"WVXS" and Secretary, Department of Families, Community Services and Indigenous Affairs
[2007] AATA 1320
•16 May 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1320
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V2005/1060
GENERAL ADMINISTRATIVE DIVISION ) Re “WVXS” Applicant
And
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date16 May 2007
PlaceMelbourne
Decision The decision of the Social Security Appeals Tribunal made on 11 November 2005 is affirmed. ..............................................
John Handley
Senior Member
SOCIAL SECURITY – overpayments of benefit raised against applicant – whether he was a member of a couple – application heard separately to application of former spouse – evidence of both applicants summarised and findings made (applicable to both) – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 35
Social Security Act 1991 (Cth) s 4 (2) (a) and s 4 (3) and s 1236(1A) and s 1237A and s 1237AAD
Jones v Dunkel (1959) 101 CLR 298
REASONS FOR DECISION
16 May 2007 Mr John Handley, Senior Member 1. The applicant applies to review decisions made by the Social Security Appeals Tribunal (SSAT) on 11 November 2005. The SSAT decided that he was a member of a couple, the other person being his former wife. As a consequence of being a member of a couple, it was decided that he had been overpaid benefits (which had been paid to him at the single rate) as follows:
· $374.12 being newstart allowance for the period 21 March 1985 to 26 June 1995.
· $204.71 being newstart allowance for the period 25 June 1996 to 11 September 1996.
· $911.42 being newstart allowance for the period 13 December 1996 to 27 November 1997.
· $2687.98 being newstart allowance for the period 12 December 1997 to 9 March 2001.
· $277.60 being disability support pension for the period 5 May 2001 to 29 June 2001.
2. The applicant’s former wife is an applicant in separate proceedings being V2005/1111. In her application the SSAT decided that she was a member of a couple with the applicant. As a consequence of that finding it was also decided by the SSAT that she had been overpaid benefits for a period of time.
3. The application brought by the applicant and his former wife were both listed for hearing during the same five day period but each application was heard separately. The applicant appeared without representation. The applicant’s wife was represented by Mr Spencer from the Footscray Community Legal Service. Mr Ginnane of Counsel appeared on behalf of the respondent Secretary in each application. The applicant and his former wife were separated from each other during the hearing of each application and did not hear each other’s evidence. Each of them gave evidence with the assistance of an interpreter although both of them did speak adequate English and understood the English language. Neither the applicant nor his former wife called any persons to give evidence in support of their respective applications. A number of documents were received into evidence in each application. This decision will be in two parts. The first part, under the heading The Evidence will record and summarise the evidence of the applicant only. The second part, under the heading Conclusion and Reasons for Decision will refer to the evidence of both parties from which findings will be made. The discussion under the second part will be the same in each application.
privacy issues
4. Section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prescribes that it is desirable that hearings of proceedings before the Tribunal should be held in public…. It also records that the evidence heard and the documents received should be made available to the public and the parties. However a discretion exists to permit the making of Orders that a hearing be conducted in private, prohibiting or restricting publication of the names of witnesses or of the evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received into evidence.
5. The applicant made an application in these proceedings to conceal his name from publication. That application was put upon the basis that there would be numerous matters of a personal nature which would emerge and which he would prefer not be known to other persons. It was submitted that by reason of his membership of a Macedonian community and a Macedonian church that his circumstances could readily be known by computer access to published reasons for decision and in those circumstances his privacy would be compromised. It was also submitted that there may be circumstances arising out of published reasons for decision which would hold him to ridicule or gossip.
6. When the application was made during the hearing I declined to make Directions under s 35 of the AAT Act. However, on balance and having reviewed the evidence, I am satisfied that it would be appropriate to make an Order prohibiting publication of the name of the applicant. I am also satisfied that it would be appropriate to prohibit publication of the address of the former matrimonial home. In making these Orders I am satisfied that published decisions of the Tribunal can be readily found by a number of internet search engines. I am also satisfied that matters which emerged in evidence during the hearing of these proceedings could hold the applicant to ridicule or embarrassment. I am also satisfied that evidence in contested proceedings as to whether a person is a member of couple will expose the applicant to the publication of matters which concern the unique relationship between two persons and which might refer to matters which may be unknown, even to close associates or friends. In these reasons the former matrimonial home will be described as the St Albans address. The street number and street name need not be recorded. It was well documented throughout the materials lodged with the Tribunal and in the evidence. Similarly other matters not in dispute will not be identified with precision or at all in these reasons namely, dates of birth, other addresses and registration numbers of motor vehicles.
