Decision: The Tribunal sets aside the decision under review and in substitution decides:

The Respondent has the following recoverable debts:

• A family tax benefit debt of $4,693.57 for the period 1 October 2017 to 6 March 2018 (as of 27 September 2018);
• A parenting payment (single) debt of $8.643.95 for the period 1 October 2017 to 6 March 2018 (as of 27 September 2018).

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by ss 201(1A)-201(1B) of the Social Security (Administration) Act 1999 (Cth).

SOCIAL SECURITY - parenting payment and family tax benefit - whether Respondent overpaid - whether overpayments are a debt due to the Commonwealth - whether debts should be waived - consideration of special circumstances - debts owed, first review decision set aside and re-determined

A New Tax System (Family Assistance) Act 1999 (Cth)

A New Tax System (Family Assistance) (Administration) Act 1999 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)

Beadle and Director-General of Social Security (1984) 6 ALD 1

Dranichnikov v Centrelink [2003] FCAFC 133; (2003) 75 ALD 134

Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

McDonald v Director General of Social Security (1984) 1 FCR 354, 357

Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666, 671

Panacci and Secretary, Department of Employment and Workplace Relations [2008] AATA 30

Secretary, Department of Social Security v Coralie Hales [1998] FCA 219

Secretary, Department of Education, Employment, Training & Youth Affairs v Barry Prince [1997] FCA 1565

Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76

Secretary, Department of Social Services and Gilmartin [2022] AATA 723

Stubbs and Secretary, Department of Family and Community Services [2003] AATA 729

Australian Government, Guides to Social Policy Law, Social Security Guide

1. The primary question in this application is who was providing care for the Respondent's oldest child, in a period whilst the Respondent was in receipt parenting payment single (PPS) and family tax benefit (FTB). Was it the Respondent, as he alleges, or was it his former partner (the other parent)?
2. The Applicant Secretary seeks second review of a decision of the former Administrative Appeals Tribunal (AAT) made on 22 July 2024 ('first review decision'). The first review decision set aside and re-determined two decisions made by an Authorised Review Officer ('ARO') of Services Australia[1] ('the Agency') on 27 September 2018 relating to a parenting payment single (PPS) debt of $8,643.95 and a family tax benefit (FTB) debt of $4,693.57 for the period 1 October 2017 to 6 March 2018.
3. The first review decision found that there were no overpayments of PPS and FTB as the Respondent had care of the relevant FTB child in that period. From its statement of reasons, it is clear that the AAT accepted evidence given by the Respondent that a report he made to the agency to the contrary on 12 March 2018 was made under duress, and the child remained in his care between October 2017 to March 2018. The Tribunal was also persuaded by the fact the Respondent's initial report was not self-serving, and that the other parent did not claim benefits until 15 March 2018, that is, 3 days after the respondent lodged his report. The AAT also relied on the fact that the other parent did not seek arrears, and there appeared to have been no earlier contact on the issue between her and the Agency. The Tribunal found that the care of the child only passed to the other parent around 15 March 2018, when she lodged her claim for benefits, noting evidence of the Respondent that the other parent did not have housing suited to providing care to the relevant child in the period the alleged debts accrued.
4. However, new evidence before me casts doubt on the Respondent's evidence to the AAT, and in part contradicts the findings made on the evidence before it. The Respondent has not participated in these proceedings to respond to those issues, nor to add to his evidence to corroborate his otherwise uncorroborated assertions.
5. Having reviewed the matter afresh, I am satisfied the child was not in the Respondent's care at the relevant times. For the reasons that follow, I will set aside the first review decision and re-instate the decisions of the ARO.

(a) Child 1, now aged 13 years; and > > (b) Child 2, now aged 8 years.

2. However, this application concerns only Child 1.[2]
3. The Agency has recorded the respective percentages of care of Child 1 by the Respondent and the other parent as follows:

Period beginning: Respondent Other Parent > > 8 November 2012 0% 100% > > 18 July 2013 100% 0% > > 28 March 2014 0% 100% > > 17 July 2015 100% 0% > > 1 October 2017 0% 100% > > 10 November 2018 100% 0% > > 9 November 2023 0% 100% > > 20 July 2024 100% 0%

4. From 31 December 2012, the Agency recorded the Respondent as partnered with the other parent.
5. From 8 April 2013, the Agency recorded the Respondent as single.
6. On 9 September 2013, the Respondent commenced receipt of FTB for care of Child 1 on the basis that he provided 100% care of Child 1.
7. From 14 September 2015, the Respondent was in receipt of PPS for care of Child 1 on the basis that he was her principal carer.
8. On 10 July 2017, and 13 August 2017 the Agency issued the Respondent an Income Statement which noted that he:

(a) was not partnered; > > (b) was in receipt of FTB and PPS; and > > (c) provided 100% care for Child 1.

