York and Secretary, Department of Family and Community Services
[2003] AATA 1035
•14 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1035
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/431
GENERAL ADMINISTRATIVE DIVISION ) Re LYNETTE JEAN YORK Applicant
And
SECRETARY, DEPARTMENT
OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date14 October 2003
PlaceBrisbane
Decision The Tribunal affirms the decision under review. (Sgd) R G Kenny
Member
CATCHWORDS
SOCIAL SECURITY – benefits and entitlements - disability support pension – overpayment - whether applicant a member of a couple – whether there is a debt owed to the Commonwealth – waiver of debt
Social Security Act 1991 ss 1224, 1237, 1237A, 1237AAD
Beadle v Director-General of Social Security (1985) 60 ALR 225
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Kajzer v Secretary, Department of Family and Community Services [2000] FCA 259
Re Beadle and Director-General of Social Security (1984) 1 AAR 362
Re Kajzer and Secretary, Department of Family and Community Services [1999] AATA 362
Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252
REASONS FOR DECISION
14 October 2003 Mr R G Kenny, Member Background
1. Lynette York (the applicant) has been married to Norman York since 1977. Since 12 January 1995 the applicant has been in receipt of disability support pension which is payable under the Social Security Act 1991 (the Act). That pension may be paid at a single or a partnered rate and, in the applicant’s case, she was paid at the single rate for more than two years on the basis that she and her husband, whilst living in the same premises, were separated.
2. On 21 May 1997, the applicant was advised by a letter from Centrelink that she was to be paid at the partnered rate with effect from 23 January 1997. In that letter, the applicant was advised that payments would be based on the income of herself and her husband and, on 16 October 2002, a delegate of Centrelink determined that the applicant had been overpaid an amount of $5,279.30 in the period from 16 May 1997 until 24 December 1998 on the basis that she had not provided information concerning the correct levels of her husband’s income. That decision was affirmed by an authorised review officer on 21 January 2003 and, in turn, by the Social Security Appeals Tribunal on 24 April 2003. On 20 May 2003, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Appearances
3. At the hearing, the applicant was not represented and Ms Helen Wallis-Dunn from the Service Recovery Team with Centrelink appeared on behalf of the Secretary, Department of Family and Community Services (the respondent).
4. At the hearing, the following material was taken into evidence:
Exhibit 1: documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents – T1/T42);
Exhibit 2: a bundle of documents comprising overpayment calculations, payment summaries for the period 17 October 1996 until 10 June 1999, a pensions income and assets summary (PIA) for the period 23 January 1997 until 24 June 1999, a pension assessable assets summary (PAAS) for the period 23 January 1997 until 25 July 1999 and real estate detail screen prints for the period 22 January 1997 until 8 April 2000; and
Exhibit 3: various screen prints comprising: an overpayment general information screen, an overpayment repayment history screen, an overpayment advice of debt letter dated 17 October 2002, an address history screen, a payment summary screen and various (PIA) screens.
Issues and Legislation
5. The issue in this matter is whether or not the applicant and Mr York were “members of a couple” as that term is used in the Act. In that regard, sub-sections 4(2) and (3) of the Act read:
“Member of a couple—general
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
(b) all of the following conditions are met:
(i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner );
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;
(iv)both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 .
Member of a couple—criteria for forming opinion about relationship
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.”
Evidence of the Applicant
6. The applicant told the Tribunal that she lives in the same premises as her husband in Ipswich but in a manner that does not constitute them as being members of a couple since a series of events, involving a back injury, a motor vehicle accident and the death by suicide of a close friend, occurred to her in 1994 which caused her to have a mental breakdown. She said that the effects of these events made significant changes to her in the way that she dealt with her husband in that, she perceived that, during the time of her recuperation, he provided her with no support or comfort and, therefore, within a short time their relationship broke down and has not been resumed.
7. The applicant said that, prior to her illness, she had been in employment for most of her life, as was her husband, until he became ill in 1996. She said that they operated their financial arrangements through a joint account with a Credit Union but that she opened up her own account in about 1996 and has used that exclusively since. She said that she has not used the joint account since that time and that this is utilised by her husband.
8. The applicant said that her husband began to suffer from the effects of cancer in the latter months of 1996 and underwent surgery in February 1997 which was then followed by 57 weeks of chemotherapy and that, during this period, he was extremely ill and she assisted in caring for him. She said that her husband’s father, who lived in Katherine, stayed with them during her husband’s treatment and also provided assistance to him. She said that her father-in-law assumed responsibility for taking her husband to the hospital for treatment sessions and that she provided assistance to him in the form of providing meals and also in assisting with various matters of hygiene.
