The decision of the Social Security Appeals Tribunal in so far as it found the respondents were in a marriage-like relationship is affirmed. The decision in so far as it found that the respondents were not in debt to the Commonwealth is set aside and in substitution IT IS DECIDED the respondents did receive a benefit to which they were not entitled and they have incurred a debt to the Commonwealth.

SOCIAL SECURITY - respondents were married - they separated, divorced and resumed cohabitation - currently aged 75 and 65 respectively - subsequent to resuming cohabitation they have lived in jointly owned properties, have borrowed jointly, renovated properties and shared responsibilities jointly for loan repayments - they also shared different parts of their homes, ate at different times, did not socialise and did not share a bedroom - they were each known locally as divorced - whether their relationship is marriage-like - whether overpaid and whether debt should be waived or written off - decision under review affirmed in part and set aside in part

Social Security Act 1991 (Cth) s 4 (2) (b) and s 4 (3)

Social Security (Administration) Act 1999 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 35

Re Secretary, Department of Family and Community Services v W A P [2000] AATA 7

Staunton-Smith v Department of Social Security [1991] FCA 513; (1991) 32 FCR 164

Re Holmes and Secretary, Department of Social Security (AAT 4046, 23 December 1987)

Re Rendell and Secretary, Department of Family and Community Services [2004] AATA 711

Re King and Secretary, Department of Social Security (1988) 14 ALD 556

Re SRL and Secretary, Department of Social Security [1998] AATA 326; (1998) 51 ALD 796

McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609

Musgrave and Ors v Martin [2003] FCA 920

Secretary, Department of Social Security v Salvona (1989) 18 ALD 289

Both respondents are mature aged persons who live in a small country town in Western Victoria. By reason of the nature of these applications and the allegations that have been levelled at them by the applicant, orders were made pursuant to s 35 of the Administrative Appeals Tribunal Act 1975. For the purpose of these proceedings the male person concerned will be identified as G and the female person concerned will be identified as S.

2.

The applications have been brought by the Secretary of the applicant Department seeking a review of a decision made by the Social Security Appeals Tribunal ("SSAT"). The SSAT decided that G and S were members of a couple but also decided they did not incur debts to the Commonwealth (T2, page 20). G and S did not seek a review of the decision made by the SSAT.

The hearing of the review extended over 8 sitting days, the first three days of which were convened in Horsham where G and S gave their evidence. The remainder of the hearing was convened in Melbourne where a number of persons were called to give evidence.

By way of introduction G is presently 75 years of age having been born on 28 September 1930. S is 65 years of age having been born on 30 July 1940. They both lodged extensive affidavits prior to the commencement of the hearing which they both adopted and which were received into evidence.

G and S were married on 18 May 1985. G had not previously been married. S had been married on two prior occasions and had a child from her first marriage.

At the time of marriage G was employed as a labourer with the Gas and Fuel Corporation of Victoria ("Gas and Fuel Corporation"). S was self employed making curtains and blinds. G and S both lived independently of each other in the Western suburbs of Melbourne. Prior to marriage G owned a home in Hepburn Springs, registered in his name alone. After marriage G and S lived in rented accommodation annexed to a home occupied by the daughter of S and her husband in Camberwell. In 1986 G and S moved to the home in Hepburn Springs where they lived on a full time basis. G continued to be employed by the Gas and Fuel Corporation and commuted from Hepburn Springs to Essendon, daily for work. The proprietorship of the property at Hepburn Springs was changed and G and S became registered as joint tenants. S commenced self employment in Hepburn Springs making curtains and blinds which she sold locally.

On 1 July 1990, G retired from employment. He had suffered a cerebrovascular accident shortly prior to retirement and has subsequently suffered from poor memory and confusion.

On 14 December 1993, G and S moved into a home in Maryborough in Central Victoria which they had purchased as tenants in common with the daughter of S, Helena Malmsio (Helena). G and S and Helena owned the property in equal shares. G and S had decided to place the Hepburn Springs property on the open market.

On 16 December 1993, G moved out of the Maryborough home and returned to Hepburn Springs by reason of an argument he had had with Helena. S decided to remain at the Maryborough home.

Thereafter S lived at Maryborough for approximately 19 months and G lived at Hepburn Springs. In the interim, S initiated Family Court proceedings to divorce G and also commenced property proceedings. A decree nisi of divorce was issued on 21 July 1995 which became absolute on 22 August 1995.

On 16 October 1995, S moved out of the Maryborough home and returned to Hepburn Springs. She moved back to the home then occupied by G but which remained in the joint tenancy of G and S. G agreed to allow S to return to the home. In November 1995 the property application which had been initiated by S was withdrawn from the Family Court. Orders were not made concerning the distribution or settlement of property.

G and S continued to live in the home at Hepburn Springs until July 1999 when that property was sold. G and S then purchased a home in a small town in Western Victoria where they continue to reside. That home was purchased as a joint tenancy.

An authorised review officer of Centrelink ("ARO") decided on 14 October 2003 "that at least since 30 July 1999" G and S were members of a couple. It was then decided that they were not eligible for pensions which had been paid at the single rate after 30 July 1999. A debt of $7197.56 was raised against G. In the case of S, it was decided that she was not entitled to widows' allowance after 30 July 1999 until 23 August 2002 and an overpayment was raised against her in the sum of $29,867.92. Additionally it was decided that S was not entitled to age pension at the single rate after 24 August 2002 and a further debt was raised against her in the sum of $1677.14.

At the hearing Counsel for the applicant submitted that despite the above findings she would urge that a finding should be made that from October 1995, when S returned to the former matrimonial home at Hepburn Springs, she and G should be regarded as being members of a couple.

Relevantly s 4 (2) (b) of the Social Security Act 1991 ("the Act") provides that a person is a "member of a couple" for the purposes of the Act if the following conditions are met:

(i) the person has a relationship with a person of the opposite sex (in this paragraph called the partner);

(ii) the person is not legally married to the partner;

(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a marriage-like relationship;

(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;

(v) the person and the partner are not within a prohibited relationship for the purposes of section 23B of the Marriage Act 1961.

Note: a prohibited relationship for the purposes of section 23B of the Marriage Act 1961 is a relationship between a person and:

* an ancestor of the person; or

* a descendant of the person; or

* a brother or sister of the person (whether of the whole blood or the part-blood).

Section 4 (3) of the Act (reproduced below) records criteria to assist in forming an opinion about the relationship, that is whether it is a marriage-like relationship.

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets and any joint liabilities; and

(ii) any significant pooling of financial resources especially in relation to major financial commitments; and

(iii) any legal obligations owed by one person in respect of the other person; and

(iv) the basis of any sharing of day-to-day household expenses;

(i) any joint responsibility for providing care or support of children; and

(ii) the living arrangements of the people; and

(iii) the basis on which responsibility for housework is distributed;

(c) the social aspects of the relationship, including:

(i) whether the people hold themselves out as married to each other; and

(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii) the basis on which the people make plans for, or engage in, joint social activities;

(d) any sexual relationship between the people;

(e) the nature of the people's commitment to each other, including:

(i) the length of the relationship; and

(ii) the nature of any companionship and emotional support that the people provide to each other; and

(iii) whether the people consider that the relationship is likely to continue indefinitely; and

(iv) whether the people see their relationship as a marriage-like relationship.