preliminary
7. The applicant is 58 years of age. He was born in Macedonia and travelled to Australia in 1972, being the year of his marriage. He and his former wife returned to Macedonia in approximately 1981 or 1982 and then they both returned to Australia in about 1985 where they have since resided permanently. It was alleged that separation occurred on 8 April 1994. The applicant and his former wife divorced in July 2006. The period of the alleged overpayment in the present application commenced after the date of separation and before the date of the divorce.
8. The applicant alleged that he and his wife jointly rented a home at the St Albans address from the Victorian Ministry of Housing prior to separation. His former wife has lived in that property since separation. The applicant alleged that he has subsequently lived elsewhere. He admitted that he frequently returned to the St Albans address to collect his mail. He also admitted that he used the address of that property as his mailing address. For the purposes of the remainder of this decision, the applicant’s former wife will be referred to as wife.
the legislation
9. As referred to above that at all relevant times the applicant and his wife were married persons. Section 4(2)(a) of the Social Security Act 1991 (the Act) applies and is reproduced 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
. . .
10. Section 4(3) of the Act also applies and regard must be had to the criteria found within it. That sub‑section is reproduced as follows:
4(3)In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a)the financial aspects of the relationship, including:
(i)any joint ownership of real estate or other major assets and any joint liabilities; and
(ii)any significant pooling of financial resources especially in relation to major financial commitments; and
(iii)any legal obligations owed by one person in respect of the other person; and
(iv)the basis of any sharing of day to day household expenses;
(b)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 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.
the evidence – part 1
separation
11. The applicant said that he was presented with a letter from his wife, completed by her former solicitors dated 8 April 1994. He recalled that the letter requested that he cease to occupy the St Albans address because upon the instructions received from his wife, the marriage had irretrievably ended. He said he did not move out immediately because he had to organise himself.
12. When he was taken to a number of forms completed by him and lodged with Centrelink, the applicant said he first lived in a caravan, after leaving the St Albans address, at another address occupied by his friend Julia (T5). The form completed by the applicant records him as first living at that address in 4/94. In another form also found at T5, the applicant is recorded as living at the same address in a caravan in the backyard, those premises then being occupied by Debbie and at which he resided from 8/4/95.
13. In another form found at T9 entitled Assessment of Living Arrangements – Separated Under One Roof, the applicant is recorded as residing at the St Albans address, having separate living, sleeping and utility areas. In response to a question do you exclusively occupy any area of the home, the applicant answered stay with friends. That form is dated 21 April 1995. In another form of the same date (T8) the applicant has recorded that he lives at his current address [the St Albans address] with his ex‑wife. Her name is recorded. He has also recorded that he intends to continue sharing accommodation with his ex‑wife until I can afford to move out.
14. Thereafter the applicant said he lived at a number of different addresses, one being in Sydenham in a caravan on vacant land. He said the caravan was owned by his friend Julia (refer above).
15. He said he later lived at some premises in Main Road West St Albans which were occupied by some Asian females and males but he could not recall their names. He also lived at other premises in Main Road West St Albans which were occupied by an Asian mother and her daughter. He could not remember the names of those persons.
16. The applicant acknowledged that he used the St Albans address for the purposes of receiving his mail. He acknowledged that his driver’s licence, tax records, Medicare and employment records all recorded the St Albans address as his place of residence. However, he was adamant that he did not ever live there after April 1994. Whilst he did give some information to Centrelink of places where he was living from time to time, he agreed that he mainly did not and or refused to disclose his residential location. He said this was because he was renting premises occupied by persons who were Centrelink recipients and it was understood that those persons were at risk of having their benefits reduced or ended if it was known that they were receiving rental income from him. On other occasions he said that he was threatened by persons who occupied premises that he rented if he disclosed having paid rental income to them.
17. The applicant persisted in his refusal to answer questions from Mr Ginnane to identify the names of persons to whom he paid rent. The Transcript at page 40 records that a basis for his refusal was because Centrelink can investigate, they put them on trouble and then my back not be safe. I directed the applicant to the provisions of s 62 of the AAT Act and notified him of the potential consequences of refusal to answer the questions. He responded well I still deny to answer that – the reason is because most of them, they are married, they have got the families and I just came only for that. It followed that the applicant was also not prepared to call any person who could support his contention that he has not ever lived at the St Albans address since April 1994.
