SHEREE TOOMEY and SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
[2009] AATA 468
•26 June 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 468
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/6101
GENERAL ADMINISTRATIVE DIVISION ) Re SHEREE TOOMEY Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date26 June 2009
Place of Hearing Tamworth
Place of Decision Sydney
Decision The tribunal sets aside the reviewable decision of the Social Security Appeals Tribunal made on 22 November 2007 and substitutes a decision that:
a. Mrs Toomey was overpaid parenting payment (single) from 1 September 2005 to 16 May 2006 because she was a member of a couple for the purposes of the Social Security Act 1991. The matter is remitted for calculation of Mrs Toomey’s debt for the period she was overpaid; and
b. Mrs Toomey was living separately and apart from her husband during the periods 7 April 1994 to 19 March 1998 and 20 March 1998 to 31 August 2005 and therefore entitled to payment of sole parent pension and parenting payment (single) throughout these periods.
...................[Sgd]...................
Ms Robin Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – married parent living separately and apart from spouse – receipt of sole parent pension – receipt of parenting payment (single) – debts due to Commonwealth – overpayment where member of a couple – consideration of tests for living separately and apart on a permanent or indefinite basis – decision under review set aside.
Social Security Act 1991 (Cth) ss 4(1), 4(2), 4(3), 249(1), 249(1A), 500(1), 1237AAD
Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686
McDonald v Director-General of Social Security (1984) 1 FCR 354
Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2008) 102 ALD 22
Purkess v Crittenden (1965) 114 CLR 164
Re Shearing and Director-General of Social Security [1983] AATA 116
Re VCA and Ors and Australian Prudential Regulation Authority (2008) 105 ALD 236
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Watts v Rake (1960) 108 CLR 158
REASONS FOR DECISION
26 June 2009 Ms Robin Hunt, Senior Member introduction
1. Mrs Sheree Toomey, the applicant, and her husband, Justin Toomey, remained married throughout the period of 12 years during which Mrs Toomey received parenting payments on the basis that she and her husband were living separately and apart. Initially Mrs Toomey received sole parent pension and then parenting payment (single), after legislative changes abolished and replaced the former pension. Mrs Toomey bore four children to her husband. Two of the children were born during the 12 years she claimed she was living apart from her husband. In 2006, the couple decided to resume co-habitation. Mrs Toomey said she was about to inform Centrelink but Centrelink raided her home and discovered the situation before she made disclosure. The respondent is claiming repayment of the full amount of parenting pension payments made to Mrs Toomey throughout the 12 year period.
reviewable decision
2. On 22 November 2007, the Social Security Appeals Tribunal (‘the SSAT’) affirmed a Centrelink authorised review officer’s decision to raise and recover from Mrs Toomey a debt of $35,562.20 for sole parent pension paid to her during the period 7 April 1994 to 19 March 1998, and a debt of $86,099.79 for parenting payment (single) she received during the period 20 March 1998 to 16 May 2006.
issues
3. I must decide over what period, if any, Mrs Toomey was living as a member of a couple for the purposes of the Social Security Act 1991 (‘the Act’). If she was not living separately and apart on a permanent or indefinite basis, Mrs Toomey will have been overpaid benefits. Such overpayments, the respondent claims, gave rise to debts to the Commonwealth of $35,562.20 for sole parent pension and $86,099.79 for parenting payment (single) between 7 April 1994 and 16 May 2006. If Mrs Toomey has incurred such debts, I must determine whether she should be required to repay the debts owing or whether there are special circumstances which justify waiver or write off of the debts in question.
4. The Secretary contends that at all times during the period Mrs Toomey received the sole parent pension and the parenting payment (single), from 7 April 1994 to 16 May 2006, she was a member of a couple and not living separately and apart from her husband on a permanent or indefinite basis.
background
5. Mrs Toomey was born on 29 January 1971 and is 38 years of age. She married Justin Toomey on 20 November 1993. They have four children together, two of whom were born during the time they say they were separated.
6. On 29 March 1994, Mrs Toomey lodged a claim for sole parent pension. The claim form stated she had separated from Mr Toomey on 24 March 1994. Centrelink granted her the sole parent pension from 7 April 1994.
7. On 25 August 1995, Mrs Toomey lodged with Centrelink a claim for family payment in respect of a child born on 19 August 1995. On 7 February 1997, Mrs Toomey lodged another claim for family payment with Centrelink, this time in respect of a child born on 1 February 1997.
8. On 20 March 1998, Centrelink transferred Mrs Toomey from the sole parent pension to parenting payment (single), when the former pension was abolished.
9. In August 2004, Centrelink commenced a review of Mrs Toomey’s eligibility for parenting payment (single). A number of documentary records came to the attention of Centrelink or were obtained by Centrelink after an unnamed person approached a Centrelink office on or about 30 September 2004 and alleged that Mrs Toomey and her husband were “always together” and “have been doing this for over 10 years”.
10. Between January 2005 and October 2005, Centrelink commenced an investigation into Mr and Mrs Toomey’s circumstances, requesting information from finance companies, the local hospital, utility suppliers and real estate agents. Centrelink carried out surveillance on 21 and 22 March 2005. It obtained and executed a search warrant over a year later, on 16 May 2006, and Centrelink or the police who executed the warrant seized a number of items from Mrs Toomey’s house.
11. On 7 September 2006, Centrelink decided that Mrs Toomey was a member of a couple according to the Act during the entire periods she was receiving sole parent pension and parenting payment (single), and raised two debts against Mrs Toomey in the amount of $35,562.20 for sole parent pension and $86,099.79 for parenting payment (single) on 11 and 13 September 2006 respectively.
relevant law
Sole Parent Pension
12. A determination of Mrs Toomey's application for review involves consideration of the provisions of the Act in force at the time of the original decision. Provisions relating to sole parent pension were repealed and replaced from 20 March 1998 but Mrs Toomey was receiving the sole parent pension from 7 April 1994 onwards.
13. The qualifications for receiving the payments formerly known as ‘sole parent pension’ were set out in former section 249 of the Act. Former subparagraph 249(1)(a)(i) provided that the person must either not be a member of a couple, or, if a member of a couple, the person must be living separately and apart from his or her partner. Former subsection 249(1A) is not relevant to this application as Mrs Toomey was married to Mr Toomey at all times. Former subsection 4(2) of the Act set out the basis for determining whether a person is a member of a couple, whether married or in a marriage-like relationship. People who were married were members of a couple unless they were living separately and apart.
