XMXM and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 632
•18 July 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 632
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 2004/748
GENERAL ADMINISTRATIVE DIVISION ) Re XMXM Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal M J Carstairs, Senior Member Date18 July 2008
PlaceBrisbane
Decision (a) The Tribunal affirms that part of the decision under review, as varied by the Social Security Appeals Tribunal on 19 August 2004, referable to the Centrelink debts identified by reference numbers 98061728; 98061730; 98061779; 98061782; and 98061783;
(b) The Tribunal sets aside the decision cancelling the applicant’s parenting payment (single) on 6 January 2004 and substitutes the decision that the applicant remained entitled to parenting payment (single) as she was not a “member of a couple” at that time;
(c) As a consequence of the Tribunal’s decision at (b), the Tribunal sets aside the decision as it relates to the Centrelink debt identified by reference number 98061740 and substitutes the decision that there is no debt for the period 2 December 2003 to 6 January 2004;
(d) The Tribunal remits to the respondent the recalculation of the overall debt amount, with the further directions that:
(i) the debt identified by reference number 98061781 for the period 19 November 2003 to 31 December 2003 should be recalculated; and
(ii) as a consequence of the Tribunal’s decision at (b), above, the applicant was entitled to be paid parenting payment (single) between the date of its cancellation on 6 January 2004 and the date when it was re-granted in April 2004. Entitlements for that period, once assessed, should be directed to reducing the overall debt.
...................[sgd]...........................
SENIOR MEMBER
CATCHWORDS
SOCIAL SECURITY – parenting payment single – overpayment – cancellation – consideration of whether applicant living separately and apart from husband on a permanent or indefinite basis – circumstances of the relationship at different points of time in the debt period – prosecution – consideration of waiver
Social Security Act 1991 (Cth), ss 4, 1236, 1237A, 1237AAD
Minister for Immigration and Multicultural Affairs v Ali (2000) 62 ALD 673
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546REASONS FOR DECISION
18 July 2008 M J Carstairs, Senior Member 1.The applicant has incurred a series of debts in relation to payments she received from Centrelink. The debts arose because she received parenting payment at the single rate instead of at the married rate. She has since been prosecuted for wrongly receiving the Centrelink payments. The Tribunal must now decide whether the applicant and her husband were living separately and apart during times when she was claiming payments as a single person.
2.The applicant’s case before the Tribunal was that the relationship between husband and wife had broken down. She maintains that there should be no debt.
3.The applicant lodged this application in 2004. In 2007 she was prosecuted, and pleaded guilty, in relation to 2 offences of obtaining financial advantage by failing to declare a marriage-like relationship. On 15 March 2007 she was sentenced to 12 months imprisonment (to be served by way of an Intensive Correction Order). I understand from her that the prosecution dropped a further criminal charge.
4.The period for which the applicant was prosecuted was 16 April 2000 to 16 January 2003. The amount of reparation ordered was $29,321.45. The matter before me, however, relates to a rather longer period, which, while not continuous, spanned 28 May 1998 to 6 January 2004. In these reasons I will refer to this as “the relevant period”. The period, being longer, accounts for the larger debt amount reflected in the administrative recovery action, which I am reviewing.
5.The respondent acknowledged[1] that the applicant’s guilty plea and conviction do not preclude this Tribunal independently considering whether the applicant was single or partnered during the relevant period, and whether any debt ought be recovered. The principle involved here is conveniently set out in the Federal Court decision of Minister for Immigration and Multicultural Affairs v Ali[2]. In Ali it was held that while a person’s conviction must be treated by a decision-maker (in this case, the Tribunal) as strong evidence of the facts upon which their conviction was based, a person may challenge these facts. A heavy burden of proof is placed on the person. However, this burden will be satisfied more easily where the person’s conviction was a consequence of their entering into a guilty plea as opposed to a contested factual hearing.
[1] Exhibit R1.
[2] Minister for Immigration and Multicultural Affairsv Ali (2000) 62 ALD 673 at 684.