9. The notice also directed the Respondent to contact the Agency if any of the details in the income statement were incorrect.
10. On 15 July 2017 and 26 October 2017, the Agency issued the Respondent FTB rate notices which recorded that he had 100% care for Child 1. The notices required the Respondent to inform the Agency if the child stopped living with him.
11. On 13 August 2017, the Agency issued the Respondent a statement for PPS. That statement required the Respondent to advise the Agency if his circumstances had changed.
12. On 22 August 2017, 24 August 2017, 24 November 2017, 11 December 2017, and 12 March 2018 the Agency issued the Respondent rate notices for PPS. Each notice relevantly stated that the Respondent must tell the Agency within 14 days if there is a change to his circumstances.
13. On 14 February 2018, the other parent contacted the Agency regarding her eligibility for FTB and stated that she started caring for Child 1 on 1 October 2017.
14. On 12 March 2018, the Respondent provided the Agency with a 'Details of your child's care arrangement' form. The form stated that:

(a) he separated from the other parent on 1/10/2012; > > (b) the care arrangement for Child 1 started on 05/10/2017; > > (c) there was no parenting plan, court order or written agreement as to where Child 1 stays; > > (d) he has 0% of care for Child 1; and > > (e) the other parent has 100% of care of Child 1.

15. On 12 March 2018, the other parent provided the Agency with a 'Details of child's care arrangement' form. She stated that:

(a) she separated from the Respondent on '1/10 2012?'; > > (b) the care arrangement for Child 1 started on 01/10/2017; > > (c) there is no parenting plan, court order or written agreement as to where the child stays; > > (d) she has 100% care of Child 1; and > > (e) the Respondent has 0% care of Child 1.

16. On 15 March 2018, the Agency issued a family assistance cancellation notice to the Respondent which stated that FTB can no longer be paid to him as Child 1 was no longer in his care.
17. On 15 March 2018, the other parent lodged a claim for FTB where she stated that Child 1 came into her care on 21 September 2017, and she does not share the care with another person.
18. On 15 March 2018, the other parent was granted FTB for Child 1 with effect from 1 October 2017.
19. On 9 April 2018, the other parent was granted PPS with effect from 31 January 2018.
20. On 20 June 2018, the Agency notified the Respondent that he was overpaid FTB by $4,693.57 for the period 1 October 2017 to 6 March 2018, on the basis that he did not have a FTB child in his care from 1 October 2017 (FTB original decision).
21. On the same day, the Agency also notified the Respondent that he was overpaid PPS by $8,643.95 for the period 1 October 2017 to 6 March 2018, on the basis he was not entitled to PPS from 1 October 2017 as he did not have a PP child in his care (PPS original decision).
22. On 10 July 2018, the Respondent requested an internal review of the FTB and PPS original decisions.
23. On 27 September 2018, the ARO affirmed the FTB original decision, and also found there was no basis for the debt to be waived.
24. On the same day, the same ARO affirmed the PPS original decision on the basis that the Respondent was not the principal carer of Child 1, and that there was no basis for the debt to be waived.
25. On 15 February 2024, the Respondent sought review with the AAT.
26. On 22 July 2024, after a hearing in which the Respondent participated, but in which the Secretary elected not to, the AAT set aside those decisions and found that there was no overpayment of FTB and PPS to the Respondent, for the period 1 October 2017 to 6 March 2018. Principally, the AAT accepted the Respondent's evidence that his '[d]etails of your child's care arrangement' form was submitted under duress. His evidence was that he was threatened by the other parent's new boyfriend that he would be harmed if he did not do so. The AAT reasoned that, because the other parent only applied for FTB on 15 March 2018, it reasonably follows that the child went into the other parent's care at or around that time.
27. On 28 August 2024, the Secretary applied to the then General Division of the AAT for further review and obtained a stay of the AAT decision. It is the hearing of that application which is before me.[3]
28. The Respondent was directed to provide any further evidence he sought to rely on in this review and granted an extension of time in which to do so. He lodged no evidence that was not before the AAT when it made its decision.
29. The Respondent then failed to attend the first scheduled hearing of the application. On the application of the Secretary, I adjourned the hearing to give the Respondent a further opportunity to appear, despite my satisfaction that he had proper notice of the hearing. The respondent failed to appear again at the adjourned hearing. As I was satisfied that he had been given notice of the date place and time of the hearing (on two occasions), and had ample opportunity to participate, I decided to proceed in his absence.
30. The Respondent is currently in receipt of carer payment of approximately $1037 per fortnight, and FTB of approximately $293 per fortnight. He is currently repaying his debts through withholdings of $60 from his fortnightly FTB payment:

