RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35 (20 January 2010)

Last Updated: 20 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 35

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0990

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RFZX

Applicant

And

SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Other Party

DECISION

Tribunal

Senior Member R W Dunne

Date 20 January 2010

Place Adelaide

Decision

The Tribunal affirms the decisions under review.

..............................................
R W DUNNE
(Senior Member)

CATCHWORDS

SOCIAL SECURITY – pensions, benefits and allowances – overpayment of Parenting Payment – overpayment of Sole Parent Pension – overpayment of Newstart Allowance – overpayment of Family Tax Benefit – overpayment of Special Benefit – whether member of a couple – whether marriage-like relationship – circumstances of the relationship – decisions under review affirmed
Social Security Act 1991 ss 4(2)(b), 4(3), 4(3A), 24(2), 249, 1068A, 1068B, 1223, 1236(1), 1236(1A), 1237A(1), 1237AAD
Social Security (Administration) Act 1999 ss 68(2), 80
A New Tax System (Family Assistance) Act 1999 s 3(1)

A New Tax System (Family Assistance) (Administration) Act 1999 ss 20C, 28, 71, 95(1) & (2), 97, 101
Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 25 ALD 27
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546
R v Toohey; Ex Parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327
Re Ford and Secretary, Department of Family and Community Services [2003] AATA 7
Secretary, Department of Education, Employment and Workplace Relations v Holmes [2008] FCA 105
Re Tang and Director-General of Social Services (1981) 3 ALN N83
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Re Rodger and Secretary, Department of Social Security (1991) 24 ALD 720
Re Harding and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1104

REASONS FOR DECISION

20 January 2010

Senior Member R W Dunne

INTRODUCTION

1. This is an application by RFZX (“applicant”) for review of the decision of the Social Security Appeals Tribunal (“SSAT”) made on 15 January 2009. The SSAT affirmed the decisions of an Authorised Review Officer and the respondent (“Centrelink”):

(a) to cancel the applicant’s Parenting Payment on 28 August 2008;

(b) to raise and recover an overpayment of Parenting Payment of $14,924.31 for the period 2 April 1998 to 30 June 2001;

(c) to raise and recover and overpayment of Sole Parent Pension of $17,934.00 for the period 18 April 1996 to 19 March 1998;

(d) to raise and recover an overpayment of Newstart Allowance of $4,966.20 for the period 1 July 1995 to 25 January 1996;

(e) to raise and recover an overpayment of Family Tax Benefit of $14,064.62 for the 2005/2006 financial year;

(f) to raise and recover an overpayment of Family Tax Benefit of $15,312.90 for the 2006/2007 financial year;

(g) to raise and recover an overpayment of Family Tax Benefit of $15,927.54 for the 2007/2008 financial year; and

(h) to raise and recover an overpayment of Special Benefit of $1,692.90 for the period 26 January 1996 to 4 April 1996.

2. The decisions were affirmed because the SSAT found that RFZX and the person with whom she was found to reside (“Mr B”) had been living as members of a couple and in a marriage-like relationship since at least 26 April 1993 to 28 August 2008.
3. On 10 March 2009, RFZX applied to this Tribunal for review of the decisions of the SSAT. At the hearing, she represented herself and Ms Martine Welfare (from Centrelink Legal Services and Procurement Branch) represented the respondent. The Tribunal received into evidence the T documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) (Exhibit R1).
4. Because of the sensitivity of the matter, the Tribunal made an appropriate order under s 35(2) of the AAT Act restricting the publication of evidence given before the Tribunal and of matters contained in documents lodged with the Tribunal.

ISSUES FOR THE TRIBUNAL

5. The issues for the Tribunal to determine are:

(a) Whether the applicant was, for the purposes of the Social Security Act 1991 (“Act”), a “member of a couple” from 26 April 1993 to 28 August 2008.

(b) Whether Parenting Payment paid to the applicant was correctly cancelled on 28 August 2008.

(c) Whether there were the overpayments to the applicant of the social security benefits referred to in paragraph 1(b) to (h) above.

(d) If there were any overpayments, whether the overpayments were correctly calculated and are debts due to the Commonwealth.

(e) Whether any or all of the overpayments, as debts due to the Commonwealth, should be waived or written off.

LEGISLATION

6. The rate of Parenting Payment varies according to whether or not a person is a member of the couple: see Part 3.6A of the Act. If a person is not a member of a couple, the person is entitled to Parenting Payment (Single) calculated in accordance with s 1068A at the single rate and the rate is not reduced by the income of the person’s partner.
7. Where a person is not legally married to a partner, s 4(2)(b) relevantly provides, in effect, that a person is a “member of a couple”, for the purposes of the Act, in the following terms:

“4 Family relationships definitions—couples
...
Member of a couple—general
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a) ....
(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.”

8. Under s 4(3) of the Act, the Secretary (and now this Tribunal standing in the shoes of the Secretary) is required to have regard to all the circumstances of the relationship between two people including, in particular, certain enumerated matters. Section 4(3) provides as follows:

“4. Member of a couple—criteria for forming opinion about relationship
(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.”

9. The list in s 4(3) is not exhaustive and other relevant factors may be taken into account. The existence or absence of any one factor is not conclusive. Regard must be given to the overall circumstances of the relationship and whether, on the balance of probabilities, the relationship would generally be recognised as marriage-like.
10. Under s 4(3A), the Secretary (and again this Tribunal standing in the shoes of the Secretary) must not form an opinion concerning a “marriage-like relationship” in the circumstances described. Section 4(3A) provides as follows:

“(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.”