18. When it was put to him that a former employer had recorded in a statement to Centrelink that he had sometimes been picked up from work by his wife, the applicant said that the location of the office at the workplace would have prohibited his employer from ever observing him or the person who collected him. Additionally he said that when he arrived at work in the morning and when he left at night his employer was never present. Later, when video film was shown to the applicant he agreed that it was probably his wife who did drive him to work on the occasion that the video film was taken and on other occasions he may have been picked up or visited by some girls.
19. The applicant was also acquainted with a memorandum completed by some solicitors who acted for him in workers’ compensation proceedings. The memorandum records that his wife had rung to indicate that he had suffered a heart attack. The applicant denied that his wife would have made the telephone call and said that it was probably made by a person that he was then living with who wanted to cash his super.
20. The applicant persisted throughout his evidence in asserting that he did not ever live at the St Albans address but rather used it as a postal address. He agreed that he frequently attended the premises and frequently entered the premises. On those occasions it was, he said, to visit his children and to discuss their problems. He agreed that he did travel with his wife to visit one of his children who was in Castlemaine gaol. He also agreed that there was an occasion when his wife visited him when he was in gaol.
21. It was suggested to the applicant that he in fact continued at all relevant times to live at the St Albans address because an Intervention Order (recording his wife as the Aggrieved Family Member) issued out of the Sunshine Magistrates’ Court on 8 November 2002 did not prohibit him from attending those premises. The applicant denied the suggestion put by the question and said that he satisfied the Magistrate that he needed to attend those premises to visit his children. In those circumstances he said that the Magistrate declined to prohibit him attending those premises. The applicant was adamant that he did not live at the St Albans address and equally adamant that he lived elsewhere. When it was suggested to him whether there was any reason why his children could not have visited him at his residential address, he said that he did not notify them where he was living but they were able to contact him by telephone.
hairdressing business
22. The applicant said that he was in a 50/50 partnership with his wife in a hairdressing business from 14 February 1994. The applicant said that he recalled that date because it was Valentines Day. He said the business operated as a partnership until 8 April 1994 when he separated. From that date he said that his wife was responsible alone for the business.
maintainance
23. The applicant said that he did not ever financially support his wife after the date that he separated. He agreed that he did not ever help her for finance problems but did say that there was an occasion when she got the Court case, he attended it for sticky nose . . . may be for my interest, may be I try to get money from her if she win the case or not. Additionally the applicant said that his wife did not ever support him.
video surveillance
24. Centrelink arranged video surveillance of the applicant in November 2003 and June 2004.
25. The surveillance of November 2003 depicts the applicant driving his car out of the driveway of the St Albans address early on each morning and returning it to the same location each afternoon. The applicant said that he returned the car each afternoon for use by his son Elvis. He said he would collect his mail and then walk to his own residence some distance away. On the following morning he would walk to the St Albans address and then drive the car to work. There were also occasions he said where Elvis would travel to his workplace during the day and take the car for his own use. The applicant disputed the assertion put to him in cross‑examination that the car was returned to the St Albans address each night because he was then living at that address. He also disputed the assertion that he stayed overnight at the St Albans address consistent with him being depicted driving the car out of the driveway early on each morning. When it was put to the applicant that on the dates depicted in November 2003 his son Elvis was serving a term of imprisonment, the applicant said that he disputed the dates depicted on the video film and whilst agreeing that there were occasions when Elvis was in gaol the car was left – on those occasions – for use by his other son Stiven. The applicant said that he did not ever stay overnight at the St Albans address after 8 April 1994 nor did he ever have meals at that location. He said that he returned to the house each afternoon to collect his mail and to talk with his children.