Parenting Payment (Single)
14. Eligibility for ‘parenting payment (single)’ is determined as set out in subsection 500(1) and Part 3.6A of the current Act. Basic requirements are similar to those for the former sole parent pension, being that the claimant lives separately and apart from the partner in cases where the claimant is married. The Secretary has not argued that Mrs Toomey fails to meet preliminary requirements but questions whether she was living separately and apart from, her legal husband, on a permanent or indefinite basis as required.
15. Section 4 of the current Act contains definitions in relation to “family relationships – couples”. Section 4 of the Act defines a “member of a couple” as follows:
4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or …
16. Subparagraph 4(2)(b) of the definition criteria are not relevant as those provisions involve cases where the person is not legally married to the partner. Subsection 4(3) of the Act sets out criteria to assist a determination whether the married person is living separately and apart from his or her partner. The same criteria apply regarding a marriage-like relationship.
consideration of evidence
17. Mr and Mrs Toomey both gave evidence to the tribunal that they had indeed been living separately and apart until a few days before the search warrant was executed on 16 May 2006. They both say Mr Toomey was gradually bringing his clothes and other belongings to Mrs Toomey’s house and that he had been living with Mrs Toomey for a week when the Centrelink raid occurred. Mrs Toomey gave evidence that she informed Centrelink personnel before the raid that she and her husband were trying to reconcile their differences with a view to resuming co-habitation. She and her sister-in-law told the tribunal that they had intended to visit Centrelink together on the day of the raid and Mrs Toomey said she planned to inform officers that she and her husband were now living together.
18. Mrs Toomey gave evidence that her marriage to Mr Toomey had always been under pressure because her parents and sister did not approve of the relationship. She gave evidence that she and Mr Toomey had known each other since their school days, when aged 14, and had formed a relationship when they were very young. Her family had not approved because Mr Toomey is an aborigine. She had her first child with Mr Toomey in 1991 when she was aged 20. They started living together when they were aged 19 or 20. They married in 1993 and they had their second child in 1994. She had always felt under scrutiny by neighbours and townspeople because she thought they expected a mixed marriage to fail. She also said she was used to having more money than her husband could earn and although he always worked hard he did not earn enough to support her and the children in the manner to which she was accustomed. He provided some financial assistance when he could but it was not enough to live on.
19. Mrs Toomey said she and her husband never operated a joint account and household accounts such as electricity and telephone were in her name although at one time Mr Toomey was listed at the same address and she asked Telstra to change this. One house at which she lived during the time her husband was not living with her was across the road from her mother-in-law. Their third child was born in 1995 before she moved to the address opposite her mother-in-law’s. Her own mother was aware of the separation and was not very supportive in the beginning, and told her not to tell her father. Her mother died in 1996 and Mrs Toomey said she developed Bells palsy which was attributed to the stress of her mother’s death and the birth of her fourth child in 1997.
20. Mrs Toomey said that she had an operation later in 1997 and a hysterectomy in 2005. At times like these, she obtained a certificate from her doctor so that Mr Toomey could get time off work to look after the children. Mrs Toomey gave further evidence that she contacted Centrelink in 2005 when she was hospitalised to tell them Mr Toomey would be living in her home to look after the children. She understood he was given time off work on the basis that he was looking after his wife but he was really looking after the children. However, his employer would not grant leave to look after the children so he provided certificates showing his wife was unwell. They did attempt reconciliation in 2005 although not living together. From September 2005 to February 2006, her sister-in-law, Karen, was living with her. Mrs Toomey said that she alerted Centrelink that they were trying to reconcile in 2006 during conversations with officers when she attended regular appointments. Her husband moved back in with her on 13 May 2006 and he had been bringing his things to her place in the 3 weeks leading up to this date. She had been intending to tell Centrelink they were living together a week later when the police raided her house at Centrelink’s instigation.
21. Mrs Toomey said that even when they were living apart she had tried to keep up the appearance of a happy marriage in some ways, particularly at school functions, for the sake of the children. She thought it was no one else’s business and did not discuss her marital situation with people apart from her friend, Natasha Finn, and Centrelink staff. She said her sisters-in-law accepted her as a relative and friend although they must have been aware of the separation but she did not discuss this with them either.
22. She further told the tribunal that she never denied Mr Toomey access to the children and that he was frequently at her residence in order the see the children. Mr Toomey gave evidence to the same effect. She also said that she did her husband’s washing, for which he paid her. She also sometimes drove his car and he sometimes left the car at her place. She also said that they occasionally had sexual relations when she was unhappy and felt in need of comfort. Neither Mr nor Mrs Toomey ever formed another intimate relationship although Mr Toomey admitted to occasional “one night stands”.
23. Mr and Mrs Toomey were open in manner when giving evidence and did not deny their behaviour which the advocate for Centrelink suggested exhibited some signs of togetherness and the existence of various documents which Centrelink took as conclusive evidence that they were always living together as a couple. However, Mr and Mrs Toomey both insisted that they had genuinely been living apart until about a week before the raid on 16 May 2006. Mr Toomey gave evidence that all his actions, whether assisting Mrs Toomey or by putting his name to documents or visiting frequently after work or other things, had been for the reason that he loved his children and wanted to look after them and see them regularly.
24. Mr Toomey explained his actions in taking time off work when Mrs Toomey was recovering from surgery as a necessity in order to look after the children. Centrelink obtained evidence that he applied for carer’s leave to look after his wife in October 1997, on or about 27 March 2000, 22 May 2000, 1 June 2001 and 5 August 2005 for 9 days after she underwent surgery. Mr Toomey admitted this was so but gave evidence that he could not apply for leave to look after the children under his employment conditions. Nevertheless, this was why he applied for leave when his wife was too ill to look after the children. It was after his wife’s surgery in 2005 that Mr and Mrs Toomey gave evidence that they decided to try to resume married life. Mrs Toomey told the tribunal that having a close call and nearly dying on the operating table made her see things differently and to try to make a go of the marital relationship.
25. Centrelink produced copies of documents obtained as part of their investigation. On 9 May 1997, a rental bond form was lodged with the New South Wales Department of Fair Trading for a property which Justin Toomey and Cherie (sic) Toomey were recorded as tenants. In addition, Centrelink produced copies of lease agreements showing both Mr and Mrs Toomey as joint tenants in 1999 and 2004.