1. It is necessary to set out, to an extent, the law and relevant policy to be considered.
2. The Secretary administers social security under the provisions of, relevantly, the Social Security Act 1991 (Cth) ('the Act'); and, and the Social Security (Administration) Act 1999 (Cth) ('the Administration Act'). It also does so by reference to the Australian Government's 'Guides to Social Policy Law, Social Security Guide' ('the Guide'), where relevant. The Guide contains governmental guidelines and statements of policy as to how the relevant legislation is to be applied.
3. Other relevant legislation and policy is contained in the:

a. A New Tax System (Family Assistance) Act 1999 (Cth) (FA Act);

b. A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) (FA Administration Act); and

1. The Guides are government policy. The Tribunal is not bound by this policy but must take it into account and will usually follow it unless there are cogent reasons not to do so.[4]
2. A person whose interests are affected by a first review decision of this nature may seek second review in the Tribunal. The application for second review was filed within the prescribed time and I have jurisdiction and power to conduct this second review due to the combined effect of s 131D(1) of the Administrative Review Tribunal Act 2024 (Cth) (ART Act), read with ss 12, 105 and 131C of the ART Act.
3. There is no presumption that the AAT's Decision is correct.[5]
4. I 'stand in the shoes'[6] of the primary decision maker, in that I am to determine for myself, on the material before me, the decision which can, and which I consider should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the primary decision. The Tribunal is subject to the same constraints as the primary decision-maker.[7] However, as s 9 of the ART Act makes clear, the Tribunal makes its decision independently of the parties.

1. Section 58(1) of the FA Act states that the annual rate of FTB is to be calculated in accordance with the Rate Calculator in Schedule 1.
2. If more than one adult has care of an FTB child, clause 11 of Schedule 1 of the Act provides for the rate to be assessed on the basis of the shared care percentage as determined in accordance with s 59 of the FA Act. This requires the decision maker to weigh the available evidence to decide whether there is a pattern of care and the appropriate shared care percentages arising from that pattern of care over a 'care period' under s 35A or s 35B of the FA Act. However, it is not suggested here that Child 1 was in a shared care arrangement at any relevant time.
3. Subsection 21(1) of the FA Act prescribes the FTB qualification criteria. A person must have an FTB child in any of the cases set out in this section.
4. Subsection 22(2) and 22(5) of the FA Act relevantly provided as follows:[8]

(1) An individual is an FTB child of another individual (the adult) in any of the cases set out in this section. > > Individual aged under 16 > > (2) An individual is an FTB child of the adult if: > > (a) The individual is aged under 16; and > > (b) the individual is in the adult's care; and > > (c) the individual is an Australian resident, is a special category visa holder residing in Australia or is living with the adult; and > > (d) the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph (5) (a), (b) or (c). > > (5) The circumstances surrounding legal responsibility for the care of the individual are: > > (a) The adult is legally responsible (whether alone or jointly with someone else) for the day-to-day care, welfare and development of the individual; or > > ...

If an individual's percentage of care for a child during a care period is at least 35%, the child is taken to be an FTB child of that individual for the purposes of this section on each day in that period, whether or not the child was in that individual's care on that day. > > Note: If an individual's percentage of care for a child during a care period is less than 35%, the child is taken not to be an FTB child (see section 25).

If an individual's percentage of care for a child during a care period is less than 35%, the child is taken, despite section 22, not to be an FTB child of that individual for any part of the period.

7. Therefore, to be eligible for FTB during a relevant period, the Respondent must have provided at least 35% care of an eligible FTB child during that period.
8. Care is not defined in the FA Act. Instruction 1.1.C.90 of the FA Guide, relevantly states:

For the purposes of being considered an FTB child, FA legislation refers to being in the care of an adult. Reference is also made to legal responsibility for the day-to-day care, welfare and development of the individual.

Care generally includes physical care; however, the importance of physical care decreases as the child (also refers to a young person) becomes older. For example, a baby or toddler's care needs are largely immediate and physical (feeding, nappy changing, bathing, supervision). As the child grows older, they will gradually start to meet many of their physical care needs themselves.

Care also includes mental, moral and emotional support including love, comfort and discipline. Schooling is essential for the child's mental development and attention to matters like healthy activities is also an important aspect of care. This means that the adult must maintain a measure of oversight with a view to protection and guidance of the child.