A summary of the evidence will be recorded below by reference to the s 4 (3) criteria. Additionally, the submissions made by Counsel for the parties with respect to the criteria will also be recorded. Both Counsel lodged comprehensive and well researched written submissions at the conclusion of the hearing.

Counsel for the applicant submitted that regard must be had only to the relationship of G and S and not with regard to the circumstances of relationships of other persons. It was submitted that it would be in error to have regard to contemporary or current standards because such regard would be inappropriate (refer Staunton-Smith v Department of Social Security [1991] FCA 513; (1991) 32 FCR 164).

Counsel for the respondents submitted that by reference to s 4 (2) of the Act, regard must be had to the totality of the circumstances of the relationship, that a valued judgment is to be given weight with respect to each of the s 4 (3) criteria and the criteria must be considered as a whole (refer Re Secretary, Department of Family and Community Services v W A P [2000] AATA 7) ("Re W A P").

SECTION 4 (3) CRITERIA

Prior to the marriage between G and S they both lived in rented accommodation. G owned real estate at Hepburn Springs and shortly after marriage agreed to register a joint tenancy over the property between himself and S. Thereafter, G and S borrowed monies and the property was renovated. They continued to live in it until December 1993 when they moved to Maryborough.

G said that he was reluctant to leave Hepburn Springs but at the agitation at S, he eventually agreed to purchase in Maryborough and moved into the house. The jointly owned furniture and household contents at Hepburn Springs were moved to Maryborough. G returned 48 hours later but S remained at Maryborough. Approximately 19 months later S returned to Hepburn Springs and thereafter she and G have continued to live together. Despite having become divorced and having instituted property proceedings, G and S eventually decided to leave Hepburn Springs and purchased a home in Western Victoria in July 1999. G said that it was his preference to move closer to Melbourne to be closer to other family members. S said that she preferred to move to Western Victoria because of a warmer climate and because she would be closer to some of her friends. They both intended to separately purchase properties but eventually realised that the net proceeds of sale from Hepburn Springs would not permit this. They purchased a property in the small town in Western Victoria which comprised separate bedrooms and lounge rooms, but they share a kitchen, laundry, bathroom and toilet. G and S again borrowed monies and have extensively renovated the property in Western Victoria. That property was purchased as a joint tenancy.

Prior to moving to Western Victoria, S said that she spoke with her friend, Gena Robinson who lived in that town. In a proof of evidence lodged prior to the commencement of the proceedings Ms Robinson recorded at paragraph 31:

They asked me to look for properties in ........... to find them a house, which I agreed to do. I looked at some houses but didn't know how much money would be available. They told me in no uncertain terms they wanted a home that was roomy and not under each other's feet. They wanted private separate space.

Prior to marriage G had a bank account with the Commonwealth Bank. He also had an account with the Gas and Fuel Credit Union. After marriage the Commonwealth Bank account was converted into a joint account from which monies were drawn to meet household costs and expenses. A number of loans were subsequently taken out jointly with the ANZ Bank and with the Gas and Fuel Credit Co-operative for renovations over the Hepburn Springs property and to finance the purchase at Maryborough. Joint accounts were not cancelled after the commencement of separation and G continued to use the Commonwealth Bank account when he lived alone at Hepburn Springs. S subsequently opened accounts of her own. When S resumed living at Hepburn Springs another loan was taken out jointly with the ANZ Bank to undertake further renovations at Hepburn Springs. Both said that the renovations were undertaken at this time because the property was then on the market and it was believed that further renovations and extensions would attract potential buyers. S continued to use G's surname which she adopted upon marriage and evidence from the ANZ Bank indicated that it was assumed, by reference to S having G's surname, that she and G were married.

When living in Western Victoria, G and S decided to sell a motor car owned by G and to give away a motor car owned by S to a family member. They both purchased a motor car by a joint loan with GMAC Finance where G and S are recorded as being spouses. G and S denied that they made representations when making the loan application that they were each other's spouse. S drives that motor vehicle and G meets the costs of running it. The car is registered in G's name.

S said in evidence that the loan funds to renovate the property in Western Victoria were obtained from GMAC Finance. She agreed that the loan was joint because the finance company would not advance monies to G alone by reason of his age. She said that bank accounts held prior to separation continued to be used after they resumed cohabitation because it was "sensible". S also agreed that she performed most of G's banking, including withdrawal of monies and making payments over his Visa account because G "cannot read or write".

S denied in evidence that it was an option for her to rent a property in Western Victoria. She said, had she and G separated after moving from Hepburn Springs, that her pension alone would not have allowed rental costs and she denied having any knowledge of rent assistance.

Mr Curwen-Walker is a solicitor in Daylesford who acted for G and S when the Hepburn Springs property was initially put on the market and when they purchased the property at Maryborough. He recommended that G and S purchase the Maryborough property with Helena as tenants in common because S had expressed an interest in devising her share of the property to her daughter upon her death. A Will was drawn up by him for S in December 1993 where he was appointed as Executor and all of her property was left on trust for G and Helena. Mr Curwen Walker could not recall if that Will was ever signed. In 1994, after he had became aware of the separation, he prepared another Will upon the instructions of S where all of her property was left to Helena alone.

In January 1994 at the request of S, Mr Curwen-Walker wrote a letter to Centrelink confirming that he had been instructed that G and S had separated. He said he also obtained instructions from S concerning property proceedings in the Family Court. He was also being instructed at that time by Helena. He had previously prepared a s 32 statement with respect to the Hepburn Springs property upon the joint instructions of G and S, but in relation to the Family Court proceedings he accepted instructions to act on behalf of S alone. He said that S was initially seeking a 50 per cent division of the net proceeds of the sale of Hepburn Springs and this was recorded in her property application. He said that he conducted negotiations on behalf of S with Slater and Gordon, solicitors who were then acting for G. He said the negotiations broke down. Eventually the divorce was obtained and in October 1995 the property application was set down for hearing. He said that there was a note on his file that S had telephoned his office requesting that the application be adjourned. He was asked to explain the note, dated 19 October 1995, completed by a former staff member Tammy, which suggests that G and S were then attempting reconciliation. Mr Curwen-Walker said that he did not then understand that G and S were attempting reconciliation. He requested an adjournment from the Family Court by reason of the parties "attempting reconciliation", in a letter dated 19 October 1995. He said he would have preferred to have used the word "resolved" being a term referrable to a resolution of property matters.