26. Centrelink also obtained copies of lease documents signed by Mr and Mrs Toomey or rental bond lodgement records in both names dated 9 May 1997, 10 December 1999 and 1 July 2004. They also produced loan applications, which Mr and Mrs Toomey made separately but show the same residential address, dated 10 June 1997, 13 November 2001, 22 March 2002, 17 October 2002, 3 December 2003, 17 June 2004, 21 June 2004, 1 November 2004 and 23 May 2005.
27. Both Mr and Mrs Toomey agreed that, when Mrs Toomey entered into lease agreements for accommodation for herself and the children, Mr Toomey was a signatory. She asked Mr Toomey to assist in this manner so that she was able to find accommodation. Mrs Toomey gave evidence to the effect that as a single mother of several children she would have been unable to obtain accommodation in her own right. They both said that Mr Toomey put his name to the lease agreements so as to overcome this difficulty and not because he was living with Mrs Toomey.
28. They also admitted to taking out individual loans from time to time and representing themselves as married, giving evidence to the effect that it was difficult to obtain a loan as a single person compared to a married person. The copies of loan documents before me show that only Mrs Toomey signed the loan agreement in one instance when she borrowed to buy a fridge. When Mr Toomey borrowed to buy a car or repair his car, only he signed the loan agreement. Both denied that the statements made in connection with obtaining accommodation and loans meant they were living together. Saying they were married was true and not disclosing separation was simply an expedient. Further, the forms of application for finance and lease documents usually did not ask whether persons applying were living apart but simply asked if they were married.
29. There is no evidence that Mr and Mrs Toomey ever kept joint bank accounts. Mrs Toomey gave evidence that she always operated her own bank accounts. Mr Toomey also kept separate accounts. He agreed that copies of taxation records obtained by Centrelink were probably correct although they were old returns and he could not specifically recall the contents. Copies of returns before me showed he claimed a spouse rebate for his wife early in the marriage in the financial years ending June 1994 and 1995. Documentary evidence also showed he claimed his children as dependents in 1994, 1995, 1997 and 1999. Mr Toomey gave evidence that he thought he had probably relied on the advice of his tax agent when he filled out the two spouse declarations and claimed dependents for tax purposes but he had realised in later years that he should not claim his wife and children as dependents and had not done so.
30. Centrelink also furnished undisputed evidence that Mr Toomey frequently used his wife’s address as his mailing address and as his contact address with the children’s school and other organisations. Mrs Toomey said that this was not her doing but she had allowed him to use her address as his accommodation was unstable.
31. Mrs Toomey and her husband both gave evidence at the tribunal hearing that they had been living separately and apart throughout their marriage until they decided to reconcile in May 2006. Neither of them considered themselves a couple although they remained married. They admitted, in response to questions, that they may have appeared a couple when they attended school functions and Mrs Toomey admitted she did not represent herself as single or discuss her marriage with other people as she thought it was none of their business. They each considered themselves separated but remained friends and shared contact with the children.
32. Mr and Mrs Toomey both gave evidence to the effect that the complications Mrs Toomey suffered from the surgery in 2005 made them realise there was more to life than money problems and that they should try to live together as a family for the sake of the children. Their evidence was supported by the evidence of Mr Toomey’s mother and his sisters.
33. Nellie Toomey, Mr Toomey’s mother, gave sworn oral evidence and made three written statements the most detailed of which, unfortunately, she could not remember making. In a brief written statement, Nellie Toomey said her son had been living with her on and off between 1994 and 2006. Nellie Toomey was a witness of truth in my estimation but had genuine trouble in recalling events and in recalling the making of her written statements. The solicitor for the applicant informed the tribunal that he had drafted the main statement of Nellie Toomey’s on which he intended to rely and that she had sworn it in his presence.
34. Nellie Toomey said she used to have a caravan in her backyard where her son used to stay when he was at her place, unless the weather became too cold. Then he would stay in the house. Although she could not be sure, saying, “(W)ell, I didn’t know whether he was there, where he was, because he’s a young man and young men do their own things.” She said he used to have his gear stored at her place, “clothes and knick knack things that boys use”, but took them all with him when he left, meaning when he resumed living with his wife in May 2006. When asked to comment on the relationship between her son and Mrs Toomey, she said “I’m saying that they really love one another, these two. But what happens is, just over a bit of money, they argue. And he’s the only one person that works, you know, in his household and he doesn’t get much money.” Nellie Toomey said that she had sold the caravan since her son moved out.
35. Stephanie Irving, one of Mr Toomey’s sisters, also gave evidence at the hearing. In a brief written statement, Mrs Irving stated that Mr Toomey had been living with her on and off from 1994 to 2001. She gave evidence that she was aware that Mr and Mrs Toomey were living together as husband and wife now, but it had not always been that way. She could not pinpoint an exact date when they stopped living together as husband and wife, but knew something was up when “he used to come to my house all the time”. He would stay up to two weeks at a time, on and off, and then he would go away but she did not know where he went. When asked, she agreed that he could have been going from one family member's place to another. To her knowledge, he had no other fixed place of abode.
36. Karen Lazar, another sister of Mr Toomey, gave similar evidence at the hearing. She said she had been living in Central Queensland for the past two and a half years. Immediately before that, she lived in Inverell, and before that, in Moree and Berridale. These towns were all in the vicinity of Mrs Toomey’s former residences or broadly in the region. She said, to her knowledge, her brother and Mrs Toomey only recently reunited, around 2006, and had been separated for a long time, since 1993 or 1994. She said she knew they had split up because her brother told her they were having problems. In her brief written statement, Mrs Lazar said her brother lived with her on and off from 1994 to 1995. She presumed when Mr Toomey was not staying with her, he was living with their mother or their sister, Mrs Irving. She agreed that her brother would have stayed with her while she was living in Moree. She stated that he usually stayed for periods of two to three weeks at a time. She said the day she found out about the raid on Mrs Toomey’s house in 2006, she was planning to accompany Mrs Toomey to Centrelink and was aware that Mrs Toomey intended to inform Centrelink she and her brother were getting back together. She gave further evidence that her brother had already been living there for about a week by then.