11. However, s 24(2) of the Act provides that the Secretary may determine that, for a special reason in the particular case, a person should not be treated as a member of a couple. Section 24(2) reads:

“24 Person may be treated as not being a member of a couple (subsection 4(2))
...
(2) Where:
(a) a person has a relationship with a person of the opposite sex (the partner); and
(b) the person is not legally married to the partner; and
(c) the relationship between the person and the partner is a marriage-like relationship; and
(d) the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.”

12. In relation to overpayment of Parenting Payment (Single), Parenting Payment (Partnered) is subject to an income test as set out in the rate calculator in s 1068A of the Act. “Income” under the Act includes all types of income, such as income from employment, and the income of a partner, if any. Section 68(2) of the Social Security (Administration) Act 1999 (“Administration Act”) requires a person to notify Centrelink of changes to their circumstances that might affect the payment of their social security benefits.
13. In relation to Sole Parent Pension, under s 249 of the Act prevailing at the relevant time, a person was not qualified for Sole Parent Pension if the person was a member of a couple. In relation to Newstart Allowance, the benefit is subject to an income test which takes into account the income of a partner. The same applies in relation to Special Benefit.
14. In relation to Family Tax Benefit, which is administered under the A New Tax System (Family Assistance) Act 1999 (“FA Act”) and the A New Tax System (Family Assistance) (Administration) Act 1999 (“FA Administration Act”), s 3(1) of the FA Act provides that the expression “member of a couple” there has the same meaning as in the Act. Family Tax Benefit is subject to an income test, the details of which are set out in the Rate Calculator in Schedule 1 of the FA Act. Section 20C of the FA Administration Act provides that a person’s eligibility for, and rate of, Family Tax Benefit may be affected by the adjusted taxable income of the person’s partner. Section 28 of the FA Administration Act provides that, where an income tax return of a claimant or the claimant’s partner is not lodged, the Secretary must vary the determination of the amount of Family Tax Benefit or instalment so that the claimant is not, and never was, entitled to Family Tax Benefit.

BACKGROUND

15. The following factual background has been extracted from the decision of the SSAT. RFZX acknowledged that the factual background, as extracted, was correct, save and except the modifications that have been made to maintain confidentiality. RFZX resides in a house (“House”) in an Adelaide suburb. She has resided in the House since early 1991. Mr B has owned the House since approximately 1988 or 1990. In November 1990, RFZX enrolled for an electronics course near the House. She was looking for accommodation near to where the course was conducted and saw a notice for rental of part of the House. She contacted Mr B and, in February 1991, he said she could start renting. He did not ask for a bond. At the time, a bus driver also rented part of the House. When she first moved into the House, RFZX paid Mr B rental in cash (then, up to $350 a fortnight), but she did not obtain a receipt. RFZX is not currently paying any rent to Mr B and he has not said anything to her about the payment of outstanding rent.
16. In the first half of 1991, RFZX developed health problems and surgery was carried out in January 1992. After the operation, she was advised that if she wanted children she should start trying as soon as possible. She spoke to Mr B and asked him if he would be prepared to “donate sperm” and he agreed. This conversation took place around June or July 1992. The sperm donation was not undertaken under medical supervision or procedure. Rather, RFZX and Mr B “just had sex” in order to have children. She “wanted two kids” and she wanted both of them “with him”.
17. Eventually, RFZX and Mr B had two children together - child A, a girl, born on 26 April 1993 and child B, a boy, born on 23 February 1996. When child A was born, Mr B asked if he could be present at the birth. There was no one else present, besides Mr B. The children know that Mr B is their father and how they were conceived. They see him very Friday and Monday. He stays overnight on Fridays and on Mondays he is at the House all day until 9:00pm. He only started staying overnight on Fridays nights in November 2008 and this is still continuing. The children are now aged 15 and 12, but they still share a bedroom and always have.
18. Mr B’s Westpac bank account, income tax returns from 1995 to 2001, birth records for child B, GE Money Motor Solutions loan documentation, business activities, home utilities documentation and Australian Post verification confirm that Mr B’s residential address is the House. He has also maintained the address of the House for the registration of his car and trailer since 7 January 1991. Medical records obtained by Centrelink relating to child B’s birth in 1996 describe Mr B as “next of kin” and state that the applicant and Mr B are “buying their own home”. These records also refer to him as “supportive husband”, as well as “de facto” and “partner”. Mr B has completed income tax returns for the 1995/1996 to 2000/2001 financial years, but has not submitted any income tax returns since 2001. There is no record, in Mr B’s income tax returns from 1995 to 2001, of him declaring the House to be an investment property. When he resides in the House, he occupies a back room of the residence from which he runs a business. He attends the House to check his emails once a fortnight. RFZX, Mr B and their children from time to time share the living areas of the House. Mr B undertakes maintenance around the House and owns most of the furniture in it. RFZX owns all of the bedding, towels and other linen. RFZX and Mr B maintain separate bank accounts. Her National Bank details record her marital status (in 2005) as “de facto”.
19. RFZX did not want Mr B to have any significant involvement with the upbringing of the children. The arrangement was that she would have the children and he would see them on a regular basis. She told him that she was not, and would not be, asking for any maintenance. She ultimately sought child support from him, but only because Centrelink insisted on it. RFZX and Mr B jointly make certain decisions relating to the children. If they need to see a doctor, both RFZX and Mr B accompany them. Mr B is the school emergency contact for the children and he gives them presents at Christmas and on their birthdays. RFZX attends to the housework at the House, with child A assisting on Saturdays.
20. Mr B has also resided at his parents’ home in another Adelaide suburb. After his mother’s death, he cared for his father for a period at his parents’ home. His father died on 3 December 2007. He also stayed at the house after his father died, until August 2008. Mr B’s parents were keen for their son to marry and have children. He took child A and child B to see his parents and the parents wanted to see the children. This practice did not start until the children were about five or six years old and only lasted a few months because the parents found the children too noisy. His parents never visited the House and RFZX did not have any contact with other members of Mr B’s family.