THE ISSUES
6.There are three issues which I need to address in this review:
§ whether the applicant, a legally married person, was or was not “living separately and apart from (her husband) on a permanent or indefinite basis”[3] in the relevant period;
[3] Social Security Act 1991 (Cth), s 4(2).
§ whether, on 6 January 2004, Centrelink correctly cancelled the applicant’s parenting payment single; and
§ whether, if the applicant has incurred a debt or debts referable to the relevant period, the whole or part of the debt(s) should be recovered.
7.The Social Security Appeals Tribunal dealt with the matter as seven individual debts, identified by reference to periods and/or kinds of Centrelink payments. In each instance, however, the ultimate issue was whether the applicant was entitled to be paid as a single rather than a married person. In view of this being the central question, I do not propose here to set out the particulars of each debt, but I will return to them in the in the final orders.
THE LEGISLATION
8. The Social Security Act 1991 (the Act) provides that a person will be considered to be a member of a couple (and as a result will not be entitled to be paid at the higher, single rate of payment) if the requirements of s 4(2) and s 4(3) of the Act are met. In issue here (where the applicant was married) is s 4(2)(a) of the Act. That sub-section provides 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; …
9. The words “subject to subsection (3)” that appear in s 4(2) lead into the matters set out in s 4(3) of the Act which, amongst any other relevant matters, are what a decision-maker should consider when forming an opinion about whether a person is a “member of a couple”.
10. The matters addressed in s 4(3), and the statutory framework for determining the nature of relationships were examined by the Federal Court in the decision of Pelka v Secretary, Department of Family and Community Services. French J described the task of assessing a relationship as requiring the decision-maker to[4]:
[4] Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546 at 555-556.
1. … have regard to their interpersonal relationship as a whole not limited by the factors listed in s4(3).
2. … have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other….
BACKGROUND
11.The applicant married her husband when she was 21. They divorced early in 2004. There are three children of this marriage, a son born in 1995, and two daughters born in 1998 and 1999 respectively. The third child was born during the relevant period.
12.During the relevant period the applicant and her husband lived together with the children at addresses at Moorooka, at Camira, and at Grange. Between the residences at Camira and Grange, falls a period (January 2003 to November 2003) when the applicant left Camira and moved with the children to live at Bundamba, leaving her husband living at the Camira house. No debt was raised with respect to that period, Centrelink accepting that this was a genuine period of separation.
13.In December 1997 the applicant’s mother had died unexpectedly. The applicant’s second child was born 2 weeks later. The marriage went through a difficult patch at that time and this led to the applicant’s first claim, made in March 1998, for a sole parent pension. It is not disputed that Centrelink correctly paid that claim, even though the applicant and her husband remained living under the one roof. The applicant made a full disclosure of the matters Centrelink needed to know to determine entitlement. Hence moneys paid to the applicant as a result of that claim are not part of the debt now raised – except for a 2 week period, in May/June 1998 which is debt Reference Number 98061728. This debt arose during the time when the applicant and her husband were putting in place plans to purchase Camira. It was around this time that the applicant told Centrelink that she and her husband had reconciled and Centrelink paid her parenting payment at the married rate.
14.After the applicant’s mother died, the applicant’s father sold his home. Moneys from that sale were put towards the purchase of Camira. The Camira house was purchased as tenants in common: the applicant’s father (50%), and the applicant and her husband (25% each). The applicant and her husband borrowed their share of the purchase price of the house.
15.The evidence reveals that applicant lived at Camira with the children (except for 3 trips she made to the United States in 1999, 2000 and 2002) from about June 1998 to January 2003 (when she moved, as mentioned above, to Bundamba). The house at Camira was sold in October 2003. The proceeds of the sale were paid into the applicant’s and her husband’s bank account, her father not desiring to take any proceeds of the sale.
16.The 12-month lease the applicant took out at Bundamba in January 2003 was terminated earlier than expected due to the property being sold. It was then that the applicant and her husband planned taking a lease together at Grange, because the Grange house uniquely offered two quite separate, and essentially fully independent, living areas. The applicant then told Centrelink about her and her husband’s intention to reside together again. This was in November 2003.
