SHAUNA POMERY and and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
[2009] AATA 215
•1 April 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 215
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1307
GENERAL ADMINISTRATIVE DIVISION ) Re SHAUNA POMERY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
And
SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondents
DECISION
Tribunal Mrs Josephine Kelly, Senior Member Date1 April 2009
PlaceSydney (heard in Wollongong)
Decision The reviewable decision is affirmed in part, in relation to the parenting payment debt and the family tax benefit debt, but is set aside in relation to the newstart allowance debt, and that matter is remitted for reconsideration in accordance with my finding that Ms Pomery was in a marriage-like relationship during the period 30 June 1999 to 1 July 2005.
....................[sgd]......................
Senior Member
Mrs Josephine Kelly
CATCHWORDS
SOCIAL SECURITY – Newstart Allowance – Parenting Payment – Family Tax Benefit – Debt raised – Whether member of a couple – Whether marriage-like relationship – Applicant’s evidence and contemporaneous evidence considered – Held in a marriage-like relationship from June 1999 to July 2005 – Parenting Payment and Family Tax Benefit debts properly raised – Newstart allowance debt to be recalculated - No special circumstances, administrative error or grounds to write off debt - Decision affirmed in part – Otherwise set aside and remitted for reconsideration
Administrative Appeals Tribunal Act 1975, s 37
Social Security Act 1991, ss 4, 1223, 1236, 1237A, 1237AAD
A New Tax System (Family Assistance) (Administration) Act 1999, ss 95, 97, 101
REASONS FOR DECISION
1 April 2009 Mrs Josephine Kelly, Senior Member SUMMARY
1. Ms Pomery seeks the review of the decision made by the Social Security Appeals Tribunal (SSAT) on 29 August 2006 affirming the decision of a Centrelink authorised review officer (ARO) to raise and recover the following debts, because it was considered that Ms Pomery was in a marriage-like relationship with Mr David Swan since August 1995:
a) $56,722.72 in newstart allowance during the period 2 September 1996 to 3 July 2003 (the newstart allowance debt); and
b) $22,476.28 in parenting payment (single) in the period 4 July 2003 to 28 April 2005 (the parenting payment debt).
2. Centrelink also decided that family tax benefit (FTB) had also been overpaid in the amount of $14,649.33, for the years 2002/03 ($1,207.20), 2003/04 ($7,693.51) and 2004/05 ($5,748.62) (the FTB debt). These debts were raised because Centrelink had not been able to check Ms Pomery's and Mr Swan's combined actual income from the Australian Tax Office because neither of them had lodged in income tax return for the relevant financial years. There was no evidence that they had done so at the time of the hearing in this Tribunal.
2. For the following reasons, I have decided to affirm the reviewable decision in part, in relation to the parenting payment debt and the FTB, debt but to set aside the decision in relation to the newstart allowance debt, and remit that matter for reconsideration in accordance with my finding that Ms Pomery was in a marriage-like relationship during the period during the period 30 June 1999 to 1 July 2005.
ISSUES
3. The issues are:
(a) Whether or not Ms Pomery was in a marriage-like relationship with Mr David Swan during the period 2 September 1996 to 28 April 2005 and was consequently overpaid:
(i) $56,722.72 in newstart allowance during the period 2 September 1996 to 3 July 2003; and
(ii) $22,476.28 in parenting payment (single) in the period 4 July 2003 to 28 April 2005;
(b) Whether Ms Pomery owes a debt of $14,649.33 for FTB payments for the years 2002/03 ($1,207.20), 2003/04 ($7,693.51) and 2004/05 ($5,748.62); and
(c) Whether or not there is any basis for non-recovery of the debts?
4. The following is not in dispute Ms Pomery had claimed and been paid newstart allowance, FTB and parenting payment on the basis that she was not a member of a couple during the relevant periods. Her son was born on 30 March 2003. His father is Mr David Swan.
MS POMERY’S CASE
5. Ms Pomery represented herself at the hearing. She was accompanied by a friend, Mr Hickson, who assisted her. In summary, her case was that she has never been in a marriage-like relationship with Mr Swan, although she has been residing in the same house as Mr Swan, with their son, since August 2007 because of her parlous financial position since the social security debts were raised and she was evicted from her family's property, Cricklewood.