EVIDENCE OF THE APPLICANT

21. In the course of examination, RFZX said that she was unable to obtain any evidence from witnesses. None were prepared to come forward. Mr B had indicated that he did not want to become involved. She lived on her own with her two children at the House address and Mr B did not reside there. Under an agreement she had with him, he visited the children on a regular basis when he felt like it. He would pick them up and take them out for the day. There was no marriage-like relationship with Mr B.
22. When RFZX moved into the House in early 1991, another person (bus driver) was living there and it was her intention to occupy only one bedroom with access to facilities. The other occupant moved out in about July 1991 and she took over the rental of the whole House. It was at this stage that she met Mr B. He came to the House a few times to do some renovations and, as she said, “we would sit around and talk and we would have a few drinks and then he would leave and I asked him if he would donate some sperm so I could have a child”. At that time, he had indicated that he did not want children, but eventually agreed. Sexual intercourse occurred for the first child on a fortnightly basis. She said she did not want two children, but child B was an accident and sexual relations occurred at a business party at the House for Mr B’s clients.
23. The room that Mr B maintained at the House was his office that he used for his computer equipment and to access his emails fortnightly. The room had a bed in it, which he used from time to time. RFZX said that Mr B bought the House in around November 1990, not December 1988. Mr B was present at the birth of both child A and child B. He had asked to be present in the delivery room, but he had not cut the umbilical cord. She said the hospital records were wrong and were supposed to read “a friend cut the umbilical cord”.
24. When she first moved into the House and up until July 1991, RFZX was paying rent of $100 per week for one bedroom and the lounge and kitchen to share. When she commenced occupying the whole House, with the exception of the back office, the rent increased to about $150 a week, then to $175 a week sometime in 1992. She said that both her children went to school, but Mr B had no involvement with their schooling. With the exception of one occasion, Mr B had no involvement with the children’s medical issues. On their birthdays, Mr B would buy them a present and take them out. The House had two bedrooms, one of which she occupied and the children in the other. Mr B had lived in the House for about a year around 1990, but moved back to live with his parents when his mother tried to commit suicide. It was then that the bus driver became a tenant of the premises. He moved into the House in December 1990 and left in July 1991. She said Mr B lived at his parents’ address from about December 1990 onwards. His mother died in 2000 and his father died in December 2007. After his father’s death and on his lawyer’s advice, he lived at the House until about August 2008. During that period, he lived in the back room of the House. Although information from Metropolitan Domiciliary Care suggested that Mr B was not living in his father’s home between 11 September 2006 and 3 December 2007, RFZX said that that information was wrong. Domiciliary Care would not have seen Mr B because he occupied the back part of the residence.
25. In respect of her relationship with Mr B, she regarded him as a friend, but nothing more. There was no loving relationship. She denied identifying herself as Mr B’s partner. He was only a friend and the medical records that described him as her “next of kin” and “supportive husband” were wrong. The reference to the commencement of a “de facto” relationship with Mr B was also wrong. She said that she took her children to see Mr B’s parents once or twice, or he would take them himself. There was no regular contact between the children and the parents. They wanted to have grandchildren. RFZX denied that she had a sexual relationship with Mr B beyond the conception of her two children. Mr B was not involved in decisions about the children’s education or clothing. There was no joint decision-making and she made all the decisions about the upbringing of her children.
26. As far as meals were concerned at the House, particularly in the period between December 2007 and August 2008, she said she cooked her meals and the meals of her children inside. Mr B cooked his meals outside on the barbeque and he ate the meals outside. The children would take their meals and join him outside to eat. RFZX did not eat outside with them. The children would call Mr B by his christian name. After meals, she would join the children in the lounge, but Mr B would go to his office with the door locked. She did not do his washing and he did his own shopping. He did not help her with her shopping, with the exception of one occasion to pick up a bicycle trailer that she had ordered over the internet. In the case of emergencies with the children, Mr B was the nominated contact person if she was not available.
27. RFZX acknowledged that she was not presently paying any rent for the House as she was not in receipt of any income. That situation commenced in August 2008 when her social security benefits ceased. In the meantime, Mr B was allowing her to live rent free in the House and then to pay back the outstanding rent. This had been discussed and agreed with Mr B. She said there were no arrangements with him for the sharing of financial commitments. She had discussed with Mr B attending the hearing as a supporting witness, but “he wanted nothing to do with it”. There were no other witnesses who were prepared to give evidence. Although the SSAT said RFZX had admitted Mr B was involved with issues regarding the children’s education and he attended medical appointments jointly with her where it related to the children, she said that this was wrong. There were no social aspects of the relationship with Mr B and she did not go out with him, either with or without the children. There were no mutual friends and no one would consider them as a couple.
28. In cross-examination, RFZX said that she did have a rent book in respect of the House, but no longer maintained it. She also had receipts for the rental, which had been shown to Centrelink, but did not have them with her. She said that Mr B was now paying child support of $50 a week to her for the children, in addition to allowing her to stay in the House rent-free. The child support was paid in cash and she has no records of the support. She acknowledged that Mr B came to the House fortnightly to check his emails, on special occasions to see the children and to eat meals with them. He would also come to the House when she was not there and would gain entrance to his office from outside. There was no lease in existence in respect of the rental of the House and there was no documentation regarding Mr B’s occupancy of the back office. When asked about the incorrect bank and medical records describing her as “de facto” and referring to her “partner” and “supportive husband”, she said that she tried to correct these descriptions, but the bank and the hospital would not change them. She had no evidence of requests she had made to change the records.

CONSIDERATION

Was the applicant a “member of a couple” from 26 April 1993 to 28 August 2008?