9. The applicant described the house in which they live as one which has been remodelled downstairs to include a separate shower, TV/lounge area and entertainment area, a refrigerator and a barbeque. She said that, apart from when her husband was ill, he had spent most of his time since they separated downstairs, that he occupies one of the bedrooms upstairs for sleeping purposes and that she occupies a separate area for sleeping. She said that they had not had a sexual relationship since her own illness and that her husband frequently takes his meals downstairs and utilised the barbeque for that purpose although she said, in winter time, he frequently eats upstairs in the kitchen. She said that each of them prepare their meals separately and dine separately except on occasions when their son, Clayton, who will complete his tertiary studies this year and is living in the home until then, purchases ingredients for a roast dinner. She said that this happens approximately every fortnight and that, on those occasions, they all eat together.
10. The applicant said that she had felt a special need to help her husband when he was ill and she was mindful of the fact that he was not the father of her two oldest children. She said that she had always been very grateful for the way in which he had provided support to them and that, in fact, he really was seen as their father because of this. She said that, when her daughter was married in 1997, both she and her husband gave the bride away.
11. The applicant said that, during the period when her husband was being treated, he and his father had taken trips to Katherine and to Kunanurra where her husband’s brother lived, that he would be gone for up to two weeks and that, during that period, he would ring the home to speak with Clayton. She said that there were times when she answered the phone and when she would enquire after his health but have no detailed conversations.
12. The applicant said that, during her husband’s illness, he had spent most of his time recovering and resting in an area of the home that she described as the patio. She also said that he took various alternative medicines such as shark cartilage, silver and paw paw concentrate and that she did not pay for any of these items. She could not recall if she had accessed their joint account to obtain monies for the purchase of these items but she thought that their son Clayton had done this on his father’s behalf. She said that, occasionally, she actually purchased the items with those monies but that, mainly, Clayton or her father-in-law assumed that responsibility.
13. The applicant agreed that she had first claimed for disability support pension on the basis of being separated from her husband in December 1994. When shown a copy of Centrelink records revealing the account into which pension payments were made, she agreed that her own disability support pension continued to be paid into the joint account at the Credit Union until January 1997 and that, at that time, it was re-directed into her own account. She agreed that this was some two years after the point where she believed that she had separated from her husband.
14. The applicant said that, prior to those problems in 1994, she and her husband had purchased a home on Bribie Island which they hoped that, one day, they would use for their joint retirement. She said that it was purchased in joint names but she was not sure whether it was on the basis of a joint tenancy or tenants in common. She said that, by about 1995 or 1996, she had decided she would move to live on Bribie Island in that house and that she and her husband had discussed the prospect of his buying her share of the Ipswich house. She said that the loan arrangements in respect of the Bribie Island home were changed in 1996 through re-financing so that there was a lower repayment structure which she would be able to afford if she was living there on her own. However, she said all of their plans changed because of the ill health of her husband which began in late 1996 and lasted until 1998. She said that the house was rented from time to time and that she had moved to live there in the period from April to September 2000 and had then returned to the Ipswich home. She said that she did this because her father in law was ill, because Clayton had wanted her to return and because she had not wanted to alienate her husband from her two other children and her grandchildren. She said that, since then in 2001, the house on Bribie Island has been sold.
15. The applicant said that, over the years since 1994, she had on several occasions travelled independently to various places for a holiday on her own. She said she had been to Bribie Island, to Gladstone to visit her family and also to Coffs Harbour and that, during these absences, she would ring the family home to speak to Clayton and that, particularly when her husband was ill, she would enquire after him, but would only speak to him if he happened to answer the phone.
16. The applicant said that she and her husband did not attend social functions as a couple but would go to family functions together or with their son but as separate individuals. These included family birthday functions and she referred to the recent father’s day when the three of them had attended her daughter’s place for a family get together. She said that, when they went to a function, they would sometimes come home with their son or, at times, one of them would stay behind. She said that they were not frequently invited to functions in any formal sense but if they went it would be together but not as a couple.
17. The applicant said that they frequently had visitors at their home for family functions and these included barbeque sessions when, for example, her three grandchildren have birthdays. She described the grandchildren as being “the life” of herself and her husband and that she and her husband mind the children on two days each week.
18. The applicant said that, during her period of recuperation from her own health problems, her husband would not even ask her if she wanted a cup of tea and that, if she needed a cup of tea, she had to make it herself. She said that, in family gatherings, it was usually a division between the men and the woman and, typically, the men, comprising her husband, Clayton and her son-in-law would watch sport on television and that she and her daughter would sit away from the men and talk, read or play scrabble. She said that neither she nor her daughter were interested in sport.