6. Ms Pomery gave oral evidence and provided the Tribunal with a number of statutory declarations and two letters from her general practitioner. The first letter from her doctor was dated 13 November 2006. It stated that Ms Pomery is suffering from and being treated for post natal depression. The second letter dated 27 October 2008, stated that Ms Pomery was going through a stressful period affecting her daily life caused by her financial difficulties, and consequently she sometimes cannot buy prescriptions she requires and was not able to get dental care for her son.
7. The statutory declarations were sworn by Mr Swan, two friends, and a cousin of Ms Pomery, in the period October to November 2008. In addition, Ms Pomery provided a plus care assistance report from the Salvation Army showing various forms of financial assistance given to her for bills, food and accommodation in October 2004, September 2006, November 2006 and February 2007.
CONSIDERATION
8. In addition to the evidence provided by Ms Pomery, I also take into account the material provided to the Tribunal pursuant to s 37 of the Administrative Appeals Act 1975.
9. Centrelink commenced an investigation into Ms Pomery's circumstances on 13 April 2004. The decision to raise debts against Ms Pomery was made on 13 April 2005 and affirmed by an ARO on 9 May 2006.
10. Ms Pomery's parents own a property called Cricklewood, which is situated about 10 kilometres from Albion Park. From 5 September 1996 until 28 December 2007, Ms Pomery had advised Centrelink that her address was Cricklewood. There are three houses on that property. I will refer to them as the bottom cottage, which has three bedrooms, the middle cottage, which has one bedroom, and the top cottage, the main house which has three bedrooms, and an adjacent caretaker's cottage. From the evidence before me I find that during the period under consideration, Ms Pomery lived in the middle cottage until about May or June 2003, a few months after the birth of her son, when she moved to the top cottage.
11. The evidence of Ms Pomery's two friends and cousin provided at the hearing was to the effect that they had provided financial and other material assistance to Ms Pomery and her son in the last few years because of her financially difficult position. They do not address the question of her living arrangements during the relevant period.
12. I find myself in the same position as the SSAT in that I do not accept the evidence of Ms Pomery or Mr Swan. I find their evidence inconsistent and therefore unreliable. The pattern that emerges from the various accounts Ms Pomery has given to Centrelink, the SSAT and to me, is that she initially denies something, then, when faced with evidence of the fact, seeks to provide an explanation, which when repeated changes in detail.
13. Ms Pomery stated in her application to this Tribunal that the SSAT made mistakes. However, I accept that the SSAT recorded the evidence before it accurately. Ms Pomery told the SSAT that for a few years from about 1998, Mr Swan lived with a Ms Demuth in the bottom cottage and then they moved out and lived in Albion Park. Before me she said that Mr Swan was not living at Cricklewood from 2001 to 2003 when he was living with Ms Demuth. She did not know his address at that time. Before the SSAT, Mr Swan could not remember the name of the woman he supposedly lived with for about four years, and then gave a different name from that Ms Pomery had given. Before the SSAT, Ms Pomery gave two accounts of when Mr Swan moved back to Cricklewood, and in which cottage he lived. One version was that “a short while before” March 2003 Mr Swan moved back and lived in the caretaker's flat. Another version was that another person was living in the caretaker's cottage when she moved into the top cottage after her son's birth, and that Mr Swan moved back to Cricklewood about the same time and lived in the middle cottage with another man.
14. I found the evidence Ms Pomery gave before me about who was living in which cottage from 1995 to 2003 was very confused.. For example, I understood her to say that Ms Demuth was a tenant at Cricklewood from 1996 to 2005, and yet she also said that Mr Swan and Ms Demuth were living elsewhere for a number of years during that period. She also said that while Mr Swan was in a relationship with Ms Demuth for about 4 ½ years, he and Ms Pomery still shopped and socialised together. Another version was that Mr Swan moved back to the property in 2004 for a little while and lived in the caretaker's flat because she was suffering post natal depression.