29. This case is a particularly difficult one. One reason is because, with the exception of the period between December 2007 and August 2008, RFZX has consistently denied that Mr B resided at the House. And during the excepted period RFZX claimed that they lived separately and apart in the House. In these circumstances and like the SSAT, the Tribunal has had to rely on information from other sources to form a view about the relationship and living arrangements between RFZX and Mr B from 26 April 1993 to 28 August 2008 (“Relevant Period”). The other reason is because of the number of inconsistent statements and untruths that RFZX has acknowledged she made or have occurred during the Relevant Period.
30. The main issue in the applicant’s case is whether she was, for the Relevant Period and for the purposes of the Act, a member of a couple. The provisions of the Act that are relevant to this issue are ss 4(2)(b) and 4(3). The only aspect of s 4(2)(b) that is relevant is whether the relationship between RFZX and Mr B was a marriage-like relationship, and that aspect must be considered having regard to the criteria referred to in s 4(3).
31. The matters listed in s 4(3) of the Act are not exhaustive, since the decision-maker’s obligation under that section “is to have regard to all the circumstances of the relationship including, in particular, the [enumerated] matters”. The Tribunal notes the discussion at [6.56] to [6.60] in DC Pearce and RS Geddes, Statutory Interpretation in Australia, (6th Edition, 2006) in relation to the meaning of the word “includes” in this context. It is clear that the decision-maker is required to assess the totality of the evidence and other available material in order to decide whether an applicant for a pension or other social security benefit is a member of a couple, taking into account that the personal circumstances of people vary substantially: see Staunton-Smith v Secretary, Department of Social Security [1991] FCA 513; (1991) 25 ALD 27; Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546. It is nevertheless necessary to “have regard to” the relevant matters, and this expression has been interpreted to entail a requirement to take the relevant matters into account and give weight to them as a fundamental element in the decision-making process: R v Toohey; Ex Parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 333.
32. In Pelka (supra) French J (as he then was), after setting out the provisions of ss 4(2) and 4(3) of the Act, reviewed a number of authorities where the Courts have considered various analogous criteria or statutory formulae to determine whether a marriage-like relationship existed. His Honour provided at paragraph 46 what is, with respect, a most helpful summary of the effect of the authorities. He said:

“46. Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1. Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. Must 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.
3. In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4. Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5. Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.”

33. The Tribunal noted there were a number of occasions where the evidence of RFZX, in connection with her relationship with Mr B and his residence in the House, was not consistent with other factual information before the Tribunal. For example:
    • (a) Mr B had maintained the House address for the registration of his car and trailer since January 1991;
    • (b) Mr B’s bank account, income tax returns, birth records for child B, loan documentation, business activities and Australia Post verification confirm that his address is the House;
    • (c) medical records relating to child B’s birth describe Mr B as “next of kin”, they state that the applicant and Mr B are “buying their own home” and they also refer to Mr B as “supportive husband”, as well as “de facto” and “partner”;
    • (d) while initially stating in a Family Payment/Maternity Allowance claim form that another person was the father of her two children, the applicant subsequently confirmed that Mr B was the father of her two children;
    • (e) while initially stating that a different “Mr B” (who she alleged was a cousin of Mr B) owned the House, she confirmed that no such “cousin” existed and that the father of her children owned the House;
    • (f) although the applicant said they were all wrong, medical records relating to the birth of child B identified Mr B as “de facto”, “partner” and “supportive husband”;
    • (g) although she told the SSAT that Mr B had been involved in the education and medical treatment of the children, she said that this was wrong;
    • (h) the applicant falsely stated to Centrelink that Mr B was married to another woman;
    • (i) the applicant also falsely stated to Centrelink that she was a lesbian;
    • (j) although Metropolitan Domiciliary Care recorded that, during a care period of over a year for his father, Mr B had not been living at his father’s residence, the applicant said that he was living “out the back” at the time.
34. The Tribunal found the applicant to be somewhat disinterested in the proceedings taking place. It was often difficult to obtain clarifying answers and she appeared to adopt an attitude of indifferent resignation. To put it colloquially but without intending any disrespect, obtaining responses from her at times was like drawing blood from a stone. Notwithstanding the Tribunal’s repeated efforts to encourage her to again seek the attendance of Mr B to give evidence, the applicant seemed unwilling to consider the suggestion. She repeated that Mr B did not want to be involved and it appeared obvious to the Tribunal that she did not want to force him to do so. During the course of the hearing, Ms Welfare indicated that she was considering the issue of a subpoena and to seek an appropriate adjournment. However, given the applicant’s demeanour and the resistance she displayed to having Mr B present, Ms Welfare did not proceed with this course. The question of the issue of the subpoena is further considered later in these reasons.
35. In matters involving a determination of whether a person is a member of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance. The Tribunal has carefully considered the instances referred to in paragraph 33 of these reasons and the other matters before it and is satisfied that there are a number of telling inconsistencies and contradictions in the applicant’s evidence when compared with the other information available. Overall, the Tribunal is not satisfied that the applicant gave a truthful account of the essential matters pertaining to her relationship with Mr B. The following are the Tribunal’s findings about the relationship criteria to be considered pursuant to s 4(3) of the Act.