37. Another witness, Natasha Finn, said she was a friend of the applicant. Ms Finn gave evidence that she first met Mrs Toomey in Moree at a birthday party for Karen Lazar’s son. She stated in writing, on 11 November 2008, that this was about eight or nine years previously. She confirmed this at the hearing. Since then, Ms Finn said she had seen Mrs Toomey twice or three times a year, whenever Mrs Toomey visited Karen, and they also kept in contact by phone. She had not met Mrs Toomey in the company of Mr Toomey. In her written statement, she said that Mr Toomey was at the birthday party where she met Mrs Toomey but he did not attend with Mrs Toomey and they were not there as a couple. Through her conversations with Mrs Toomey, she later found out that Mrs Toomey and Mr Toomey were in fact married but they were not living together. Ms Finn said she believes they reconciled around 2005 when Mrs Toomey was about to undergo a hysterectomy or after she had had her hysterectomy.
38. The Secretary called two witnesses who gave evidence that they frequently heard or saw Mr Toomey at Mrs Toomey’s residence or waiting outside the house for a lift to work. They were unable to say in oral evidence whether Mr Toomey actually lived with Mrs Toomey although they had both made a written statement that Mr and Mrs Toomey were living together.
39. Ms Allison Wilkins gave evidence at the hearing and also made a written statement dated 17 August 2005. At the date of her written statement, she said she had been living next door to Mr and Mrs Toomey for approximately three years. She wrote in her statement that “I am of the opinion that Justin lives next door as I have seen and heard him leave for work most mornings.” She also said she used to walk most mornings, and on return would see Mr Toomey leave for work or see Mrs Toomey take him to work by car. She also saw Mr Toomey’s work uniform hanging on the clothes line, and often saw them in the car together with their children.
40. At the tribunal hearing, Ms Wilkins was less positive in her opinion that Mr Toomey lived next door with Mrs Toomey during the three years she was a neighbour. She said she heard male voices next door most evenings but agreed, when questioned, that she could not be sure who they belonged to. She also agreed it was possible that the uniform she saw on the clothes line was washing Mrs Toomey did for Mr Toomey, by arrangement, as Mrs Toomey told us. Ms Wilkins conceded that when she returned from her walks, all she saw was Mr Toomey waiting outside the house across the road, and it is possible that he was just visiting in the morning before going to work. As to seeing Mr and Mrs Toomey in the car together with their children, she agreed they could have been going somewhere with the children, say, to a sporting event.
41. Mr Gregory James Gordon gave evidence at the hearing and also made a written statement on 17 August 2005. He said, in his written statement, that Mr and Mrs Toomey lived opposite him for a period of two or three years but he could not remember exactly how long or when. In 2005, he had been living at the same address for 15 years. He wrote that he believed they lived together with the children. At the hearing, he gave evidence that he formed the impression that Mr Toomey was living with Mrs Toomey because he used to get picked up from the house in the mornings to go to work on the shire and then get dropped off at the house in the afternoons. He saw Mr Toomey wait outside and someone pick him up. Mr Gordon did not know the person who picked Mr Toomey up for work. He could tell they both worked for the shire because of the uniform. Mr Gordon qualified his evidence at the hearing when he said that Mr Toomey would sometimes get in a car and drive away after he had been dropped off after work. He said Mr Toomey came and went at different times. He also said he saw Mr Toomey at the house every weekend or so mowing the lawn, but did not take much notice. When asked by Mr Bullock, for the Secretary, to clarify whether he ever saw Mr Toomey arrive, shortly before being picked up for work, or saw him waiting to be picked up or just saw him being picked up, he said “(J)ust stand out the front and get picked up.”
42. When asked to comment about the evidence of Mrs Toomey that he had some sort of a run-in with her children over an incident, Mr Gordon said he recalled this and that he had made a mistake and apologised to Mr Toomey when he saw him with the children one day. He said “there were a heap of Aboriginal kids throwing rocks and everything, and I blamed the wrong ones”.
findings
43. After hearing the evidence of Mrs Toomey, Mr Toomey and his mother and two sisters, as well as the evidence of two neighbours who were called by the Secretary, it is difficult to determine with any precision whether Mr and Mrs Toomey were living separately and apart on a permanent or indefinite basis up to the time they say they reconciled. I consider that all the witnesses made efforts to tell the truth but ultimately were not fully informed about Mr Toomey’s movements or the commitment to each other of Mr and Mrs Toomey. I accept that Mr and Mrs Toomey genuinely believed they were separated but the evidence shows many indices of an ongoing relationship throughout the entire period of the marriage.
44. In cases like these, where members of a couple are having difficulties and not always living together, the tests set out under the legislation are a guide only. I must take the circumstances set out in the section 4 definition of “member of a couple” into account in reaching a determination whether they were separated on a permanent or indefinite basis. The opening statement in subsection 4(3) of the definition of member of a couple and criteria for forming an opinion about a relationship also require me to have regard to all the circumstances of the relationship. This requirement means I must have regard to the evidence of the applicant and her witnesses about the surrounding circumstances.
45. None of the witnesses who gave evidence at the hearing were able to say conclusively when Mr and Toomey were living together on a permanent basis. Mr and Mrs Toomey are the persons who know best about the state of their relationship. I also observe that the various references Mr Toomey made in official documents or claims to his being the father of his children are not indicative of his living arrangements. Mr and Mrs Toomey have never denied that Mr Toomey is the father of their four children. He made it plain in his oral evidence that he always thought it important to see as much of his children as possible at all times despite marital difficulties. He maintained he was usually visiting his wife’s house to see the children and not living there. He occasionally stayed overnight for reasons associated with the children but used a separate bedroom on these occasions.
Were the couple living separately and apart when Mrs Toomey received sole parent pension from 1994 to 1998?
46. Former subparagraph 249(1)(a)(i) of the Act, which was in force during the relevant period, provided that the person must either not be a member of a couple, or, if a member of a couple, the person must be living separately and apart from his or her partner. As has been made plain in cases like Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, these are two separate tests. Mr and Mrs Toomey were a married couple and were required to be living separately and apart during the relevant period.
47. For the period 7 April 1994 to 19 March 1998, Mrs Toomey received the sole parent pension. Mr and Mrs Toomey already had two children when Mrs Toomey claimed the pension. A third child was born in 1995 and a fourth child in 1997. Nevertheless, despite at least one field check being made, according to Centrelink records, the sole parent pension continued.