19. The applicant said that, over the years during their separation, there were still occasions when she, her husband and Clayton would go to Bribie Island for holidays where they would rent premises. She said that, usually, her daughter and son-in-law with their children would also attend and that her husband usually took one of his mates with him and that the men would involve themselves in fishing activities. She said that, in recent times, they have stayed in a very large rented house with several bedrooms and bathrooms but that, in the early part of their separation, they had stayed in typical three bedroom homes and that, when this occurred, she would sleep in the lounge room on the floor with the grandchildren and her husband would occupy a separate room in the house. She said that, during these holiday periods, they would all watch television together although the men would often separate out to have a drink and there was much time spent by the men in fishing.
20. The applicant said that she had made no arrangements in respect of what would happen to her estate in any formal sense but that she had written down on a piece of paper, which had been witnessed by her children, that she wanted the children to have her share of the house.
21. The applicant said that she owned a car which was in her own name and which had been purchased in about 1997 with money she obtained in relation to a motor vehicle accident. She said that the purchase of the car involved the trading-in of another car she and her husband jointly owned. She said the trade-in value was in the order of $700 and that she had specifically given her husband a payment of half of the amount of the trade-in value. She said that the arrangement she made with her husband at the time was that she would pay for the car as long as her husband was willing to drive it for her from time to time. That was because of the problems she has with her back and her loss of confidence in her ability to drive. She said that she still drives but only for short distances and that she often asked her husband to drive her to places she needed to go and gave as an example his driving her to Toowoomba to visit a friend.
22. The applicant said that, when she introduces people to her husband, she simply refers to him as “Bill” and she was not aware of what people understood their relationship to be except that, with people she knows, they understand that she and he are separated.
23. The applicant said that she did not open her husband’s mail at any time and was not aware of his income.
24. The applicant said that she has continued to live in the Ipswich house because she could not afford to take up separate premises on her own and was mindful that she would not be able to receive any rent assistance if she did so. She said that she had no particular plans for the future in respect of changing her present arrangements.
Evidence of Mr York
25. Mr York said that he had become ill in late 1996, had undergone surgery in February 1997 and had undergone more than a year of chemotherapy. He said that, at that time, he and his wife were going their separate ways and that this had commenced after her motor vehicle accident. He said that they had separate rooms for sleeping and that he spent much of his time in an area he described as his den downstairs where he watched television and often cooked meals on the barbeque. He said he sometimes cooked for Clayton and that, about every fortnight, he, Clayton and his wife would have a meal together. He said that, when he had been ill, he spent most of his time upstairs because he was too sick to go up and down the stairs.
26. Mr York said that their home in Ipswich was a regular venue for family social events and for gatherings for others such as his son’s cricket team and that, when this occurred, all of the family would be involved in the barbeque arrangements and that his wife would also join in. He said that he was mainly responsible for cooking at the barbeque sessions. He said that, if he and his wife were invited to functions, they would attend but not as a couple. He said that they were separated but that he could not afford to live in separate premises.
27. Mr York said that, during his period of illness, his wife would prepare meals such as soup and that she also performed various other functions such as cleaning him when he had been physically sick. However, he said that the main responsibility for these activities had been assumed by his father who stayed there for the whole time that he was undergoing chemotherapy except for three occasions when he and his father travelled to Katherine and to Kununurra to visit family.
28. Mr York said that he took other medication, such as paw paw concentrate, as well as the prescribed drugs and that any purchases of these kinds of items were made by Clayton or his father and that Clayton was responsible for withdrawing monies from his bank account.
29. Mr York said that there were times when his wife would travel to visit family to places such as Gladstone and that, from time to time, she would ring the family home and speak to Clayton. He said he had no discussions with her. He also said that, when he was in Katherine or Kununurra, he did not ring Clayton but spoke to him on the phone when Clayton rang him. Mr York said that his wife did not drive the car and that if she needed to go somewhere he might drive her or Clayton might do so and he said that sometimes his wife’s daughter drove her to do her shopping. He said that he had driven her to Toowoomba perhaps two years ago and that he had driven her and Clayton to Bribie Island on perhaps two or three occasions in the last two or three years. He said that Bribie Island excursions involved several of them including his wife’s daughter, son-in-law and their children and that he always took a friend along with whom he went fishing and who always slept in the same room as him, both in single beds. He said that he recalled that his wife always had a bedroom of her own on these holidays.
30. Mr York said that he had his own bank account and that he was not aware of whether it was an account held jointly with his wife or not and that Clayton operates it.