FINANCIAL ASPECTS OF THE RELATIONSHIP

36. RFZX and Mr B had separate banking and financial arrangements. The House is registered in Mr B’s name. The applicant has been in occupation of the House since early 1991. However, the Tribunal agrees with the SSAT that there is no evidence of the actual payment of rent or the existence of some form of lease during the Relevant Period. The applicant had no rent book and was unable to produce any receipts for past rental payments. More particularly, the applicant has not been in a position to make any rental payments since 28 August 2008 when her Parenting Payment ceased, and she has not been evicted. As there would be a significant debt for outstanding rent payable to Mr B, if he sought to recover it, there has been an obvious pooling of financial resources.
37. Mr B runs a business from a room in the House, but there is no sub-lease or other documentation with the applicant regarding this arrangement. He is free to come to and go from the House in the conduct of his business, including the answering of emails, even when the applicant is not present, and he has outside access to the premises. Until recently, all of the utilities at the House were in his name. Although he has not lodged an income tax return since 2001, between 1995/1996 and 2000/2001 he has not declared the House as an investment property.
38. On the applicant’s evidence, child A attends Le Fevre High School and child B attends Le Fevre Primary School. As she has not been in receipt of Parenting Payment (Single) since 28 August 2008, the Tribunal questions whether the applicant has, in fact, been receiving assistance from Mr B in connection with the schooling of the children.

NATURE OF THE HOUSEHOLD

39. In the Assessment of Living Arrangements form completed on 21 September 2007, the applicant stated that Mr B helped decide matters about the children’s education. He was also listed as an emergency contact for school purposes when the applicant was unavailable. Although she said there was no joint decision-making, Mr B accompanied the applicant when medical visits were made involving the children. He gave presents to the children for their birthdays and at Christmas and, for a time, took them to visit his parents. On the evidence, the Tribunal is satisfied that the applicant and Mr B together provided care and support for the children. Also, the applicant’s evidence was that, when Mr B was at the House, they would buy their own food, she would cook for herself and the children, and he would cook for himself outside. She would eat inside by herself and the children would take their meals outside and eat with their father. Given the other background information, the Tribunal is unable to accept that, on a regular basis, such an arrangement existed.
40. In the decision of the SSAT the Tribunal notes the applicant’s admission, in the context of the time she says was spent by Mr B at the House, that the family shared the living areas of the House and she did all the housework. There is also surveillance evidence that the applicant and Mr B were together putting up exterior Christmas decorations and that Mr B was undertaking outside jobs around the House. It is also noted that Mr B owns all the furniture in the House and the applicant owns all the bedding, towels and other linen. The Tribunal agrees with the view expressed by the SSAT that the furniture and manchester were shared by the family, including Mr B.

THE SOCIAL ASPECTS OF THE RELATIONSHIP

41. On the evidence of the applicant, there were no social aspects of the relationship with Mr B and she did not go out with him, either with or without the children. There were no mutual friends and no one would see them as a couple. However, the Tribunal is reminded that there was at least one occasion in 1995 when the applicant socialised with Mr B and his business clients at a barbecue. Subject to what is said above, the Tribunal is satisfied that, during the Relevant Period, RFZX and Mr B did not engage in joint social activities.

SEXUAL RELATIONSHIP BETWEEN RFZX AND MR B

42. The applicant denied any sexual relationship with Mr B, other than the arrangement designed to produce child A and child B. The Tribunal finds it difficult to accept that during the Relevant Period, particularly between December 2007 and August 2008 when the she acknowledges Mr B was living at the House, the applicant did not engage in further sexual relations with him. However, as was said by Ms J Cowdroy, Member in Re Ford and Secretary, Department of Family and Community Services [2003] AATA 7 (at paragraph 35):

” ... The fact that there is no sexual relationship is not decisive, and regard should be had to the comments of Senior Member Hayes in Re Spencer and Secretary, Department of Social Services (1987) 13 ALD 497, particularly the statement (at 500):
‘It would be obviously unsatisfactory to perform the task of categorising a relationship by reference to a 'tick-off list', with a particular points tally in mind. For in essence, the adumbrated factors are signposts to a goal for which the decision-maker is searching. That goal is the isolation of some exquisite quality in a relationship between two people which distinguishes it from the others build up in the course of their lives.’”

NATURE OF PERSONS’ COMMITMENT TO EACH OTHER

43. It is clear that the applicant and Mr B were committed to each other in a number of respects, particularly:

(a) the care of their children; and

(b) the maintenance and upkeep of the House.

They first met each other in 1991 and they have two mutual children who, at the time of the hearing, were 16 years of age and 13 years of age. The applicant has lived in the House and has known Mr B, as the owner of the House, for 18 years. This obviously demonstrates the long-standing nature of their association. However, their relationship was different from the typical landlord/tenant relationship. There was evidence of some emotional support between them. Mr B was present at the birth of both child A and child B. Although she said the references in medical records to Mr B as “next of kin”, “supportive husband” and “de facto” and his cutting of the umbilical cord were all wrong, the Tribunal is unable to accept the extent of the errors in the records that the applicant indicates. Mr B’s parents wanted to have grandchildren and, although there may not have been regular contact between them and their grandchildren, both the applicant and Mr B took them to see his parents on occasions. There was clearly an ongoing relationship between the applicant and Mr B during the Relevant Period and, as was submitted by Ms Welfare, the Tribunal accepts that there was a strong commitment between them during this period to preserve the family unit.

OVERALL ASSESSMENT

44. As already mentioned and like the SSAT, in the face of the applicant’s denials and her apparent indifference to the proceedings, the Tribunal found this case to be a particularly difficult one. In its reasons, the SSAT observed (at paragraph 64):

“64. ... However, the Tribunal had the benefit of speaking at length to [RFZX] in the hearing and of observing her difficulties in justifying many of her statements both verbal and in writing to Centrelink over many years. She admitted to the Tribunal that she lied about many vital and essential facts, from the paternity of her children, to the owner of the [House], to the marital status of [Mr B] and to her own sexuality. The Tribunal has weighed this information against the information which has been recorded by objective and impartial third parties such as medical documentation, loan documentation, certificate of title of the property, bank, utilities and Australia Post documentation, business documentation, car and trailer registration documentation and [Mr B’s] income tax returns. It has taken into account that [RFZX] and [Mr B] have two children aged 12 and 15 and that he is significantly involved in their care as well as the fact that they have both lived at the [House] (which [Mr B] owns) for such a long period of time. On balance, the Tribunal has formed the opinion, that the truth of the situation is that [RFZX] and [Mr B] have been living as a member of a couple since at least 26 April 1993 to 28 August 2008 and therefore that Centrelink correctly cancelled [RFZX’s] parenting payment on 28 August 2008.”