15. Mr Swan's statement provided in evidence in this Tribunal was sworn on 2 November 2008. It was not particularly helpful. He acknowledged having lived at the property of Ms Pomery's parents for "numerous years" while doing work for Ms Pomery's father. He stated that he was not in a relationship with Ms Pomery but acknowledged that he was the father of her son, and that he was providing accommodation and food for her and his son. He also swore that:
I did try to pursue and impress Miss Pomery by purchasing a car and having it in both our names so she could have access to it.
16. Mr Swan also acknowledged taking out loans mentioning Ms Pomery on the applications "hoping this would help me as I have been friends of the family for numerous years". Mr Swan also stated that he had lived with another women in the 1990s and later. He moved back to the Pomery property in 2004 "to be closer to his son as I was concerned for my child's welfare" as Ms Pomery suffered postnatal depression, but he lived in a separate house from Ms Pomery. Mr Swan was not required for cross-examination.
17. Given the unreliability of the evidence of Mr Swan and Ms Pomery, I prefer to rely on the contemporaneous evidence from third parties where there is inconsistency.
Contemporaneous Evidence from Third Parties
18. On 20 August 1999, Ms Pomery was visited at home by a Centrelink officer, to whom she denied being in a relationship with Mr Swan.
19. Centrelink made inquiries of various bodies from May 2004. Following is a summary of the material disclosed.
20. Mr Swan took out a car insurance policy in August 1995 in which he nominated Ms Pomery as driver of the insured vehicle. The address of both was Cricklewood, and the same telephone number was given. The same number was also provided by Ms Pomery in her application for parenting payment in 2003. The policy was still in force until 2003. Ms Pomery told me that she was listed on the policy so she could drive the vehicle. She said that at that time Mr Swan was working for her parents and lived in the bottom house and she lived in the middle house. She also said that in about 1995 she was working two or three days a week at the same place as Mr Swan and got a lift with him.
21. A child care centre manager wrote that Ms Pomery had been employed from October 2000 to August 2001 and during that time she was in a “de facto” relationship and “lived with David", whose surname was not known, and that they lived at Cricklewood. "David" was the contact person. As I understood Ms Pomery's evidence, she thought that if she said that she was in a stable de facto relationship that would help her get a job. I also understood her to say that the information provided by the manager was wrong.
22. Three loan applications made by Mr Swan in February, June and September 2003 listed Cricklewood as his address for 16 or 14 years, and that rent was being paid to "father" in two; and to "parents" in another. In the two applications where a telephone number was given, the same number as provided in Ms Pomery's parenting payment application was given. In each application, Mr Swan listed his marital status as 'de facto'. He had crossed out “single” and ticked “de facto” in his June 2003 application.
23. Wollongong Hospital's response to Centrelink’s inquiry was that Mr Swan was recorded on Ms Pomery's records for the period February and March 2003 as her de facto and next of kin, and that he attended their son's birth. Their son's birth certificate, registered on 11 July 2003, records Mr Swan as residing at the Albion Park address which is identified in other evidence as being owned by Ms Demuth and others, but not including Mr Swan. This is the only record that puts Mr Swan at an address other than Cricklewood during the relevant period. I infer that the information provided in that document was given by Ms Pomery or Mr Swan and, in my opinion, it is unreliable.
24. Mr Swan's employer's records showed that he had a Dapto address until 1995, and thereafter Cricklewood. The only address given to his superannuation scheme, which he joined in 1988, was Cricklewood. His marital status, given only in 1987, was "single". The records of the same employer show that Ms Pomery was employed from March 1985 until 31 May 1996 and was “unmarried”.
25. NSW Roads and Traffic Authority records show Mr Swan's address as Cricklewood since February 1988, although it was changed to the road number rather than the name of the property in February 2000.
26. Integral Energy records from December 1998 show that Ms Pomery was billed for the top cottage from June 2003 until the date of the inquiry in May 2004, and for the middle cottage from December 1998 to March 1999 and then from 30 June 1999 to June 2003. Other people were billed for the middle cottage from June 2003, and Ms P. Demuth was billed for the bottom cottage from June/July 1999 to 31 May 2004. I infer that Ms Pomery and Ms Demuth were living at the nominated cottages during the periods recorded.
27. Mr Swan's credit union account was opened in 1987 and listed his address as Cricklewood. The Health Insurance Commission recorded the address of both Ms Pomery and Mr Swan as Cricklewood since 1984.