Some examples of care include:

• having control of the child, including making major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities

• having major daily responsibility for caring for the child and making the major decisions (for example, meal preparation, hygiene, transport, discipline, emotional and moral support and guidance)

• bearing the costs of the child's daily life (for example, food, accommodation, transport, clothing, schools fees, health and dental care, etc.)

• making arrangements related to the child's needs (for example appointments at school or with doctors or dentists and accompanying them on those appointments), and/or

• being the main person for the day care, school, or college to contact in emergencies.

When assessing levels of 'care' consideration of the full circumstances of each case must be taken into account to decide whether care remains with a parent, is shared with others, or is not present.

1. The Tribunal is required to consider whether the Responent and the other parent each had a shared care percentage under section 59 of the FA Act. However, all of the available evidence indicates that Child 1 was either cared for solely by the Respondent or the other other parent at all relevant times.[9] I must consider the Respondent's percentage of care during the appropriate 'care period'. I am satisfied that the appropriate care period to consider is from 1 October 2017 to 6 March 2018. That is the period in which the majority of the evidence attributed to the Respondent and the other parent puts the care of Child 1 in issue.
2. I must then consider whether there was a change in the pattern and percentage of care that the Respondent provided, and if there was a change, when it took place. If I find that there was a change from the existing determination of a percentage of care, I must revoke the existing determination if, relevantly, l determine another percentage to be the Respondent's percentage of care of the child, and other percentage would not be in the same percentage range as the Respondent's existing percentage of care.[10] As may be considered self-evident, a change from 100% care to 0% care would not be in the same percentage range, as defined in subsection 35P(2) of the FA Act.
3. If I revoke the existing care determination, I must determine a new percentage of care based on the actual care that the Respondent provided in the care period.[11]
4. Section 25 of the FA Administration Act sets out the obligations to notify change of circumstances. It relevantly states:

(1) If, after a claimant becomes entitled to be paid family tax benefit by instalment: > > (a) anything happens that causes the claimant to cease to be eligible for family tax benefit on the days for which the claimant will become entitled to be paid the benefit under the determination concerned, or to become eligible for a daily rate of family tax benefit that is less than that specified in the determination; or > > (b) the claimant becomes aware that anything is likely to happen that will have that effect; > > the claimant must, in the manner set out in a written notice given to the claimant under section 25A, as soon as practicable after the claimant becomes aware that the thing has happened or is likely to happen, notify the Secretary that it has happened or is likely to happen.

5. Section 71 of the FA Administration Act states that an overpayment of entitlement is a debt owed to the Commonwealth:

No entitlement to amount > > (1) If: > > (a) an amount has been paid to a person by way of family tax benefit, stillborn baby payment or single income family supplement (the assistance) in respect of a period or event; and > > (b) the person was not entitled to the assistance in respect of that period or event; > > the amount so paid is a debt due to the Commonwealth by the person. > > ...

1. Pursuant to s 500 of the Act, a person is qualified for parenting payment, if amongst other things, the person has at least one PP child.
2. Subsection 500D(2) of the Act states that a child is a PP child of a person if the child is a child of the person, the person is not a member of a couple, the child has not turned 8 and the person is the principal carer of the child.
3. Subsections 5(15) to 5(24) of the Act define the term 'principal carer'. Relevantly, subsections 5(15) of the Act states:

(15) A person is the principal carer of a child if: > > (a) the child is a dependent child of the person; and > > (b) the child has not turned 16.

4. Subsections 5(18) to 5(20) of the Act state that only one person at a time can be a child's principal carer.

1. Subsection 94(1) of the SS Administration Act states:

Automatic cancellation - recipient not complying with subsection 68(2) notice > > (1) Subject to subsection (2), if: > > (a) a person who is receiving a social security payment is given a notice under subsection 68(2); and > > (b) the notice requires the person to inform the Department of the occurrence of an event or change of circumstances within a specified period (the notification period); and > > (c) the event or change of circumstances occurs; and > > (d) the person does not inform the Department of the occurrence of the event or change of circumstances within the notification period in accordance with the notice; and > > (e) because of the occurrence of the event or change of circumstances: > > (i) the person ceases to be qualified for social security payment; or > > (ii) the social security payment ceased to be payable to the person; > > the social security payment is cancelled, by force of this subsection, on the date on which the event or change of circumstances occurs. > > ...

2. Subsection 66A of the SS Administration Act relevantly states:

General requirement to inform of a change of circumstances etc. > > Person who has made a claim > > (1) If: > > (a) a person has made a claim for: > > (i) a social security payment; or > > ... > > (b) the claim has been granted or has not been determined; and > > (c) an event or change of circumstances occurs that might affect the payment of that social security payment or the person's qualification for the concession card; > > the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change. > > Person receiving a social security payment or holding a concession card > > (2) If: > > (a) either: > > (i) a social security payment (other than utilities allowance or energy supplement under Part 2.25B of the 1991 Act) is being paid to a person; or > > (ii) a person holds a concession card; and > > (b) an event or change of circumstances occurs that might affect the payment of that social security payment or the person's qualification for the concession card; > > the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.