31. Mr York said that he had travelled to the Tribunal hearing by train in the company of his wife. In relation to their present vehicle, he said that it is currently owned by his wife and was purchased with monies obtained in relation to her motor vehicle accident. He said that they traded in their jointly owned vehicle for which they received approximately $800. When asked whether he had received any of those monies directly he said that he had not and that, in any event, “what is $400".
32. Mr York said the Ipswich house was in the joint names of himself and his wife but that he was unaware whether it was a joint tenancy or a tenancy in common. He said that he had not made any arrangements for the transmission of a share in the property in the event of his death.
33. Mr York said that if he had to introduce his wife to someone he would simply refer to her as “Lyn” and that he was not aware of whether or not other people knew that they were separated except for his relatives and his mates. He said that he and his wife had not had a sexual relationship since after her motor vehicle accident.
34. Mr York said that he provided assistance to his wife after her accident by taking on a greater level of activity in the household such as by vacuuming the rooms and washing the clothes. He said that he was always there to ensure that she was able to get a cup of tea and did this by ensuring that a pot of tea was always available and that the microwave could be used to heat it. He said that he would pour tea for her if he was also having a cup at the same time.
35. He described his grandchildren as being “his life” and he said that his wife looks after them for two days a week on Mondays and Tuesdays and that this can either be at the Ipswich home or at his daughter’s home. He said that, when they are looked after at the daughter’s home, Clayton takes her there in the morning and Mr York does not go. However, when the children are looked after in the Ipswich home, he usually looks after one of the boys who has sporting interests and his wife tends to look after the other one.
36. In relation to the future, Mr York said that he had no intention of leaving the premises while his son was still involved in his course of education but that he may reconsider his position when that is completed at the end of this year.
Documentary Evidence
37. The applicant lodged a pension claim form on 30 December 1994 and completed a document entitled “Assessment of Living Arrangements – separated but under one roof” which was lodged with Centrelink on 4 January 1995. There, she said that she and her husband were living at the Ipswich house and that the council rate payments were made from their joint account. She referred to their vehicle as being jointly owned but with Mr York as being responsible for the costs associated with running the vehicle. She said that she assumed responsibility for paying the electricity and phone bills as well as the rates. She described herself and her husband as being more like a brother and sister than a husband and wife with each doing their own thing most of the time.
38. Another document entitled “Review of Separation Under One Roof” was lodged by the applicant with Centrelink on 4 July 1995 and, therein, she repeated information in much the same detail as in the earlier document.
39. On 17 February 1997, Mr York completed a similar document where he said that he mainly used the downstairs facilities and that his wife used the upstairs facilities. He said that they were in separate bedrooms for sleeping purposes and that he intended to share the accommodation with her indefinitely because there were “no problems”.. He said there was a sharing of household goods and furniture because whoever needed to use something simply did so. He confirmed that his wife paid for the council rates and that he was responsible for the running costs of their vehicle, that there was a sharing of the other running costs of the household and that their joint cheque account was used for paying bills. He also said that, where both of them were invited on a friendly basis to go to a social function, they would do so.
40. On 19 June 1997, the applicant completed another “Assessment Of Living Arrangements” form where she said that she and her husband began to live in the Ipswich home in 1989 and that she did not know how long it would be that they would continue to share the accommodation. She said that they had no problems at that stage and they had their son living with them. She said that the Credit Union joint account was used by them to pay their bills but that she gave Mr York the money for her share of those accounts. She confirmed that she was responsible for paying electricity, phone and rates bills whilst Mr York was responsible for the running of the vehicle. She also completed a statement on 19 June 1997 in which she said:
“I, Lynette York, of the above address hereby state for the financial aspects of the relationship: Bill (Norman is his legal first name) pays for the full mortgage and rates for the rental property at Bellara; Bank accounts - myself National [number given] and a JOINT account which I started in my name about 20 years ago with Ipswich Credit Union. Bill and I are both signatories to the account [number given]. My pension payment goes into my account and Bill’s payment into the JOINT account. I pay the phone, electricity and rates for our home at Basin Pocket. Bill pays for the rental home from the Joint account. Rent received also goes into the Joint account. FOOD – we both pay $70 each per week. If additional items are required, we pay for that ourselves. I do the shopping. Clayton (our son) does not financially contribute but assists in other areas. Bill has never claimed me as a dependent for taxation purposes as I have always worked. NATURE OF THE HOUSEHOLD: Household tasks my son does the heavy work including mowing, vacuuming, cleans bath/toilet.
