisted” and she would not have been able to obtain the lease. She said that the lease had been arranged privately and without the use of a real estate agent so it is doubtful that her “blacklisting” would have been relevant.
As noted by French J in Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [52], a pooling of financial resources involves putting resources into a common stock or fund, sharing in common or combining for the common benefit.
Mr Jackson gave Ms Brown the authority to conduct transactions on his National Australia Bank (“NAB”) account on 7 September 2009, or possibly as early as 17 January 2008 (T131/1940-1941). In the Record of Interview Ms Brown said that was necessary because Mr Jackson was working in Canberra and so she could “get [her] child support out”. This is inconsistent with her evidence that the rent on the premises was paid by Mr Jackson in lieu of child support. I consider that the access to Mr Jackson’s account is indicative of a pooling of financial resources as defined in Pelka [2006] FCA 735.
Contrary to her evidence to the SSAT that she paid all the household bills, evidence obtained from NAB indicates that Mr Jackson made numerous internet transfers of funds from his account (T129/1798-1828) to Ms Brown’s account (T130/1901-1927) between October 2008 and August 2009 with the transactions bearing descriptions such as "Water Bill Love You Babe" and "Rent Love You Babe". Other transfers purported to be for "Kids", "Party", "School Fees Love You Babe", and "Wedding Love You Babe". All these transactions suggest to me a sharing of at least some day-to-day household expenses.
An analysis of Ms Brown’s bank records (T101/936) shows she made numerous payments associated with their wedding. This was inconsistent with her account to the effect that she was a reluctant participant in the wedding which was managed by his family.
There was also evidence that Ms Brown and Mr Jackson had access to each other's bank accounts. Ms Brown, however, told the SSAT that she stopped this arrangement when she observed that Mr Jackson was taking money from her account, but did not indicate when this had occurred.
I had evidence before me about Ms Brown’s loan with a finance company (T86/721-722) in which Mr Jackson purported to speak on Ms Brown’s behalf in relation to her arrears of the loan re-payments, and that he agreed that his loan would be debited with her arrears.
Telstra records (T69/609) and credit agency records (T53) were also made available and when compared to each other it appears that Ms Brown and Mr Jackson may have exchanged a phone using different addresses, and in Ms Brown’s case a false name, in order to have continued use of a mobile phone.
Overall the financial evidence suggested to me some intermingling of funds.
The Nature of the Household
Ms Brown has three children, the youngest of which, D, was born in April 2005. Ms Brown agrees that Mr Jackson is his father. Paternity of the other children is unclear, although Mr Jackson may be the father of the eldest child, M. Her birth registration form (T4/39) notes Mr Jackson as the father, although her birth certificate (T4/40), issued some years later, records nothing.
Centrelink contended that Ms Brown and Mr Jackson shared the responsibility of caring for her three children, although it seemed to me there was little available evidence about this, other than the arrangements set out in the Record of Interview: Mr Jackson comes over twice a week; he pays the rent in lieu of child support; and he pays half of major expenses in relation to the children.
In the Record of Interview Ms Brown said that if he comes on the weekend she will go to her mother’s. They only ever go out together as a family to the park.
In the Record of Interview she said there was nothing in the household that belonged to him.
Ms Brown told the SSAT that she considered Mr Jackson’s presence had an adverse effect on her adolescent daughter, which included running away, behavioural problems and poor school performance. There was, however, no information before me as to any intervention by NSW Department of Community Services or other relevant agency in respect of the daughter, which would support that contention. Evidence was available though about Police intervention in the household, which would suggest, at least from time to time, that environment was less than ideal for impressionable youngsters.
The SSAT considered that the single most important question in this application is where each of the parties lived in the debt period. With respect, this is not the test, although I agree that if parties live together that may be a strong indication that they are in a marriage-like relationship, although this is not always the case.
Ms Brown’s evidence to the SSAT was that she has lived at the Leumeah premises for the whole of the debt period. She told the SSAT that Mr Jackson frequently urged her to allow him to live with her but that she refused because of his alcohol consumption and violence.