During the course of their marriage and subsequent to a resumption of the relationship, G and S acquired a number of items of personal property and household goods. Most of that property is in nature of electrical goods being refrigerator, washing machine and microwave oven. All of the items of household property were transferred from Hepburn Springs to Maryborough. G returned to Hepburn Springs with his bed and borrowed some items of furniture from friends and neighbours. When S eventually returned to Hepburn Springs, some items of furniture were returned despite her evidence that Helena had attempted to dispose of items of property with a second-hand furniture dealer. Later when G and S moved to Western Victoria some of the loan funds borrowed were used to purchase a washing machine, microwave oven and refrigerator. S said in evidence that it was sensible to buy one each of those items which they shared.

Whilst both parties did not precisely identify each and every item of personal property acquired and used, before and after separation and again after resumption of cohabitation, it is noted that in an application completed by S for a Visa card in July 1995 (before resuming cohabitation in Hepburn Springs), she recorded items of property owned by her as being valued at $6000. In an application for an ANZ Bank loan in February 1996 (after resuming cohabitation) G and S recorded personal property then owned by them having a value of $20,000.

G said in evidence that he could recall having discussions with S concerning the joint acquisition of furniture and personal property including electrical appliances. He could also recall monies being borrowed to meet the costs of such purchases and could also recall having discussions with S concerning joint repayments. He had signed withdrawal forms for many years to permit S access to his bank account to obtain funds to meet costs of day to day living expenses and loan repayments. G also recalled applying for, and obtaining, a credit card of his own because "S was short of money". S has for many years, and currently, performs all domestic shopping and purchasing of food. They both prefer to eat different foods and S is aware of the foods to purchase for G. S withdraws money from G's account weekly which G described as an "allowance". When G needs to purchase clothing for himself, S attends a clothing shop with him.

S said in evidence that all charges over the property at both Hepburn Springs and at Western Victoria are in joint names. Such charges extend to gas, water, electricity, rates and insurances. She said that she and G pay half of each account as it falls due and she withdraws monies from G's bank account. She said that she had made enquiries about providing separate gas, water and electricity meters at the property in Western Victoria but found that it was both impractical and expensive.

Counsel for the applicant submitted that the property at Hepburn Springs and the property subsequently required in Western Victoria are both owned as joint tenants. Additionally it was submitted that the Western Victoria property was jointly purchased four years after divorce and a deliberate choice was made, upon legal advice, to have the property registered as a joint tenancy. It was submitted that the circumstances of the respondents were not those of persons who chose to live together in a former matrimonial home by economic necessity only in order to extinguish pre-existing joint debts. In the present case it was submitted that the respondents chose to live together after divorce in the home at Hepburn Springs, they again borrowed monies jointly for the purposes of renovation which they enjoyed and then chose later, jointly, to acquire property elsewhere in which they continue to reside. It was submitted that the net proceeds of the sale at Hepburn Springs, together with the monies subsequently borrowed for renovation of the current property, do not permit a finding that the respondents were incapable of living separately and apart and acquiring properties elsewhere of their own.

It was submitted on balance that the respondents, by the application of joint funds (from Hepburn Springs) and joint borrowings, accepted joint responsibility for the acquisition of joint assets. It was also submitted that the respondents borrowed monies jointly for the purposes of acquiring items of personal property which they both enjoy and use.

In concluding this part, Counsel for the applicant submitted that the respondents pool their respective incomes from pension to meet jointly incurred debts and day to day expenses. Indeed it was submitted that it would appear that G incurs greater costs than S as evident by the costs associated with running the motor car. S manages all of the household expenses including withdrawing monies from the bank account of G (with his consent).

Counsel for the respondents submitted that financial aspects of a relationship cannot be taken in isolation and it should not be regarded as anymore than an element of the relationship. It was submitted that the respondents have an intermingling of their finances subsequent to divorce by economic necessity, their respective ages, their stage in life and by them having been previously married, as opposed to them subsequently being in a marriage-like relationship.

Counsel for the respondents submitted that his clients, subsequent to divorce, used personal property which was previously owned and subsequent to divorce have acquired items of personal property separately. It followed on his submissions that in a marriage-like relationship it would be expected that items of personal property would be purchased jointly.

It was submitted that S did have a responsibility for management of household finances but only by reason of G's illiteracy and discomfort when dealing with other persons.

On balance it was submitted that by reference to the Tribunal decision of Re Holmes and Secretary, Department of Social Security (AAT 4046, 23 December 1987), a finding should be made that the respondents have chosen to remain living together under the same roof because division of property would be economically disastrous. Additionally, by reference to the Tribunal decision of Re Rendell and Secretary, Department of Family and Community Services [2004] AATA 711, the relationship in the present application should be regarded as one of financial necessity, it should also be regarded as the corner stone of the relationship and the sharing of the resources enables the respondents to survive.

There are no children of the relationship between G and S.

Before, and immediately after marriage, G and S both worked. G continued to be employed by the Gas and Fuel Corporation and S continued her business of making curtains and blinds in Hepburn Springs. Prior to moving to Hepburn Springs they both enjoyed ballroom dancing on Saturday nights and after they moved to Hepburn Springs they continued to attend ballroom dancing functions in Ballarat. G suffered a cerebrovascular accident shortly prior to his retirement in 1990 and thereafter that activity was curtailed. G said however that he and S continued to have a happy social life attending and participating in a number of family functions. S also agreed that she and G enjoyed a happy social life and had a wide circle of friends. However she said that on 1 July 1990, when she had her fiftieth birthday, G did not buy her a present. She said that he had become a selfish person and then bought himself a motor car. She said that G previously had been a warm and caring person but at about that time he had commenced to withdraw and had slowed. Their sexual relationship then ended. G agreed that the sexual relationship concluded at about that time and said shortly after 1990, he and S occupied separate bedrooms because S preferred to sleep on a water bed which he said was excessively heated and which he found uncomfortable. They both continued to perform work around the home with S mainly being involved with maintenance and cleaning inside the house, whereas, G mainly performed work outside the house.

Whilst that pattern continued after resumption of cohabitation when S returned to Hepburn Springs, both G and S agreed that subsequent to moving to Western Victoria they largely occupy separate parts of the home. G watches sport on television for a greater part of each day, he and S eat separately and at differing times and he takes long walks each day. S spends a lot of her time on a computer in the home and is engaged in activities around the town where they live, including volunteer work at a local school and a church and assisting with meals on wheels. They both have their own bedrooms and lounge rooms in the current home but do share a bathroom, kitchen, laundry and toilet.

Ms Robinson said that S has extensive interests in knitting, sewing, craft and stamp collecting. She said that S is not interested in sport. She sees G and S on a regular basis but individually. They also visit her individually. She previously knew G and S when they lived in Hepburn Springs and when she lived in Melbourne. She recalled that G and S used to visit her together. She acknowledged that G and S both have separate living areas in the current home and they no longer socialised together. She said it was commonly understood in the town where they live that both G and S are divorced but do live together.

