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[2000] AATA 315
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2000-04-20
Original judgment source is linked above.
DECISION AND REASONS FOR DECISION [2000] AATA 315
And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Decision The decision under review is set aside and in substitution therefor the Tribunal decides that the portion of the debt owed by Ms Nisha to the Commonwealth from 17 September 1996 to 5 March 1998 be waived under section 1237AAD of the Social Security Act 1991. The remainder of the debt from 17 November 1994 to 16 September 1996 should be recovered commensurate with Ms Nisha's ability to pay.
SOCIAL SECURITY - sole parent pension - parenting payment - overpayment - debt due to
the Commonwealth - member of a couple - special circumstances.
Lynham v Director-General of Social Security (1983) 52 ALR 128
Re Callaghan and Secretary, Department of Social Security [1996] AATA 413; (1996) 45 ALD 435
Re Secretary, Department of Family and Community Services and Morgan [1999] AATA 390
Re Secretary, Department of Social Security and Bliss (AAT 11473, 13 December 1996)
Re Secretary, Department of Social Security and Gray-Corking (1997) 11 SSR 152
Re L and Secretary, Department of Social Security (1995) 39 ALD 172
Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443
Secretary, Department of Social Security v Hales [1997] FCA 1565; (1998) 82 FCR 154
Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531
Re Gunn and Secretary, Department of Social Security (1999) 28 AAR 527
Re Secretary, Department of Social Security and Bolton (1989) 18 ALD 464
Re Groth and Secretary, Department of Social Security [1995] AATA 121; (1995) 37 ALD 797
Re Secretary, Department of Social Security and Bitunjac (AAT 12856, 6 May 1998)
1. This is an application for review before the Administrative Appeals Tribunal ("the Tribunal") by Ms Sainaz Nisha ("the Applicant") of a decision of the Social Security Appeals Tribunal ("SSAT") made on 3 February 1999 (T2). The SSAT decided that Ms Nisha owed a debt to the Commonwealth of $30,153.80 arising out of an overpayment of Sole Parent Pension, which later became Parenting Payment (Single), between 17 November 1994 and 5 March 1998. In reaching its decision, the SSAT determined that Ms Nisha and Mr Ajit Chandra Shekhar, now known as Mr Ajit Aziz Shekh (T57) had a marriage-like relationship and as such, Ms Nisha was not qualified for receipt of the Sole Parent Pension or Parenting Payment (Single). Because Ms Nisha was in receipt of Sole Parent Pension when she was not entitled, an overpayment arose which under section 1223 of the Social Security Act 1991 became a debt due to the Commonwealth. The SSAT decided that the debt should be recovered.
2. The SSAT's decision affirmed a decision of an Authorised Review Officer ("ARO") of the Department of Family and Community Services made on 12 October 1998 (T55, T56). The original decision that an overpayment had arisen and debt was due by Ms Nisha to the Commonwealth was made by a departmental delegate on 23 March 1998 (T34).
3. Ms Nisha provided oral evidence before the Tribunal and was represented by Ms S Koller, solicitor from the Welfare Rights Centre, Sydney. The Respondent, the Secretary, Department of Family and Community Services ("the Department") was represented by Mr B Slattery, departmental advocate. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T-Documents" - T1-T66) and the following exhibits:
A1 A2 A3 A4 A5 A6 R1 R2 Applicant's Statement of Facts and Contentions Letter to Ms S Koller from Dr S K F Chow, General Practitioner Supplementary submission by Ms S Koller Report by Dr K C Lau, Paediatric Cardiologist in relation to Shakeel Shekhar (also known as Shaqeel Riaz Shekh) Report by Ms C Muir, Education Psychologist with the Deafness Centre, the New Children's Hospital Report by Dr P E Mutton, Paediatrician with the Deafness Centre, the New Children's Hospital Respondent's Statement of Facts and Contentions Respondent's supplementary submission 20 December 1999 received 10 December 1999 17 December 1999 24 February 1999 8 December 1999 20 December 1999 23 July 1999 20 December 1999
4. Prior to hearing, the Applicant's representative formally conceded in writing that an overpayment of Sole Parent Pension/ Parenting Payment paid to Ms Nisha had occurred and that a debt was due to the Commonwealth. Ms Koller wrote on 17 December 1999 that:
"Ms Nisha advises us that now with the benefit of hindsight she accepts that the degree of separation between herself and Mr Shekhar [Mr Shekh] did not meet the extent required by the Secretary to constitute a separation for social security purposes. Ms Nisha does stress that she mistakenly believed herself to be separated following the heightening of the issue of religious differences after the arrival of her parents...
We now plan to concede the raising of the overpayment (ie the member of a couple question) and instead will be seeking waiver for special circumstances under s.1237AAD from the point in time at which Ms Nisha's health problems began to impair her capacity." (Exhibit A3)
5. This means that the only issue in contention relates to the recovery of a debt of $30,153.80 owed by Ms Nisha to the Commonwealth. For completeness however, the Tribunal considers that the issues to be dealt with in this matter are:
* Is there a debt due to the Commonwealth arising out of an overpayment of Sole Parent Pension/ Parenting Payment from 17 November 1994 to 5 March 1998; and if so
* Are there any grounds for the non-recovery of the debt in part or as a whole.
6. A determination in this matter requires the consideration of the Social Security Act 1991 ("the Act"). The Tribunal notes that in 1994 when Ms Nisha claimed Sole Parent Pension, the relevant legislation was contained in subsection 249(1) of the Act. Since March 1998, the Sole Parent Pension became known as the Parenting Payment (Single). However, that the relevant legislative requirements are unchanged.
7. The issue of the concept of a couple is dealt with under section 4 of the Act. Section 4 of the Act changed from 29 September 1995. Prior to this date, subsection 4(2) of the Act provided that before an unmarried person could be deemed to be "a member of a couple", the person must be "living with" his or her partner. With effect from 29 September 1995, subsection 4(2) was amended and that requirement was deleted. Accordingly, in the present appeal a decision-maker could not conclude that Ms Nisha was a member of a couple in the period 17 November 1994 to 29 September 1995 unless it was found that Ms Nisha and Mr Shekh lived together during the period. Further, after 29 September 1995, save for the issues dealt with above, the requirements under section 4 are identical in all other material respects pre and post 29 September.
8. Subsection 249(1) of the Act as it then was set down the qualifications for Sole Parent Pension. To qualify for the pension, amongst other criteria, the person could not be a member of a couple.
9. Part 5.2 of the Act deals with amounts recoverable under the Act and as relevant section 1223 of the Act deals with circumstances where social security benefits are paid to a person who was not qualified or payable for that particular benefit. As relevant section 1223 of the Act states:
"1223 Debts arising under this Act and the 1947 Act
Recipient not qualified for payment or amount not payable
1223(1) Subject to subsections (1A) and (1B), if an amount has been paid to a person by way of social security payment on or after 1 October 1997 and:
(a) the recipient was not qualified for the social security payment when it was granted; or
the amount so paid is a debt due to the Commonwealth.
10. Section 1224 of the Act deals with debts arising from a social security recipient's contravention of the Act and as relevant states:
"1224 Debts arising from recipient's contravention of Act
(a) an amount has been paid to a recipient by way of social security payment; and
(b) the amount was paid because the recipient or another person:
(i) made a false statement or a false representation or another person:
(ii) failed or omitted to comply with a provision of this Act or the 1947 Act;
the amount so paid is a debt due by the recipient to the Commonwealth.
11. Part 5.4 of the Act deals with the non-recovery of debts. Section 1236 deals with write-off of debts and as relevant states:
1236(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.
1236(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(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
12. Section 1237 of the Act deals with the waiver of the Commonwealth's right to recover debts and as relevant subsection 1237(1) of the Act states:
"1237 Power to waive Commonwealth's right to recover debt
1237(1) On behalf of the Commonwealth, the Secretary may waive the Commonwealth's right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 1237A, 1237AA, 1237AAA, 1237AAB, 1237AAC or 1237AAD.
13. Section 1237A of the Act deals with waiver of debts arising from administrative error and as relevant states:
1237A(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).
(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;
14. Section 1237AAD of the Act deals with waiver of a part or a whole of the debt in special circumstances and as relevant states:
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt."
15. The following information is provided by way of background and the information contained herein is not in dispute.
* Ms Nisha was born on 12 July 1964 in Fiji and is of the Moslem faith (T3).
* Ms Nisha emigrated to Australia on 17 January 1986 (T3).
* Ms Nisha commenced a defacto relationship with Ajit Shekh in 1988 or 1989 when they were both attending a TAFE course (T2). In a claim for Family Payment, Ms Nisha recorded that a de facto relationship commenced with Mr Shekh on 5 January 1990 (T3). In early 1990 the couple bought a house together and commenced living at 10 Sharon Place, Rooty Hill. Ms Nisha and Mr Shekh have two children, Shaheen Reyaaz Shekhar born on 28 January 1994 and also Shakeel Reyaaz Shekhar born on 16 September 1996 (T15).
* Ms Nisha's parents arrived from Fiji in January 1994 and lived with their daughter until approximately August 1994.
* Ms Nisha formally advised the Department by letter of 11 November 1994 that she had separated from her de facto partner in June 1994 because "he was seeing someone else" (T11). Ms Nisha advised that Mr Shekh was paying the mortgage and other bills amounting to approximately $50 per week. Ms Nisha further wrote that she would notify the Department within 14 days of any changes to her circumstances.
* In a "Separation Details form" signed by Ms Nisha on 4 November 1994, she wrote that she did not know if the separation from her de facto husband was permanent or temporary but that Mr Shekh was staying with a friend, Mr James Naidu at Parramatta, and she detailed his exact address. Ms Nisha gave the reason for the separation as her husband "being unfaithful", but stated that there was perhaps a possibility of reconciliation (T6).