There is evidence that suggests there were occasions when Mr Jackson came to live at the Leumeah premises for short periods, whereupon Ms Brown would move out to her mother's. Her evidence was that Mr Jackson has never lived at the Leumeah premises and that he visits once per fortnight to see his son. This is contrary to her account that he comes there a couple of times a week. She said that if he stays the night, as he often does, she and M go to her mother's house for the night. Although this is consistent with Ms Brown’s mother’s account, which was read out onto the record of interview conducted by Centrelink officers, it is inconsistent with Ms Brown’s account to the SSAT that she has lived at the premises consistently during the debt period. Her evidence to the SSAT in minimising Mr Jackson’s attendance was also, in my view, somewhat inconsistent with her claim that Mr Jackson’s presence had such an adverse effect on her daughter’s conduct.
Mr Jackson has, since 3 June 2005, consistently used the Leumeah premises as his address. He is the lessee of those premises and Ms Brown agreed that he has paid the rent. This, she told the SSAT, was in lieu of child support. She claimed that she paid all the service bills for the house. In the Record of Interview she agreed that there had previously been a land line at the home in Mr Jackson’s name and that the electricity was also in his name. Ms Brown's evidence to the SSAT was that Mr Jackson thought that, as he was the lessee, he could use the address, but there was no plausible explanation as to why that might be necessary or desirable.
In addition Ms Brown said Mr Jackson had sought to control her by using the address, although it was unclear as to in what way he was said to have exerted control over her.
I had before me substantial objective evidence obtained from various sources which indicated that Mr Jackson lived with her at the Leumeah premises:
·Reports obtained from the Police (dated 31 December 2007, 1 January 2008, 1 October 2008, 10 October 2010) indicate that when they were called to the Leumeah premises in relation to domestic violence issues, they were informed on each occasion that Ms Brown and Mr Jackson lived at the premises: (T97/ 834-920). All the reports record the Leumeah premises as the residential address of both Ms Brown and Mr Jackson. Further, the report dated 1 January 2008 records that Mr Jackson "began to consume intoxicating liquor at his home address of 58 Birdsville Crescent Leumeah..." (T97/844). They were described in December 2007 as having “been in a defacto relationship for the past 15 years” (T97/838).
·Ms Hayes, the lessor of the Leumeah premises, provided information to Centrelink on 9 December 2009 that in her observation Mr Jackson had lived at the premises since Ms Brown began residing there (T64/ 537-538). In her statement of 15 November 2012 she wrote that she had visited the premises a number of times and it did not seem to her that Mr Jackson was only visiting.
·Information was provided by the Roads and Traffic Authority (T59) and the Commonwealth Bank of Australia (T138) that Mr Jackson changed his residential address to the Leumeah premises on 3 June 2005. Similarly, evidence from government agencies and financial service providers was that from June 2005, Mr Jackson changed his residential address to the Leumeah premises: Telstra (T69), Integral Energy (T70), GE Automotive Financial Services (T62), Liberty Financial (T65), Amazing Loans P/L (T82), St George Bank (T135), and City Finance LCS (T86).
Mr Jackson also provided the Leumeah premises as his residential address in several loan applications:
·In an application for finance of a motor vehicle lodged by Mr Jackson on 6 March 2006 with Liberty Financial, Mr Jackson gave his residential address as the Leumeah premises, his marital status as de facto and stated that he had two dependants aged 2 and 5. In a second application for a motor vehicle loan lodged on 7 July 2008, Mr Jackson recorded his residential address since July 2005 as the Leumeah premises and that he had three dependants aged 11, six and three years.
·In an application for credit lodged by Mr Jackson with Amazing Loans Pty Ltd on 26 July 2006, Mr Jackson recorded his residential address was the Leumeah premises, and stated the duration of his stay at the Leumeah premises was 13 months and that he had three dependants aged nine, four and one.
·In an application for a motor vehicle loan lodged by Mr Jackson with St George Bank on 26 November 2007, Mr Jackson recorded his residential and mailing address as the Leumeah premises which he rented, the duration of his stay there as three years and six months, his relationship status as de facto and that he had three dependants aged 11, seven and three.
·In an application for a loan with GE Automotive Financial Services on 4 July 2008, Mr Jackson listed the Leumeah premises as his residential address. The following information was also recorded in the application: his duration of stay at the Leumeah premises was three years and six months; his marital status was de facto; and he had three dependants. In a second application for a loan on 1 December 2008, Mr Jackson listed the Leumeah premises as his residential address. The application repeated the information in his first application, but recorded the duration of his stay at the Leumeah premises as three years and six months.