45. In Secretary, Department of Education, Employment and Workplace Relations v Holmes [2008] FCA 105, Logan J said (at paragraph 35):

“35. “Marriage-like” means nothing more than resembling a marriage. In this very general sense some meaning, a usual or “normal” meaning, must be given to the word “marriage”. In considering what this meaning might be the learned senior member evidently gained assistance from and came to apply a meaning given to the word by Deputy President Forgie in Re VCG and Secretary, Department of Employment and Workplace Relations; [2006] AATA 956; (2006) 93 ALD 215, at 223, [15] in which she observed that a general feature of marriage was “..... a sense of union between two people and a common purpose”. That observation by the Deputy President followed a comprehensive survey by her of judicial observations and those in the texts of various religions as to what constituted “marriage”. A similar meaning for the word “marriage” is derived by recourse to standard Australian dictionaries, “a lawful union between a man and a woman for life”: Macquarie Dictionary, Federation Edition, p. 1172; “the legal union of a man and a woman in order to live together and often to have children”: Australian Oxford Dictionary, p. 828. The essential quality of the word, “marriage” is union.”

46. In Staunton-Smith (supra), when dealing with similar provisions to s 4(3) of the Act in the Social Security Act 1947, O’Loughlin J in the Federal Court referred to the list of subject-matters relating to “bona fide domestic basis” that were mentioned in Re Tang and Director-General of Social Services (1981) 3 ALN N83 and said [at pages 32-33 and 35]:

“...
It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
It should, of course, be clearly understood that no tribunal is required, in every case, to compile something in the nature of a checklist and then to proceed slavishly to comment on each item in the list. The personal circumstances of people vary substantially. The responsibility of the tribunal is to extract from the evidence and other material that is before it those items of information that are properly classified as material to its deliberations. If the tribunal performs that task it will only address those issues that are personal to the decision that is under review; it will then be able to state its findings on material questions of fact with appropriate references to the evidence or other material on which those findings were based.”

47. The primary direction given by s 4(3) is to assess the nature and quality of a relationship between two people by reference to all of the circumstances of that relationship. The evident intent of Parliament is to ensure that administrative decision-makers, and Tribunals on review, concern themselves with the substance, not the form, of a relationship. Regard must be given to the weight to be placed on the various elements that characterise the relationship and which might be regarded, on the balance of probabilities, as being a marriage-like relationship. Ms Welfare submitted that the Tribunal should apply the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 and draw the inference that the applicant’s failure to call (or agree to allow the calling of) Mr B as a witness meant that his evidence would not support her case. Given the circumstances and the approach taken by the applicant as an unrepresented party, the Tribunal has decided not to apply the rule in Jones v Dunkel (see Re Rodger and Secretary, Department of Social Security (1991) 24 ALD 720). The applicant was clearly reluctant to agree to the calling of Mr B and, because of this, the Tribunal has determined to respect her wishes and rely only on the evidence before it.
48. Having regard to all of the factors in s 4(3) of the Act and overall to the evidence before it, the Tribunal is satisfied that the applicant was in a marriage-like relationship with Mr B during the Relevant Period, namely 26 April 1993 to 28 August 2008. It follows that she was a member of a couple, at the time of the decisions under review, for the purposes of s 4(2) of the Act.

Was Parenting Payment (Single) paid to the applicant correctly cancelled on 28 August 2008?

49. For the reasons above, as the applicant was in a marriage-like relationship during the Relevant Period, her Parenting Payment (Single) was correctly cancelled on 28 August 2008.

Were there overpayments to the applicant of the social security benefits referred to in paragraph 1(b) to (h) above?

Overpayment of Parenting Payment (Single)

50. During the period 2 April 1998 to 19 August 2008, the applicant received Parenting Payment (Single). The Tribunal has found that the applicant was a member of a couple for the period 2 April 1998 to 28 August 2008 (with the last Parenting Payment being made up to 19 August 2008) and that she did not advise the respondent of her circumstances as required by s 68(2) of the Administration Act. The respondent’s calculation of the overpayment, which the Tribunal is satisfied is correct, took into account Mr B’s income according to his income tax returns up to 30 June 2001. Because Mr B has not lodged income tax returns beyond 30 June 2001, the debt period has been reduced to the period 2 April 1998 to 30 June 2001 and the overpayment of Parenting Payment (Single) has been reduced to $14,924.31 for this period. The Tribunal is satisfied that both the overpayment period (2 April 1998 to 30 June 2001) and the overpayment amount or debt of $14,924.31 have been correctly calculated.

Overpayment of Sole Parent Pension

51. The applicant received Sole Parent Pension during the period 18 April 1996 to 19 March 1998. As the Tribunal has found, during this period she was a member of a couple with Mr B and, as such, was not qualified to receive Sole Parent Pension. In the circumstances, the Tribunal is satisfied that the applicant received Sole Parent Pension of $17,934.00 to which she was not entitled during the period 18 April 1996 to 19 March 1998 and an overpayment has occurred.

Overpayment of Newstart Allowance

52. The applicant received Newstart Allowance from 21 June 1991 to 25 January 1996, which benefit was subject to an income test that took into account the income of a partner in determining the correct rate of Newstart Allowance. The Tribunal has found that the applicant was living with Mr B as a member of a couple from 26 April 1993. However, his income has only been ascertained from his income tax returns for the period 1 July 1995 to 25 January 1996 and, hence, the current overpayment is limited to the period 1 July 1995 to 25 January 1996, being an amount of $4,966.20. The Tribunal is satisfied that the overpayment of Newstart Allowance of $4,966.20 has been correctly calculated.
    