* On 4 November 1994, Ms Nisha lodged a claim for Sole Parent Pension (T5).
* In about January 1996, Ms Nisha became pregnant with her second child, Shakeel. The father of Shakeel was Mr Shekh. The pregnancy had occurred during the period Mr Shekh and Ms Nisha were recorded by Centrelink as being separated. Shakeel was born three to four weeks premature on 16 September 1996. He suffered from many disabilities from birth and his prognosis was extremely poor.
* On 12 December 1997, a public denunciation was received by the Department concerning Ms Nisha's living arrangements and the allegation that Ms Nisha was living in a marriage-like relationship (T21). A statement from a field officer who investigated this denunciation indicated:
"Visit made to 10 Sharon Pl, Rooty Hill 16.l2.98. A/n present but asked that I return later to give her time to 'get organised'. Revisit made approx 1 hour later (when initial visit made a pair of men's shoes were on front step, upon returning shoes had been removed)...I advised a/n of allegation, a/n replied her husband lives 'somewhere in Parramatta' with a friend, James Nadio [sic] and if a/n needs to get in touch with him she phones him on his mobile... A/n and husband separated June 1994 and he is the father of both children, second child being born after a/n commenced to receive SPP. A/n stated this was the result of an attempted reconciliation and further stated that she and husband are still working towards a reconciliation although there are religious reasons why they have not reconciled (a/n is a Muslim, husband is a Hindu)...Husband comes to a/n's address a couple of times a week to visit their children, but does not stay over. A/n does not know why anyone would make this allegation about her as she has not discussed her situation with anyone for 'security reasons'...
I phoned a/n 13.3.98 re documentary evidence which I have suggesting separation never occurred. I asked a/n if it was still her contention they had sorted out their problems and she was moving in this weekend. A/n further stated the problems were of a religious nature and foc had now become Muslim so relationship would be resuming. I advised a/n that I had documentary evidence in my possession which would indicate that a/n and partner had not separated and she had in fact been paid SPP whilst living in a marriage-like relationship. A/n stated this was not true...I asked the a/n why he would not have mail sent to his own address. A/n stated that foc has 'no fixed address'..." (T22, p99-100)
* As part of the investigation by the Department concerning the relationship between Ms Nisha and Mr Shekh the following was ascertained:
* Mr Shekh's employer advised on 19 February 1998 that Mr Shekh's address was 10 Sharon Place, Rooty Hill. (T23)
* The Roads and Traffic Authority of New South Wales noted in a computer printout of 27 February 1998 that Mr Agit Shekhar [Shekh] was a current licence holder and had a car registered. The address given for Mr Shekh for both his licence and registration was 10 Sharon Place, Rooty Hill and this had been the case since January 1992, the same address as recorded for Ms Nisha's licence. (T25)
* the Australian Taxation Office notified on 4 March 1998 that Mr Shekh's address for the 1994, 1995, 1996 and 1997 financial years was 10 Sharon Place, Rooty Hill and that Mr Shekh had claimed a spouse rebate for Ms Nisha in 1995 but not in 1994, 1996 and 1997. (T26)
* Alicia Child Care Centre at Rooty Hill provided the Department with copies of applications for the waiting list, enrolment forms and other information forms. In an application for waiting list form signed by Ms Nisha on 27 February 1996, she indicated that herself and Agit Shekhar lived together at 10 Sharon Place, Rooty Hill and further in an enrolment form completed on 6 January 1998 in relation to Shaheen, Ms Nisha indicated that both parents lived at 10 Sharon Place, Rooty Hill.
* The Commonwealth Bank of Australia advised that Ms Nisha and Mr Shekh had a banking account in joint names and the account had actually been opened on 1 March 1990 (T28). A bank statement was provided for the period 1 October 1997 to 3 March 1998.
* Mr Shekh had another banking account at the Rooty Hill branch of the Commonwealth Bank opened on 14 April 1997 and the address he gave was 10 Sharon Place, Rooty Hill (T29).
* A further Commonwealth Bank account was held at the Rooty Hill branch of the Commonwealth Bank by Mr Shekh and his address was given as 10 Sharon Place, Rooty Hill. The account was opened on 19 February 1998 in Mr Shekh's name. (T30)
* The Credit Reference Association of Australia advised on 27 April 1998 that Mr Agit Shekhar [Shekh] resided at 10 Sharon Place, Rooty Hill and that its records showed this address as current for the previous five years. (T38)
* An Aussie Home Loan application form completed by Mr Shekh in relation to a loan he subsequently obtained for an investment property, indicated that on 5 June 1997 he was married, had two children and was living at 10 Sharon Place, Rooty Hill (T40). Mr Shekh further indicated on the application form that he had lived at this address for seven years and that he intended to live there after the settlement for the investment property.
* On 4 March 1998, through the New South Wales Registry of Births, Deaths and Marriages, name changes were obtained for Ms Nisha's children. From 4 March 1998, Shaheen Reyaaz Shekhar became known as Shaheen Riaz Shekh. Shakeel Reyaaz Shekhar became known as Shaqeel Riaz Shekh on 4 March 1998. Also on this date, Mr Ajit Chandra Shekhar became known as Ajit Aziz Shekh (T57).
* On 5 March 1998, Ms Nisha's Sole Parent Pension was cancelled and the decision was affirmed following an internal review on 25 September 1998 (T52).
* Ms Nisha sought a review of the decision by an ARO who on 12 October 1998 affirmed the decision (T56), concluding:
"Having considered all the available evidence, I considered that you are living in a marriage like relationship (albeit a relationship beset by enormous cultural and religious differences) with Mr Ajit Shekhar and have been since at least 17/11/94. This is why I agree with the decision to consider you as a member of a couple and to cancel your SPP/PPS."
* On 14 October 1998, Ms Nisha sought a review by the SSAT submitting:
"...As for the reasons why I used Ajit's name and address at certain organisations was to avoid self-embarrassment and also discrimination against my child at child-care centre and as for Ajit using my name at his work, I have no control over that or reason why Ajit used 10 Sharon Place for correspondence. He informed me that he had no fixed address and it was our mutual agreement, as he visited his sons 2 to 3 times a week, he collected his mails.
As for the joint account, even though my name was still on the joint account, I had no access to that account, as this was revealed to Centrelink in the review forms. I must point out that Ajit was paying maintenance for the children which $336 paid directly into my savings account under my name at Colonial State Bank...
At this point in time I am trying to get my family life back together again and I sincerely hope you can understand the situation that I have been through the past yeas. I've attached some of the documents which might be of assistance." (T57)
* On 3 February 1999, the SSAT affirmed the decision under review, deciding that the relationship between Ms Nisha and Mr Shekh was marriage-like throughout the period under review and that the provisions of section 1237AAD of the Act did not apply to Ms Nisha because she had knowingly made false statements about her relationship and her circumstances.
* On 8 March 1999, Ms Nisha made an application for review to the Tribunal.
16. Ms Nisha told the Tribunal that she commenced living with Mr Shekh in 1990. Their relationship was 'happy and stable' until about January 1994 when her parents arrived from Fiji. Ms Nisha stated that she and her parents are of the Muslim faith, whereas Mr Shekh at the time was Hindu.
17. Ms Nisha's parents disapproved of her relationship and told her that unless Mr Shekh converted to Islam, then they should cease the relationship. If Ms Nisha and Mr Shekh did not separate and he show his goodwill by converting to Islam, then Ms Nisha's parents threatened that they would take her and the couple's then only child back to Fiji to live with them. There were many arguments and the family life within the home between Mr Shekh, Ms Nisha and Ms Nisha's parents was acrimonious and fraught with difficulty. It was expected that Mr Shekh should change his name, should pray daily with Mr Nisha and abstain from alcohol. Ms Nisha stated that in about June 1994 Mr Shekh left the family home, although the Tribunal notes that Mr Shekh, in his evidence to the SSAT on 25 January 1999, noted that he left the family home at Sharon Place, Rooty Hill in November or December 1994 (T2, p8). Ms Nisha told the Tribunal that Mr Shekh had left their home and needed time to decide what he was going to do with his life. In her claim form for Sole Parent Pension, Ms Nisha had written that the reason they had separated was because Mr Shekh was "unfaithful". However this in fact was not the true situation, Ms Nisha explained to the Tribunal. She stated that it was difficult and complicated to explain the religious reasons leading to Mr Shekh's and her separation. She reiterated that it was not the case that Mr Shekh was being unfaithful with another person, but more that he was being unfaithful to his promise to her to convert to Islam. Ms Nisha stated that she had hoped that the separation would be temporary.
18. Ms Nisha told the Tribunal that Mr Shekh went to stay with a friend, Mr J Naidu at Parramatta. On 11 November 1994, Mr Naidu noted in a statement to the Department that Ms Nisha and Mr Shekh had separated in mid June 1994 and he had learned about this through a conversation with Mr Shekh. Mr Naidu wrote that Mr Shekh was now living at an address in Parramatta which was the same as his address. Mr Naidu also noted that the reason for the separation was that during the course of Ms Nisha's pregnancy with her first child, Mr Shekh had developed 'attitude problems, which eventually led to flirtation' (T12). In a statutory declaration of 25 January 1999, Mr Naidu provided further information to the Department noting that he had known Mr Shekh since 1988 and that he had been neighbours with Ms Nisha in Fiji. Mr Naidu noted that Mr Shekh had occasionally mentioned misunderstandings that he had with his spouse over religious issues and that following Ms Nisha's parents' arrival from Fiji there were often arguments and confrontations between Mr Shekh's 'in-laws', himself and Ms Nisha leading to Ms Nisha and Mr Shekh's separation. When Ms Nisha's parents moved out to their own home, Mr Naidu noted that Ms Nisha and Mr Shekh 'compromised' and that he converted to the Muslim faith and changed his name. These actions eased the ill feeling between Ms Nisha, Mr Shekh and Ms Nisha's parents. Mr Naidu in his statutory declaration offered the opinion that Mr Shekh and Ms Nisha were not living as a married couple but had to commit themselves for their kid's future (T63). Ms Nisha told the Tribunal that she did not know why Mr Naidu in his statement of 25 January 1999 did not mention the fact that Mr Shekh had been living with him.