17.About March 2003, however, an unidentified informant had telephoned Centrelink, providing the information that the applicant and her husband had lived together for five years at Camira and, having recently moved, were living together at Bundamba. The informant’s remarks, recorded on the Centrelink “Tip-Off Recording System”[5], were to the effect that the applicant and her husband openly boasted that they were obtaining Centrelink benefits in order “to get ahead”.
[5] Folio 192; T42.
18.Centrelink did not start a full investigation at that time. Presumably, having checked that the husband was not residing with the applicant at Bundamba, Centrelink officers sufficiently satisfied themselves that the tip-off was inaccurate or malicious, as will often prove to be the case. However, when the applicant notified Centrelink in November 2003 about her intention of taking up a lease with her husband at Grange, Centrelink commenced more intensive investigations. This led to re-opening the question of the applicant’s marital status for all social security payments, dating back to her first claims as a single person.
19.One thing that was revealed by the investigations, that Centrelink did not know, was that the applicant’s husband had been living at Camira for most of the time that they jointly owned the property. The applicant in December 1999 had told Centrelink that her husband had moved out and was living at a caravan park[6]. Centrelink had checked with the caravan park at the time and confirmed that, indeed, he was living there.
[6] Folio 188; T39.
20.What the applicant failed to tell Centrelink was that her husband moved back into Camira, sometime early in 2000.
21.The applicant continued to be paid parenting payments as a single person. Centrelink sent no further questionnaires to her about her circumstances from the end of 1999 to the end of 2003. Her payments simply continued, unquestioned, through the relevant period.
22.In the circumstances where the applicant now questions the existence of debt in the relevant period, I must look at the relationship between the applicant and her husband during it in order to decide whether they were, as she claims, living separately and apart on a permanent or indefinite basis. That task is aided, in my view, by looking at the matters referred to in s 4(3) of the Act as they appear at the different times when the applicant was living at three different addresses:
§ Camira;
§ Bundamba; and
§ Grange.
23.It should be noted, with respect to the Bundamba address, that Centrelink accepts that the husband did not live there (despite the informant’s accusations to the contrary), and does not challenge that the applicant was correctly paid at the single rate throughout that time (January 2003 to November 2003). In other words, that period does not constitute part of the overall debt.
ISSUE 1: WAS THE APPLICANT LIVING SEPARATELY FROM HER HUSBAND?
§ at camira
24.To understand how the applicant came to be a joint owner of Camira, it is necessary to look at the events immediately beforehand, from shortly after her mother died, and when the applicant first claimed as a single person.
25.This starts in March 1998 when the applicant claimed a sole parent pension[7]. In that claim she openly stated to Centrelink that she was married with two children (the baby was then two months old), and both of whom were living “with me and their father”. The applicant explained with respect to maintenance: “Myself and their father have an arrangement as he still lives under the same roof where he pays ½ of all expenses for children + $50 per week to me directly. We are both happy with that.[8]”
[7] Folio 40; T4.
[8] Folio 53; T6.
26.Both the applicant and her husband then were required by Centrelink to complete forms entitled “Assessment of Living Arrangements”. Each therein confirmed that they still lived together and thought this was best for the children. The applicant, when asked in this form to describe their relationship, stated it this way[9]:
Simple – he is the father of my children – and I am their mother. We have a past together. Other than that I would say we have parted on good terms and are still friends. Purely platonic.
[9] Folio 66; T7.
27.Centrelink apparently had no trouble with the claim at that time and granted the payment as a single person within one day of the applicant lodging the claim. However, the documentary materials reveal that Centrelink officers intended that this claim would be paid for a limited time only while they remained at the one address. This message was conveyed clearly to her. A Centrelink social worker who compiled a report at the time[10] accepted the applicant’s statement that she and her husband would soon take steps to sever whatever remained of any joint finances. She also accepted that the applicant was reluctant to break their current lease, which in any event was coming to an end in 7 weeks. The applicant indicated in that interview that in all likelihood she then would move to live with her father, who was alone following the unexpected death of the applicant’s mother just months previously.