Ms Brown also applied for a loan with Amazing Loans Pty Ltd on 20 July 2006. Mr Jackson provided a letter of support stating that he had lived at the Leumeah premises with Ms Brown for 14 months. In a second application on 15 November 2006, Mr Jackson provided another letter of support stating that he had lived at the Leumeah premises with Ms Brown for two years. In the Record of Interview Ms Brown denied that Mr Jackson had ever been a ‘guarantor’ for a loan, or that she had ever relied upon him in seeking finance.
The SSAT found Ms Brown's account that Mr Jackson never lived at the Leumeah premises plausible. It suggested, in effect, that Centrelink could have undertaken surveillance of the premises to show whether or not Mr Jackson lived there. Such a suggestion, in my view, is completely fanciful. By the time Centrelink had concerns about whether Ms Brown lived alone, payments had already been made to Ms Brown for several years.
I do not consider that the relationship between Ms Brown and Mr Jackson should simply be dismissed as a means by which finance was obtained. Rather, the cumulative effect of the objective evidence and the statement of Ms Hayes supports Centrelink's contention of the existence of a marriage-like relationship between the Ms Brown and Mr Jackson.
The Social Aspects of the Relationship
Ms Brown stated in the Record of Interview and told the SSAT that she and Mr Jackson had no social relationship apart from that arising from the care of the children.
Ms Hayes’ statement confirmed her understanding that Ms Brown and Mr Jackson were in a relationship during the debt period.
Ms Brown and Mr Jackson were legally married on 15 August 2009. I accept that this is a reasonably good indicator that the parties to the marriage represent that they are a couple. Ms Brown claimed that Mr Jackson’s family managed the wedding, but there was significant financial evidence referred to above (at [28]) which showed she was prepared to make significant financial outlays for flowers, dresses and other wedding paraphernalia, which I consider would have been unlikely if she was an unwilling participant.
In September 2009 she described herself to Optus in opening a phone account as “Mrs Megan Jackson” (T84/712).
I have also referred above to extensive representations to finance companies and others about their relationship.
I also found some of the financial evidence especially persuasive in respect of social aspects of the relationship. Ms Brown claimed that their outings together were limited to those associated with the children. Examination of Automated Teller Machine transactions (T101/937-939) demonstrate both bank accounts being accessed at the same location at the same time. These locations included supermarkets, malls, liquor stores and music stores. While not conclusive, this evidence would suggest that Ms Brown and Mr Jackson’s activities together were not limited to those associated with the children.
Any Sexual Relationship between the People
The SSAT concluded that whether there was a sexual relationship depended largely on whether the parties were living together, which would suggest an ongoing sexual activity. In my view, that does not necessarily follow. The SSAT noted that Ms Brown had no children in the debt period but this does not, of course, preclude a sexual relationship.
The birth of their son in April 2005 confirms that the relationship between Ms Brown and Mr Jackson was, at least for a period, of a sexual nature. While his birth occurred before the debt period, the absence of a sexual relationship does not of itself mean that Ms Brown and Mr Jackson were not in a marriage like relationship: Ford and Secretary, Department of Family and Community Services (2003) 72 ALD 718.
The Nature of the People's Commitment to Each Other
In several incidents involving Ms Brown and Mr Jackson to which the Police were called, information was recorded about the status of the relationship between them. I have earlier referred to the report dated 1 January 2008 where it was recorded that Ms Brown and Mr Jackson "have been in a de facto relationship for the past 15 years and have three children together" (T97/838).
I have also referred above (at [44]) to the multiple instances of Mr Jackson referring to their de facto relationship in various finance, credit and loan applications.
There is also the matter of the marriage that took place in August 2009. Ms Brown told the SSAT that she agreed to the marriage when Mr Jackson persuaded her that he had given up drinking. She said the event was managed by his family and, after she had agreed to it, she was too frightened to withdraw. After, they were married, Ms Brown claimed Mr Jackson resumed drinking and that the marriage effectively never existed in reality. She said that notwithstanding the marriage was legally important, it made no difference to their living arrangements.
The marriage strongly speaks of the level of commitment between Ms Brown and Mr Jackson. Whilst her evidence before the SSAT was that the marriage did not exist in reality, the “nature of communication between Mr Jackson and Ms Brown is indicative of an emotional commitment between them".
As I have said, Ms Brown appeared to carry some of the financial burden of the wedding. Those transactions are an indication of Ms Brown’s commitment to the marriage and confirm her commitment to Mr Jackson. The transactions also do not support her evidence to the SSAT that the marriage was managed by Mr Jackson's family.