19. Ms Nisha explained to the Tribunal that Mr Shekh would often visit 10 Sharon Place, Rooty Hill to collect his mail and to see their only son. He was also often away at work but was staying over on occasions in June 1994. Initially, Mr Shekh would stay over at the home once per month, often because his older son would nag him to stay. After the birth of Mr Shekh's and Ms Nisha's second child, in September 1996, Mr Shekh would stay every second week, particularly staying on a Friday night, and this continued for a six month period, depending on Mr Shekh's work commitments as he was away travelling with work. He came to visit once per month and this pattern continued, Ms Nisha thought, perhaps until February 1998.
20. Mr Shekh in his evidence to the SSAT indicated that after he moved out of the family home he and Ms Nisha frequently conversed by telephone and he would visit the home two to three times per week sometimes staying overnight. Ms Nisha indicated to the Tribunal that her sexual relationship with Mr Shekh was not ongoing, however this differed from Mr Shekh's evidence to the SSAT. He indicated that the sexual relationship had been ongoing, and indeed Ms Nisha later in her evidence to the SSAT indicated that this was the case.
21. Even though Mr Shekh was staying more frequently at the family home after Shaqeel was born, Ms Nisha told the Tribunal that she was very preoccupied with her baby's ill health. Any suggestion or thought of the resumption of the relationship was not present because her baby was the only concern occupying her mind at that time.
22. Ms Nisha was questioned as to why Mr Shekh had continued to provide his address as 10 Sharon Place, Rooty Hill, as his home, particularly with reference to the Road and Traffic Authority, the Commonwealth Bank, Mr Shekh's employer, the Australian Taxation Office and the Aussie Home Loan group. Ms Nisha indicated that Mr Shekh wanted to ensure that his mail was not lost by maintaining a continuity of address. Ms Nisha herself had indicated that she and Mr Shekh were still together as evidenced by the Child Care Centre application and enrolment forms. She maintained their continuity of relationship to the outside world because she did not want people to know her business. Ms Nisha did not want to cause any problems for her children or herself, from any discrimination which might result. Further, Ms Nisha explained that although she had a joint bank account with Mr Shekh, she was not able to operate this from 1994. Ms Nisha stated that her keycard was cancelled by Mr Shekh and that he had told her it was cancelled. Nevertheless, Mr Shekh continued to assist with household expenses and repaying the mortgage on the Rooty Hill property. Ms Nisha stated that she was also aware that Mr Shekh was purchasing an investment property but her name was not on the application form. Mr Shekh had told Ms Nisha that he wanted to buy some property for his sons but had given her no specific details. In relation to a loan application at T42, Ms Nisha noted that this loan was never activated because Mr Shekh did not want to have her name on the loan.
23. The circumstances of Ms Nisha's pregnancy with her second child were very difficult, she told the Tribunal. Ms Nisha became very ill, she could not eat, she could not sleep lying down, was in pain and had a sleeping disorder. Dr S K F Chow, Ms Nisha's General Practitioner, advised in December 1999 that Ms Nisha had been attending his practice since 1995 and that Ms Nisha had been a relatively healthy person until her second pregnancy in 1996. At that time, Ms Nisha had developed Polyhydramnios, requiring two exchange transfusions and leading to the eventual birth of a premature infant. Ms Nisha was hospitalised for weeks during her pregnancy and endured a great deal of pain and emotional anguish, Dr Chow reported (Exhibit A2).
24. Ms Nisha explained to the Tribunal that about 18 weeks of pregnancy, she underwent an ultrasound and was told that something was wrong with her baby. A subsequent amniocentesis indicated that there were no chromosomal abnormalities, but that there were illnesses present and her medical advisers gave her the option of having a termination at that point.
25. Shaqeel was born three to four weeks premature. Ms Nisha informed the Tribunal that he did not breathe normally initially and had to be resuscitated. He was taken to the Paediatric Intensive Care Unit and underwent a series of treatments. He was a big baby, and was very 'bloated', Ms Nisha explained. Shaqeel was required to have fluid drained from him and he was resuscitated on a number of occasions. Ms Nisha was given the grim news that her son could die. Shaqeel was in intensive care for at least a week initially and then he became jaundiced and required blood transfusions. His breathing was a problem and at one stage he did not urinate for four days leading to concern for kidney damage, and again he was considered critically ill with the possibility that he might die. Shaqeel was constantly monitored and was in and out of intensive care. Ms Nisha stated that quite apart from the emotional and physical drain on herself in terms of not knowing whether Shaqeel would live or die, there was also the frustration of not having a firm diagnosis of his conditions. Ms Nisha stated that the specialists did not know why her son was so ill. Shaqeel had difficulty feeding and was being fed through tubes. He had physiotherapy, was fed frequently and went from the intensive care unit to the special care nursery. He would not suck, he vomited his food, he could not breathe and he was understandably a most unhappy baby.
26. Later, Ms Nisha was advised that Shaqeel had a heart defect necessitating further blood transfusions. It seemed to Ms Nisha that as he became older, further medical problems were discovered. In this regard, Ms Nisha learned that Shaqeel had a speech defect needing special care, he had a hearing problem and was developmentally delayed. Eventually, Ms Nisha was able to take Shaqeel home and she found that caring for him was a 24 hour job. Ms Nisha explained that she did not want help, she wanted to prove that she could care for her baby. Ms Nisha stated that she became very irritable, very depressed and 'weepy' and that Dr Chow had talked to her not just about Shaqeel's health but tried to talk to her about her own physical condition. Ms Nisha stated that Dr Chow also telephoned her parents to enlist their support in trying to assist Ms Nisha to have treatment. Ms Nisha explained to the Tribunal that she was very cross at Dr Chow's discussion of her own health problems because it seemed to her at the time that the only thing that mattered was Shaqeel's health and that all efforts and concentration should be on treating him and trying to keep him well.
27. Dr Chow noted in his report prepared in December 1999, that Shaqeel has shown significant developmental delay and numerous complex medical problems requiring extensive and exhaustive efforts from Ms Nisha for Shaqeel's care (Exhibit A2).
28. Dr K C Lau, Paediatric Cardiologist, reported on 24 February 1999, that Shaqeel, aged two and a half years old, was previously diagnosed as possibly having Noonan syndrome, VSD, hypertrophic cardiomyopathy and pulmonary stenosis (Exhibit A4).
29. On 8 December 1999, Ms C Muir, Educational Psychologist with the Deafness Centre, The New Children's Hospital, reported that Shaqeel was born at 34 weeks, has a history of feeding problems and will require in the year 2000 to have his tonsils and adenoids removed. Recent testing of his hearing indicated a moderate to severe hearing impairment and following a number of tests of locomotion, personal-social interaction, hearing and speech, and eye and hand coordination, Ms Muir concluded that Shaqeel at that time was significantly delayed in all his development (Exhibit A5).
30. On 20 December 1999, Dr P E Mutton, Paediatrician with the Deafness Centre, The New Children's Hospital, reported that Shaqeel was diagnosed at birth as having hydrops foetalis with bilateral pleural effusions. He required ventilator assistance for ten days after his birth. Later he required two exchange blood transfusions and then phototherapy because of his jaundice. Shaqeel was also noted to have a heart murmur after birth. Because of all of these problems, Shaqeel had difficulties with uncoordinated swallowing leading to feeding difficulties. Dr Mutton concluded that Shaqeel appears to have a severe degree of hearing loss which may be associated with the difficulties experienced at his birth or may possibly be associated with the genetic syndromal diagnosis of Noonen syndrome. Dr Mutton noted that:
"The family have had an exhausting and worrying time with him over the past three years due to his feeding difficulties, sleeping difficulties, poor weight gains and rather slow progress. Mother has done an excellent job with him and his feeding difficulties and sleeping difficulties have begun to resolve. Hopefully, there will be still further improvement after tonsillectomy and adenoidectomy.
Shaqeel is used to a great deal of attention from Sainaz and is rather demanding and manipulative at times..." (Exhibit A6)
31. The Tribunal noted physiotherapy reports and other medical reports as to the precarious status of Shaqeel's early health, his extensive problems and the various treatment modalities and care he required.
32. Ms Nisha summarised Shaqeel's health problems as vision, speech and hearing problems. He also has cardiomyopathy, Noonen syndrome and significant developmental delay. During those early months after Shaqeel's birth, Ms Nisha was required to take her son to specialists and attend treatment. Later on, a great deal of home care was organised for her where physiotherapists, occupational therapists and the deliverers of other therapies would visit her at her home, punctuated by her taking Shaqeel to various specialist follow-up appointments. During this early period, Ms Nisha relied a great deal on her parents and also Mr Shekh who would assist with the shopping, looking after their eldest son and paying the bills. Ms Nisha also stated that most recently a teacher from the Department of Education visits twice per week, for two hours per visit, to assist with Shaqeel's education. The ongoing specialists include visits to an opthamologist, audiologist, paediatric cardiologist, ear nose and throat specialist and to the dentist. Shaqeel now also attends a special needs play group.