28. Ms Pomery told Centrelink officers on 10 June 2004 that she and Mr Swan had never taken holidays together. However, credit card transactions show them both in Nambour, Queensland in August 1997, and Maroochydore, Queensland, and Warrnambool, Victoria, in December 1997 and January 1998. Ms Pomery's explanation was that she visited her family in Queensland and he visited a friend at Gympie and that Mr Swan drove the car because she had a cruciate ligament problem. She said that Mr Swan also drove to Adelaide and Warnambool. I did not find Ms Pomery’s explanations convincing.
29. In addition, Centrelink's comparison of their financial records from April 1997 to February 2001 showed another 25 transactions at the same places, including at automatic teller machines, and in shopping centres.
30. During the June 2004 interview, Ms Pomery gave Mr Swan's address as the Albion Park address to which reference has already been made. She said that he had been trying to get a house on the property but she did not want him living there.
31. Mr Swan's tax returns from 1997 to 2002 listed no partner but gave Cricklewood as his address.
32. Ms Pomery filled out a form for Centrelink in April 2004 which included questions about Mr Swan. She denied a de facto relationship with him. She indicated that she was not and did not intend to share accommodation, and stated that Mr Swan took her to the doctors in respect of illness, that he tries to help in a personal crisis, helps with child support payments and tries to help in family disputes. She wrote that Mr Swan sees his son occasionally – birthdays - and sometimes helps decide matters in relation to the child.
33. Again on 2 May 2005 Centrelink conducted an interview with Ms Pomery. She gave inconsistent explanations about the insurance policy for the motor vehicle; she tried to explain Mr Swan's listing her parents as in-laws on a loan application and said that he had moved to Cricklewood about 9 or 10 years ago (1995) and was living in the bottom cottage until relocating to Albion Park after 4 or 5 years (1999 – 2000) and moved back to Cricklewood about six months ago living in the middle cottage with a man named Warren. She said that he left his mailing address as Cricklewood because he was working there one day a week. She denied listing him as her de facto at Wollongong Hospital, and stated that their son was the result of a one night stand.
34. Ms Pomery’s father said in a response to a Centrelink inquiry that Ms Pomery had lived at Cricklewood since May 2003, paid $165.00 rent per week and was single.
35. I also take into account three references Ms Pomery had supplied to Centrelink, two of which stated that Mr Swan was the caretaker of Cricklewood, and that Ms Pomery was not in a de facto relationship with him.
CONCLUSION
36. The principal issue in this case is whether Ms Pomery and Mr Swan were in a marriage-like relationship (section 4(2)(iii) of the Social Security Act 1991 (the Act)) during the relevant period. I have had regard to all of the circumstances of Ms Pomery’s and Mr Swan’s relationship disclosed by the evidence, and in particular the matters set out in s 4(3) of the Act (Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs at [24]).
The Financial Aspects of the Relationship (s 4(3)(a))
37. I find that Ms Pomery and Mr Swan pooled their resources for the payment of rent to Mr Pomery's father.
The Nature of the Household (s 4(3)(b))
38. I am satisfied on the evidence that from 30 June 1999 Ms Pomery and Mr Swan lived together in the same cottage at Cricklewood until at least 1 July 2005. The evidence points overwhelmingly to both of them residing at that property and there is no cogent evidence I accept of Mr Swan's residing in a separate cottage. For example, there is no Integral Energy billing record supporting such a circumstance. The telephone number he has provided has been the same as Ms Pomery's telephone number. Since 2003 Ms Pomery and Mr Swan have had joint responsibility for caring for and supporting their son.
The Social Aspects of the Relationship (s 4(3)(c))
39. I find on the evidence that Ms Pomery and Mr Swan have travelled to work together, holidayed, shopped and socialised together during the debt period. I find that Ms Pomery held herself out to an employer and Wollongong Hospital as being in a de facto relationship with Mr Swan. Mr Swan attended the birth of their son. He has indicated that he was in a de facto relationship with Ms Pomery in loan applications. Ms Pomery’s Manager at the child care centre understood her to be in a de facto relationship with Mr Swan.