[10] Folio 82; T11.
28.As things eventuated, the marriage did not come to an end at that time and the applicant and her husband reconciled in June 1998. The applicant advised Centrelink accordingly. She and her husband claimed parenting payment (partnered) and told Centrelink that they had purchased and moved to the house at Camira[11]. Centrelink commenced paying parenting payment at the partnered (or married) rate.
[11] Folio 113; T19.
29.However, by October the same year the applicant was again making enquiries for support as a single person, and her request to that effect was granted from November 1998. This was despite the applicant and her husband remaining under the one roof at Camira. The applicant by then was pregnant with the third child, born in March 1999.
30.The debt period starts in earnest with the applicant’s November 1998 claim. The documentary materials that follow start to show that Centrelink officers dealing with the applicant were becoming increasingly impatient with the slow pace of any true separation between the applicant and her husband. Some extracts from the documentary records here provide a sufficient indication of the concerns:
§ In February 1999 a file note alerted any Centrelink officers dealing with the applicant’s file not to restore parenting payment single after the applicant returned from a family visit which she advised she was making to Adelaide. At that time the applicant had told Centrelink that her husband would be leaving the Camira residence. The applicant was told in no uncertain terms that on her return from Adelaide her parenting payment would not be restored at the single rate[12]. However a file note in April 1999 recorded that although the husband’s stated intention had been to move out of the Camira house, other relatives were now advising him to stay in the house in order not to put at risk his 25% interest.
§ Centrelink officers appear to have extended some early leniency while the applicant was in the advanced stages of her third pregnancy and was “having a difficult time”[13]. She told Centrelink that she was not prepared to proceed with the divorce at that time but Centrelink provided her with “ideas…with reguards (sic) to how can provide proof and action for a/n to cont to receive pps”[14]. I interpret this to mean supporting information to continue to receive parenting payment at the single rate, which might, for instance, include what steps were being taken to commence divorce proceedings. On 5 August 1999 the applicant telephoned Centrelink and indicated that she had solicitors working on the divorce[15].
§ Centrelink continued to receive the forms for Assessment of Living Arrangements[16] and continued to pay the applicant at the single rate. She meanwhile continued to assure Centrelink that her husband would be moving out. For instance, in August 1999, she ventured that this would occur when the car was sold[17].
§ In October 1999, while the applicant was away in the United States, her husband advised Centrelink that he was partnered with his wife[18].
[12] Folio 101; T16.
[13] Folio 148; T26.
[14] Folio 149; T26.
[15] Folio 180; T34.
[16] Folio 152; T29 (from Applicant’s husband); Folio 166; T32 (the Applicant).
[17] Folio 177; T32.
[18] Folio 183; T36.
31.In October 1999 she assured Centrelink that her husband would be moving out the next week[19]. It seems that indeed he did move to a caravan park. It is difficult to be certain for how long. As to this move I note that the Social Security Appeals Tribunal, had the advantage, which I did not, of hearing evidence from the applicant’s husband. The Social Security Appeals Tribunal thought he was generally trying to be truthful despite being unable to remember exactly how long he lived at the caravan park. He ventured it might have been for six months. The applicant told me it that her husband may have been there for as long as a year. I doubt that is the truth. She had told the Social Security Appeals Tribunal that it was six to eight months. There is no reason to think that her recollection now is more accurate than it was four years ago, especially about events that happened some eight years ago.
[19] Folio 186; T37.
32.I regard as sensible and correct the approach taken by the Social Security Appeals Tribunal, which was to conclude that the husband probably returned to Camira around 17 April 2000. At that time the applicant took her second trip to the United States, a trip lasting about 3 months. She travelled alone, leaving the children, then aged 4, 2, and 1. I agree that the most likely inference was that her husband was looking after the children in her absence, despite her evidence that the care was shared by her husband and father. There was no evidence from the applicant’s father, I observe.