33. During the initial period after Shaqeel's birth, when Ms Nisha was required to complete Sole Parent Pension review forms and to participate in a home visit with a field officer, she could barely spare the time. When she was required to complete the review forms she would do this extremely quickly she stated, and arrange for her mother to look after her son. This was a major logistical exercise as to be away from Shaqeel for any length of time was fraught with the difficulty and real possibility that he would dislodge his feeding tubes, become sick and his condition become precariously grave within a very short period of time. Therefore, everything apart from her care of Shaqeel was done in a rushed and often unthinking way, Ms Nisha explained to the Tribunal.
34. Ms Nisha informed the Tribunal that now, with the benefit of hindsight, she can see that during the period after the birth of her second son, she was depressed and in denial about her son's condition. Ms Nisha now accepts Dr Chow's opinion that she in fact was exhibiting irritability, inability to accept Shaqeel's condition, sadness and withdrawal. In fact, Dr Chow reported that:
"...Despite her continual denial she exhibited signs and symptoms of major depression which unfortunately has affected her for the last few years. She came in recently seeking help for her depression and has started on medication last week [mid December 1999]. With ongoing medication and counselling I expect she will make significant improvement in the future to be able to lead a happy and productive life." (Exhibit A2)
35. Ms Nisha told the Tribunal that she considered she was a 'nervous wreck' looking after Shaqeel, with no time for herself. She was too exhausted to do anything other than look after Shaqeel and was too embarrassed to take him out because people would stare at Shaqeel and herself and she could not stand people feeling sorry for her. When Dr Chow had tried to talk about her own health problems, Ms Nisha stated that she became very angry and told him only to be concerned about Shaqeel and not her. On one particular occasion however, Ms Nisha was frightened when she found that her heart was racing and she thought that she was going to have a heart attack. She went to Dr Chow who then was able to talk again to her about her need for medical assistance.
36. Ms Nisha was questioned about the information contained in Sole Parent Pension review forms (T16, T19) and information provided on a field visit that no other adults lived at 10 Sharon Place, Rooty Hill. Ms Nisha stated that she answered this with the thought in mind that there was no-one other than herself who permanently lived there. Although Question 12 in the Sole Parent Pension Review form of 9 December 1996 asks, "Do any other adults of the opposite sex (other than a close relative) live at your address?", Ms Nisha reiterated that she considered this question was asking whether anyone permanently lived there (T16). Similarly, Question 11 in the Sole Parent Pension review form completed by Ms Nisha on 22 May 1997 asked, "Do any people of the opposite sex other than your children and close relatives (i.e. grandparent, parents, blood brother or blood sister) regularly stay at your address?". Ms Nisha again read this question to mean does anyone permanently live at her address and again she thought the answer was "no". (T19)
37. Ms Nisha told the Tribunal that in recent times, because Mr Shekh has changed his name and the names of the children to Islamic names and he is practising the Muslim faith, the relationship has reinstated. Mr Shekh and Ms Nisha married in a Muslim ceremony in January or February 1998 with just the family in attendance. In about February 1998, Mr Shekh moved back to the family home permanently.
38. At the date of hearing, Ms Nisha was not working but her husband was employed earning approximately $40,000 gross per year. Mr Shekh currently has an investment property. The family are able to meet their daily living expenses and there is approximately $10,000 in a savings account. Ms Nisha stated that the tonsillectomy and adenoidectomy required for Shaqeel will cost approximately $2,000 but then she will be able to repay part of the debt owed by her to the Commonwealth in an amount of $8,000.
39. Ms Nisha stated that the debt she owes to the Commonwealth worries her. While she is assisted financially by Mr Shekh, it is her debt and she keenly feels the anxiety and stress associated with it hanging over her head. Shaqeel still has considerable medical expenses associated with his treatment, review and therapy. Generally, such expenses are covered by Medicare but there is occasionally a gap between the service fee and the rebate. Ms Nisha stated that she does have access to Mr Shekh's mastercard and uses this to pay bills and $190 received for rental of the investment property is used to repay the mortgage on that property.
40. Ms Koller conceded on behalf of the Applicant that the overpayment runs from the period 17 November 1994 to 5 March 1998. Ms Koller submitted that prior to Ms Nisha's parents' arrival from Fiji in January 1994, Ms Nisha and Mr Shekh had a happy relationship. The arrival of her parents brought about a number of changes in the relationship and a number of differences in respect of the religion of Ms Nisha and her family's religion and the religion of Mr Shekh. Ms Koller submitted that Mr Shekh did eventually leave the home and this related to problems in the family over religion. Mr Shekh clearly did not leave the "scene altogether", Ms Koller submitted, noting that he visited the children frequently and periodically would stay overnight. Ms Nisha has admitted all of these things and it was also noted that Mr Shekh made financial contributions to the household and paid attention in the early period of separation to the needs of his elder child. Ms Koller submitted that Ms Nisha clearly had in her own mind a belief that a separation had occurred. While she could not continue the relationship in the manner she had before, because of the intervention of her parents on the religious issues, the Tribunal should note that whether or not the relationship was one that the Secretary of the Department would also have found to have been a separation was not something which was in Ms Nisha's control.
41. Ms Nisha claimed the Sole Parent Pension and had indicated Mr Shekh's address and at this point, Ms Koller submitted, Mr Shekh really had separated and gone to live at an address in Parramatta. Ms Nisha had indicated in her claim that Mr Shekh and Ms Nisha had separated because of Mr Shek being unfaithful and she had written this because she did not believe that the Department would accept her own major reason for the separation being because of cultural and religious beliefs, Ms Koller submitted. Ms Nisha completed the claim form to the best of her ability, at the time of claim. In Lynam v Director-General of Social Security (1983) 52 ALR 128, the Federal Court concluded:
"It seems futile to deny that subjective views as to what are involved as basic attributes of the marriage relationship will intrude into the assessment called for. However, it is in my view important that the Departmental officers or Tribunals charged with the task at least take into account what is the norm for the peer group of the Applicant. Only in this way can the legislation be fairly and justly accommodated to a multi-racial and otherwise diverse society."
Accordingly, Ms Koller submitted that there will be different subjective views among different groups of society as to what constitutes a marriage-like relationship and that it is fair and reasonable to take them into account. Ms Koller explained that she was not saying that Ms Nisha was not a member of a couple, but that from Ms Nisha's own perspective, she herself believed a separation to have occurred.
42. When Ms Nisha became pregnant with her second child, Mr Shekh featured and provided a degree of assistance. Ms Koller submitted that once Ms Nisha became pregnant in 1996 and particularly after the birth of Shaqeel in September 1996, Ms Nisha's own health declined to such a degree that she was not able to observe, recognise or deal with the increasing re-entry of Mr Shekh into her life. Even today, Ms Koller submitted, Ms Nisha still has some difficulty in considering what was really occurring during the period under review.
43. The evidence from the T documents indicates that Mr Shekh was in fact re-entering Ms Nisha's life to quite a degree particularly during 1997 and onwards. He was undertaking the purchasing of groceries because Ms Nisha was no longer able to do this because of the care she was required to give Shaqeel. Thus Ms Koller submitted that it was for health reasons that Mr Shekh was re-entering Ms Nisha's and the children's lives but this conduct explained also why Ms Nisha had decided to concede on the issue of being a member of a couple.
44. Turning to the issue of waiver in special circumstances, Ms Koller wished to point out that there have been many cases over the years where it has been very difficult to establish who is separate and apart and who is not. Such decisions are borderline, Ms Koller submitted and they are hard for those who are experienced in the case law and legislation but even harder for people unfamiliar with the legislation and the case law. Separation clearly has its own meaning to different people, Ms Koller contended.
45. Turning to the issue of debt recovery, the first issue to determine under the provisions of section 1237AAD is whether the debt resulted wholly or partly from the debtor or another person knowingly making a false statement or representation or failing to omit to comply with the Act. Ms Koller submitted that the critical issues are the question of whether or not any particular statement made by Ms Nisha was knowingly false and whether the debt resulted from that knowingly false statement. In Re Callaghan and Secretary, Department of Social Security [1996] AATA 413; (1996) 45 ALD 435, a case which has been followed on a number of occasions, the Deputy President concluded that "knowingly" should be given no other meaning than that a person has actual knowledge rather than constructive knowledge. It is not a question of what Ms Nisha should have known, Ms Koller submitted, but a question of did she in fact know that she was making a false statement or representation or failing or omitting to comply with the Act. Ms Koller contended that it is actual knowledge which is required and this necessitates looking at the statements of the person as to his or her actual state of knowledge at the time. The Tribunal should not look with the benefit of hindsight to recognise things were incorrect, Ms Koller submitted, but rather look at the state of knowledge that Ms Nisha had at the actual time the events were occurring.