26. In June 2004 the video film depicts the applicant leaving the St Albans address early on one morning. He is followed travelling to a petrol station to fill up the car. There appears to be another person in the vehicle but that person cannot be identified. Approximately two hours later the applicant’s wife is depicted driving the same motor vehicle into the driveway of the St Albans address and removing groceries from the boot of the car. The applicant said that his wife must have then been driving that vehicle without his permission and had been able to do so because she had obtained a spare set of keys from his children.
motor cars/finance applications
27. The T‑documents record a number of occasions where the applicant purchased motor vehicles and applied for finance. On some occasions he recorded that he was married to his wife. His wife had changed her surname and that name was recorded on the application forms. The applicant also changed his surname and on some occasions applications were made by him in that new name. He also recorded that he was living at the St Albans address. The forms record him as being the owner of that property. The applicant admitted that he cheated finance companies but he did not cheat Centrelink. He said he made the admissions – which he admitted were false – because if he did not, finance would have been denied.
28. On another occasion in relation to the purchase of a Toyota motor vehicle, the applicant agreed that he caused his wife’s name to be recorded as the co‑borrower but said that a representative of the finance company forged her signature. He agreed that he knew that her signature had been forged by that person and said that he allowed it to occur because I want to buy the vehicle, to get the finance.
29. The evidence and supporting documents record that on many occasions after separation, the applicant bought and sold Nissan, Toyota and Commodore motor vehicles. The applicant also agreed that other vehicles which were registered in the name of his wife or his children had been traded in by him to acquire vehicles. It was suggested to him that he had been exercising control over the vehicles used by his wife and his children. The applicant said that he did not give his wife permission to drive the vehicles but said that he was powerless to prevent it from happening because his sons must have given her the keys.
applicant’s children
30. Throughout his evidence the applicant maintained that he visited the St Albans address after separation to see his children. He said that he did enter the premises but did so only with their permission. He also admitted that he left his motor vehicle at the St Albans address for the use by his children. He was adamant that he did not ever stay overnight at the St Albans address after the date of separation and did not ever have meals at that location.
31. Despite the relationship by the applicant with his children, as asserted, he agreed that he did not ask either Stiven or Elvis to come to the hearing to give evidence on his behalf. He also agreed that he did not approach any person to give evidence of him staying overnight with them or elsewhere since April 1994 nor did he attempt to locate and call any person who he asserted drove him to work or collected him from work at the end of each day.
32. The applicant said that he currently enjoys a relationship with his friend Annie but said that he did not call her to give evidence because she was not aware of these proceedings and he preferred to keep this application private from her. He also said that she does not know where he currently resides because he chooses to keep it a secret. He said that he now lives with his younger son Stiven who has threatened him in the event that she were to visit or live with him. In fact the applicant said that Annie does not know his home telephone number but communicates with him by ringing his mobile telephone number only.
bank accounts
33. The applicant said that he opened an account with the National Australia Bank (NAB) in approximately 1985 when he and his wife returned to Australia. He agreed that it was a joint account but from the date of separation in April 1994, his wife had not ever used the account. He agreed that it did remain as a joint account. He agreed that an application for job search allowance made in March 1995 (T6) requests that that benefit be paid into the joint account. I also note as these reasons are being prepared that his application for employment with Canny Carrying Co Pty Ltd in September 1996 requested that his wages be paid into that account. In November 1996, the applicant claimed disability support pension (T14). In that application, the applicant requested that pension be paid into the joint NAB account.
change of name
34. On 19 November 1996, the Victorian Registrar of Births, Deaths and Marriages recorded that the applicant changed his name. On 12 June 2003, the applicant reverted to his former name by a change of name registration. The applicant denied in evidence that he had interchanged his names. However, I note in an application to this Tribunal (V1997/979) the applicant sought a review of a decision of the respondent refusing an application by him for disability support pension. Those proceedings were brought on 5 December 1997 by his birth name being 12 months after his change of name was registered. In another application made for disability support pension (which was subsequently withdrawn) made in February 1999, the applicant claimed in his birth name.
35. The applicant was imprisoned in November 2000 under his changed name. In February 2001 after he was released from gaol, he claimed Centrelink benefits in his changed name. His Centrelink file number remained the same. Applications for finance and insurance with respect to motor vehicles purchased were made in his changed name.
applicant’s character
36. In cross‑examination some features of the applicant’s conduct were put to him suggesting that he was not a person of honesty or integrity. It was noted that he had admitted recording his wife’s name on an application for motor car finance and had allowed another person to forge his wife’s signature. It was noted that he had been imprisoned in November 2000 having been convicted of handling stolen goods (during which time his wife visited him). In November 2002 an Intervention Order was sought having regard to his conduct at the former matrimonial home. That address was recorded on papers issued by the Sunshine Magistrates’ Court as his residential address. The applicant said that he did not provide that address to the police and because of his refusal to give his residential address he was locked up.