Family Tax Benefit

53. In the applicant’s case, the amount of Family Tax Benefit in relation to her children was originally calculated on the basis that she was not partnered. The Tribunal has found that she has been living as a member of a couple with Mr B since 26 April 1993. The final rate of Family Tax Benefit has been determined by reconciling the amount paid to the applicant and Mr B’s adjusted taxable income. However, the reconciliation has not occurred in relation to the financial years after 30 June 2001 as Mr B has not lodged income tax returns since that date. By applying s 28 of the FA Administration Act, the amount of Family Tax Benefit properly payable to the applicant has been determined as a nil entitlement. As a result, the Tribunal is satisfied that there have been overpayments of Family Tax Benefit to the applicant of $14,064.62 for the 2005/2006 financial year, $15,312.90 for the 2006/2007 financial year and $15,927.54 for the 2007/2008 financial year. If income tax returns since 30 June 2001 are lodged by Mr B, the overpayments of Family Tax Benefit that have been calculated, as appearing in this paragraph, may be reduced.

Overpayment of Special Benefit

54. Special Benefit was paid to the applicant during the period 26 January 1996 to 4 April 1996 when she was pregnant with child B. Special Benefit is affected by the income of a partner and, in the applicant’s case, the benefit did not take into account Mr B’s income during the period 26 January 1996 to 4 April 1996. Taking into account the income declared in Mr B’s income tax return for the 1995/1996 financial year, the Tribunal is satisfied that this would have reduced the applicant’s entitlement to Special Benefit to nil. As such, she was overpaid $1,692.90 for the period 26 January 1996 to 4 April 1996.

Have the overpayments been correctly calculated and are they debts due to the Commonwealth?

55. The Tribunal has reviewed the particulars contained in the Centrelink MultiCal-Centrelink Debt Calculator (Exhibit R1, pages 224-363) and, as far as can be determined, the overpayments of the social security benefits referred to in paragraphs 1(b) to (h) have been correctly calculated.
56. Section 1223(1) of the Act sets out the circumstances where a recoverable debt arises from the overpayment of social security benefits. The section applies no matter what the reason for the overpayment, including overpayments caused by an intentional failure to comply with the law or from administrative error. The section reads:

“1223 Debts arising from lack of qualification, overpayment etc.
[see Note 6]
(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.”

57. Under s 1223(1), the Tribunal is satisfied that the overpayments of Parenting Payment, Sole Parent Pension, Newstart Allowance and Special Benefit are recoverable debts due by the applicant to the Commonwealth. A debt due to the Commonwealth by a recipient may be waived by the respondent, pursuant to s 1237A(1) or s 1237AAD of the Act, if certain circumstances exist. Section 1237A(1) is mandatory where a debt has arisen which is solely due to an administrative error by the respondent.
58. In relation to the overpayments of Family Tax Benefit, s 71(2) of the FA Administration Act provides that if an amount of Family Tax Benefit has been paid to a person that is greater than the amount of assistance that should have been paid to the person under Family Assistance law, then the amount is a debt due to the Commonwealth. Section 71(2) reads:

“ 71 Debts arising in respect of family assistance other than child care benefit and family tax benefit advance
...
(2) If:
(a) an amount (the received amount) has been paid to a person by way of assistance; and
(b) the received amount is greater than the amount (the correct amount) of assistance that should have been paid to the person under the family assistance law;
the difference between the received amount and the correct amount is a debt due to the Commonwealth by the person.”

The Tribunal is satisfied that the overpayments of Family Tax Benefit paid during the relevant financial years are debts due by the applicant to the Commonwealth.

Should any or all of the overpayments, as debts due to the Commonwealth, be waived or written off?

59. There are limited provisions in the Act for waiving the right to recover all or part of a debt. One of these, s 1237A(1), allows for waiver of recovery where the proportion of a debt is attributable solely to administrative error on the part of the Commonwealth and was received by the debtor in good faith. In the Tribunal’s view, s 1237A(1) is not applicable. In relation to the overpayment of Parenting Payment, Sole Parent Pension, Newstart Allowance and Special Benefit, there is no proportion of the debts that was attributable solely to administrative error on the part of the Commonwealth. The Tribunal has found that the debts were caused by the applicant failing to inform the respondent that she was a member of a couple with Mr B during the Relevant Period.
60. Similar provisions to those in s 1237A(1) are contained in s 97 of the FA Administration Act. Section 97 reads:

“97 Waiver of debt arising from error
(1) The Secretary must waive the right to recover the proportion (the administrative error proportion) of a debt that is attributable solely to an administrative error made by the Commonwealth if subsection (2) or (3) applies to that proportion of the debt.
(2) The Secretary must waive the administrative error proportion of a debt if:
(a) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt; and
(b) the person would suffer severe financial hardship if it were not waived.
...”

The Tribunal is not satisfied that the overpayments of Family Tax Benefit were caused by Commonwealth error. As was observed by the SSAT, it is open to the applicant to have these debts re-assessed by supplying the income details for Mr B for the years in question.

61. Under s 1237AAD of the Act, debts due to the Commonwealth may be waived on the grounds of special circumstances. The section reads:

“1237AAD Waiver in special circumstances
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, the Administration 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.”

Equivalent special circumstances provisions (in relation to the Family Tax Benefit debts) are set out in s 101 of the FA Administration Act. The provisions read:

“101 Waiver in special circumstances
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 the family assistance law; 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.”