3. Subsection 68(2) of the SS Administration Act relevantly states:

(1) Subsection (2) applies to a person to whom a social security payment (other than utilities allowance or seniors concession allowance) is being paid. > > (2) The Secretary may give a person to whom this subsection applies a notice that requires the person to do either or both of the following: > > (a) inform the Department if: > > (i) a specified event or change of circumstances occurs; or > > (ii) the person becomes aware that a specified event or change of circumstances is likely to occur; > > (b) give the Department one or more statements about a matter that might affect the payment to the person of the social security payment.

(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.

1. The Secretary contends that the totality of the evidence before me leads to the conclusion that the Respondent did not have a patern of care of Child 1 in the care period I am considering, and so he did not have an FTB child in his care. Therefore, he was not eligible for FTB and failed to advise of the change in care.
2. As a consequence, the Secretary submits that the Respondent was overpaid FTB as he was not entitled to it when Child 1 left his care. The Secretary contends that the Respondent was overpaid FTB and pursuant to subsection 71(1) of the FA Administration Act, the overpayment is a legally recoverable debt.
3. Furthermore, the Secretary contends that the Respondent failed to comply with notices issued under subsection 68(2) of the Administration Act and with the obligation in section 66A, as he did not inform the Agency when his child left his care. As such, subsection 94(1) of the Administration Act applies and the Respondent's parenting payment can be cancelled on the day on which the change of circumstances occurred.
4. The Secretary submits that the Respondent's overpayment of PPS also constitutes a legally recoverable debt under subsection 1223(1) of the Act.

Was Child 1 in the Respondent's or the other parent's care between 1 October 2017 and 6 March 2018?

1. The totality of the probative documentary evidence available to me in respect of this issue comes from:

(a) The Respondent's '[d]etails of your child's care arrangement' form provided to the Agency on 12 March 2018 which states that the other parent had 100% care of Child 1 from 5 October 2017 (although noting the parents separated on 1 October 2017); > > (b) The other parent's '[d]etails of your child's care arrangements' form provided to the Agency on 12 March 2018 which states that she had 100% care of the child from 1 October 2017. This document was not before the AAT; > > (c) The other parent's residential tenancy agreement dated 7 March 2017 for 12 months, which states that a maximum of 2 persons may reside in the rental property. This document was not before the AAT; > > (d) An Employment Services Assessment Report completed by the Agency on 20 July 2017, wherein it is recorded that the other parent stated that she experiences fatigue to the point she is not able to look after her (then) 4 year old daughter at that time. This document was not before the AAT; > > (e) A record of the other parent's contact with the Agency on 14 February 2018 regarding claiming FTB, wherein it is recorded that she stated that she had care of the child from 1 October 2017. This document was not before the AAT; > > (f) A claim for parenting payment by the other party for Child 2 dated 10 December 2018, stating 'I have not had a partner since 1 July 2017' This document was not before the AAT. > > (g) The statement of reasons for the AAT decision, which recorded the Respondent's evidence before it, at [5], that relevantly: > > [The Respondent] told the Tribunal that the care arrangement report was not true, and that [Child 1] remained in his care during the period in question, but that he had made the report under duress, having been threatened with violence by [the other parent's] new boyfriend, a man who had been imprisoned in the past for offences of violence (and who was again in prison at the time of these hearings). [The Respondent] told the Tribunal that, after she left him, [the other parent] was unable to secure suitable accommodation for herself and [Child 1] before March 2018, so [Child 1] had to remain with her father. He explained that subsequent false report was made because [the other parent's] boyfriend wished her (falsely) to claim arrears of social security benefits in respect of her daughter's care. That never happened, but [the Respondent's] allegedly false report that his daughter had left his care in October 2017 naturally led the Agency to raise the debts under review against [the Respondent].