Both Counsel provided similar submissions with respect to the nature of the current household. It was acknowledged that the property in Western Victoria has separate living areas which G and S separately occupy. It was also acknowledged that they have separate bedrooms. It was also acknowledged that they are each responsible for cleaning their respective parts of the house.

Counsel for the applicant submitted that whilst G and S have occupied separate bedrooms since 1990, they still regarded themselves as being married persons and indeed they were then married. Additionally, it was submitted that G had given evidence that prior to his retirement he had been working six days per week and frequently made his own evening meal because S was not at home, so that their current lifestyle is not significantly different to before their separation.

Counsel for the respondents pointed to the evidence of Gena Robinson, John Blake and Pastor Welke, who all observed and, or, were aware, of the respondents living separately in their current home.

Both G and S agreed that they do not now socialise. G said that he would describe his relationship with S as "like brother and sister". He said that he and S had previously had a "blow up" but he described the relationship now as being "settled". He agreed that he allowed S to return to the property at Hepburn Springs against the advice of his solicitor because he felt sorry for S. He also acknowledged that she was a joint owner of the property and she then had nowhere else to live.

Both G and S said that they do not regard themselves as being married or like married.

Betty Scandolera is the sister of G. In evidence she said that S was the dominant person within the relationship and that G had moved to Western Victoria at the insistence of S. She said that S was involved with family matters prior to divorce but she is not now invited to family functions. Tom Scandolera is the brother-in-law of G who said that he had been concerned that S had taken advantage of G. He said that S was the dominant person within the relationship.

Pastor Welke is the Lutheran Minister in the town where G and S live. He said that S does attend the church but he could not ever recall G attending church with her.

John Blake is a Chaplain and counsellor with the Salvation Army in the town where G and S live. He has counselled both G and S jointly and individually. He understood that S regularly attended the Lutheran church but she had recently ceased. He said that he had attended the home of G and S on two or three occasions to satisfy himself about their living arrangements. He observed G asleep in his own bedroom and learnt that both G and S had separate bedrooms and separate lounge rooms. He said the only rooms shared were the kitchen and bathroom.

Gena Robinson said that on the occasions when she has visited G and S, G is often watching television in his own lounge room and S either watches television or uses her computer in her own living area.

Both G and S said that they had separately, and individually, represented to Centrelink that they had separated and subsequently that they had divorced. They also said that a field officer had visited the home in Hepburn Springs in February 1996 and had formed the view that they were living separately under the same roof.

Counsel for the applicant submitted that objectively the respondents have held themselves out as being married to each other subsequent to their divorce. It was noted that S had reverted to the use of G's surname after she returned to Hepburn Springs despite having used her daughter's surname during the period where she lived in Maryborough. Additionally it was noted that the respondents had applied for finance from the ANZ Bank in 1996 and 1997 as spouses. It was also noted that G and S did hold a joint Medicare card.

It was noted that the evidence of Gena Robinson suggested that G and S had always had differing interests but she did not regard them as a married couple now because they did not have companionship. Pastor Welke had given evidence that they did not attend church as a couple (although it was also his evidence that G had never attended church) and Betty Scandolera thought that G and S did not live together as a married couple at Hepburn Springs because they did not love one another.

It was submitted that G and S had ceased to engage in social activity prior to separation. Whilst it was acknowledged that they previously attended dancing on Saturdays in Melbourne and Ballarat that activity had ceased after G had his cerebrovascular accident which occurred prior to his retirement in 1990. Whilst S had given evidence of she and G also attending a gymnasium and swimming, it was submitted that G had ceased attending a gymnasium prior to retirement and had not given any evidence about swimming.

As to socialising with other persons, it was submitted that the evidence of Gena Robinson pointed to G not having any interests outside watching sport on television and being a person reluctant to socialise with others. Additionally, G had visited his relatives in Melbourne prior to moving to Western Victoria but that had not occurred subsequent to moving away from Hepburn Springs. Further, S was not made welcome by G's family and was not invited to family functions. Both G and S have no contact at all with Helena, S's daughter. Further, both G and S have not had a holiday together for 20 years.

Counsel for the respondent submitted that prior to separation G and S did sociality interact with friends and family. Subsequent to divorce, upon the evidence of Gena Robertson, it was submitted that they did not socially interact as they did previously. Gena Robertson had given evidence that she knew both G and S prior to moving to Western Victoria and had noted that it was difficult to have a conversation with both of them together and she frequently saw them separately. It was submitted that the evidence of Pastor Welke suggested that G and S were not regarded as a couple and Gena Robertson had given evidence that it was well known in the local community that G and S were divorced and that they shared a home. Counsel pointed to the evidence of Betty Scandolera who spoke of an absence of love between G and S after divorce, whereas G was a help to S because he "helps anyone".

Both G and S said that they have not had a sexual relationship since 1990 or 1991.

Counsel for the applicant submitted that upon the evidence, the sexual relationship between G and S ended three and a half years prior to commencement of separation when they also ceased to share a bedroom. Nonetheless it was submitted that the evidence of G and S pointed to them being a happily married couple before Helena "interfered".

Counsel for the respondents submitted that G and S previously did have a sexual relationship but it had ended prior to the breakdown in their marriage. Nonetheless it was submitted that G and S had previously enjoyed a sexual relationship but it had been "wholly non-existent" subsequent to divorce.

The nature of the commitment by G and S to each other

Except for the period between December 1993 and October 1995, G and S have lived together since they were married in May 1985. Until August 1995 they were married to each other. G said that he did not want to be divorced from S but did want to be separated. He has described the relationship since divorce as being like a brother and sister or as friends. He denied that they live in a married-like relationship. He said that prior to 1993, he and S did many things together but subsequent to resuming their relationship at Hepburn Springs in 1995, he said that "S goes her own way and I do my own thing". He said he denied that he reconciled with S after divorce.

S said that after she returned to Hepburn Springs in 1995 that she and G were no longer a couple. She said that they were two individual persons sharing a house. She agreed that they shared finances but otherwise were separate people. She said that they are presently understood in the town where they live as being divorced but living separate lives. She said some people regard them as being friends of each other.

S changed her surname to that of the surname of G after marriage. For a period of time whilst living in Maryborough she identified herself by the same surname as her daughter (Marmsio). When she resumed living in Hepburn Springs she returned to using her former surname being the surname of G.

Counsel for the applicant submitted that G and S had lived together for a longer period of time after the resumption of the relationship following divorce than they did previously when they were married. It was noted that G and S had said in evidence that they would help each other if necessary and G alone had said that it was his belief that S would look after him in the event of illness. It was noted that G allowed S to return to the home at Hepburn Springs and had said in evidence that he and S were happier now than they had been. Counsel referred to the evidence of Gena Robertson and her observations of the nature of the relationship between G and S, and relied on the decision of Re W A P where it was decided that it would not be unusual for one person within a marriage to have a belief that they are not in receipt of an expected level of emotional support, and further, that the absence of an expected level of emotional support did not cause a finding that a relationship was not marriage-like. Despite this it was noted that G had agreed to sell the home at Hepburn Springs and move to Western Victoria where he had no friends or relatives, thereby demonstrating a high level of emotional support for S. It was noted that it was S that agitated the move to Western Victoria because she wanted to live near Gena Robertson and because she preferred the warmer climate.