48. On or about 17 to 23 September 1997, a Centrelink field officer reviewed the situation and, after the review, there was no change made to Mrs Toomey’s receipt of the pension. The reasons for decision of the SSAT refer to a Centrelink file note made of a field visit conducted on 17 September 1997 and that certain details were updated. Maintenance details had changed and the amount Mrs Toomey received was noted. The record also was updated as to assets and savings. The final entry was that “all other circs [sic] appear to be satisfactory”. Centrelink has not made this record available to me but did not dispute the making of the file record described by the SSAT.
49. I consider the field visit a very important event as the field officer who reviewed the entitlement to payment contemporaneously was in a much better position to reach a correct assessment than a decision-maker examining the state of the relationship many years later. Mr Bullock, for the Secretary, put that the field officer may have found no one at home or that Mr Toomey would have been at work. This is pure speculation as there is no material before me about what occurred during the field visit. The payment of maintenance referred to in the contemporaneous record indicates that the parties were separated or there would have been no need for payment of maintenance. Centrelink did not provide any significant evidence that the field officer’s view was inaccurate.
50. Subsection 4(3) of the Act requires a decision-maker to have regard to all the circumstances of the relationship including, in particular, certain matters. The first of these is the financial aspects of the relationship. From the material before me there is little evidence of any joint financial arrangements. Mrs Toomey was receiving maintenance in September 1997, according to the field officer. Mr Toomey claimed a spouse rebate for income tax in the years 1994 and 1995. There is a 1997 loan application in which Mr Toomey stated he was married and a joint residential lease agreement completed a little later, in 1999.
51. The tenancy and loan applications made as married persons suggest some potential sharing of arrangements but the oral evidence was that only one party to the marriage made the borrowings in each instance. The couple do not have joint ownership of any real estate or other major assets and no joint liabilities. There is evidence of pooling of financial resources in relation to major financial commitments. Despite the joint names on the leases taken by Mrs Toomey, her evidence is that she made the payments. The leases are the only joint legal obligation of which Centrelink presented evidence. Otherwise, there are no legal obligations owed by one person in respect of the other person. There is little evidence of sharing of day‑to‑day household expenses. Such utility and service bills before me were addressed to Mrs Toomey and Mrs Toomey’s evidence is that she paid all the household bills.
52. The next criterion is the nature of the household. The field officer in 1997 reached the conclusion that Mrs Toomey lived separately from her husband and both Mr and Mrs Toomey and their witnesses have given evidence to this effect. Mr Toomey said he visited his children frequently and Mrs Toomey agreed. These visits do not change the nature of the household from a single parent household. Mr Toomey’s relatives and Mrs Toomey’s friend, Ms Finn, confirm Mrs Toomey’s claim that she lived separated from her husband. When cross-examined, neighbours who observed the household and provided statements in 2005 were not certain if Mr Toomey lived there. Mr Gordon was not certain when Mrs Toomey had been his neighbour as he had lived at the same address for 15 years. Mrs Wilkins observed the couple after this period.
53. The next criterion is the social aspects of the relationship. Mr and Mrs Toomey both admitted that they presented a united front before the school and at the children’s sporting fixtures. They said they did this for the sake of the children. Otherwise, all the evidence is that they did not socialise together. Ms Finn said they did not appear a couple when she first met Mrs Toomey and she had not seen them together since. Mr Toomey’s sisters said they were aware of the separation. Mrs Toomey said she had few friends and that her mother, who knew they had separated, has since passed away.
54. Next, I have considered any sexual relationship between Mr and Mrs Toomey. It is obvious that there was some relationship as two children were born during the period in question. Mrs Toomey explained that she occasionally engaged in sexual activity with her husband when she felt in need of comfort. The field officer in 1997 did not take the birth of two children during the supposed separation as sufficient to change the assessment that the couple were living separately and apart. The birth of the children is a circumstance which is inconclusive without further evidence. Mr Toomey never denied he was the father and Mrs Toomey admitted to some sexual relationship.
55. Lastly, I have considered the nature of Mr and Mrs Toomey’s commitment to each other. The best evidence of commitment must come from the people concerned. Both Mr and Mrs Toomey have given evidence that they were unable to continue living together but that Mrs Toomey did not restrict Mr Toomey from seeing his children. I accept this evidence as truthful and not illustrative of commitment to each other during the period in question.
56. The evidence assembled against Mrs Toomey which relates to this period includes recent testimony of two neighbours and an anonymous “dob-in”. This is offset by the sworn oral evidence of Mr and Mrs Toomey and Mr Toomey’s mother. Mr Toomey’s two sisters also say they realised the couple separated in the early days of the marriage although unsure exactly when this happened.
57. As the tribunal pointed out in Re VCA and Ors and Australian Prudential Regulation Authority (2008) 105 ALD 236, usually it is the case in the tribunal that neither party bears a burden of proof. The tribunal referred to the difference between establishing a case and the introduction of evidence. Northrop J in McDonald v Director-General of Social Security (1984) 1 FCR 354 (‘McDonald’) in the context of an appeal regarding Ms McDonald’s entitlement or otherwise to an invalid pension also rejected the notion that a burden of proof existed. The tribunal must make its decision on the merits on balance. In reaching its conclusions it is reliant on the evidence presented by the parties.
58. The nature of the burden of proof in civil cases was described by Barwick CJ, Kitto and Taylor JJ in Purkess v Crittenden (1965) 114 CLR 164 in the context of an appeal against the quantum of damages. The trial judge referred to Watts v Rake (1960) 108 CLR 158. Their Honours rejected the primary judge’s construction of the burden of proof as the judge understood from that case and said that:
... The expression ‘burden’ or ‘onus’ of proof, ‘As applied to judicial proceedings ... has two distinct and frequently confused meanings: (1) the burden of proof as a matter of law and pleading – the burden, as it has been called, of establishing a case, whether by preponderance of evidence or beyond reasonable doubt; and (2) the burden of proof in the sense of introducing evidence’ (Phipson on Evidence, 10th ed. (1963) par. 92). This is a proposition which has been frequently acknowledged .... The position is, we think, correctly stated by the learned author of the work to which we have referred when he says: ‘the burden of proof in the first sense is always stable, the burden of proof in the second sense may shift constantly, according as one scale of evidence or the other preponderates’ (ibid. par. 95) and it was with the meaning of this expression in its secondary sense that the case mentioned was concerned. ...