2. When considering whether to adjourn the first scheduled hearing of the application due to the Respondent's non-appearance, I raised with the Secretary what I could, and should, make of the Respondent's evidence before the AAT if I proceeded in the Respondent's absence. I expressed a preliminary view that the AAT had made implicit credit findings in the Respondent's favour after having heard him give evidence, and that it would have an advantage over me in this regard if I were to proceed in the absence of the Respondent, which is what has transpired.
3. The relevance of that question is that, whilst I must conduct this review independently and consider afresh the question of what is the correct or preferable decision in respect of the application, that does not mean that I must do so without regard for what has gone before.[12] In conducting the review, I may have specific regard to the record of the first review proceeding, including the record of any evidence taken in that proceeding. That includes any document or thing relating to the earlier proceeding given to the Tribunal and any order or recommendation the Tribunal made.[13]
4. The Secretary took the opportunity to lodge and serve written submissions on that issue whilst the hearing was adjourned, against the possibility that the Respondent would, again, not appear.
5. The Secretary submits that the Respondent's evidence that Child 1 was in his care and that he was coerced into stating otherwise on his details of your child's care arrangement form provided to the Agency on 12 March 2018 should not be accepted.
6. That, the Secretary submits, is because there is no evidence to corroborate the Respondent's submissions that the child remained in his care until 12 March 2018, or that he filed the '[d]etails of your child's care arrangements' form under duress. The Secretary says it is difficult to accept the Respondent's submissions that he provided incorrect information to the Agency in the first instance under duress from the other parent's new partner, particularly where the contemporaneous evidence from both the Respondent and the other parent is that the other parent had 100% care of Child 1 from October 2017, she enquired about claiming FTB and PP in February 2018, and in her FTB claim lodged 10 December 2018 she also recorded that she did not have a partner since 1 July 2017. Further, the Secretary contends that the other parent's residential tenancy agreement is prima facie evidence that the other parent did have accommodation that could have allowed her to house Child 1 at the relevant times.
7. In oral submissions, the Secretary acknowledged that it was implicit that the AAT had found the Respondent to be credible, and that I was entitled to have regard to that in forming a state of satisfaction as to the evidence before me. However, the Secretary submits that, for the reasons above, I would not reach the same conclusion the AAT did about the Respondent's credit. The Secretary also submits that where the Respondent was on notice as to the allegations of inconsistencies in his evidence, because he was served with the Secretary's written submissions on the issue but did not appear at the hearing to make himself available to answer questions about those apparent disparities, I should apply caution in giving weight to the implicit credit findings of the AAT.
8. I accept those submissions.
9. The starting point is that the contemporaneous evidence lodged by both the Respondent and the other parent with the Agency, together with the other parent's contact with the Agency in February 2018, indicates that they were then in agreement that Child 1 went into the other parent's sole care in early October 2017. I see no reason, given the unexplained difference between the Respondent's report that he and the other parent separated on 1 October 2017 and the start date of the other parent's 100% care (which he reported as 5 October 2017, but the other parent confirmed was 1 October 2017) not to adopt the 1 October 2017 date in that respect.
10. I also note that the Respondent's altered position, being that he was coerced to make the notification, came after he was notified of the resultant debt, which provided him with a motivation to resile from his prior notification.
11. I accept that there is an available inference that the Respondent's evidence that the other parent did not have suitable accommodation for Child 1 is incorrect based on her tenancy agreement. However, I am not persuaded I should draw that inference. There is too much that I still do not know about the other parent's circumstances to make that appropriate.
12. However, against the corroborated and contemporaneous evidence I have referred to above, there is simply the Respondent's bare, and on the evidence before me, undetailed assertion that he was coerced by an unnamed person to make a false claim, consistent with that made by the other parent.
13. The Tribunal acts in an inquisitorial fashion and is not bound by the rules of evidence.[14] However, the Tribunal must act on rationally probative evidence, and the evidence produced by the parties 'is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted'. [15]
14. Viewed in that way, I have reached a state of satisfaction that Child 1 went into the other parent's 100% care in the care period between 1 October 2017 and 6 March 2018. Whilst I have considered the Respondent's assertions as to being coerced to make a false report, the vague and uncorroborated nature of that evidence, which the Secretary has been prevented from testing, leaves me unsatisfied that occurred.
15. Having come to the conclusion that there was a change in Child 1's care, and that the Respondent provided 0% care in the relevant period, I agree with the ARO that the Respondent became ineligible to receive FTB and PPS during that period and has been overpaid, creating a debt to the Commonwealth. Having viewed the payment details of amounts paid to the Respondent in respect of each debt during the period, I also concur with the ARO's calculation of the respective debts.

1. In Secretary, Department of Social Security v Coralie Hales [1998] FCA 219, French J stated:

The taxpayer is entitled to expect that in the ordinary course money paid to people which they are not entitled to receive will be recovered, albeit in a way appropriate to the circumstances which led to the overpayment and the circumstances of the persons concerned. However, the confining of a recovery regime by rigid rules, particularly in this area of law, is likely to be productive of unfair or harsh outcomes in some of the great variety of fact situations that can arise. There are provisions in the Act which recognise that reality. They relate to the writing off and the waiver of debts otherwise due to the Commonwealth.