I Lynette York, of the above address further state the (sic) Bill does his own washing, most of his own cooking and ironing while he is well. When he is sick Clayton or myself would do this. Since he has been sick we may sit down together and have a meal. He never has breakfast or lunch with us. SOCIAL ASPECTS: I believe all our friends, family and regular associates believe we are separated. When we refinanced the rental home, I honestly can’t remember if I stated I was married to Bill on the application form, or even if the question was asked. CHILDREN: Clayton is 19 years old and is independent, although he does provide great assistance and moral support. NATURE OF THE COMMITMENT: the difference between Bill and myselve’s (sic) relationship and that of a married couple is that we have no intimate/sexual relationship; my feelings about him are that similar to my feelings about a brother/sister. I would support him when he is ill or in a personal crisis. As an example, now that he is sick with cancer, I would help him with his daily activities.
I, Lynette York, at the above address further state: I don’t know whether I would help Bill with money matters as the situation has never occurred. I believe he would go to his mother before he would come to me. Bill has never supported me financially. I have worked for the last 22 years since marriage (4 separated) except for around 4 months when Clayton was born and I supported myself from savings then. I believe Bill would provide emotional support/care to me if I were in a crisis. OTHER the reason why we haven’t separated our financial affairs is: for the rental house (which is tied up legally to the house we live in) is the legal cost. If I had my way the rental house could be sold tomorrow. I have never bothered to close the Joint account because the house payments go through it. He cannot access my account and it did not seem to be worth the bother to close the joint account down. The only time I used it was for cheques or when Bill was sick, I would withdraw money for him.
I, Lynette York, at the above address further state that I feel that I am not in a marriage-like relationship, that the feelings between myself are more like that of brother and sister. We lead separate lives.”
41. On 30 June 1997, the applicant provided a letter to Centrelink:
“I am writing to you about my pension and regarding my interview with you. Regarding the question of myself and Norman being separated, you asked me to supply you with two letters from professional people stating this. Well I have decided not to ask anyone for letters as I mightn’t have much but I still have my dignity and I don’t want what I am not entitled to I only want to live and if I don’t shift out of my home and you don’t believe me well what’s the use of fighting on, as long as I can live that’s all I ask, I spoke to Norman about being separated and he doesn’t want any problems, his words are (I have a big enough battle now & I only want to live and get better) so you see I am in a no win situation, I cant fight this battle just now as I don’t want Norman’s death on my hands and he cant be upset but as far as I am concerned we are separated as far as you are concerned we are not, as I have said I will always be there for Norman in his time of need. I just hope that you are never placed in the same situation that I am.
Even if I shifted out of My Home I would still be there to help Norman and give him all the support that I can in his time of need so I guess you hold the trump cards. I've been honest with you, but where does honesty get you, its not the money it’s the prinsible (sic), to tell you the truth you can put ½ a feather in your cap, at least you have us talking about things to some extent and Norman has now gone away to try & think about things & what he wants to do.”
Submissions
42. Ms Wallis-Dunn submitted that, throughout the period from 16 May 1997 until 24 December 1998, the applicant and Mr York had been living in a marriage-like relationship and that, therefore, Mr York’s income, which was in the form of payments of income protection insurance, had to be taken into account in determining the level of disability support pension payable to the applicant. She submitted that, during that period, neither the applicant nor Mr York had provided that income and that, therefore, the applicant had been overpaid and the overpayment amount was $5,279.30.
43. Ms Wallis-Dunn submitted that the matter had to be considered in accordance with the terms of section 4 of the Act.
44. In relation to the financial aspects of the relationship, she referred to the ownership of the Ipswich property and, previously, the house at Bribie Island and submitted that these were substantial assets that the parties had either, as tenants-in-common or is in a joint tenancy, owned together. She also referred to the continuing existence of a joint account which the parties had utilised.
45. She noted the evidence that Mr York claimed to be unaware of the existence of the account as being in joint names and to the applicant as not having used the account for some six years. She also referred to the uncertainty of the evidence of the applicant in relation to whether she had ever gained access to that account during her husband’s illness.
46. Ms Wallis-Dunn referred to the references by the applicant to being financially independent from her husband and as having separate accounts for that purpose. However, she submitted that this had been the position of the applicant throughout her marriage. She referred to the statement dated 19 June 1997 where the applicant said that she had worked for the last 22 years and supported herself financially during that time.
47. In relation to the nature of the household, Ms Wallis-Dunn submitted that an important element of the family relationship was their son Clayton and their obvious commitment to him. She noted that he was still living in the house at Ipswich and to the evidence of each of them that he was one of the reasons why they were still living there.
48. She also referred to the children and grandchildren of the applicant and the significance of these to both her and Mr York. Each of them shared a responsibility for looking after the children during the week.