59. The Court noted that such a shift occurs where one party is attempting to establish a case against the previously accepted situation. The respondent has to show that something has happened which alters the previously accepted state of affairs. All that has happened in the present case is that there has been an unsubstantiated “dob-in” and some suggestion from neighbours that the couple may have been living together. The other evidence set out above does not, on balance, in my view lead to the conclusion that the couple were not living separately and apart on a permanent or indefinite basis.
60. Taking all the above matters into account, I have formed the view, on balance, that the couple were living separately and apart on a permanent or indefinite basis from 7 April 1994 to 19 March 1998. This means Mrs Toomey was entitled to the payments she received and she has no debt to the Commonwealth for this period.
Assessment from 20 March 1998 to 16 May 2006
61. The same general principles apply in reaching a conclusion about the separation or otherwise of the couple which I considered above. When assessing the status of the couple for the period during which parenting payment (single) was paid to Mrs Toomey, I must take into account all the surrounding circumstances and the particular criteria set out in section 4 definitions.
Financial circumstances
62. For the period since 20 March 1998, I note that only Mr Toomey owned a motor vehicle and the evidence is that Mrs Toomey sometimes used it. They still had no joint assets or property. They still did not have a joint bank account. There is no evidence they had made wills or nominated each other as beneficiaries in each other’s wills, life insurance or superannuation policies. They did not have any outstanding joint debts. Mr Toomey took out loans in 2002, 2004 and 2005 in connection with which he declared he was married but it was his debts. Mrs Toomey paid the electricity and telephone bills according to her evidence and there is no evidence to contradict her. Mr Toomey used her mailing address as his accommodation was unstable. Mrs Toomey gave evidence that she passed his mail on to him. I also noted at the hearing that Mr Toomey’s mother had difficulties with memory so that entrusting mail to her may have been a concern even though Mr Toomey mostly lived at her address according to the evidence.
Nature of household
63. There is no evidence that household tasks were shared equally between Mr and Mrs Toomey. They both spent considerable time with their four children and Mr Toomey came to his wife’s house for this purpose. Mrs Toomey agreed to do her husband’s washing for which they both say he paid her.
Social aspects
64. There is no evidence that Mr and Mrs Toomey holidayed together but they did attend their children’s school and sporting events together. In response to questions about relatives and friends who knew they were separated, Mrs Toomey said she had few friends and did not discuss her personal life. However, her friend Natasha Finn gave evidence she knew they were separated. Mr Toomey’s family members all gave evidence they knew he was separated. Mrs Toomey’s parents have passed away. Mrs Toomey gave evidence that she told her mother about the marriage problems and the separation.
Commitment to each other
65. Separation occurred around 1994 according to the evidence I heard and neither partner filed for dissolution of marriage because of the children. They say they did not provide care, support or help to the other in case of illness but did give each other’s names as next of kin. This was again because of the children who would require care from the other parent in the event of any mishap. They say they had an infrequent sexual relationship. Mr Toomey did not stay overnight in Mrs Toomey’s house except when she was in hospital or recovering from surgery. Mrs Toomey said she informed Centrelink when Mr Toomey lived in her house for a time to look after the children. Mrs Toomey was receiving maintenance according to the field officer in 1997 and Mrs Toomey said Mr Toomey gave her some continuing financial assistance. For example, she told the tribunal he paid her to do his washing rather than take it to a laundry and that she appreciated the money.
66. Some of the indices of a continuing relationship have been present throughout this relationship. The statutory tests pursuant to subsection 4(3) which I analysed above for the period 1994 to 1998 are similar for the later period and the indicators of the relationship remain similar as well. There are instances where the couple behaved as though living together and others where they maintained separate existences. Financial aspects did not change. Mr Toomey accepted joint responsibility for his wife’s lease arrangements so far as the legal obligations and documentation was concerned, although Mrs Toomey made the lease payments. Mr Toomey declared he was married when entering into loan agreements for his own purposes but Mrs Toomey did not enter into any legal obligation in connection with the loans. On 22 March 2002, 17 June 2004, 21 June 2004 and 23 May 2005, Mr Toomey made sole loan applications with a credit union and presented his marital status as “married” and giving his wife’s address as his own. None of these incidents is conclusive about the state of the marriage in my view without further evidence.
67. As the Secretary pointed out, documentation from a number of organisations indicate that Mr Toomey was living at the same address as Mrs Toomey in 2005. New South Wales Traffic Authority records dated 8 February 2005 give the residential address of Mr Toomey as that of Mrs Toomey. Historical records show his past addresses were the same as Mrs Toomey’s at various times. Records held by the children’s school show that on 5 April 2005 Mr Toomey’s address was that of Mrs Toomey’s. Information from Australia Post dated 28 April 2005 includes Mr Toomey as one of the persons receiving mail at the address of Mrs Toomey. On 13 September 2005, Mr Toomey signed a NSW Apprenticeship/Traineeship Training Plan Summary with the New South Wales Department of Education and Training and provided his address as that of Mrs Toomey.
68. The nature of the household also did not change markedly. Family members gave evidence, which I set out under discussion above, that the couple were separated. Neighbours noticed Mr Toomey was always around but were not prepared to say in oral evidence that they were definitely living together.
69. Mr Toomey’s involvement with the household increased in 2005. When he was admitted to Inverell Hospital on 2 February 2005, he provided his address as that of his wife. When Mrs Toomey was admitted to hospital later in 2005, things started to change between the couple. Mrs Toomey, when asked if she experienced a “light bulb moment”, agreed that something of the sort occurred when she had to be rushed in for a hysterectomy in August 2005. She gave evidence that “they thought I had real bad cervical cancer. I had ‘granulomas’ and everything forming. Because I was overweight, they said it was a dangerous operation. When they were taking me to theatre that's when they said, ‘(T)his shouldn't be happening, because of your size, but it has to be done’.” She added “that was a really bad, really bad operation, I nearly died that day”.
70. After the operation, she felt she wanted to try and reconcile, bearing in mind “all the years of communicating with the kids, being friends and everything else, we needed to work out where our relationship was going. Either we finally get a divorce or do we work our problems out”. She gave evidence to the effect that she had no support from her own family and had not been talking to her eldest sister for nearly 10 years and still did not want to talk to her as she was so judgmental.