2. I have considered the two mechanisms available under the family assistance and social security legislation that allow for a properly raised debt not to be recovered: a write off or a waiver.

1. The write-off and waiver provisions are similar in both the social security and the family assistance legislation. Section 95 of the FA Administration Act provides for the possibility of writing off (delaying recovery) of a debt for a period of time, and states in part:

(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 is 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.

2. Subsection 95(3) of the FA Administration Act sets out the instances where a debt is irrecoverable at law, none of which have application here, whilst subsection 95(4) of the FA Administration Act relevantly provides that if a debt is recoverable by means of deductions from a social security payment of family assistance payments, the person is taken to have capacity to repay the debt unless recovery would cause severe financial hardship.
3. Those write-off provisions are echoed in section 1236 of the Act.
4. The meaning of 'severe financial hardship' is not defined by the FA Administration Act but has been found to require 'the particular case of a person to include financial suffering of a severe of extreme nature.'[16]
5. In the absence of evidence to the contrary from the Respondent, I accept the Secretary's contention that the Respondent's FTB and PPS debts cannot be written off under s 95 of the FA Administration Act or s 1236 of the Act because:

(a) the debts are not irrecoverable at law; > > (b) there is no corroborating evidence to suggest that the Respondent is in severe financial hardship; > > (c) repayments have commenced for both debts, with outstanding balances for debt ID C0358116 of $2,019.25; and $8,563.95 for debt ID C0358117;[17] > > (d) the Respondent receives approximately $1,481 fortnightly, in various social security payments.

1. A debt may be waived where it is caused by the Agency's sole administrative error. Section 97 of the FA Administration Act states:

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) applied 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 no waived. > > (3) The Secretary must waive the administrative portion of a debt if: > > (a) the payment or payments were made in respect of the debtor's eligibility for family assistance for a period or event (the eligibility period or event) that occurs in an income year; and > > (b) the debt is raised after the end of: > > (i) the debtor's next income year after the one in which the eligibility period or event occurs; or > > (ii) the period of 13 weeks starting on the day on which the payment that gave rise to the debt was made; > > whichever ends last; and > > (c) the debtor received in good faith the payment or payments that gave rise to the administrative error proportion of the debt. > > (4) For the purposes of this section, the administrative error proportion of the debt may be 100% of the debt.

Debts arising solely from administrative error > > The part of a debt that can be waived under this provision is called the 'administrative error proportion' of the debt. The administrative error proportion can be up to 100% of the amount of the debt. > > The administrative error proportion of the debt must have been caused or contributed to by an administrative error made by the Commonwealth, for example, a decision made by a delegate of the Secretary. If the debtor has contributed in any way to the cause of the debt, that part of the debt cannot be waived under this provision. > > The administrative error proportion of the debt must be waived if: > > • the payment was received in good faith and recovery of the debt would cause the debtor severe financial hardship, or > > • the payment was received in good faith and the debt has been raised in either of the periods below (whichever ends last) after the end of the next income year following the income year in which the eligibility period or event which gave rise to the payment of FA occurs, or > > • more than 13 weeks from the day the FA payment was made that gave rise to the debt. > > ... > > The debt must be waived under section 97(3) of the FA(Admin) Act if Centrelink determines that: > > • there was an administrative error > > • the payment was received in good faith, and > > • the debt was raised more than 13 weeks after the payment was made or after the end of the next income year following the income year in which the eligibility period or event occurs.

3. Those sole administrative error provisions are echoed in s 1237A of the Act which provide:

Administrative error > > (1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt. > > Note: Subsection (1) does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor). > > (1A) Subsection (1) only applies if: > > (a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or > > (b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period; > > whichever is the later

4. The terms 'solely' and 'good faith' are not defined in the legislation
5. Explaining the meaning of good faith, in Secretary, Department of Education, Employment, Training & Youth Affairs v Barry Prince [1997] FCA 1565, the Court stated:[18]

Its concern is with the state of mind of a person concerning his or her receipt of the payment: if that person knows or has reason to know that he or she is not entitled to a payment received - ie is not entitled to use the moneys received as his or her own - that person does not receive the payment in good faith. Absent such knowledge or reason to know, the receipt would be in good faith.

6. A want of good faith need not amount to fraudulent conduct by the recipient.[19]
7. In respect of the meaning of 'solely', in Secretary, Department of Family & Community Services v Sekhon [2003] FCA 76, at [41], the Court stated:

For the subsection to have effect, the "proportion" of the debt... must be "attributable solely" to administrative error. It is not enough that, in the absence of administrative error, the debt would not have arisen. Administrative error must be the sole cause, not merely one of multiple causes.