46. Looking at the particular events present in Ms Nisha's life, the first event that bears scrutiny is the initial application form for Sole Parent Pension, Ms Koller stated. On the initial application form it had a partner details section and there was a statement in which Ms Nisha had indicated that Mr Shekh was unfaithful to her (T5). This has two different meanings, Ms Koller submitted. Ms Nisha's primary reason for separation is what she stated to the Tribunal and to the SSAT and this was related to religious difficulties. Ms Nisha had retracted before the SSAT and no longer wished to assert that Mr Shekh was unfaithful to her in any other way apart from his failure to keep the promise to convert to Islam. Objectively speaking, Ms Koller submitted, the initial reason provided from Ms Nisha for her separation, being that of Mr Shekh's infidelity, was false. However, the overpayment did not result wholly or partly from this particular false statement Ms Koller contended. The reason a person gives for their separation does not impact upon the fact that there has been a separation. Even though there was an error in the statement made by Ms Nisha, it was not a material error, Ms Koller submitted. Had Ms Nisha explained the reason for her separation being related to religious difficulties, this would not have led to any other line of inquiry or action by the Department. It would have made no difference, Ms Koller contended. The debt would have arisen irrespective of whether the reason for separation related to infidelity or religious differences. What the Department was interested in was that Mr Shekh at that time had gone to live at a different address. It was not of particular importance as to why he had left. Had Ms Nisha written the correct position, it would have made no difference whatsoever to the payment of the Sole Parent Pension. Accordingly, event though there was a false statement as to the reason for separation, this statement in no way caused the overpayment, Ms Koller submitted. The false statement immaterial. In Re Secretary, Department of Family and Community Services and Morgan, [1999] AATA 390, Senior Member Hotop emphasised that in order to prevent waiver, a false statement needed to be the one from which the overpayment resulted. Ms Nisha's statement concerning separation in 1994, although having an objective degree of falsehood, would have resulted in no further inquiry from the Department and the overpayment period which resulted would not have been altered.
47. Ms Koller stressed that even if the overpayment did result from a knowingly false statement in 1994, it does not mean, that waiver could not be obtained at a future date. Referring to the field officer's interview undertaken with Ms Nisha in early December 1996 and the two Sole Parent Review Forms (T16, T19), particularly as they related to Ms Nisha living with another adult person, Ms Nisha explained that her understanding of the question related to people who lived permanently with her that is, people who are always there, always in the morning, at night, showering and having meals. It is Ms Nisha's belief, Ms Koller submitted, that Mr Shekh simply was not there permanently and a separation was in place. While Mr Shekh visited, he did not stay with a regular pattern. Ms Nisha's evidence was clear that there was a difference for her between what happened when Mr Shekh was visiting although quite extensively, and having someone living with her permanently. Ms Nisha did not consider Mr Shekh's visiting as a permanent living arrangement.
48. Ms Koller referred the Tribunal to the issue of intent required in making false representations, contending that possibly during the pregnancy with her second son and definitely after the birth that Ms Nisha did not actually have the capacity to make a decision to the requisite degree of intent. Referring to Re Secretary, Department of Social Security and Bliss (AAT 11473, 13 December 1996), Ms Koller noted that the Tribunal stated:
"...Section 1237AAD does not require an intention to defraud, all that is required to make the ameliorating discretion of the section non-applicable is the intentional statement or representation with knowledge of its falsity..."
In Re Bliss (supra), the Tribunal was seeking to exemplify that you are unable to utilise the provisions of section 1237AAD when there is an intentional making of a statement or representation with knowledge of its falsity. Ms Koller submitted that given Ms Nisha's evidence and that of Dr Chow that Ms Nisha was unaware and did not have insight into her particular psychological health condition, there is evidence that Ms Nisha did not have the capacity to formulate a knowingly false statement. Her irritability, denial, sadness and withdrawal from the situation and her intense concentration on Shaqeel's health caused her inability to deal with other matters.
49. The Tribunal should note Ms Nisha's evidence that she just wanted time for herself and her baby, Ms Koller submitted. All this is clear evidence, Ms Koller submitted, that Ms Nisha did not actually have the capacity to deal with matters to do with the Department and particularly the field officer's interview on 10 December 1996 and her completion of Sole Parent Pension review forms. These events occurred within the first three months after Shaqeel's birth and later in May 1997, Ms Nisha was still having to deal with the daily problems of care, treatment and indeed Shaqeel's survival. Ms Nisha was denying her own psychological and physical health because she was asserting her capacity to care for her child which was her number one priority during the period, Ms Koller submitted. Ms Nisha simply lacked the capacity to deal with the paperwork and all the other Departmental matters in the face of other circumstances in her life. Even at the SSAT, Ms Koller submitted, that Ms Nisha's presentation, particularly her irritability and inability to accept matters was evidence of her depression. Ms Koller submitted that Ms Nisha was worried and suffered guilt and concern about Shaqeel's health on the one hand and also embarrassment about taking out her disabled child and answering any questions about his condition.
50. It is only in the last few weeks that Dr Chow has been able to persuade Ms Nisha to accept treatment and the reality of what has been occurring in the last few years. The SSAT did not have this evidence available to it, Ms Koller noted. Ms Koller referred the Tribunal to Re Secretary, Department of Social Security and Gray-Corking (1997) 11 SSR 152 in which the Tribunal decided that a claimant was "merely naive" about her responsibility to advise the Department of her circumstances. The Tribunal in that case was taking into account a person's capacity to advise, Ms Koller submitted. Re L and Secretary, Department of Social Security (1995) 39 ALD 172 dealt with a person who had a psychiatric disability and failed to advise of an increase in maintenance payments throughout the period. When the mental condition was stabilised, L took steps to rectify his situation. In Re L (supra), there was a recognition that there was no knowingly false statement, it was the intervening psychological condition during the period to which attention needed to be paid when considering whether a person had the capacity to knowingly make a false statement.
51. Ms Koller turned to the issue of Ms Nisha's credibility. The Tribunal should note that the Department had the opportunity, but did not call either Mr Shekh or Mr Naidu to provide evidence about relationship issues or Mr Shekh's address while he was separated from Ms Nisha. Ms Koller submitted that Ms Nisha's evidence was quite authentic.
52. The Tribunal should consider the overpayment in two halves, Ms Koller submitted, from November 1994 and then from 1996 onwards. In the latter part of the overpayment period, a completely different set of factors came into play, Ms Koller contended. It is clear from what Mr Shekh told the SSAT, that by early 1997 he had stopped travelling for work and certainly in the latter part of the overpayment period he was involved with Ms Nisha a great deal more than Ms Nisha had really noticed because of her overriding mental health condition and concentration on Shaqeel's needs. In 1996, Ms Nisha was suffering from quite a serious degree of depression, Ms Koller submitted, and was unable to concentrate on anything else other than her child and this is quite well documented. The Tribunal should note the fact that Ms Nisha's interview with the departmental field officer and her completion of review forms occurred only a couple of months after the birth of her child. Further, the review in November 1996 occurred when there were a multitude of problems stressing Ms Nisha. This is very significant when one considers that Ms Nisha has only commenced treatment for depression in the last month. Ms Koller submitted that because of Ms Nisha's health condition, she was unable to properly pursue these matters with the Department and she was not able to even expend any energy on such matters. There is no evidence that clearly contradicted this proposition and certainly towards the second half of the period under review, Ms Koller submitted that Ms Nisha's depression has to be given a high degree of weight.
53. Ms Koller submitted that basically this case is about a couple who did not want to be apart and intended to reconcile and were hopeful of resolving the problems. It was Ms Nisha's error that she saw that as an adequate degree of separation. Probably in her own community, the religious differences would have a heightened degree of importance and that is something which needs to be considered in light of Lynham (supra). Ms Koller submitted that there was a relationship between Ms Nisha and Mr Shekh and an underlying attempt to reconcile was always there. The question was however, whether or not Ms Nisha made a mistake by believing herself to be a separated person?.
54. In relation to the special circumstances provisions contained in section 1237AAD of the Act, the Tribunal was referred to Secretary, Department of Social Security and Hales (1998)82 FCR 154. In that case, the court said:
"The evident purpose of s.1237AAD is to enable a flexible response to the wide range of situations which could give rise to hardship of unfairness in the event of a rigid application of a requirement for recovery of debt."
The court in that matter also clearly decided that financial hardship was not an essential prerequisite for the exercise of the discretion. Hales (supra) is the leading authority on this point, Ms Koller submitted, and following the Full Federal Court decision in Riddell v Secretary, Department of Social Security [1993] FCA 261; (1993) 42 FCR 443, it rejects any restriction on the term "special circumstances". Riddell (supra) is clearly saying that the special circumstances definition is wide and rejects the idea that you need something extremely unusual, uncommon or exceptional in order to produce special circumstances, Ms Koller submitted. Ms Koller further noted the recent decision of Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 which supports the principles contained in Riddell (supra).
55. Ms Koller submitted that the types of material to which regard should be had in deciding if special circumstances exist, must arise from the context in which the provision is used and upon the individual facts of the particular case. It is not appropriate, Ms Koller submitted, to directly apply considerations found to be relevant in cases from one scheme of legislative provisions to another. For example, "special circumstances" for the extension of the time limit in which to lodge a Family Allowance form would require different considerations from "special circumstances" in the compensation preclusion context. Further, considerations would be different in the present context in relation to waiver of overpayments. Accordingly, because a particular fact has been found not to be "special" in one context does not mean it cannot be considered to be "special" in another context.
56. In Ms Nisha's case, Ms Koller submitted that there was psychological hardship and also unfairness. Referring to Re Gunn and Secretary, Department of Social Security (1999) 28 AAR 527, that Tribunal acknowledged that:
"The special circumstances are not restricted to the circumstances of the debtor."
In this regard, Ms Koller submitted that the circumstances of the child Shaqeel must also be taken into account as it is not only the hardship and unfairness caused to Ms Nisha by a decision to enforce recovery of a debt but also hardship and unfairness that extends to Shaqeel.
57. Referring to Ms Nisha's financial circumstances, Ms Koller noted that in Hales (supra), financial hardship was not a prerequisite for the exercise of a discretion. In Ms Nisha's circumstances, there are future expenses relating to Shaqeel's treatment, follow-up and therapy and those future expense are at this stage unknown. He does have a range of disabilities and the evidence is that Medicare does not meet all of these. Ms Nisha is not in a private health fund and if she were to enter one now the cost of this would be higher than otherwise would be the case, because of Shaqeel's disabilities. Thus the degree of financial hardship that may be experienced by Ms Nisha is unknown at this particular time, but in relation to Hales (supra), the court decided in Ms Hales' favour, even though Ms Hales and her partner were in full time employment by the time the case reached the Tribunal.