71. As Mrs Toomey explained, complications from the hysterectomy put her out of action for some time. Mrs Toomey told the tribunal that in connection with the hysterectomy, she had steroids put into her spinal column, then had another operation because they found more abnormal cancer cells. She still was not a well woman but her kids were her life, and they needed to be with people she trusted. As their father she asked Mr Toomey to stay and she let Centrelink know he stayed in her home when she had her hysterectomy. Mrs Toomey gave evidence that “I rang them up and I said, ‘You can take me off the pension, you can do what you want, but Justin will be living in my home for at least three to four weeks, maybe longer’.” She further said she saw nothing wrong with this and that it suited Mr Toomey because he was between homes and she preferred her children to be in their own beds, get dressed in their own school clothes, have everything in their rooms, and so she asked him to stay there, and he stayed in the spare room.
72. Mr Toomey said of this time that he agreed to move in to look after his children. He said that the constant bickering made him leave the applicant in the first place. He had felt pushed out of the applicant’s life over the 12 years but had always made sure he saw the children as often as possible. He added that in the 12 year period before they reconciled he only once spent more than five days in the same house as the applicant. That stay was around the time of the applicant’s operation and it had been simply to look after the children.
73. Looking at social aspects, Mr and Mrs Toomey represented themselves to the community as a couple in many respects. They gave evidence that they presented as a couple at the local school for the sake of the children. Mrs Toomey several times expressed the view that it was important to her not to discuss family matters with the school or do anything to encourage gossip as her mixed marriage was already frowned upon by many local people and the children were already disadvantaged by these attitudes.
74. On 24 May 2004, Mrs Toomey commenced work at the children’s school. The school records show her marital status as ‘married’. This status of course was correct although ‘separated’ was a possible alternative description. Not disclosing separation does not necessarily demonstrate that the couple were living together.
Sexual relationship
75. The Secretary submitted there was an ongoing sexual relationship between Mr Toomey and Mrs Toomey. As evidence of this, the Secretary only had to point to the birth of two children after Mrs Toomey claimed sole parent pension. Mrs Toomey had her third child in 1995 and her fourth child in 1997. Both births occurred before the claim for parenting payment (single) and the relevant period from 1998 to 2006. As set out above, Mrs Toomey gave evidence that she and her husband did occasionally have sexual relations but this was not a regular occurrence.
The nature of any commitment to each other
76. The Secretary submitted that throughout the whole of the period in question Mr and Mrs Toomey maintained a firm commitment to each other. The commitment extended for a period of 12 years during which they provided emotional and caring support for each other. As examples of this, the Secretary pointed to Mrs Toomey’s hospital admissions in 1995, 1997, 2000 and 2005 when she recorded the person for notification as her husband. As well, at times from October 1997 through to August 2005, Mr Toomey applied for leave to care for his wife. While it is true that Mr Toomey did apply for leave on about 4 occasions when his wife was in hospital or unwell, both he and Mrs Toomey explained in oral evidence that the real reason for his taking leave was in order to look after the children. Unfortunately, as he was not the principal carer of the children, he would not have been able to obtain leave to look after them unless he claimed on the basis that his wife was ill. I accept this evidence and find Mr Toomey’s assistance on these occasions demonstrated concern for his children’s welfare rather than commitment to his wife.
Other matters
77. In 2004, as the result of a tip-off or dob-in, Centrelink commenced an investigation. Centrelink surveillance took place for two days in 2005, on 21 and 22 March 2005, but was inconclusive. A car was parked on the premises and this may have been Mr Toomey’s vehicle. However, the photographs before me do not show the presence of Mr Toomey at Mrs Toomey’s residence. The investigation culminated in a raid in 2006. Mrs Toomey described this as a very frightening experience. She claimed that Federal police, NSW police and Centrelink officers stormed through her house shouting “Where are the guns and drugs?” Her mother-in-law also gave evidence that her house was searched and that she was frightened and confused by this experience.
78. Both the applicant and her mother-in-law, Nellie Toomey, gave oral evidence that Mr Toomey had been in the process of moving from the caravan in the rear of his mother’s property into Mrs Toomey’s house when the raid occurred. Mrs Lazar, Mr Toomey’s sister, further gave evidence that she and Mrs Toomey had arranged to go together to Centrelink that day to inform Centrelink that the couple were now living together.
79. Nellie Toomey signed a typed statement “taken and witnessed” by an investigating officer on the day of the raid. In this statement, she said that she had lived at the same address for 20 years. She also said that she often received hand delivered mail for her son. The mail often was delivered by people who knew her son or had been neighbours. She stated that her son had previously lived at addresses which coincided with Mrs Toomey’s previous addresses. She also described possessions of her son’s that were stored at her place. These included a car. She said she had taken his clothes to Mrs Toomey’s place 3 or 4 months previously. Nellie Toomey also stated that her son spent a lot of time at Mrs Toomey’s but stayed with her when they fought about money, which often occurred. She also said that her son spent more time living with his kids than living with her. She also stated that her son was thinking of taking a job at another location and that Mrs Toomey and the children were not going to move there with him. While some of this information is illuminating, it was obvious during the hearing that Nellie Toomey was confused and an unreliable witness through no fault of her own because she simply could not remember things clearly. As mentioned before, she could not recall making previous written statements. She remembered the raid and was frightened by it and may have been an unreliable witness on the day for this reason also. The statement does provide support for Mr Toomey’s claims that he lived much of the time at his mother’s address and Mrs Toomey’s claims that his clothing and belongings had only recently been moved to her address.
80. Mrs Toomey said that she had confided in one or two Centrelink officers that she and her husband were trying to reconcile and that these officers had been kind and encouraging. There is no evidence before me confirming this but I do note that a Centrelink record from 24 April 2006 shows that Mrs Toomey asked to have her appointment with “Heather” and that if this person was not available, Mrs Toomey declined to speak to anyone else.
81. Both parties drew my attention to case law surrounding the vexed question of when couples are living separately and apart. While I have considered these as some form of guidance, the main indicators are those set out in subsection 4(3) of the Act. I have further borne in mind that the section requires me not to make findings of fact about any of the indicators set out in the subparagraphs but to form an opinion about the relationship between two people. See Pelka v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs(2008) 102 ALD 22 (‘Pelka’). As the court stated, “having regard to a matter does not require a finding of fact about that matter”, citing Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 at [34]-[38]. The court in Pelka also cautioned that the actual words of the legislation should provide the primary point of reference.