8. In Secretary, Department of Social Services and Gilmartin [2022] AATA 723 at [62] the AAT found that here was no sole administrative error in circumstances where the Applicant had not taken steps to correct information communicated to her by Centrelink. I think that reasoning is apt here, given the volume of correspondence sent to the Respondent that reminded him of the information the Agency was using regarding Child 1 and the prompts the correspondence contained to update any changes.
9. On that basis, I agree with the Secretary's contention that the debts cannot be waived pursuant to s 97 of the FA Administration Act or s 1237A of the Act as there is no sole administrative error by the Commonwealth during the debt period and the debts arose due to the Respondent's failure to notify the Agency of his change in circumstances as required by notices he was provided. He did not receive his payments in good faith on the basis he knew he was not caring for Child 1.

1. Section 101 of the FA Administration Act provides that:

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 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.

2. That special circumstances provision is echoed in s 1237AAD of the Act.
3. The term 'special circumstances' is also not defined by the social security legislation. It is 'by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special,'[20] or permitting them to be distinguished from the ordinary.
4. The Secretary submits that there are no special circumstances identifiable in this case that would warrant the exercise of the discretion in the Respondent's favour. Again, in the absence of assistance from the Respondent, and with the limited information available to me about the Respondent's personal and financial position between 1 October 2017 and the present, I cannot identify any either. All I know about the Respondent's current financial or personal circumstances is that he has for some time been repaying the debts through regular withholdings from his FTB or Carer Payments (paid at the rate of approximately $1330 net per fortnight).
5. I agree with the Secretary's submission that when considering the exercise of the discretion in s 101 of the FA Administration Act or s 1237AAD of the Act, I should have regard to regard to the fact that the recovery provisions have been included in the family assistance and social security legislations to ensure that money which had been paid to people who were not entitled to receive that money can be recovered. Further, in considering whether to exercise the discretion, it is also relevant to consider how the overpayment came about.[21]
6. On the limited information available to me, I do not think it necessary nor appropriate to make factual findings as to each of the conditions precedent to the exercise of the waiver discretion. That is because, weighing the information that is available, including the length of the Respondent's delay in notifying a change of circumstances, his apparent ability to repay the debt without asserted hardship, and his failure to make any specific assertion as to other special circumstances, it would not be appropriate to exercise my discretion to waive the right to recover all or part of the debt for the overpayments.

1. As that was the conclusion reached by the ARO in the relevant decisions, I will set aside the decision of the AAT and, in substitution, re-instate the decisions of the ARO.

1. The Tribunal sets aside the decision under review and in substitution decides:

The Respondent has the following recoverable debts:

• A family tax benefit debt of $4,693.57 for the period 1 October 2017 to 6 March 2018 (as of 27 September 2018);
• A parenting payment (single) debt of $8.643.95 for the period 1 October 2017 to 6 March 2018 (as of 27 September 2018).

I certify that the preceding one-hundred and six (106) paragraphs are a true copy of the reasons for the decision herein of Senior Member Suthers

[1] The entity administered by the Applicant.

[2] Child 2 was born in December 2018, after the events in question.

[3] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth). Applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal (the 'Tribunal'). The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

[4] Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, [639]-[645].

[5] McDonald v Director General of Social Security (1984) 1 FCR 354, 357.

[6] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666, 671 (Smithers J).

[7] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16, [51] discussing relevantly indistinguishable provisions of the Administrative Appeals Tribunal Act 1975 (Cth).

[8] Legislative references to the referring legislation and policy are to that in force at the relevant times.

[9] A shared care percentage only applies where an individual's care percentage is at least 35% and not more than 65%: FA Act, s 59(1).

[10] subparagraph 35P(1)(b)(ii) of the FA Act.

[12] MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133 at [60].

[15] Coshott v Prentice [2014] FCAFC 88; (2014) 221 FCR 450 at [80], quoting Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65; [1774] EngR 2; 98 ER 969 at 970.

[16] Stubbs and Secretary, Department of Family and Community Services [2003] AATA 729, at [20].

[17] At the date of submission of the Secretary's material.

[18] See also Haggerty v Department of Education Training & Youth Affairs [2000] FCA 127, at [16] to like effect.

[19] Panacci and Secretary, Department of Employment and Workplace Relations [2008] AATA 30, at [25].

[20] Beadle and Director-General of Social Security (1984) 6 ALD 1, [12].

[21] Dranichnikov v Centrelink [2003] FCAFC 133; (2003) 75 ALD 134