58. Ms Koller further submitted, that Ms Nisha sought some acknowledgment of her lack of culpability in this particular matter, particularly in the second half of the overpayment, when she no longer had the capacity to consider her own position.
59. Ms Koller submitted that the special circumstances operating in Ms Nisha's case were therefore her lack of culpability in that Ms Nisha believed her relationship was not what it had once been and therefore considered herself separated. Any material objectively false statements made by her were not made with an intent to obtain a payment. Further, Ms Nisha's special circumstances lay in her suffering from a major depression in the second half of the overpayment period during which she lacked the capacity to recognise changes in her own affairs and respond to them appropriately. Thirdly, Ms Nisha continues to suffer this depression and is affected by it. Finally, Ms Koller submitted that Ms Nisha requires a clear mind and certainty in respect of the funds available to her in order to care for her disabled child and to repay the remainder of the debt which is hers alone.
60. Partial waiver would greatly assist Ms Nisha both on psychological grounds and in order to have a recognition of the need to pay for Shaqeel into the future with his multiple disabilities and uncertain prognosis.
61. Mr Slattery submitted that even though the Applicant had conceded that there was a marriage-like relationship in the period, so as to focus the issue to be determined by the Tribunal to the exercise of the discretion in section 1237AAD of the Act, the Respondent was concerned that there were issue Ms Nisha's credibility, taking into account documentary evidence in addition to inconsistencies in oral evidence. Mr Slattery submitted that Ms Nisha and Mr Shekh were living together as a member of a couple. Then, following the arrival of Ms Nisha's parents in early 1994, there was conflict within the family because of religious differences. It appears that Mr Shekh moved out of the residence at Sharon Place, Rooty Hill for a time but what Mr Slattery could not understand, and could not see from the evidence, is how long the couple was separated and whether or not there may have been a gradual moving back by Mr Shekh to the premises at Sharon Place, Rooty Hill. Mr Slattery submitted that it was important that these matters be considered by the Tribunal even if the matter of the marriage-like relationship had been settled. The problem with Ms Koller's submission on Ms Nisha's behalf, is that the Respondent is not satisfied that relevant statements made by Ms Nisha to comply with the Act were not made knowingly. The Respondent's concern in this matter is dissatisfaction with the evidence as to what had occurred.
62. Mr Slattery submitted that it was not clear to the Respondent whether it was in June 1994 or some later date that Mr Shekh may have separated from Ms Nisha. Mr Naidu, made a statement on 11 November 1994 that Mr Shekh was living at a flat in Parramatta which was also Mr Naidu's address (T12). Much later, in March 1998, in a statutory declaration prepared and signed by Mr Naidu, he stated that Mr Shekh and Ms Nisha had separated on religious grounds but did not make any statement as to where Mr Shekh was living. Mr Slattery submitted that the way Mr Naidu's statutory declaration was written, it seemed as if things were happening rather remotely as far as Mr Naidu was concerned. In this regard, he appeared to be making statements on the basis of what he had been told and nowhere does he state that Mr Shekh lived with him. Mr Naidu says nothing about Mr Shekh's living arrangements at the end of the overpayment period, and this left the Respondent questioning what had happened. The facts in the case were still most unclear.
63. Mr Slattery considered that there was inconsistency in the documentary and oral evidence. Various utilities and organisations such as the Commonwealth Bank, the Australian Taxation Office, the Department of Roads and Traffic Authority and others, all attested to the fact, as far as their records showed, that Mr Shekh lived throughout the relevant period at 22 Sharon Place, Rooty Hill and there was no other residential address given. Accordingly, Mr Slattery did not accept the contention that the provision of such an address was a matter of convenience or to prevent mail being lost. There was simply no evidence of that. Rather, Mr Slattery contended, the clear meaning of all the documentary evidence and the specific lack of evidence by Mr Naidu was that Mr Shekh was predominantly, if not always, resident at 22 Sharon Place, Rooty Hill. Mr Slattery noted that it was also odd that there was initial indication to the SSAT that Mr Shekh did not pay rent on a regular basis to Mr Naidu, but helped from time-to-time. Mr Slattery submitted that someone who had a relationship with a friend, whereby they could stay at the friend's home for four years with no regular arrangement for payment or rent would have a remarkable arrangement indeed. It is also particularly remarkable when seen in the context of the statutory declaration by Mr Naidu at the end of the overpayment period, which did not refer at all to Mr Shekh's residency at Mr Naidu's home or any contribution that he might have made. It was also odd, Mr Slattery submitted, that Mr Naidu, who had been asked to provide evidence in the form of a statutory declaration to show that Mr Shekh was not in a marriage-like relationship or living with Ms Nisha, failed to take the opportunity to provide information as to where Mr Shekh was in fact living. In all these circumstances Mr Slattery urged the Tribunal to rely on the documentary evidence, including the statutory declaration of Mr Naidu, because the Respondent did not consider Ms Nisha's oral evidence consistent with the overwhelming weight of other evidence.
64. Even though there had been a concession by the Applicant in relation to a marriage-like relationship, the question was not removed as to where Mr Shekh resided during the period of four years under review. The issue of where Mr Shekh lived is important because it goes to the issue of Ms Nisha's credit. At the end of the debt period, in certain of Ms Nisha's statements, the story has been that Mr Shekh was predominantly maintaining another residence. If Mr Shekh had not been resident at the Rooty Hill premises substantially, then the Respondent is at a loss, Mr Slattery submitted, to see why evidence to that effect had not been produced by the Applicant.
65. Specifically turning to subsection 1237AAD(a) of the Act, the decision-maker has to be satisfied that there are no false statements or failure to comply with provisions of the Act which led to the debt and those failures or omissions must not be "knowingly" made, Mr Slattery submitted. The issue of what is meant by "knowingly" has been dealt with by a number of tribunals and courts. Mr Slattery submitted that part of the problem in relation to this issue relates to the wording of the second reading speech where there were references to the fact that "knowingly" would not cover an innocent mistake but may be appropriate in relation to fraud. Referring to Re Secretary, Department of Social Security and Bitunjac (AAT 12856, 6 May 1998), the Tribunal stated at paragraph 53:
"The Tribunal accepts and follows the views of Senior Member Allen in Re Bliss, as quoted above, and of Deputy President Forgie that actual knowledge is required. It does not accept that an intent to defraud the Department must be proven. It holds the view that references to 'deliberate fraud' in the Explanatory Memorandum are not to be preferred above the terms of the legislation itself. In any case, the Explanatory Memorandum states on page 32:
'The first exception provides that the Secretary will be prevented from exercising the discretion in section 1237AAD where the debt arose whether solely or partly because of deliberate fraud by the debtor or another person that is, the discretion may be exercised where a debt arose wholly because of an innocent mistake.'
Further, Mr Slattery referred to Calaghan (supra) where the test of "knowingly" was that the knowledge should be actual rather than constructive and Mr Slattery maintained that this was the case in relation to Ms Nisha. In Re Bliss (supra), the Tribunal said in essence that the issue to be decided was when the false statements to questions were made, did the person who made them know they were false? Thus, Mr Slattery submitted that the discretion contained in section 1237AAD of the Act may be exercised where a debt arose wholly because of an innocent mistake. Further, Mr Slattery urged the Tribunal to adopt the simple dictionary definition of "knowingly" which means that a person does know something consciously or intentionally, for example, that a statement is false. Mr Slattery did not accept Ms Koller's argument that because, with the benefit of hindsight, statements made by Ms Nisha may be objectively be seen to be false, it was the case that the Applicant at the time did not consider the statements to be false. The difficulty Mr Slattery had with this submission is that the Respondent does not believe that Ms Nisha has been full and open in her evidence to the Tribunal. There is a conflict between the claims of Ms Nisha in terms of where Mr Shekh was living during the relevant period. There is also conflict in terms of the documentary evidence provided by various external agencies as to where Mr Shekh was living. Mr Naidu's statutory declaration was also pointedly absent in its discussion of where Mr Shekh lived. Accordingly, Mr Slattery submitted that he could see no evidence at any time during the four year period that there was any attempt or effort by Ms Nisha to regularise her circumstances with the Department or to in any way reveal to the Department the true situation of her circumstances.
66. Mr Slattery further submitted that during the four year period under review, there would have been some ten or 12 Sole Parent review forms completed by Ms Nisha. These forms were issued every twelve weeks. The forms were not now available, Mr Slattery suspected because of the Department's culling of such forms as a matter of its own administrative practice. Mr Slattery submitted that he strongly suspected that all of the Sole Parent Pension review forms would have contained the same false statements that are before the Tribunal now. There is no evidence that Ms Nisha came forward to the Department to inquire or seek information about her relationship status and about her continuing entitlement. This set of circumstances contrasted with the case of Re Gray-Corking (supra) where Mrs Gray-Corking actually came forward to volunteer her circumstances and, in the course of an admission, a debt was raised.
67. Ms Nisha did complete a Sole Parent review form in December 1996 (T16) following the birth of her second child and during a related field visit by a departmental officer, Ms Nisha maintained her status as being separated. This was two years after the pension claim. The Sole Parent Pension payment continued following the completion of the Sole Parent review form in May 1997.