It was also noted that G and S have expressed an intention to continue to live together, that they had made representations to the Family Court that they were attempting reconciliation and had made loan applications identifying each other as "spouse". Additionally, the funds jointly borrowed were used to meet debts incurred by S.

Counsel for the respondent submitted that G and S do not have any belief that they are in a marriage-like relationship. Counsel pointed to the evidence of S who said that she regarded the relationship as like a brother and a sister because they hold respect for each other but they do not have love for each other. G had said in evidence that he also regarded the relationship as like sister and brother because he and S "go their own ways" whereas when they were married G had said that he and S were "mostly together all the time".

It was submitted that G and S may not continue to live together indefinitely in the future by reason of comments made within their respective affidavits filed prior to the commencement of the hearing. Additionally it was noted that Wills taken out by each of them divide a life estate to each other but to different and separate beneficiaries. Counsel for the respondent submitted nothing turns on the adoption by S of G's surname subsequent to divorce, it being a practice adopted by many divorced women.

Concluding submissions - marriage-like relationship

Counsel for the applicant submitted that the only criteria under s 4 (3) that was not satisfied was a sexual relationship existing between G and S. However, it was submitted that relationship had ended many years prior to the separation in 1995. Indeed it was submitted that at 1995 the marriage had existed for 8.5 years but the sexual relationship had ceased after five years. It was submitted that the subjective views advanced by G and S were of lesser significance than the statutory criteria found under s 4 (3). Counsel submitted that a finding should be made that the relationship between G and S has at all relevant times been marriage-like. Additionally it was argued that there was no "special reason" under s 24 (2) to treat G and S as not being members of a couple, and that "special reason" should be interpreted as the equivalent of "special circumstances". In this application it was submitted that there were no circumstances which could be regarded as "special" thereby permitting the relationship to be regarded as not being marriage-like. It was submitted that G and S resumed a marriage-like relationship when S returned to Hepburn Springs in October 1995. At, or about that time, a number of letters were written by Mr Curwen-Walker, one of which was also signed by both G and S, indicating that their relationship had reconciled.

The remainder of the submissions on this part by Counsel for the applicant concern an attack upon the credit of S. Submissions were made describing inconsistencies between representations to the Department of Social Security and instructions then being given to her solicitor, allegations by S that her solicitor acted without instructions and observations of the conduct of S alleged to be inconsistent with that of a person who was separated. The submissions are commensurate with the vigour in which S was cross-examined at the hearing. The submissions offer me little assistance in deciding the nature of the relationship between S and G.

Counsel for G and S submitted that the case brought against them by the applicant was flawed because it sought to "establish falsehoods made by S and G to it from a weak foundation". Counsel referred to handwritten and computer notes within the T-documents and to inferences that the applicant submitted should be drawn from those and other documents. Additionally it was submitted that some of the Centrelink forms completed by S and G did not oblige them to disclose or state information that Centrelink now asserts should have been stated.

Counsel referred to a decision of Re King and Secretary, Department of Social Security (1988) 14 ALD 556 ("Re King") where in that application persons who were previously married resumed cohabitation. The Tribunal Member who heard that application decided that the relationship subsequent to resumption of cohabitation differed to the relationship that existed previously. Ultimately he concluded that the parties were not in a marriage-like relationship.

Additionally it was submitted that if it were found that S and G were in a marriage-like relationship, the discretion available under s 24 should be exercised so as to treat them not as being members of a couple. It was submitted that the discretion should be exercised in favour of G and S under this section because they did not honestly or subjectively believe that they were members of a couple subsequent to divorce and they did not receive benefits that they knew that they were not entitled to receive. Additionally it was submitted that Centrelink made administrative errors because they were aware from their files that G and S resided at the same address yet they continued to make payments to each of them at the single rate. Further it was argued that Centrelink failed to make relevant enquiries of the nature of the relationship. In concluding this submission it was also argued that the ill health of G and S, their respective ages and their inability to obtain employment would probably cause them to sell the property in Western Victoria to meet the repayment of any pension which had been overpaid.

CONCLUSION - WHETHER G AND S HAVE BEEN IN A MARRIAGE-LIKE RELATIONSHIP

Having regard to the provisions of s 4 (2) (b) and (3) of the Act, I am satisfied that G and S have, since October 1995 been in a marriage-like relationship.

Prior to separation in December 1993, G and S lived together in Hepburn Springs. They had previously enjoyed joint social activities but social interaction had reduced. They had also shared a sexual relationship but that ceased in about 1990. Nonetheless they both described their ongoing relationship as one of happiness. They both intended to move to Maryborough although it is clear from the evidence that G was reluctant. He moved back to Hepburn Springs after two days but S remained. She eventually returned to Hepburn Springs in October 1995 and they have lived together subsequently.

Between December 1993 and October 1995, Family Court proceedings were initiated by S. S also used the surname "Malmsio" which was her daughter's married name (refer file of Hal Curwen-Walker at page 101 and a photocopy of a brochure "Pacific International Retail Network Pty Ltd" found within the file of Hal Curwen-Walker depicting S by photograph and surname "Malmsio"). When S returned to Hepburn Springs, she resumed use of G's surname (being the surname that she used after marriage). In my view that is a significant feature of her intention to resume a relationship that was marriage-like. It also points to an intention on the part of S to cease her separation from G, being previously evident by ceasing to use his surname. That G permitted her to return to the former matrimonial home is also an indicator of his intention to permit the resumption of the relationship which was marriage-like.

The apparent unhappiness between G and S prior to October 1995 had dissipated because S apparently expressed no inhabitation in wanting to return to the matrimonial home and G, whilst expressing some reluctance, did not ultimately resist. S had apparently been unhappy with G during separation because in a letter written by her to her solicitor on 8 May 1995, whilst property proceedings in the Family Court were current, she recorded:

Ask Hal if he will start to push, I need and want my money it has now been 16 months whilst . . . . [G] has played around and for no reason held me up in what I want to do with my life.

The resumption of the marriage-like relationship and the obvious intention to resolve the differences between G and S can also be found in documents annexed to the affidavit of Hal Curwen-Walker. It appears that in October 1995, being approximately one week after S returned to Hepburn Springs, the property proceedings were about to be listed for hearing in the Family Court. A file memorandum attached to the affidavit of Mr Curwen-Walker records (date unknown) that S rang his office and "wants to cancel court case". On 19 October 1995, Mr Curwen-Walker wrote to the Registrar of the Family Court advising "the parties are attempting reconciliation" and requested an adjournment of the proceedings for four weeks. That letter is also signed by G and S. On 23 November 1995, another file memorandum records "S wants us to withdrawn (sic) application - everything working out". On 27 November 1995, Mr Curwen-Walker wrote to the Family Court recording "We advise that the parties have reconciled and are living together in Daylesford. The wife therefore withdraws her application."