37. In August 2003, the applicant’s disability support pension was suspended. That decision was made following a data match with the Australian Taxation Office which revealed him having earned $20,359.00 in the 2002 income year. However, in an application to Centrelink, the applicant recorded that he did not earn any income in the same financial year. Additionally, the applicant is recorded in an extract from the Victorian drivers’ licence agency as being a Department of Social Security pensioner at July 2003 (p197). In July 2003, the applicant was then working at KNM Transport, as evidenced by the salary records at p217.
38. In an application for motor car finance made in July 2002, the applicant is recorded as being married and owning the home at the St Albans address. The applicant was then married however there was provision on the application form to record him as being separated. He did not then own the home at the St Albans address.
39. The applicant alleged that he had lived in a number of different addresses since separation in April 1994 and said that he lived with persons who were in receipt of Centrelink benefits. He was not prepared to disclose the locations of some residences because it would expose the occupiers to scrutiny by Centrelink, they having received rental income from him which he believed they did not declare. With respect to the premises that were known to Centrelink, he said the contents of questionnaires completed by those occupants advising that they had not ever heard of him, were false because those persons would not admit that he had been a tenant. The applicant also admitted that he was aware of his obligations to notify Centrelink of change of address. He admitted that he did not do so on some occasions.
conclusion and reasons for decision – part 2
40. As referred to earlier I indicated that I would take account of the evidence heard in both applications in making findings as to whether each applicant was a member of a couple. There is no dispute between both applicants that they were married in 1972 and were divorced in July 2006. The debts that have been raised against them concern periods of time prior to the divorce. Accordingly, they were during those periods of time, legally married.
41. However, a finding must be made pursuant to s 4(2)(a) of the Act as to whether they were living separately and apart from each other on a permanent or indefinite basis. In making that finding regard must be had to the criteria found within s 4(3) of the Act. But the exercise of the discretion is not confined to the criteria only. As may be seen from the language of s 4(3) of the Act, regard must be given to all of the circumstances of the relationship.
42. Insofar as the criteria is concerned there was no evidence of any joint ownership of real estate or any other major asset or joint liability. Additionally there was no evidence of pooling of financial resources, sharing of household expenses, acknowledgement of joint responsibility for providing care and support for the children (when they were teenagers), whether responsibility for housework was distributed, any sexual relationship between them or whether any friends or associates assessed the nature of their relationship or whether any persons thought that they were engaged in a married-like relationship.
43. Insofar as the last two criteria above are concerned, a remarkable feature of both applications was the failure on the part of both applicants to call any persons to give evidence either in corroboration or at all. Because at all relevant times the children, both now adult men, were living in the former matrimonial home, I would have thought that both applicants would have called them to support their respective applications. They were not called. This is despite the frequency of the husband’s evidence that he often attended the former matrimonial home to talk with his children. That suggests a relationship between him and them. If the husband is to be believed with respect to that evidence, it is remarkable that neither child gave evidence in support at least of their father and of their mother. Additionally, no friends, relatives, neighbours, or any other persons were called by either applicant to support their respective applications. I do draw the inference in the circumstances that the evidence of uncalled witnesses would not have assisted either applicant. I acknowledge that the principles in Jones vDunkel (1959) 101 CLR 298 are not confined to the imposition of an adverse inference alone. However, throughout the proceedings of each application, both applicants were asked on many occasions whether other persons – including their children – would be called and were given many opportunities to call them.
44. For reasons which follow – and not by reason of the absence of the applicants’ children, friends or relatives only – I am satisfied that at all relevant times the applicants were members of a couple because I am not satisfied at all relevant times that they were living separately and apart from each other.
45. I acknowledge that both applicants said that the separation commenced on or about 8 April 1994. Both agreed that the wife instructed solicitors who wrote a letter of the same date requesting that the husband vacate the home at the St Albans address. The husband said that he did read the letter and left two or three days later.
46. Thereafter the wife made a number of representations to Centrelink that she was separated and that separation had commenced in April 1994. (Curiously – or coincidentally – on one occasion she represented to Centrelink that separation commenced on 20 March 1994 which is the same date recorded in a letter of City West Water (refer husband’s T‑documents p208) recording the wife as being the tenant and that date appearing beside the words date of entry).