Ms Hayes' statement also suggests that Ms Brown and Mr Jackson were viewed by others as a couple.
I have difficulty accepting that the marriage was a sham as Ms Brown’s evidence to the SSAT suggests.
Overall Assessment of the Relationship
Although there is a lack of evidence about sharing of household duties and care of children, I am satisfied the objective evidence strongly supports a conclusion that Ms Brown and Mr Jackson were living as a couple throughout the debt period. I find that prior to the marriage in 2009, Ms Brown and Mr Jackson were in a marriage-like relationship where they lived in the same house, shared household expenses and represented themselves to be a couple. This relationship continued after they were married.
Debts
In view of my findings in relation to the nature of Ms Brown’s relationship with Mr Jackson I further find:
·Ms Brown was overpaid Parenting Payment during the debt period, as she was paid on the basis that she was not a member of a couple. Mr Jackson's income therefore should have been taken into account in calculating Ms Brown's rate of Parenting Payment: an overpayment of $75,923.70. This debt can be recovered by Centrelink under s 1223 of the Act. As she was not entitled to Parenting Payment at the single rate, she was not entitled to Abstudy Pensioner Education Supplement from 14 December 2009 to 12 February 2010: an overpayment of $262.97. This debt is also recoverable under s 39 of the Student Assistance Act 1973.
·Ms Brown was overpaid Family Tax Benefit from 2004 till 2009: an overpayment of:
o$11,395.11 for the 2004/2005 financial year
o$18,298.50 for the 2005/2006 financial year
o$18,895.86 for the 2006/2007 financial year
o$2,917.83 for the 2007/2008 financial year
o$4,521.30 for the 2008/2009 financial year
This debt is recoverable under s 71(2) of the A New Tax System (Family Assistance)(Administration) Act 1999 (“the FA Administration Act”).
·Ms Brown was overpaid Child Care Benefit during the debt period: an overpayment of:
o$1,216.86 for the 2007/2008 financial year
o$909.76 for the 2008/2009 financial year
o$103.28 for the 2009/2010 financial year
Ms Brown was also overpaid Child Care Rebate during the 2009/2010 financial year: an overpayment of $75.68. These debts are recoverable under s 71(C) of the FA Administration Act.
Recovery of the Debt
Part 5.4 of the Act deals with the non-recovery of debts. A debt must be recovered unless it can be waived or written-off. Write-off is not available in this case because the debt is not irrecoverable at law.
A debt can be waived under s 1237A of the Act only if administrative error was the sole cause of the debt (see also s 97 of the FA Administration Act in respect of Family Tax Benefit). Ms Brown was required to notify Centrelink of changes to her circumstances: s 66A of the Social Security (Administration) Act 1999 and ss 25 and 56C of the FA Administration Act. Section 1237A of the Act is inapplicable given that the debt occurred as a result of Ms Brown’s failure to advise Centrelink that she was a member of a couple. Consequently, waiver under this provision is not available.
A debt can be waived under s 1237AAD of the Act in whole or in part in "special circumstances" (see also s 101 of the FA Administration Act in respect of Family Tax Benefit debts). The term "special circumstances" has been examined by the Federal Court, and in Beadle and Director General of Social Security (1984) 6 ALD 1 at 3, Toohey J stated:
An expression such as "special circumstances" is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend on the context in which they occur. For it is the context which allows one to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.
There was no evidence before me as to Ms Brown’s circumstances which would amount to special circumstances. I therefore find that the discretion in s 1237AAD of the Act should not be exercised in Ms Brown’s favour to waive recovery of any part of the debt.
DECISION
The decision of the SSAT dated 4 June 2012 is set aside and in substitution of that decision I affirm the decisions of Centrelink to raise and recover debts totalling $134,520.85 as overpayments to Ms Brown in respect of Parenting Payment at the single rate, Pensioner Education Supplement, Child Care Benefit and Child Care Rebate, and Family Tax Benefit.
70. I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Miss N Isenberg, Senior Member
.........................[sgd]...............................................
Associate
Dated 27 May 2013
Date(s) of hearing 5 April 2013 Solicitors for the Applicants Louise Buchanan, Australian Government Solicitor Respondent In person
Key Legal Topics
Areas of Law
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Administrative Law
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Social Security Law
Legal Concepts
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Jurisdiction
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Overpayments
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Discretion
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Marriage-like Relationship
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Statutory Interpretation
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