Any Sexual Relationship Between the Parties (s 4(3)(d))
40. Ms Pomery and Mr Swan have had a sexual relationship resulting in the birth of their son in 2003. I do not accept Ms Pomery's evidence that they engaged only in a one night stand. They have had a relationship for many years. They lived in the same cottage for most of the relevant period. Mr Swan is contributing financially for the care of the child and is involved in his upbringing to an extent, even on Ms Pomery's evidence.
The Nature of their Commitment to Each Other (s 4(3)(e))
41. I find that Ms Pomery and Mr Swan have had a commitment to each other throughout the debt period and beyond, that is, a period of more than 12 years, which has resulted in the birth of a child. I find they have significant emotional ties. Even Ms Pomery's evidence in a statement in 2004 was that Mr Swan took her to the doctors in respect of illness, that he tries to help in a personal crisis, helps with child support payments and tries to help in family disputes. Mr Swan was nominated as Ms Pomery’s next of kin for medical purposes and as a contact for the purposes of employment.
42. Taking into account all the evidence before me, including the evidence pointing to Ms Pomery and Mr Swan not being in a marriage-like relationship, I find that, since 30 June 1999 until 1 July 2005, the picture of the relationship as a whole is in my opinion a marriage-like relationship. Although there is evidence suggesting that they were in a relationship before 1999, the circumstances might be equally consistent with a relationship of close friendship but not a marriage-like relationship. In my opinion, the Integral Energy records, together with the evidence that both Mr Swan and Ms Pomery were living at Cricklewood, satisfies me that, as of that time, Ms Pomery was in a marriage-like relationship with Mr Swan which has continued thereafter to the end of the debt period and probably beyond.
43. The consequence is that the debt for newstart allowance must be recalculated. The debt for parenting payment (single) was properly raised under s 1223 of the Act. The debts for FTB were correctly raised under s 71 of the A New Tax System (Family Assistance) (Administration) Act 1999 (the FAA Act). As a member of a couple, Mr Swan's income during the relevant period should have been taken into account for the calculation of the rate of FTB.
SHOULD THE DEBTS BE RECOVERED?
Write-off
44. The question of whether the debts should be written off pursuant to s 1236 of the Act and s 95(2) of FAA Act was not ventilated during the hearing and, furthermore, I do not have sufficient information about Ms Pomery's financial circumstances to address the matter. It is open to Ms Pomery to approach Centrelink if she has no capacity to repay the debt.
Waiver
45. A debt or part of a debt may be raised for newstart allowance and parenting payment where the debt arose due to an administrative error on the part of the Commonwealth (s 1237A of the Act). There is no evidence to suggest that that circumstance has occurred in this case.
46. Similarly s 97 of the FAA Act allows for the waiving of a family tax benefit debt where there has been administrative error on the part of the Commonwealth. Again, there is no evidence to suggest that that has occurred in this case.
Special Circumstances
47. In the case of newstart allowance and parenting payment, s 1237AAD of the Act, and s 101 of the FAA Act for FTB, allow for waiving of a debt where special circumstances, other than financial hardship alone, exist. Ms Pomery asserts that her financial circumstances are very difficult and such that she has had to reside in a house provided by Mr Swan.
48. I find that the newstart allowance, parenting payment and family tax benefit debts have resulted wholly or partly from Ms Pomery knowingly failing to advise Centrelink that she was in a de facto relationship with Mr Swan. Accordingly, she cannot satisfy the requirements of s 1237AAD of the Act or section 101 of the FAA.
49. I am also not satisfied that there are special circumstances other than financial hardship alone that make it desirable to waive the debt. Regrettably, Ms Pomery has brought about the present situation by her own conduct.
DECISION
50. For the reasons set out above, I have decided to affirm the reviewable decision in part, in relation to the parenting payment debt and the FTB debt, but to set aside the decision in relation to the newstart allowance debt, and remit that matter for reconsideration in accordance with my finding that Ms Pomery was in a marriage-like relationship during the period 30 June 1999 to 1 July 2005.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Josephine Kelly, Senior Member.
Signed: ……[sgd]…..…….
Steven Mulipola, Associate
Date of hearing: 3 November 2008
Date of decision: 1 April 2009
Representative for the Applicant: Mr T Hickson
Representative for the Respondent: Centrelink Legal Services and Procurement
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