47. It was the evidence of the wife that she continued to live at the St Albans address, that she made representations to the owner of the property to have it registered in her name alone and she has continued to live at the St Albans address with her children. She acknowledged that her husband did return to the St Albans address on a regular basis to collect his mail and to visit the children. She said that she was powerless to prevent him from doing so. She said that he did not ever live at the St Albans address after April 1994 except when she was overseas between June and September 2003. She said that her children who lived in the house in her absence had given their father permission to stay there.
48. The husband said that he moved out of the St Albans address a few days after receiving the letter of 8 April 1994 and has at all times lived elsewhere.
49. In evidence – and by reference to documents lodged by the respondent – the husband said that he lived in a caravan at premises owned or occupied by his friend Julia from April 1994. From April 1995, he lived in a caravan at the same address but those premises then being described as being owned or occupied by his friend Debbie.
50. However, on 21 April 1995, the husband completed a questionnaire (T9) where he recorded that he was residing at the St Albans address, with his wife, and he intended to share that accommodation until he could afford to move out. The questionnaire is entitled Separation under one roof. It was unexplained by the husband why he would complete that form if he was separated and living elsewhere.
51. The husband gave evidence that he also lived in another caravan at an address in Sydenham (the caravan being owned by his friend Julia). He also said that he lived at two other addresses in Main Road West St Albans where he shared accommodation with other persons.
52. The husband admitted that he had deliberately chosen not to call any persons with whom he has lived since April 1994 because he had paid rent to them and they were recipients of Centrelink benefits. He said on some occasions he had been threatened not to expose their identity. He said he was in fear from some of those persons. He explained that questionnaires completed by the occupiers of some of those premises denying any knowledge of him were false because those persons would not admit that they had received rental income from him.
53. The husband also admitted that he had lived at other locations and had not notified Centrelink. He also acknowledged that he was obliged to notify a change of address.
54. Having heard the evidence of the wife that her husband had a number of girlfriends and having heard the husband in evidence also speak about his girlfriends – including an offer to look at some SMS messages received on his mobile telephone – I am satisfied that from time to time the husband did have relationships with other persons. However, I am satisfied on balance that the evidence of the husband with respect to the places where he has lived and the persons with whom he has lived, is a charade established for no purpose other than to attempt to portray to Centrelink that he has been living separately and apart from his wife.
55. I would readily acknowledge from the evidence heard and from the documents read that the relationship between both applicants has been less than harmonious. Indeed there is much evidence of the husband having assaulted his former wife and having been abusive. The records of the Western General Hospital and of Victoria Police bear testament to his behaviour. The assaults and intimidation have occurred by his initiation at the St Albans address, it being the address that he admitted that he frequented on a regular basis to collect his mail and to visit his children.
56. Even if the husband had from time to time had continuing relationships with other girlfriends and had stayed at their premises, it would not in my view amount to the applicants living separately and apart on a permanent or indefinite basis. At most, it would amount only to living separately and apart on a temporary basis. For the reasons given above and for the reasons which follow, a number of other features of the relationship between the applicants which emerged in evidence point to them at all relevant times having continued to be members of a couple.
57. The husband said that he used the St Albans address for the purposes of having his mail delivered. He was therefore required to attend those premises on a regular basis to collect it. He did have a post office box which he disclosed on some application forms found within the T‑documents but said that he preferred to have mail delivered to the St Albans address because he could not always attend the post office during business hours. On the occasions that he attended the St Albans address to collect his mail he also visited his children. Those occasions occurred – he said – in the afternoon on working days. The frequency of the hospital admissions by the wife as a consequence of assault by her husband, the times of her admissions and the frequency of attendances by police all point to him being at those premises on many occasions other than at the end of a working day.
58. During the hearing of each application, two video surveillance films were shown. Each applicant observed them. The films depict the husband driving his motor vehicle out of the driveway of the St Albans address on three consecutive days in November 2003 and on a date in June 2004. He is driving the vehicle early on each morning and he is followed driving that vehicle to his workplace. He is also shown returning to the St Albans address on each day and driving the vehicle into the driveway of the St Albans address. He said that he was returning to collect his mail and to visit his children.