82. Subparagraph 4(3)(e) requires me to have regard to four specific matters in forming an opinion about the nature of the couple’s commitment to each other. These are the length of the relationship, the nature of any companionship and emotional support they provide each other, whether they consider the relationship is likely to continue indefinitely and whether they see their relationship as a marriage‑like relationship. This last criterion is somewhat puzzling as subsection 4(3A) provides that I (in place of the Secretary) must not form the opinion that the relationship between a person and his or her partner is a marriage‑like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
83. As to the length of the relationship, I note that the marriage was never dissolved over the 12 year period of separation claimed. This is a substantial period but the couple say they did not divorce because of the children rather than because of commitment to each other. As to the nature of any companionship and emotional support they provide each other, I note that Mrs Toomey admitted to finding some emotional support in her husband from time to time but again both parties to the marriage say their real concern was for their children rather than for each other. There is no evidence before me that either person considered the relationship was likely to continue indefinitely. Mrs Toomey told me at the hearing that she felt the time had come, after her near death experience in August 2005, when she should decide whether to divorce her husband or commit to him.
84. Mr Toomey said that he had felt rejected or “pushed aside” during those twelve years. He felt he was neither one thing nor the other until Mrs Toomey approached him in 2005 or 2006 after her hysterectomy. He further said he had tried talking with her but without success. Until then, he “was just quite happy with what I was doing with my life”. For him, there was no defining moment, but things “sort of just relit”. He gave evidence that he said, “You know, this is a bit silly the way I’m going on and the way she’s going on … We have kids” and “if anything happens to either one of us…”. When asked how it had been since they got back together, he replied, “It’s been okay” but added that the arguments and the bickering and the family pressure and the financial things were still there. Nevertheless, he conceded that they were now together again. Nellie Toomey expressed her opinion that they had always loved each other but had difficulties.
85. From all these circumstances, I have formed the opinion, on balance, that Mr and Mrs Toomey were living separately and apart until around the time Mrs Toomey started to recover form her hysterectomy in August 2005 and decided she would like her husband to stay. It is difficult to pinpoint the exact time when reconciliation occurred as it was progressive from the time she came home from hospital. I find cases such as Re Shearing and Director-General of Social Security [1983] AATA 116 useful in this regard and agree with the finding of the tribunal in that case that suspicion is not sufficient basis for a finding that two persons live together on a bona fide domestic basis. The dob-in which occurred in September 2004 created a suspicion. A review of Mrs Toomey’s circumstances had already commenced in August 2004. Investigations took place between 24 January 2005 and 28 October 2005. Surveillance occurred on 21 and 22 March 2005. The photographs on file only show Mrs Toomey but there is a car in the driveway which may belong to Mr Toomey. Evidently, Centrelink did not find these results conclusive as they still took no action to stop the payments to Mrs Toomey. The obtaining of statements from neighbours occurred on 17 August 2005. Still no direct questions were put to Mrs Toomey but investigations continued. It was not until the raid occurred in 2006 that there was substantive evidence that the couple were then living together. The neighbours who made written statements on 17 August 2005 were less certain that Mr Toomey was living with Mrs Toomey at the tribunal hearing although they still gave evidence that he was at her house most of the time of which they were aware.
86. Overall, I have formed the opinion, on balance, that Mr and Mrs Toomey came to be living together, and not living separately and apart on a permanent or indefinite basis, when Mr Toomey moved in to Mrs Toomey’s house after her operation in August 2005. On 5 August 2005, Mr Toomey, during his wife’s convalescence following surgery, applied for carer’s leave and even though his intention at that time was simply to look after the children, he remained in close contact with his wife and ultimately moved his possessions into the house from that time on until they were completely together as husband and wife at the time of the raid on 16 May 2006. In view of this gradual reconciliation, I have decided that they were no longer living separately and apart for the purposes of subsection 4(3) of the Act by the end of August 2005. This means that Mrs Toomey was a member of a couple from that time onwards, that is, on balance, from 1 September 2005.
87. It follows that I find that Mrs Toomey was overpaid the parenting payment (single) from 1 September 2005 to 16 May 2006. I will therefore remit the matter for calculation of Mrs Toomey’s debt for the period she was overpaid from 1 September 2005 to 16 May 2006.
Is there a debt and is it recoverable?
88. As I have found that Mrs Toomey was a member of a couple from 1 September 2005, I find that Mrs Toomey received amounts of parenting payment (single) to which she was not entitled. These are legally recoverable debt amounts.
89. There is no evidence to suggest that the debt was the result of an administrative error and it should not be waived on this ground.
Can the debt be waived on the grounds of special circumstances?
90. Section 1237AAD of the Act provides for the possibility of waiving all or part of a debt on the grounds of special circumstances. Mrs Toomey did not argue that special circumstances exist in her case although the tenor of her evidence reflected many years of difficult circumstances and she often referred to the unusual circumstance of community and family reaction to her mixed marriage. Ultimately, I am not satisfied that her circumstances are so unusual or that the effect on her of the debt to the Commonwealth will be so harsh as to make her case greatly distinguishable from the straitened circumstances of many social security recipients. I therefore find special circumstances do not exist in Mrs Toomey’s case to warrant exercise of the discretion to waive all or part of the debt under section 1237AAD of the Act.
decision
91. The tribunal sets aside the reviewable decision of the Social Security Appeals Tribunal made on 22 November 2007 and substitutes a decision that:
a.Mrs Toomey was overpaid parenting payment (single) from 1 September 2005 to 16 May 2006 because she was a member of a couple for the purposes of the Social Security Act 1991. The matter is remitted for calculation of Mrs Toomey’s debt for the period she was overpaid; and
b.Mrs Toomey was living separately and apart from her husband during the periods 7 April 1994 to 19 March 1998 and 20 March 1998 to 31 August 2005 and therefore entitled to payment of sole parent pension and parenting payment (single) throughout these periods.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member
Signed: .........................[Sgd]...........................
Jennifer Wong, AssociateDates of Hearing 30-31 March 2009
Date of Decision 26 June 2009
Solicitor for the Applicant Mr M Daly, MacLean and Curtis SolicitorsAdvocate for the Respondent Mr K Bullock, Centrelink Legal Services & Procurement Branch
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