33.Having accepted that the husband moved to the caravan park for the period 1 December 1999 to 16 April 2000, the Social Security Appeals Tribunal concluded that this period should not form part of the debt, as the applicant was eligible for payments at the single rate during it. Centrelink has now excised that part of the debt from the total, in accordance with the reasoning of the Social Security Appeals Tribunal. I agree with the reasoning.
34.Turning then to an assessment of the nature of the relationship between husband and wife in the period when they lived at Camira, I must consider the matters addressed under s 4(3) of the Act, and any other relevant matters that lead to an understanding of the relationship as a whole.
35.I would firstly observe that the applicant provided little detail about this period (1998 to 2003) in her evidence at the hearing. Most of her evidence was directed at the circumstances of the relationship between herself and her husband in 2003, and their living circumstances at Grange. In assessing factual matters I am indebted to the very careful analysis set out by the Social Security Appeals Tribunal in its decision. The applicant for the most part did not challenge the correctness of the information that the Social Security Appeals Tribunal relied upon.
36.In that regard I would make the following observations with respect to the period at Camira:
§ (a) financial aspects of the relationship: The applicant and her husband had taken out a loan together to purchase the house. There was joint ownership of a major asset. The applicant and her husband had opened a Westpac bank account together in June 1998 and it was not closed until 2004. Significantly this account was not disclosed to Centrelink despite direct questioning about joint bank accounts. Centrelink investigations revealed that the applicant accessed this account while travelling overseas. This account was used for the deposit of the proceeds of the sale of Camira when it was sold in October 2003, and both husband and applicant drew on those funds. There was ample evidence of pooling of financial resources that would not be expected for people who were truly living separately and apart.
§ (b) the nature of the household: On this aspect, it would seem that there was a conventional arrangement, the mother at home with young children and the husband as the ‘bread winner”. The arrangements suggested more those of a marriage than two people living together without the commitment of a marriage. The mortgage was being paid by the husband who was the salary earner, and the wife would have been available to ensure the running of the household.
§ (c) a sexual relationship: There is no evidence on this aspect, and it would seem likely that the third child was conceived during a period that the applicant had notified Centrelink that she was reconciled with her husband.
§ (d) social aspects of the relationship: There was little direct evidence of this, however the Social Security Appeals Tribunal noted some inconsistencies in the evidence of the husband and wife on these matters. The husband gave a description that was quite at odds with the applicant’s evidence, including that there had been breakups and reconciliations. I consider there is good reason to doubt the applicant’s denials of social aspects, especially as the husband, when asked in circumstances such as the workplace, and for taxation purposes described himself as married.
§ (e) mutual commitment: The length of time (some 5 years) that they had held this property together gives some indication that they had a commitment to providing the circumstances of a family unit. I accept that the marriage was troubled, however in my view making efforts to salvage the marriage, and providing a home together in which that might be fostered. On one occasion while the applicant was overseas in 1999, the husband indicated to Centrelink that the marriage was ongoing. The applicant was listed as his emergency contact and next of kin at his workplace. They had the common bond of very young children. I note that no independent observers have made statements that shed any light on that period of some 5 years, although a number have written supporting letters with reference to later periods.
37.Taking into account these matters and having regard to the circumstances of the relationship as a whole, I was satisfied that the applicant and her husband were not living separately and apart during the time that they lived together at Camira. The relationship may have been rocky but there was not an end to the mixing of financial, domestic, social, and emotional factors that bind people together in marriage. I was also satisfied that the applicant had been made well aware that Centrelink would not continue paying her while her husband was living at Camira, and that it is more likely than not that she consciously decided not to tell Centrelink when his brief period living at the caravan park came to an end. Throughout this time the applicant was able to travel overseas on three occasions. I doubt this would have occurred without the support her husband offered her. All matters point to them living as members of a couple in the period the applicant was at Camira.