68. In relation to the Sole Parent review forms and question 11 or 12 where Ms Nisha was required to answer whether or not people of the opposite sex stayed regularly at her home she answered "No". Ms Nisha thought that "regularly" meant permanently, yet, Mr Slattery submitted, there was no attempt by her to question what was required by this question on the review form. This was an issue not only of making a false statement but also of Ms Nisha's notification obligations under the Act. Mr Slattery noted that while the submissions to the Tribunal had focused on false statements, the discretion contained in subsection 1237AAD(a) of the Act also dealt with a person failing or omitting to comply with the provisions of the Act. The Respondent did not simply rely on false statements but also relied on Ms Nisha's knowing failure to comply with her obligations under the Act. In this regard, Mr Slattery submitted that Ms Nisha appeared to be fairly conversant in English and knowledgeable enough to understand her obligations to the Department.
69. A number of Departmental statements/letters concerning Ms Nisha's Sole Parent Pension had been sent to her during the debt period which set out her obligations. None of these obligations were complied with, Mr Slattery submitted. Ms Nisha's omissions in this regard revealed a lack of "curiosity about her entitlement" and the Respondent considered that this was yet another indication of her knowingly making false statements as well as failing or omitting to comply with the Act.
70. To further distinguish Ms Nisha's circumstances with those contained in Re Gray-Corking (supra), Mr Slattery submitted that the reasons that the investigation of Ms Nisha's Sole Parent Pension occurred was because of a public denunciation. The investigation and subsequent cancellation of the Sole Parent Pension was not as a result of Ms Nisha coming forward to inform the Department of her circumstances, to "regularise her situation" but because following the public denunciation, the Department made relevant inquiries. When a field officer visited Ms Nisha on 16 February 1998, following the public denunciation, Ms Nisha was still maintaining that Mr Shekh did not live there and lived "somewhere" in Parramatta. In November 1994, Ms Nisha was able very clearly to provide the precise address where Mr Shekh was staying however in 1998, Ms Nisha was unable to give any details apart from "somewhere in Parramatta". Mr Slattery could not reconcile these two statements by Ms Nisha. Some of the issues raised during that field trip also indicated to Mr Slattery that the debt which was conceded could be raised under section 1224 of the Act. This issue has relevance for the discretion contained in section 1237AAD in that the Department's contention is that Ms Nisha's statements and actions were knowingly false.
71. Mr Slattery submitted that there is no administrative error alleged in this case nor is any accepted. The forms which were completed by Ms Nisha during the relevant period were false, Mr Slattery submitted. They were completed in a knowingly false manner in the context of a four year period of a supposed separation between Ms Nisha and Mr Shekh and by the failure of Mr Naidu's statement leading up to the SSAT decision to in any way explain or support the claim that Mr Shekh was living anywhere other than the Rooty Hill address. Accordingly, Mr Slattery concluded that in relation to Ms Nisha knowingly making false statements, the Respondent was not satisfied that her statements were innocent, nor that Ms Nisha did not knowingly fail to comply with her obligations. In such circumstances, Mr Slattery submitted that it was not necessary to consider the issue of special circumstances. However, for the sake of completeness in the event that the Tribunal did not agree with the Respondent's submissions, Mr Slattery turned to discuss the evidence in relation to the existence of special circumstances. Mr Slattery stated that the Respondent in no way sought to dispute or down play the significance of Shaqeel's medical conditions nor those of Ms Nisha. Mr Slattery however wished to put before the Tribunal the general proposition that special circumstances should be "taken into account in a global sense".
72. Turning firstly to the question of financial hardship and noting Ms Koller's reference to Hales (supra), Mr Slattery submitted that nowhere in that decision was there a finding that financial hardship may not be a relevant consideration. To that extent, Mr Slattery submitted that an assessment of the bank balances around the time when the pension was cancelled in early 1998 and various bank statements and other accounts including the accounts of Mr Shekh, indicate that there was no great financial hardship. In the relevant period, Mr Shkeh and Ms Nisha maintained their financial circumstances and Mr Shekh assisted Ms Nisha. Considering all the bank accounts, Mr Slattery indicated that there was a balance of some $30,000 in all the accounts including $16,519 in the joint account. The Family Payment account had a total of $8,980 and Mr Shekh had other Commonwealth Bank savings accounts which included amounts of $2,550 and Ms Nisha's State Bank account of some $642. Further, Mr Slattery noted that in late 1996, early 1997 Mr Shekh felt sufficiently financially secure to obtain a loan in order to purchase an investment property. Mr Slattery contended that this set of circumstances would not in the context of a social security matter, be seen as an indication of financial hardship. In the broad sense, in the context of matters that come before the Tribunal in the social security jurisdiction, Mr Slattery submitted that this was not indicative of financial hardship.
73. In conclusion, Mr Slattery submitted that the Respondent is not satisfied, in terms of the evidence, in relation to where Mr Shekh was living during the relevant period and that that was relevant to the exercise of the discretion contained in section 1237AAD because it directly went to the credit of Ms Nisha. From all the documentary evidence without exception, including Mr Naidu's statutory declaration in 1998, Mr Slattery submitted that the central contention that Mr Shekh was living elsewhere is not proven and that this was an important issue because it goes to a determination of whether Ms Nisha knowingly made false statements or knowingly failed or omitted to comply with the Act.
74. While acknowledging Ms Nisha's medical condition and that of her youngest child, Mr Slattery asked the Tribunal to take into account all the other matters which have been raised, including Ms Nisha's and Mr Shekh's combined financial circumstances. If there was any hardship to be felt by Ms Nisha, then that could be more appropriately addressed in working out an agreed rate of recovery rather than looking to waive the debt. In the circumstances, the Respondent submitted that the discretion contained in section 1237AAD of the Act could not be exercised in the situation where Ms Nisha knew that she was not separated when she claimed Sole Parent Pension. In all these circumstances, Mr Slattery submitted that the decision of the SSAT should be affirmed.
75. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, submissions, legislation and case law. The Tribunal found Ms Nisha to be cooperative in the provision of her evidence.
76. Prior to hearing, Ms Koller conceded on behalf of Ms Nisha, that an overpayment had occurred in relation to the payment of Sole Parent Pension from the period between 17 November 1994 and 5 March 1998. Ms Nisha had acknowledged, with the value of hindsight, that although she considered herself and Mr Shekh to be separated, she recognised that for the purpose of section 4 of the Act, the nature of the relationship she shared with Mr Shekh would not have satisfied the legislative requirements for payment of the Sole Parent Pension.
77. The Tribunal finds that apart from perhaps a very short period following Mr Shekh leaving 22 Sharon Place, Rooty Hill, either in June or November 1994, that there was not a separation in the legislative sense in terms of the relationship between Ms Nisha and Mr Shekh. During the four year period, the frequency and duration of contact between Ms Nisha and Mr Shekh varied enormously and this period was also punctuated by Mr Shekh being away for periods of work. The Tribunal finds that increasingly Mr Shekh visited Ms Nisha and initially their only son and later his second son with the periods spent with his family becoming longer. Although the Tribunal has acknowledged that there were periods when Mr Shekh was away from work, it is generally acknowledged that towards the end of 1996 and through 1997 Mr Shekh was featuring prominently in the lives of Ms Nisha and their children. The Tribunal cannot overlook the fact that Mr Shekh was reporting himself to be living at 22 Sharon Place Rooty Hill to a variety of agencies including the Australian Taxation Office, his employer, his bank and home loan companies and that he was married. Further, Ms Nisha herself was indicating that her partner was Mr Shekh and that he was living at Rooty Hill with her and the family. While the issue of the marriage-like relationship has been conceded in the legislative sense, the Tribunal has felt it necessary to go over this ground because of the issue of credibility which is raised in the deliberations concerning whether or not the discretion contained in section 1237AAD can be exercised. The Tribunal does not think that it is satisfactory for Ms Nisha to state that Mr Shekh used the Rooty Hill address merely to prevent mail being lost, he could have equally prevented mail being lost by providing Mr Naidu's address as his residential address. The fact that he did not do this suggests to the Tribunal that in fact Mr Shekh was more likely to be resident at Rooty Hill than he was to be at Parramatta. Further, the Tribunal does not think that Ms Nisha's explanation for providing details of Mr Shekh as continuing to be her partner and living at Rooty Hill, because she wanted to prevent discrimination, is satisfactory. The Tribunal believes that there is more to it than that and in fact, Ms Nisha and Mr Shekh really had not separated at all, apart from a brief period which was done in terms of satisfying the requirements of Ms Nisha's parents' religious convictions. It appears to the Tribunal on all the available evidence, that once Ms Nisha's parents had left Rooty Hill, the physical contact between Ms Nisha and Mr Shekh was re-established. Further, the Tribunal finds that in an emotional sense, there was never a separation between Mr Shekh and Ms Nisha.
78. The Tribunal also considers the issue of credit as being raised by the statements made by Ms Nisha in terms of why she and Mr Shekh separated. While the Tribunal accepts Ms Koller's submissions that the reasons behind the separation are not material in the sense that they did not cause the overpayment, the Tribunal still considers that the willingness of Ms Nisha to use convenient explanations for the separation which were not in fact true must be borne in mind when considering her overall credit.