59. The wife said that she thought that he was returning to the house on the days depicted by the video because he was collecting his mail. She said there were occasions when he entered the house but did so with the permission of the children. The husband said that he returned to the house to collect his mail and also to leave the car for use by the eldest son Elvis. He said that he would then walk from the St Albans address to the premises where he was living and then walk back to the St Albans address the next morning to drive the car to work. When he was informed that on one of the days depicted by the video film Elvis was in gaol, he said that he was then leaving the car for use by his other son Stiven. He also disputed the dates recorded on the video film.
60. I reject the explanation given by the husband and believe it to be untruthful. I am satisfied that on the days depicted by the video films, the husband returned to the St Albans address and departed from it on the next day because he was living at the address. His wife was also then living at that address. Having regard to the above and the summary which follows, I am not satisfied they were living separately and apart at the St Albans address.
61. On the video film of June 2004, the husband is observed departing the St Albans address and driving to his workplace. Another person is in the vehicle with him. That person’s identity is obscured however both applicants admitted in evidence that on that occasion the wife was the other person in the vehicle. The film depicts her returning to the St Albans address a short time later as the driver of the vehicle and removing groceries from the boot of the vehicle. She must have been using the vehicle on that occasion with his permission.
62. Another feature I think of significance and which points to the husband continuing to reside at the St Albans address is the disclosure by both he and his wife of the home telephone numbers to a number of different companies, institutions and agencies. For example the telephone number held [refer p208 of husband’s T‑documents] by City West Water as applying to the St Albans address was given by the husband in his application for motor car finance in July 2002 and June 2003. It was also given by him as his telephone number in an entry in the Western General Hospital records where he is described as the next of kin in July 2002. That same number is recorded against the wife upon her admission to the Western General Hospital in September 2001 and February 2004.
63. Another telephone number regularly appears (refer p60). That telephone number was given by the husband when he applied for employment with Canny Carrying Company in September 1996, in his claim for compensation in March 1997 and in an advice to Zurich Insurance Company in 1996. The wife used that telephone number in her application for newstart allowance in December 1996 and for disability support pension in December 1997. It is also recorded as her telephone number on her admissions to the Western General Hospital in July and November 2002 and January and February 2004. It is worthy to note that at the admission to the Western General Hospital in 2001, this telephone number is recorded as being the wrong number and the number referred to earlier namely, (refer paragraph 59) is recorded as being the correct telephone number.
64. Whilst this evidence suggests that there have been two telephone numbers operating at the St Albans address, it also indicates very strongly in my opinion that the husband did not only attend the St Albans address to park the vehicle for the use of Elvis and to collect his mail, but rather, as a location for him to be contacted by telephone. That in my view points to him living at those premises. The wife also lived at those premises. I continue to be satisfied that both applicants were members of a couple.
65. A number of other issues emerged in evidence which also in my view point to the applicants as being members of a couple.
66. On one occasion, the husband traded in a motor vehicle owned by his wife and purchased a Toyota vehicle. He admitted that he wrote his wife’s name as the co‑borrower of finance. He said that he was required to do so in order to obtain the finance. But both he and her agreed that when he returned to the St Albans address he said words to the effect here is your new car. It was not explained why the husband would arrange to sell and buy his wife another car if they were separated. The wife said that she had no knowledge of him having obtained finance in joint names but did acknowledge that a number of statements were sent to the St Albans address in joint names from the finance company. She was equally indebted to the finance company as was her husband and I reject her evidence that she had no knowledge of the finance being obtained to purchase a motor vehicle.
67. Additionally the applicants held a joint account with the NAB. The husband said that it was first opened when they returned to Australia in 1985 and was used by him exclusively after separation in April 1994. I do not understand in those circumstances why he would request that his job search allowance in 1995, his wages from Canny Carrying Company in 1996 and in his application for disability support pension in November 1996, be paid into that account. An explanation may be to allow his wife access to monies by way of support or maintenance, but both denied such payments. I prefer the view that they were members of a couple. The bank statements found within the T‑documents record the account as being in joint names and there is no evidence that either applicant sought to close the account.