G and S disputed that they then reconciled. Mr Curwen-Walker said that he would have preferred to have used the word "resolved" rather than "reconciled". Nonetheless both G and S signed a letter where the word "reconciled" appears and the letter would only have been written upon the instructions of G and S. The conduct of both G and S at that time and subsequently point to a reconciliation of their relationship and the representation to the Family Court was then a true reflection of the state of their relationship at that time. That is to say their relationship had reconciled and thereafter they enjoyed a marriage-like relationship. I am also satisfied that S, or she and G, instructed Mr Curwen-Walker in those terms.

I dismiss a representation made by S to the Department of Social Security on 16 October 1995 (T-documents, page 53) where she then recorded that it was not likely that she would reconcile or commence to live in a relationship similar to that of husband and wife. Equally, I dismiss a representation that she made (also at page 53) recording "we are not married anymore and do live our separate lives". It is truthful that S and G were not then married (because they had divorced) but they did not then intend to live separate lives. I am satisfied that in October 1995, they intended to resume their relationship which then had, and subsequently had, distinct features of a marriage-like relationship. Perhaps this is best identified by a loan application made to the ANZ Bank on 1 December 1995, where G and S jointly applied for loan funds to renovate the Hepburn Springs property (refer file of ANZ Bank - Exhibit A8). The application separately asks that the "name of spouse" be recorded "if not listed above". Both G and S are recorded and I interpret the form as them holding themselves out as each others spouse to the bank because "name of spouse" is "listed above". A diary note of the ANZ Bank of 12 January 1996 refers to "a former split up between G & S which was rectified". Kevin Putt, the author of the note said in evidence he could not recall who notified him of the "rectification" of the relationship but equally consistent with the knowledge of Mr Curwen-Walker, local persons in Hepburn Springs understood G & S had reconciled.

Therefore, in October 1995, S returned to the matrimonial home, she and G resumed cohabitation, they represented to the Family Court their relationship had reconciled and they applied jointly, as spouses for loan funds.

A further loan application was made to the ANZ Bank on 28 November 1997 where G and S signed the application as each others spouse (refer Exhibit A6, page 30). A similar representation is made in another loan application at page 33.

One of the above two loan applications concerned a request for funds to construct a "studio cabin" (Exhibit A6, pages 43 and 44). In the file from Heinz and Partners, Solicitors (Exhibit R13), who eventually acted on the sale of Hepburn Springs and the purchase of the property in Western Victoria, a pamphlet is found depicting S's studio. The pamphlet promotes a "fully self contained budget accommodation cosy comfort in Hepburn Springs" with photographs of cabin type accommodation. Contact details for rental of the studio record the name of S, her address and telephone number (being the address and telephone number of the Hepburn Springs home). The "studio" was constructed with loan funds on the premises at Hepburn Springs. Those premises at that time continued to be registered in the joint name of G and S. The construction of the studio and its promotion is inconsistent with other representations G and S had made to the Department of Social Security that they intended to sell the property at Hepburn Springs and live separately and apart. In fact G and S remained at Hepburn Springs for four years after the reconciliation in October 1995. In the interim they borrowed monies to undertake considerable extensions and renovations. The representation made by S to the Department of Social Security on 16 October 1995 "we are now divorced and is just waiting for the house to be sold so each can live our separate lives" was incorrect. That both G and S continued to live in the Hepburn Springs house, that they enjoyed the benefit of the extensive renovations and assumed joint responsibility for loans is, in my view, in the nature of a relationship which had both reconciled and which both intended to be ongoing. There was then no intention on the part of both to live separately and apart. The representation then made that the property would be sold was incorrect. Equally, I am obliged to find that the representation made by G to the Department of Social Security on 22 February 1996 is incorrect. G then advised the Department "we are currently divorced and lead our own lives. In the house in which we live is currently up for sale and when it is sold we will go our own separate ways". I am not satisfied that G then had any intention to sell the house because of the loan funds that had been acquired and the renovations which were about to be undertaken. Ultimately when the property was sold in 1999 and G and S moved together to jointly owned property in Western Victoria they did not then go "their own separate ways" (T16, page 57). The affidavit of Gena Robinson does suggest both G and S decided to move to the Western Victoria property. At paragraph 22, part of her affidavit is reproduced which records "they" asked her to look for a suitable home.

Both G and S independently of each other in evidence described their relationship as one of brother and sister. Subjectively that may be their belief but objectively much points to their relationship being marriage-like. G and S owned the Hepburn Springs property as joint tenants before and after the divorce. They purchased the property in Western Victoria as joint tenants with the proceeds of sale from Hepburn Springs. A feature of joint tenancy is survivorship. Whilst both indicated in evidence that they did not understand the difference between joint tenancy and tenancy in common, they did previously have the experience of a property owned as tenants in common with respect to the property at Maryborough. The joint tenancy of their respective Hepburn Springs and Western Victoria property permits the survivor of each of them to become the sole registered proprietor. They both entered into joint borrowings to undertake renovations over each of the properties. The borrowings exposed each of them to joint and several liabilities. They each agreed to share responsibility equally for repayment of loans. Costs associated with the running of each property were incurred in joint names and the payment of those costs were met jointly.

S said in evidence that she and G borrowed jointly because lending institutions would not lend to G alone. She said that he was prohibited from obtaining loans by reason of his age. That is no more than an explanation of the reason that they both borrowed jointly as opposed to the reasons that they borrowed at all. The reasons clearly were for the purposes of renovating jointly owned properties, acquiring jointly owned personal property and meeting debts incurred jointly or individually. Both G and S undertook to make the repayments for those loans jointly because they enjoyed the benefits of those loans.

In Western Victoria, G and S each owned a motor vehicle. They decided to dispose of both vehicles and purchase another vehicle. It was registered in G's name and they decided S would drive it. G meets the running costs and the loan for the purchase of the vehicle was undertaken in both names.

All of the above features do not point to the relationship being one of brother and sister. Additionally the above features of the relationship do not point to G and S living separately and intending to go their own ways.

Having read the documents and having observed S in evidence, I am satisfied that she is the dominant person within the relationship. I am also satisfied that it was by her agitation that she and G moved to Western Victoria. Indeed it would appear that G was reluctant to leave Hepburn Springs. Nonetheless he ultimately did agree to move. He did so because of his relationship with S which was, in my view, marriage-like. Additionally, I am satisfied that S moved to Western Victoria with G and agreed to acquire real estate with him because she understood that she was in a relationship which was marriage-like. G is capable of resisting the advances of S and has done so previously. It was he who refused to live in Maryborough and it was he that moved back to Hepburn Springs. He decided to live alone. But he did not resist S moving back into the Hepburn Springs property and he did not resist moving to Western Victoria.