§ at bundamba
38.Bearing in mind that this is not a period for which a debt is raised, it seems to me important to consider this as a transition in the relationship between husband and wife, during which the ties were severed in a more meaningful way. The applicant said that she lived at Bundamba without her husband, who remained at Camira (except for a brief period in April 2003 when she was seriously ill and he moved in to care for her and the children). The evidence about living in different places was supported by a statement dated 7 January 2004 by Ms M Wilson[20] to the effect that in January 2003 the applicant had left the “family home at Camira” and moved to Bundamba but the husband had stayed on at the house until Camira was sold in October 2003.
[20] Folio 246; T53.
39.Importantly, there is also support in the application for the lease at the next house (at Grange) where in answer to the question concerning the length of occupancy of the “current address” (that is, Bundamba) the applicant stated 11 months and the husband stated 2 weeks. I note that the proceeds of the sale of the house at Camira went into the Westpac joint account on 31 October 2003, so there is some explanation for him being at Bundamba at that time. I also accept the applicant’s evidence that she had “cleared” his stay with Centrelink, a Centrelink officer advising her at that time that a stay of a fortnight or less was permissible.
40.I am satisfied that that for most of 2003 the applicant and her husband were living at two different residences, one at Bundamba and the other at Camira. As I have already observed, Centrelink has not included this as part of the debt period. However, it is important in my view that this period, where it is accepted that the applicant and her husband were living separate and apart, sheds some light on the arrangements that the applicant and her husband tried to put in place at the next residence, at Grange
§ at grange
41.This house was taken as a one year tenancy from November 2003 to 2004[21]. The applicant advised Centrelink of the details of the rental agreement in an Assessment of Living Arrangements dated 3 December 2003. In that document she described her husband as a “friend”, and stated that they had lived together at the Camira address but that her husband would stay sometime at his “girlfriend’s” place. As to why they had started sharing, this was described as to “benefit of children and to finalise final settlement arrangements”[22]. The applicant tried to explain other reasons for the arrangement and reasons behind it in a letter[23], but Centrelink was not prepared to accept that the applicant qualified for the payment while in a shared residence with her husband.
[21] Folio 197; T45.
[22] Folio 203; T46.
[23] Folio 224; T48.
42.I take a rather different view of relationship at this time. I accept that the applicant and her husband had established themselves at different addresses in 2003. They had taken steps to sever the financial aspects of the relationship that were the feature of their life together at Camira. I accept that they honestly viewed the arrangement offered by the house at Grange as a good basis for maintaining the relationship with the children for both parents, without the other circumstances of a “marriage”.
43.I consider particularly important the views expressed by the Harcourt’s agent when Centrelink invited him to comment as to his perception of the nature of the relationship between the applicant and her husband. He stated[24]:
Estranged – opinion only. Behaviour and conversation in my presence. Condition of accepting the property was separate living areas and access and egress.
[24] Folio 256; T58.
44.The applicant produced a number of photographs of the Grange residence to show that it was effectively two separate living quarters. The applicant described the house as two separate living spaces with only a shared laundry[25]. She urged and repeatedly requested that Centrelink come and inspect the property but Centrelink officers declined.
[25] Exhibit A1.
45.I note that she had complained on more than one occasion that no one from Centrelink would accept their invitation to come and look at the house. The evidence about Grange being effectively two independent living units was confirmed in a statutory declaration sworn on 25 October 2007 by Ms C Van Mierlo[26], who, in April 2004, moved into the part previously occupied by the applicant’s husband when he left. She confirmed that the only shared facility between the two residences was the laundry and in other respects the units were quite separate, having separate entrances and facilities, although the power bill needed to be apportioned.
[26] Exhibit A7.
46.The applicant had noted in an Assessment of Living Arrangements form supplied to Centrelink that at this time her husband was in a relationship with someone else. In that respect, the applicant tendered a letter from Ms A Gilmore, dated 17 January 2006, which stated that she and the applicant’s husband had been in a relationship from October 2003 to April 2004[27]. While the applicant did not arrange for Ms Gilmore to give evidence at the hearing I am prepared to accept that the information in the letter was consistent with information already provided by the applicant’s husband in an Assessment of Living Arrangements form in December 2003[28]. I did not take the respondent’s advocate to be suggesting this evidence was fabricated. I consider that it is likely to be true especially as these people had never claimed previously that either party to the marriage had formed another relationship.