In the Tribunal’s view, based upon the evidence before it, the applicant made false statements and representations to Centrelink over a long period of time and she did this knowingly. Although she did not admit this to the Tribunal, it appears she did so to the SSAT (see paragraph 86 of the SSAT’s reasons). In these circumstances, both section 1237AAD of the Act and s 101 of the FA Administration Act are not capable of applying.

62. Sections 1236(1) and 1236(1A) of the Act allow for the write-off of debts due to the Commonwealth and read:

“1236 Secretary may write off debt
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise
. (1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
...”

Equivalent provisions to those in ss 1236(1) and 1236(1A) are contained in ss 95(1) and 95(2) of the FA Administration Act in relation to the Family Tax Benefit debts. Sections 95(1) and 95(2) read:

“95 Secretary may write off debt
(1) The Secretary may, on behalf of the Commonwealth, decide to write off a debt for a stated period or otherwise, but only if subsection (2), (4A) or (4B) applies.
Secretary may write off debt if debt irrecoverable or debt will not be repaid etc.
(2) The Secretary may decide to write off a debt under subsection (1) if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.”

63. In s 1236(1A) of the Act and s 95(2) of the FA Administration Act the Secretary may write-off the debts of the applicant due to the Commonwealth, for a stated period or otherwise, only in the following situations:

(a) The debts are irrecoverable at law. In the present case, the Tribunal is satisfied that the respondent is able to recover the debts of the applicant at law.

(b) The debtor has no capacity to repay the debts. The Tribunal does not have before it particulars of the applicant’s assets or her current financial position. As recognised by the SSAT, some of the debts may be reduced or eliminated by the applicant supplying income details of Mr B for past years. Apart from this, there is no evidence that the applicant does not have the capacity, albeit over a period of time, to repay the debts.

(c) The debtor’s whereabouts are unknown. This exception is not applicable in the applicant’s case.

(d) It is not cost effective for the Commonwealth to take action to recover the debts. Although no submissions were put to the Tribunal by Ms Welfare in relation to this aspect, the Tribunal accepts it is cost effective for the Commonwealth to take action to recover the debts.

64. It follows that the debts of the applicant due to the Commonwealth are not capable of being written-off, for a stated period or otherwise, pursuant to s 1236(1A) of the Act and/or s 95(2) of the FA Administration Act.
65. Having made the finding in the previous paragraph, the Tribunal notes that the write-off provisions in s 1236 of the Act were considered by Member, Dr E K Christie in Re Harding and Secretary, Department of Families, Community Services and Indigenous Affairs [2007] AATA 1104. At paragraphs 16 and 17 of his reasons he said:

“16. A former President of the Tribunal, Mathews J, has commented on the write-off provisions of s 1236 of the Social Security Act 1991 – a similar provision to s 95 of the FAA Act in Re L and Secretary, Department of Social Security (1995) 21 AAR 412. Matthews J observed that the financial circumstances of the debtor and the prospect of the recovery of the debt will necessarily be the primary considerations in deciding whether to write off a debt. Mathews J summarised the position as follows (at 428):

‘In summary, I consider that matters relating to the personal financial hardship of the individual are always relevant in any decision as to write-off under s 1236(1). Retrospective considerations may occasionally be relevant. The essential inquiry will always be whether recovery is a feasible proposition, bearing in mind the financial means and obligations of the individual concerned. Will recovery cause such personal hardship as to run contrary to the beneficial nature of the legislation? If an affirmative answer is reached to this question, then it would be appropriate to defer recovery in the manner contemplated by s 1236(1).’ (Tribunal Emphasis).

17. In considering its discretion for write-off under the Social Security Act 1991, the Tribunal has also had regard to a number of factors referred to by the Federal Court in Director-General of Social Services v Hales (1983) 47 ALR 281. These factors were summarised by Senior Member Dwyer in Re Waller and Secretary, Department of Social Security (1985) 8 ALD 26 at 42 as follows:

‘(a) the fact that the applicant has received public moneys to which she was not entitled;
(b) the way in which the overpayment arose, whether as a result of innocent mistake or fraud;
(c) the financial circumstances of the defendant;
(d) the prospect of recovery;
(e) whether a compromise is offered;
(f) whether recovery should be delayed if there is a prospect that the circumstances of the person who received the overpayment may improve; and
(g) compassionate considerations and the fact that the Act is social welfare legislation and any financial hardship which may result from an action for recovery.’”

66. In Re Harding, Dr Christie concluded that there was no attempt whatsoever by Ms Harding to deceive Centrelink or to act fraudulently. He found her to be a witness of truth who acted honestly with Centrelink. Having reached this conclusion he decided that the debt in Ms Harding’s case should be written-off for a period of 12 months, at which time she would prepare an updated Statement of Financial Circumstances and the respondent would consider whether to extend write-off for a further period or to recover the debt. The Tribunal is gravely concerned about the significant debts that are due to the Commonwealth by the applicant as a result of these proceedings. It is also acutely aware of the beneficial nature of the social security laws that are involved. However, given the significant period and the circumstances under which RFZX has knowingly been living with Mr B in a marriage-like relationship, the Tribunal is unable to make the same type of concession, about the periodical write-off of the debts due by her to the Commonwealth, that was made by Dr Christie in Re Harding. The Tribunal has sympathy for the applicant’s position. It would be the Tribunal’s strong recommendation to the respondent that satisfactory arrangements be made with the applicant to enable repayment of the debts over an extended period of time, including any arrangements for their re-assessment as a result of the supply of Mr B’s income details for the years in question.

DECISION

67. The Tribunal affirms the decisions under review.
    

I certify that the 67 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed: .............J Coulthard.........................................

Associate

Date of Hearing 15 October 2009

Date of Decision 20 January 2010

Advocate for the Applicant Self-represented

Advocate for the Respondent Ms M Welfare

Centrelink Legal Services and Procurement Branch