79. The Tribunal is of the view that Ms Nisha knew that she was not separated from Mr Shekh. While the Tribunal acknowledges Ms Koller's submission that those practitioners dealing with such matters may have an appreciation of the legislation and the case law as it relates to marriage-like relationships and whether or not there is a separation, for Ms Nisha who was not involved in such matters it is a much more difficult process. Having acknowledged this point however, the Tribunal is not satisfied that Ms Nisha in the ordinary course of conducting her life, would not have known that such things as having the same address, conducting a sexual relationship, holding out to the world to be in a relationship with Mr Shekh, holding joint bank accounts and jointly owning a property at Rooty Hill, are in the ordinary course of daily life and in combination presenting a picture of a marriage-like relationship. Having so found, the Tribunal does not accept that Ms Nisha did not know that she was involved in a relationship and the corollary of this is that she in fact was not separated. As the Tribunal has previously found, if there was a separation it was only for a very short period because very quickly after Ms Nisha's parents left the Rooty Hill property, Mr Shekh and Ms Nisha continued to see each other, to talk with each other on the phone, Mr Shekh visited and there was a continuation of a sexual relationship. The Tribunal cannot accept that all these factors in combination indicate a separation and finds that they indicate the continuance of a relationship. Even if Ms Nisha and Mr Shekh were apart because of religious difficulties or because of being physically separated for some other reasons, all the hallmarks of a continuing and enduring relationship are evident in this case.
80. Ms Nisha was paid Sole Parent Pension and it has been conceded that she was paid a pension to which she was not entitled. A debt can be raised in such circumstances under section 1223 of the Act because Ms Nisha received payment which was not payable. Further, a debt can also be raised, in the Tribunal's view, under the provisions of section 1224 of the Act in that Ms Nisha had failed to comply with notices provided to her in various departmental correspondence requiring her to provide information to the Department within 14 days of any changes of circumstances including a change of relationship, marrying or re-establishment of the relationship. Ms Nisha also made false statements on the Sole Parent Pension review forms at T16 and T19 that she was separated when in fact, the Tribunal has found that she was not. Ms Nisha received at least one letter from the Department on 17 November 1994 (T14) which advised her of her obligations under section 284 and 285 of the Act.
81. Hence the Tribunal finds that a debt exists of $30,153.80, arising out of an overpayment of Sole Parent Pension for the period 17 November 1994 until 5 March 1998 including a Parenting Payment (Single). While there is no dispute over the existence of the debt, there is considerable debate as to whether or not the debt is recoverable.
82. Turning to Part 5.4 of the Act, the Tribunal finds that there is no possibility for write off of the debt under section 1236 of the Act in that the legislative provisions are not met. Ms Nisha's whereabouts are known, the debt is recoverable at law and further, there is nothing to be gained by postponing the recovery of debt.
83. The Tribunal also finds that there is no sole administrative error on the part of the Department and accordingly section 1237A is not available to Ms Nisha.
84. The Tribunal finally turns to consideration of whether the legislative provisions of section 1237AAD can be triggered in order for the discretion within this section to allow a waiver of a part or a whole of the debt in special circumstances. In coming to a determination on this particular issue, the Tribunal finds it convenient to consider the debt period under review in two parts. The first period the Tribunal considers is from 17 November 1994 to 16 September 1996, the date upon which Shaqeel Shekh was born. The second period for the Tribunal to consider occurs between 17 September 1996 and 5 March 1998.
85. During this first period, the Tribunal has found that Mr Shekh and Ms Nisha if separated, were only so for a very short period and that indeed from late in 1994 and continuing, the frequency of contact between Mr Shekh and Ms Nisha and the type of relationship conducted, was not one of a separated couple. The Tribunal also considers that based on the objective evidence available to it that this relationship was enduring. It is important before the Tribunal considers whether or not there is any possibility for special circumstances consideration in this first period, to determine whether or not Ms Nisha knowingly made a false statement or knowingly failed or omitted to comply with the Act during that period. It is the Tribunal's view that Ms Nisha did know that she was separated and having so found, the Tribunal considers that Ms Nisha knowingly failed to notify the Department of this continuing relationship. Further, the Tribunal finds that Ms Nisha was aware of her obligations to inform the Department of any changes in her relationship as indicated by her statement on 11 November 1994 that if there was a change to her separated status she would notify the Tribunal within 14 days (T11). Ms Nisha did not inform the Department of any change in her relationship nor did she seek any clarification if she was confused about her circumstances as they related to her social security payments. That there were religious difficulties with their relationship and her parents' acceptance of the relationship is acknowledged, but this does not detract from the Tribunal's finding that the relationship was still in existence and there was no separation. While the Tribunal considers that Ms Nisha knew that she was not separated, the Tribunal is not making a finding that she deliberately tried to mislead or defraud the Department.
86. Having found that Ms Nisha knowingly made a false statement and also omitted to comply with at least one notice provided to her on 17 November 1994 to inform the Department of any changes in her circumstances, the provisions of section 1237AAD are not available for the Tribunal to consider any special circumstances. Thus there is a debt due to the Commonwealth from 17 November 1994 to 16 September 1996 and this debt should be recovered.
87. The Tribunal next turned to the period 17 September 1996 through to 5 March 1998. During this period, Ms Nisha had at least two opportunities that the Tribunal is aware of in which she could have provided the Department with advice as to the status of her relationship. It is evident from the objective evidence provided to the Tribunal that Mr Shekh and Ms Nisha were seeing each other frequently and that Mr Shekh was staying over at the Rooty Hill home on a number of occasions. He was continuing to help financially and was now regularly undertaking shopping and other household activities. In her Sole Parent review forms and during a field officer visit, Ms Nisha failed to disclose that Mr Shekh was regularly visiting and staying with her and the children. Further, Ms Nisha had failed or omitted to comply with the requirement that she provide the Department with information as to changes in her circumstances. The Tribunal finds however, that there is considerable objective medical and other evidence which indicates that following the birth of Shaqeel, Ms Nisha herself was propelled into depression, the symptoms of which were denial, irritability, sadness and withdrawal. This is understandable particularly given the precarious nature of Shaqeel's health, the very real possibility on a number of occasions that he might have died and that with his advancing age, more health problems were discovered requiring constant attention and vigilance by Ms Nisha. The Tribunal accepts that although Ms Nisha had the opportunity during this period to properly advise the Department of her circumstances, her failure to do so should be seen within the context of her health and that of her son at the time. The Tribunal finds that Ms Nisha's capacity to properly consider her situation and deal with her responsibilities was severely impaired and reduced. Accordingly, the Tribunal finds that from 17 September 1996, although Ms Nisha failed to meet her obligations under the Act, this was not done so knowingly, given her impaired capacity to understand and meet her obligations under the Act. The Tribunal in reaching this finding, considered whether or not such a finding was illogical in that from the beginning of the period under review it had found that Ms Nisha did knowingly make false statements and failed to comply with her obligations under the Act. However, the Tribunal having carefully considered all the issues and particularly the change of Ms Nisha's circumstances occurring beyond her control following the birth of her second son, finds that it is possible in the continuum of the period under review to determine that in one period there is a knowing failure to act or not notify while in another period, because of changed circumstances arising out of hardship, a person's capacity and ability to comprehend obligations and responsibilities is reduced.
88. The Tribunal finds therefore that subsection 1237AAD(a) of the Act is satisfied for the period 17 September 1996 to 5 March 1998. Having so found, the Tribunal turned to consider whether or not there were special circumstances operating in Ms Nisha's life during this second period. In reaching a determination on this issue, it is the Tribunal's view that it is not only the circumstances surrounding Ms Nisha's life which must be considered but also those of her youngest son, Shaqeel. In combination, Shaqeel's health was and is precarious and required constant care, monitoring, review and treatment. This was provided not only by Ms Nisha but a variety of other health professionals including paediatricians, audiologists, cardiac specialists, physiotherapists, occupational therapists, speech therapists and psychologists. Ms Nisha's own health was impaired in that as Dr Chow has reported, she had suffered for years from depression but was in denial about this condition. Such circumstances in combination, the Tribunal considers to be special.
89. The Tribunal further considered Ms Nisha's financial circumstances. It is clear that Ms Nisha is not financially disadvantaged or in hardship. She does however owe a considerable debt and she is faced with the uncertainty of planning financially for Shaqeel's future, particularly when she is faced frequently with the need for ongoing specialist review, treatment and therapy. Ms Nisha's evidence is, and the Tribunal accepts it, that there is no one clear diagnosis for Shaqeel's conditions and certainly his prognosis is unclear although some indications are that there has been an improvement. Still, Ms Nisha is genuinely concerned for Shaqeel's financial future and also her ability financially to meet his needs. The Tribunal considers that the stress of the debt must be taken into consideration particularly when it is acknowledged that Ms Nisha is suffering from a depressive condition for which she requires medication.
90. The Tribunal finds that in combination the factors relating to Shaqeel's and Ms Nisha's health, in addition to her anxiety about having to repay a substantial debt in circumstances where Ms Nisha is clinically depressed and also uncertain about her youngest son's financial needs, are special in the legislative sense and that to disregard these factors would be unfair and cause Ms Nisha considerable hardship.
91. Accordingly, in all the circumstances and having found that it is inappropriate to write off the debt, the Tribunal finds that the provisions of section 1237AAD are met in relation to the period 17 September 1996 to 5 March 1998 and in such circumstances the Tribunal considers it appropriate to waive the debt arising out of the overpayment of Sole Parent Pension for that period. The recovery of the debt arising out of the period 17 November 1994 to 16 September 1996 should occur through withdrawings from Ms Nisha's existing departmental benefits and must be commensurate with Ms Nisha's ability to pay. Ms Nisha's capacity to repay the debt should be reviewed from time to time.
In all the circumstances and for the reasons set out above, the Tribunal sets aside the decision under review pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 and substitutes its decision that the debt owed by Ms Nisha to the Commonwealth for the period 17 September 1996 to 5 March 1998 be waived.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock
Signed: .....................................................................................
Representative for the Applicant Ms S Koller, solicitor, Welfare Rights Centre Sydney
Representative for the Respondent Mr B Slattery, departmental advocate
Lynham
Director-Gene
(1983) 52 ALR 128
(1993) 42 FCR 443
(1998) 82 FCR 154
(1999) 90 FCR 531