[27] Exhibit A5.
[28] Folio 223; T47.
47.So how should this period when the applicant and her husband were living at the same address at Grange be viewed in terms of the matters in s 4(3) of the Act, and whether they were married people now living separately and apart?
§ financial aspects of the relationship: The pooling of financial aspects of the relationship, present while they were at Camira, had come to an end.The applicant and her husband were commencing divorce proceedings and it seems to me that they were able to maintain independence at the house because it was in two areas. There was no need to pool financial resources and the major asset had been sold.
§ the nature of the household: The living arrangements were such that there were two separate households. There was joint responsibility for children but other aspects of the household were not shared. The applicant was not washing and cleaning for her husband. There was a complete separation of responsibilities for bill paying. They had in my view effected a complete separation.
§ a sexual relationship: There is no direct evidence on this aspect, but the divorce early the next year gives support to there being an end to any sexual relationship, as does the evidence of Ms Gilmore that she was in a relationship with the applicant’s husband.
§ social aspects of the relationship: there was no evidence that other than with respect to the children that there was social interaction.
§ mutual commitment: I was satisfied that the commitment to a marriage had at that time come to an end.I formed the impression that the applicant and her husband would continue to support each other as friends in time of need. This was indicated earlier when she turned to him for assistance while she was ill during the time at Bundamba. However, they had in my view taken the necessary steps to bring the bond of marriage to an end and what remained was commitment to the upbringing of the children.
48.In view of the applicant and her husband having lived at separate residences for nearly all of 2003, and in view of the divorce proceedings early in 2004, I was reasonably satisfied that their residence together at Grange did not indicate a rekindling of the marriage. I regard as true their evidence that the arrangement was to enable both parents to have easy contact with their children. That has been a theme restated by both husband and wife in any number of forms completed for Centrelink. I do not see it as an arrangement in which they were attempting to revive their marriage.
49.I concluded that there ought to be no debt for this period. It is my view that the applicant was entitled to be paid at the single rate for the period 2 December 2003 to 6 January 2004.
ISSUE 2: SHOULD THE APPLICANT’S PAYMENT HAVE BEEN CANCELLED?
50.It follows from what I have set out, with reference to the circumstances when the applicant shared an address with her husband at Grange that I consider as incorrect the decision Centrelink made in January 2004 to cancel the applicant’s parenting payment (single). Accordingly, I would set aside that decision and substitute the decision that the applicant remained qualified for parenting payment (single) at the time of cancellation.
ISSUE 3 : THE DEBT AND ISSUES OF WAIVER.
51.As a result of Centrelink’s investigations the applicant incurred a debt of some $40,000, which Centrelink sought to recover. The amount was varied as a result of the Social Security Appeals Tribunal review, and now stands at $36,826.73[29], some of which has been recovered. I am satisfied that the debt was correctly raised under s 1223 of the Act, because the applicant received moneys to which she was not entitled, at a higher rate than she was entitled to receive it. The overall amount of the debt will need to be recalculated as a result of the decisions I have made with reference to parts of it within the relevant period. Accordingly I will remit those matters, with certain directions, to the respondent.
[29] Extracted from Exhibit R4.
52.Given that there will remain a debt it becomes necessary to consider the question of its recovery. Two possibilities exist – write-off or waiver – however I do not see this as a case where the circumstances of write-off arise (s 1236 of the Act).
53.As to waiver, this debt did not arise as a consequence of sole administrative error and thus that provision for waiver in s 1237A of the Act also does not arise.