49. Ms Wallis-Dunn also submitted that the nature of the household was characterised by the shared arrangements that the parties had in respect of usage of a car, referring to the fact that the applicant had purchased the vehicle but that was on the basis that Mr York would assuming driving responsibilities for her.
50. Ms Wallis-Dunn noted that the parties had referred to the extent of separation of living arrangements in the house at Ipswich but she submitted that this was not an unusual feature of many households where, typically, the man had a “den” where he could watch television independently. She submitted that this is what happened in the case of Mr York.
51. She also noted that there was some sharing of household responsibilities and that this had been particularly evident during the respective illnesses of the parties. She said that, despite the evidence of the applicant, Mr York had said that he had assumed the greater level of responsibility when his wife became ill. She also referred to the extent of the assistance provided by the applicant to her husband during his recuperation period. She noted that the parties still come together periodically to share a meal.
52. Ms Wallis-Dunn noted that the parties sleep separately but she referred to a social worker report which indicated that the applicant had been forced to leave the matrimonial bed because she had been tossing and turning and was having trouble sleeping.
53. Ms Wallis-Dunn noted the description given by the applicant in the document completed by her in January 1995 where she said that she was uncertain whether relatives, friends or regular associates believed that they were separated and she said that they “try to go on as usual”. Ms Wallis-Dunn submitted that, 8 years later, the situation had not greatly changed.
54. She also referred to the document completed by Mr York in February 1997 where he indicated that, if he and his wife were invited out on a friendly basis, they would attend the function together. Again, she said that nothing has changed since that time.
55. She submitted that, in introducing each other to people, there was no attempt by them in their evidence to indicate that they made it clear that they were separated. Rather, the evidence suggested that they simply referred to themselves by their Christian names.
56. In relation to the social aspects of the relationship, Ms Wallis-Dunn referred to the frequency of social gatherings at the family home in Ipswich for persons, not only members of the family, but also groups such as friends and members of a cricket club. She submitted that, on these occasions, the evidence indicated that both the applicant and Mr York participated in the activities and that there was no attempt to indicate that the parties were living separately.
57. She also referred to the continuation of the parties holiday-making on Bribie Island from time to time as members of an extended family which included the applicant, Mr York, the children and grandchildren. She submitted that, whilst it was the case that Mr York was accompanied by a friend, this was not an unusual thing in Australian society. It was an example of a group of people being together as a unit. She noted the evidence that the parties tended to separate into male/female divisions but, again, she submitted that this was not at all unusual in the context of Australian social gatherings.
58. In relation to the Bribie Island arrangements, Ms Wallis-Dunn also referred to the inconsistencies in the evidence as to the way in which the parties occupied bedroom space there. Whilst the applicant had said that they always slept on the lounge room floor with the children, it was the evidence of Mr York that she always had her own separate bedroom.
59. Ms Wallis-Dunn noted the evidence that the parties did not have a sexual relationship but, again, she submitted that this was not necessarily an unusual feature in a marriage of longstanding duration.
60. In relation to the commitment of the parties to each other, Ms Wallis-Dunn noted that the parties had been married since 1997 and that she had cared for him during the period of intense need whilst he was ill and she also submitted that Mr York’s evidence revealed that he had provided similar assistance to his wife during her period of recovery at an earlier time. She referred to his evidence that he assisted in carrying out a greater array of household chores and as always having a cup of tea ready for his wife and, indeed, sharing this with her at times.
61. Ms Wallis-Dunn referred to the lack of commitment by either Mr or Mrs York to what was ahead of them. Mr York had indicated that he would be staying in the premises until Clayton had completed his education but he said that he had no definite plans in that regard. She referred to the evidence of the applicant that she had no intention of leaving the home.
62. Ms Wallis-Dunn also made reference to a letter that the applicant had written in June 1997 in which she indicated that she had decided not to ask anyone to provide documentary support for the marital status of herself and Mr York. There, she had said that she would always be “there” for Mr York in his time of need and that this would be the case even if she had shifted out of her home. Ms Wallis-Dunn submitted that this was reflected in the fact that the parties were still living in the same premises some six years later.
63. The applicant submitted that she and her husband had begun going their separate ways after 1994. She confirmed that there was no intention on her part to leave her home because she would not be able to support herself financially if she had to maintain independent premises. She said that it was not unusual for parties to live together in the same house and to live their separate lives in that way and that one of the reasons that they were doing this was because Clayton was continuing with his education.
64. She submitted that, whilst she had provided assistance to her husband, she would always do this because it was right and proper for her to do that in that situation. She submitted that she and her husband lived independently with each doing their own thing and that they were more like a brother and sister than a husband and wife.