A degree of care and affection continues to exist between G and S for each other. S represented to Centrelink in October 2002 that it was her belief that G would look after her if she were ill (T42, page 142). G gave similar evidence at the hearing and made representations to Centrelink (T43, page 150) that "S would take care of me". Additionally, S indicated to Centrelink in February 2003 that she intended to share the Western Victoria property with G "to we die" (T51, page 181).

On balance, I am not satisfied that the relationship between G and S may be described as the equivalent of brother and sister. I am satisfied that when all things are considered that it points to a relationship which is marriage-like.

Certainly G and S do have different interests currently, they share different parts of the Western Victoria home, they eat at different times and they have different tastes in food. But there is little difference in their current habits and daily patterns to that which existed before they left Hepburn Springs. They did not then socialise jointly, they had different interest and they ate at different times. However then, as now, they continue to care for each other and do intend to continue to live together. S does undertake G's banking and pays his accounts, but not because he cannot read or write (refer paragraph 25 earlier). It was learnt at the hearing that G is not a confident person and is intimidated by others. That S does his banking and G gives her access to his account is another pointer to their marriage-like relationship. At the hearing, G did read documents given to him and some forms within the T-documents were written by him.

Evidence was heard from Ms Robinson that it was understood within their local community that G and S are divorced. Pastor Wilke indicated that G did not accompany S to church. John Blake said that he attended the home currently owned by G and S and satisfied himself that they lived separately. None of that in my view prevents a finding that the relationship viewed objectively is marriage-like.

Counsel for G and S pointed to the decision of Re King as authority for the proposition that the resumption of two persons living together after divorce permits a finding that they are not in a marriage-like relationship. Subject to the circumstances of a relationship of course such a finding would be permitted. But each application must be determined on its own facts and circumstances. In Re King the parties decided to resume cohabitation because of an ongoing relationship with their children who lived nearby. Additionally it was decided by Senior Member Gibson that the relationship pre and post divorce was remarkably different. In the present case the parties have not chosen to resume cohabitation by reason of children of the relationship nor have they resumed a sexual relationship. In my view the relationship is remarkably similar pre and post 1995 and unlike Re King, G and S have entered into a number of financial transactions jointly involving the sale and acquisition of real estate and borrowing of monies with joint and several liabilities.

The s 4 (3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.

Additionally, I could not be satisfied that there is any "special reason" pursuant to s 24 permitting the exercise of a discretion finding that G and S should not be treated as being members of a couple. Section 24 was extensively discussed in Re SRL and Secretary, Department of Social Security [1998] AATA 326; (1998) 51 ALD 796 ("Re SRL"). That application involved a marriage where the circumstances were described as being unusual or extraordinary. There was a finding made that the parties did not pool their resources, they lived separate lives, they did not have a sexual relationship nor did they provide each other with emotional support or jointly participate in the care of their children. They did not own assets or other property jointly, the marriage was entered into upon false representations, one party did not have English skills at the time of marriage, the wife was exposed to physical threat and was not aware of the existence of women's refuges. There was also a finding that the wife did not knowingly mislead the Department or make false representations. In those circumstances it was decided that it would be appropriate to exercise the discretion under s 24 and find that there was a special reason permitting the parties as not being in a marriage-like relationship. No such circumstances exist in the present application and I cannot find any reason which is "special" which would permit a finding that G and S should not be treated as a member of a couple.

IS THERE A DEBT, SHOULD IT BE WAIVED OR WRITTEN OFF?

Section 1223 of the Act provides that if a social security payment is made and a person obtains the benefit of the payment but was not entitled to receive that benefit, the amount of the payment is a debt due to the Commonwealth. Section 1223 (1AB) provides circumstances where a person is taken not to have been entitled to obtain a benefit. The relevant provisions of this sub-section are to be found at sub-paragraphs (b), (c) and (d) namely, the person was not qualified to receive the payment, the payment was not payable and the payment was made in contravention of the Act by reason of a false statement or misrepresentation.

In the present application the payment to which G and S were not entitled was the payment of a benefit at the single rate at relevant times. Having decided that G and S were in a marriage-like relationship, the benefits payable to them should have been made at the married rate and not at the single rate individually. The combined benefits paid as individuals exceed the amount that would have been paid at the married rate and the overpayment constitutes a debt due to the Commonwealth under s 1223 (1).

98.

Section 1223 operates against G and S with respect to payments made after 1 October 1997. Prior to that date, s 1224 existed (which has subsequently been repealed). It provided that if an amount had been paid under the Act to a recipient and it was paid by reason of a false statement or false representation, the amount paid is a debt due to the Commonwealth. That section has relevance only in the context of payments made after October 1995 when, for reasons given earlier, I am satisfied that G and S were in, and have been in, a marriage-like relationship. The debt in the present application has been calculated from July 1999 by reason of the ARO having decided that G and S had been members of a couple "at least since" that date (refer paragraph 13 earlier).

For the purposes of this part of the decision, I adopt the reasons of Weinberg J in Musgrave and Ors v Martin [2003] FCA 920 ("Musgrave"). His Honour discussed the meaning of the word "false" in the context of an appeal against a decision concerning the Dairy Adjustment Act 2000 and the Dairy Structural Adjustment Program Scheme 2000. His Honour decided that the word "false" will depend on context and, by reference to dictionary definitions, His Honour found that little assistance was offered in deciding whether the word "false" meant either "purposely untrue" or "objectively incorrect". His Honour decided that the word "false" raised a question of both fact and law. By way of further discussion, and in the context of the legislation then applicable, His Honour discussed whether the word "false" meant "deliberately untrue" or "wrong in fact".

I am satisfied that the word "false" as it appears at s 1223 (1AB) of the Act means no more than "objectively incorrect". (Refer also Secretary, Department of Social Security v Salvona (1989) 18 ALD 289; McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609).

Earlier in this decision I have referred to documents completed by G and S and delivered to the applicant which contained a statement which was false or which contained a misrepresentation. The falsity of the statement is an objective falsity and these findings are not intended to refer to G and S acting in any fraudulent manner. Nonetheless, their statements as referred to earlier, were false and, or, there were misrepresentations by them which have given rise to the creation of the overpayment. Additionally there were a number of recipient notices to which they did not respond, which caused continuing obligations which in turn caused a continuing accumulation of the overpayment. Relevantly the recipient notices with respect to G can be found in the T-documents at pages 43 and 80. The recipient notices with respect to S can be found in the T-documents at pages 59, 68, 71, 75, 82, 88 and 103. Those notices consistently compel both G and S (note the use of the word "must") to notify if a number of "things" happen or are likely to happen. One such "thing" is reconciling with a separated partner or starting to live with a person as their partner. I have found that G and S did reconcile in October 1995. They said so in a letter to the Family Court. There were occasions when G and S did represent to the Department that they were living separately and that they intended to sell the Hepburn Springs property and thereafter live separately and apart. However, objectively their statements and representations to the Department and their failure to respond to recipient notices in combination amount to both false statements and misrepresentations. The statements were objectively incorrect. In concluding this part I am satisfied that the failure to respond to a recipient notice by disclosing information which G and S were obliged to supply, constitute a misrepresentation by G and S. The effect of the misrepresentation has been to cause the applicant to make a payment to each of them to which they were not entitled.