68. The husband denied that he ever paid maintenance or provided any finance or financial assistance to his wife after separation. However, representations made by the wife to Centrelink record her as being in receipt of either $50.00 per week or $130.00 fortnight maintenance from her husband. When she was challenged on those entries in evidence, she initially said that those monies were not ever paid but later said that she understood that her husband had paid those monies directly to the youngest son Stiven. I am satisfied, at least at the time these representations were made to Centrelink, that the wife was in receipt of monies from her husband – or had access to monies in the NAB account – which may be described as housekeeping expenses, consistent with them both being members of a couple.
69. Both applicants agreed that they were partners in a hairdressing business. The husband said that the partnership commenced on Valentines Day in 1994 but from the date of separation in April 1994 he no longer had any interest in the business. The wife said she continued to operate the business after April 1994 and in a statement to Victoria Police in November 1995 – after the premises were destroyed by fire – she declared that her other partner was her husband. In a declaration to the Department of Social Security in November 1995 the applicant recorded that whilst she and her husband were separated, they owned the business 50%/50%.
70. There is evidence admitted by both applicants that they jointly travelled to Castlemaine to visit Elvis when he was in gaol and the wife also visited her husband when he was in gaol.
71. In summary, I am satisfied that at all relevant times the wife and the husband lived at the St Albans address because:
(i)the wife admitted she lived there and;
(ii)the frequency of the husband’s attendance evident by:
·his use of that address as a mailing address;
·his admissions of attending to collect his mail;
·his being observed on surveillance films entering and leaving the premises
do not point to them living separately and apart on a permanent or indefinite basis.
72. Additionally:
· access by both to a joint bank account
· the evidence of the wife driving the husband to work and returning home, in his car
· her visiting him in gaol and them both jointly visiting Elvis in gaol
· both using the same telephone numbers of the St Albans address
· the admission by the wife to Police after the date of alleged separation of being in partnership with her husband
· the failure to call any persons to give evidence in support
· buying and selling motor cars.
· use by each applicant of each others changed names
· the frequency of him being inside the premises as evident by the wife’s admissions to hospital by reason of his assaulting or intimidating her
· the husband being recorded as next of kin
point to them being members of a couple.
73. In the reasons for decision concerning the husband, I have recorded some features of his evidence which would suggest that he has been less than truthful. When all of the above evidence from the wife and the husband is considered and analysed jointly, I am satisfied on balance, that at all relevant times the applicants were not living separately and apart from each other on a permanent or indefinite basis. Accordingly, I am satisfied that they were at all relevant times members of a couple.
whether to waive or write off the debt
74. Centrelink has raised an overpayment against each applicant. Neither applicant disputed the calculations. A raised debt may be written off under s 1236(1A) of the Act only if it is not recoverable, if a debtor has no capacity to repay it or if a debtor’s whereabouts are unknown or if it is not cost effective for the Commonwealth to take action to recover it.
75. I am not satisfied that either sub‑section applies. Both applicants currently receive pensions. Despite their income being modest they have a capacity to repay. Applications are frequently heard in this Tribunal concerning persons who negotiate with Centrelink to repay by pension withholdings after an examination of their financial circumstances. The debt therefore is recoverable and each applicant has the capacity to repay it.
76. Section 1237A provides that a debt must be waived if it is attributable solely to an administrative error made by the Commonwealth and if it was received in good faith.
77. That section does not apply. In my view the debts raised against each applicant are attributable solely to the representations that they made alleging that they were separated. I have found that they were not. There was no administrative error attributable solely or at all to the Commonwealth and neither applicant received monies in good faith.
78. Section 1237AAD permits waiver in special circumstances but only if the debt that has been raised did not result wholly or partly from the debtor or another person knowingly making a false statement or false representation and there are special circumstances making it desirable to waive the debt and it is more appropriate to waive than to write‑off the debt.
79. For reasons given earlier, I am satisfied that the raising of the respective debts in these applications occurred by each applicant making either a false statement or a false representation. There are no special circumstances in my view that would make it desirable to waive the debt nor was any advanced. Additionally, it would not be my view that it would be appropriate to waive the debt rather than write it off.
80. In all of the circumstances I am satisfied that the decisions in each application under review should be affirmed.
I certify that the 80 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior MemberSigned:…………………………………………………………. Personal Assistant
Dates of Hearing 29 and 30 November 2006 and 8 February 2007
Date of Decision 16 May 2007
Solicitor for the Applicant Self Represented
Counsel for the Respondent Mr P Ginnane
Solicitor for the Respondent Australian Government Solicitor
1