Consideration
65. The period at issue in this matter is from 16 May 1997 until 24 December 1998. It is not disputed by the applicant that she was paid disability support pension without regard being had to the income levels of her husband or that she was overpaid the amount of $5,279.30 provided she was a member of a couple at the time.
66. Paragraph (4)(2)(a) of the Act provides that, where a person is legally married to another and is not living separately and apart from the other on a permanent or indefinite basis, they are members of a couple. Subsection 4(3) of the Act then sets out factors which need to be considered in determining whether or not the parties met that requirement. The provision is set out above and consideration must be given to:
the financial aspects of the relationship;
the nature of the household;
the social aspects of the relationship;
any sexual relationship between the people; and
the nature of the people's commitment to each other.
67. As the Tribunal stated in Re Kajzer and Secretary, Department of Family and Community Services [1999] AATA 362, “there is no formula that determines whether or not people are living in a marriage and when they are living separately and apart” (at 33); see also Kajzer v Secretary, Department of Family and Community Services [2000] FCA 259 (Federal Court). Also, all of the circumstances of the parties’ arrangements must be taken into account when consideration is given to sub-section 4(3) of the Act: see Re Secretary, Department of Family and Community Services and Bell [2000] AATA 252.
68. Before dealing with the components of that provision, I make the following observation of the applicant’s evidence. There were inconsistencies in the evidence given by the applicant and that of Mr York. Some of these were relatively insignificant such as the extent to which Mr York made phone calls to the Ipswich home during periods when he was absent with his father in Kununurra, the extent to which monies were provided to Mr York by the applicant upon the purchase of a new vehicle and the trading-in of the old vehicle and the extent to which the applicant may have purchased alternative medicine items for Mr York during his recuperation. Some of them were more significant, for example, the extent to which Mr York had been willing to provide assistance to the applicant while she was recuperating from her illness. This had particular relevance in assessing the applicant’s evidence because it was her perceived lack of attention form Mr York during her recuperation which for her was a catalyst in their “going their separate ways”.. Another significant matter was the variations in the evidence given by the parties about the frequency of and the nature of the living arrangements during holidays on Bribie Island.
the financial aspects of the relationship
69. During the relevant period, the applicant and Mr York jointly owned real estate which comprised their matrimonial home at Ipswich and also a rental property on Bribie Island which has since been sold. During that period, there was a re-negotiation of the loan arrangements in respect of the latter property. There was a sharing of the arrangements by which a contribution was made for meeting expenditure in relation to the running of these premises and also for day-to-day living. The applicant has assumed responsibility for paying the costs of electricity, phone and rates although Mr York has assumed the responsibility for purchasing some of the household items. On their evidence, neither of the parties have taken steps to determine whether or not the nature of their holding of the property that they still own is such as to enable either of them to sell independently or devise by will independently. This indicates that the parties, even some five years after the relevant period, have no sense of urgency in relation to determining what their respective financial rights are.
70. During the period in question, the parties had a joint Credit Union account although, in the main, this has been utilised by Mr York. Also, in that period and until the date of the hearing, the parties have had one vehicle at any one time and the current vehicle was purchased by the applicant and which is driven by Mr York and he assumes responsibilities for driving the applicant from time to time.
the nature of the household and the social aspects of the relationship
71. The evidence in relation to the nature of the household is that each of them has assumed an important role in looking after the interests of their son and also those of the applicant’s children and grandchildren. Each week, they share child-minding arrangements for the grandchildren. There is a level of separation in the way in which the parties live in the Ipswich house but I accept the submissions of Ms Wallis-Dunn that this is not an unusual feature of an Australian household. Significantly, the parties come together on what would seem to be a regular basis for social functions involving members of the family and others and the importance of that family relationship was indicated in the applicant’s evidence that both she and Mr York gave her daughter away at her wedding in 1997. The evidence is that, when invited to do so, the parties continued to attend social functions together and that this situation continues to be the case some five or six years after the relevant period under consideration.
72. No evidence was provided by independent witnesses as to the nature of the relationship between the applicant and Mr York and, indeed, I have noted the applicant’s letter that she wrote in June 1997 where she declared that she would not provide that information.
sexual relationship
73. The evidence is that the parties no longer have a sexual relationship but, again, I accept the submission of Ms Wallis-Dunn that this is not a feature which necessarily precludes the continuing existence of a marriage-like relationship.
the nature of the people's commitment to each other
74. Of the factors in subsection 4(3) of the Act, the most significant in this case is the nature of the commitment of each of the parties to each other over a long period of time. I am satisfied that each of them provided substantial assistance to the other during their periods of recuperation from illness. I do not accept the applicant’s evidence that Mr York did not give assistance to her and, in particular, have noted his evidence concerning the increase in level of household chores and his dutiful attention to providing cups of tea to the applicant when she needed them. This commitment is also seen in the willingness of the parties over the several years of the relevant period and since that time that they have continued to take holidays together as a family unit and, while it is the case that the activities both on those holidays and in social gatherings is manifested by a separation along male/female lines, I am satisfied that this is not an unusual feature of Australian family life.