54.The other possible basis of waiver, s 1237AAD of the Act, provides:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
55.I doubt that this provision is available to the applicant. I was satisfied that the applicant consciously failed to disclose the matter of her husband’s return to the residence at Camira when that took place early in 2000. She also failed to disclose significant other matters, including about bank accounts. The applicant pointed to the information that she did provide, and her contacts with Centrelink in order to suggest that she was not dishonest. However fulsome the early contacts were, there seems to me to be a clear point when she simply stopped telling Centrelink. Centrelink also stopped asking, but the responsibility remained with her.
56.Even if the applicant here did no more than simply sit on her hands in circumstances where Centrelink had stopped sending her review forms, I was left with the strong impression that the reason that Centrelink stopped making enquiries of her circumstances was because she had consciously failed to provide the key piece of information that her husband had moved back into Camira from the caravan park in 2000.
57.I am confident that the applicant fully understood that if Centrelink knew that her husband had returned and was living at a house they jointly owned she would not been paid parenting and other payments, at the single rate. There was, in my view, a clear point in time at which the applicant decided to stop giving the full information about her circumstances to Centrelink. That being so, whatever the subsequent ill effects on her health, and the well being of her children occasioned as a result of the strain of the debt and prosecution, these were circumstances of her own making. I would not see them as “special circumstances” as contemplated by the section, that would warrant her not repaying money to which she was never entitled.
58.There are many personal references attesting to the applicant as being a loving and caring mother to her children. However, even had the discretion been one that was open here, which I was satisfied it is not, I do not regard the applicant’s circumstances as answering the description of “special” and would not waive any part of the debt under s 1237AAD. I was satisfied that the money which should not have been paid to her at the rate which it was paid should be recovered from her. The moneys are being recovered at present from her at a reasonable rate, from her Centrelink payments, and she can continue to negotiate the amounts of her repayments with Centrelink as need dictates.
59.As will be seen from the reasons below, Centrelink will need to recalculate the total amount of the applicant’s debt because I have concluded that her payments of parenting payment (single) should not have been cancelled with effect from January 2004. As I understand it there will be a short period of arrears for the period for which the applicant was not paid between January and April 2004, and that amount can be directed to reducing the overall debt.
SUMMARY
60. On the view that I have taken, the relationship between the applicant and her husband changed over the time span covered by the debt period. I have concluded that the applicant was not living separately and apart from her husband on a permanent or indefinite basis while she lived at Camira (periods falling between 1998 – 2003); she was living separately and apart from her husband while living at Bundamba (2003) – a matter not disputed by Centrelink; and she was living separately and apart from her husband and not therefore a member of a couple at Grange (December 2003 – January 2004). It follows that her parenting payment at the single rate should not have been cancelled in January 2004.
DECISION
61.The Tribunal’s decision is as follows:
(a) The Tribunal affirms that part of the decision under review, as varied by the Social Security Appeals Tribunal on 19 August 2004, referable to the Centrelink debts identified by reference numbers 98061728; 98061730; 98061779; 98061782; and 98061783;
(b) The Tribunal sets aside the decision cancelling the applicant’s parenting payment (single) on 6 January 2004 and substitutes the decision that the applicant remained entitled to parenting payment (single) as she was not a “member of a couple” at that time;
(c) As a consequence of the Tribunal’s decision at (b), the Tribunal sets aside the decision as it relates to the Centrelink debt identified by reference number 98061740 and substitutes the decision that there is no debt for the period 2 December 2003 to 6 January 2004;
(d) The Tribunal remits to the respondent the recalculation of the overall debt amount, with the further directions that:
(iii)the debt identified by reference number 98061781 for the period 19 November 2003 to 31 December 2003 should be recalculated; and
as a consequence of the Tribunal’s decision at (b), above, the applicant was entitled to be paid parenting payment (single) between the date of its cancellation on 6 January 2004 and the date when it was re-granted in April 2004. Entitlements for that period, once assessed, should be directed to reducing the overall debt.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member
Signed: .................................[sgd}...............................................
Joan, Torbey AssociateDates of Hearing 20 February 2008 and 1 May 2008
Date of Decision 18 July 2008
The Applicant was self-represented
Advocate for the Respondent Mr R McQuinlan
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