Having found that G and S are in debt to the applicant, consideration must then be directed to whether the debt should be waived or written off in whole or part.

Section 1237AAD provides as follows:

1237AAD Waiver in special circumstances

The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:

(a) the debt did not result wholly or partly from the debtor or another person knowingly:

(i) making a false statement or a false representation; or

(ii) failing or omitting to comply with a provision of this Act 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.

I am not satisfied that the debt should be waived because I cannot find that the debt did not result from G and S knowingly making a false statement or false representation or failing or omitting to comply with a provision of the Act.

G and S cannot notify the Family Court that their relationship has reconciled (thereby causing the Family Court to initially adjourn and subsequently conclude the application that had been issued for settlement of property) when at, or about the same time, G and S were making representations to the applicant that, whilst they had resumed cohabitation, they were living separately. Additionally they also represented and made statements to the Department of Social Security that they intended to sell the property forthwith at Hepburn Springs and live separately and apart from each other. An examination of subsequent events indicates that they remained at Hepburn Springs for the following four years, they borrowed heavily and extended the property whilst intending to earn income from the property by renting part of the renovated premises (S's Studio) and eventually when the property was sold, they purchased property elsewhere as joint tenants. All of that conduct amounts to statements and representations which were false and which G and S would know were false.

In the alternative G and S knowingly failed or omitted to comply with a provision of the Social Security Act namely the failure to supply the information to which they were compelled by the recipient notices (refer earlier).

Consideration of sub-sections (b) and (c) do not apply in the circumstances of a finding that G and S knowingly made a false statement or false representation or failed or omitted to comply with a provision of the Act. That is, consideration can be given to whether debt can be waived by reason of special circumstances or because it is more appropriate to do so if (a) does not apply. In these applications, the circumstances of G and S and the benefit of the submissions of their Counsel may have permitted such findings, had they been able to satisfy (a).

Section 1236 of the Act applies if a debt is to be written off. For the purposes of the Act, "write off" does not have its literal meaning. The debt can subsequently be recovered (refer s s (3)). The circumstances permitting "write off" are found at s s (1), namely

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:

(a) the debt is irrecoverable at law; or

(b) the debtor has no capacity to repay the debt; or

(c) the debtor's whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or

(d) it is not cost effective for the Commonwealth to take action to recover the debt.

1236(1B) For the purposes of paragraph (1A)(a), a debt is taken to be irrecoverable at law if, and only if:

(a) the debt cannot be recovered by means of deductions, or legal proceedings, or garnishee notice, because the relevant 6 year period mentioned in section 1231, 1232 or 1233 has elapsed; or

(aa) the debt cannot be recovered by means of deductions or setting off because the relevant 6 year period mentioned in section 86 of the A New Tax System (Family Assistance) (Administration) Act 1999 has elapsed; or

(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or

(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or

(d) the debtor has died leaving no estate or insufficient funds in the debtor's estate to repay the debt.

None of the above circumstances apply in the circumstances of this application. Sub-section (1C) effectively ends consideration of the "write off" provisions. It provides:

1236(1C) For the purposes of paragraph (1A)(b), if a debt is recoverable by means of:

(a) deductions from the debtor's social security payment; or

(b) deductions under section 84 of the A New Tax System (Family Assistance) (Administration) Act 1999; or

(c) setting off under section 84A of that Act;

the debtor is taken to have a capacity to repay the debt unless recovery by those means would result in the debtor being in severe financial hardship.

I am therefore satisfied that the debt cannot be written off.

It was submitted by the applicant that findings should be made that G and S were in a marriage-like relationship from 16 October 1995, despite the ARO deciding that G and S were members of a couple from "at least 30 July 1999" (pages 348 and 349). I am not restrained to enquire into the relationship from the latter date. This review concerns an examination of the relationship of G and S. The relevance of the date of 30 July 1999 has largely been the starting date of the deemed overpayment (refer pages 252, 262 and 271) being the date G and S moved to Western Victoria. The SSAT enquired into the relationship before 30 July 1999 (refer paragraphs 56 to 58) and made findings that G and S were members of a couple, but not from any particular date. That is, it did not confine itself to a review of the relationship from 30 July 1999. I am conscious that the effect of this decision may cause the applicant to recalculate the debt and issue an adverse determination under the Social Security (Administration) Act 1999. (The representatives for G and S were aware prior to the hearing commencing that the applicant would submit the marriage-like relationship commenced in October 1995. (This is also reflected in their Statement of Facts and Contentions).

I would urge the applicant in the circumstances that collection of the debt as presently calculated should be by withholdings and where a reasonable account is taken of the financial circumstances of G and S. It would cause considerable unfairness as against G and S to increase the debt by a further four years (1995 to 1999). The submission to find that G and S were in a marriage-like relationship since 1995 was made only shortly prior to the commencement of the hearing, being at a point of time well after decisions had been made by the primary decision-maker, the ARO and the SSAT. It was made also at a point in time when the applicant sought to lodge and exchange a considerable bundle of documents which, having regard to a date stamp appearing on them, had been in the possession of the applicant for the preceding two years. It also relied on documents produced under summons during the currency of the proceedings. The manner in which this application was prosecuted by the applicant's representatives involved a degree of vigour which is inappropriate in social security applications. Additionally, by reason of relevant events occurring many years ago, it is to be expected that recall, particularly of detail, by G and S would have been poor. It was, I think, unfair (and by way of example) to cross-examine S on her evidence of having no knowledge of rent assistance (refer paragraph 26 earlier) by pointing to forms she completed in 1994 (page 31) and 1995 (page 46) which referred to the availability of rent assistance.

I readily acknowledge that these comments are gratuitous but no great mischief would occur if the applicant were to acknowledge the present circumstances of each of G and S being elderly, vulnerable, seriously unwell and presently each being exposed to repayment of a considerable debt.

In all of the circumstances the decision of the SSAT in so far as it found that G and S were in a marriage-like relationship (T2, page 18, paragraph 59) is affirmed.

The remaining part of the decision under review is set aside and in substitution therefore it is decided that G and S have been overpaid and are in debt to the Commonwealth by reason of receipt of benefits which have been paid and to which they were not entitled.

I certify that the 114 preceding paragraphs are a true copy of the reasons for the decision herein of

Signed: .....................................................................................

Associate

Dates of Hearing 22 to 24 March, 9 to 11 May and

Date of Decision 4 January 2006

Counsel for the Applicant Ms J O'Donnell

Solicitor for the Applicant Australian Government Solicitors

Counsel for the Respondent Mr D Star

Solicitor for the Respondent Victorian Legal Aid