75. During the relevant period, neither of the parties were able to indicate what their future prospects were and, indeed, that is still the case some five or six years later. Mr York has indicated that he may well leave the Ipswich home when Clayton finishes his education but his plans are indefinite in that regard. The applicant has indicated that she does not wish to leave the Ipswich home.
76. The applicant’s commitment to Mr York and to the family unit is also indicated by her return to the Ipswich home after spending some months on Bribie Island but, more importantly, in the reasons that she gave for returning. This was because Clayton had wanted her to return and because of her need not to alienate Mr York from her family and, in that regard, she willingly acknowledged the importance that he had played in their lives.
77. The applicant has submitted that, after 1994 when she underwent her own personal problems, a material change began to occur in the marriage. At that stage, the parties had been married for some 17 years. Whilst I accept that changes may have occurred at that time, I am satisfied that the nature and extent of those changes were not such as to reach the point where the parties were living separately and apart on a permanent or indefinite basis.
members of a couple
78. Having regard to the factors in subsection 4(3) of the Act, I am satisfied that the relationship between the applicant and Mr York from 16 May 1997 until 24 December 1998 was one which characterised them as being members of a couple. Indeed, the evidence is that that relationship has continued until the hearing.
79. As I am satisfied that the parties were members of a couple throughout the period in question, the income of Mr York should have been taken into account in calculating the level of disability support pension payable to the applicant. I am satisfied that this was not done and that, as a result, she was overpaid an amount of $5,279.30 during that period.
non-recovery provisions
80. The applicant was notified by letter dated 21 May 1997 that her disability support pension was to be paid on the basis of the joint income of herself and her husband. In that letter, the applicant was advised that payments were based upon an income level of $1,560 per annum and she was advised to notify Centrelink within 14 days if that were not correct. That figure did not take into account Mr York’s income and information concerning that income was not provided by the applicant.
81. I am satisfied that this failure by the applicant to provide the relevant information about income was responsible for the overpayment which, pursuant to section 1224 of the Act as it read at the relevant time, was a debt due by the applicant to the Commonwealth.
82. Provision is made in section 1237A of the Act for waiver a debt which arose solely through administrative error by the Commonwealth. However, I am satisfied that that provision is not relevant in this case because the applicant failed to comply with notice obligations in relation to income levels. Further, a debt may be waived under section 1237AAD of the Act if there are special circumstances other than financial hardship alone which make it desirable to waive the debt.
83. The Act provides no guidance as to the meaning of the term special circumstances but the concept has been the subject of consideration in a range of legislative provisions relating to social security law. In Beadle v Director-General of Social Security (1985) 60 ALR 225, the Federal Court stated that it was not possible to lay down precise limits or precise rules for the meaning of the term as it is applied in the context of the Act. The Court indicated that this would depend upon the circumstances of each particular case but commented that, even though the term lacks precision, it was sufficiently understood “not to require judicial gloss" (at 228). There, the Court affirmed the decision of the Tribunal (Re Beadle and Director-General of Social Security(1984) 1 AAR 362) where (at 364) the Tribunal had acknowledged that the term was "incapable of precise or exhaustive definition" and that, to be special, the circumstances must be “unusual, uncommon or exceptional” and must have a “particular quality of unusualness that permits them to be described as special".
84. In Groth v Secretary, Department of Social Security (1995) 40 ALD 541, Kiefel J, after referring to the Federal Court's decision in Beadle, observed (at 545) that special circumstances:
“…would require something to distinguish… [the]… case from others, to take it out of the usual or ordinary case. … It would of course follow that if one were to conclude that something unfair, unintended or unjust had occurred that there must be some feature out of the ordinary.”
85. The applicant did not make a submission in respect of special circumstances but I am satisfied that there are no factors which make her situation unusual, uncommon or exceptional or which have the particular quality of unusualness that permits them to be described as special such as to exercise a discretion to waive the debt or part of it in this case.
Decision
86. The decision under review is affirmed.
I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDates of Hearing 10 September 2003 and 1 October 2003
Date of Decision 14 October 2003The Applicant appeared in person
Solicitor for the Respondent Ms Wallis-Dunn, Departmental Advocate
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