Bevilaqua and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1602
•30 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1602
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200600886
GENERAL ADMINISTRATIVE DIVISION ) Re GIUSEPPINA BEVILAQUA Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Dr Gordon Hughes, Member Date30 July 2007
PlaceMelbourne
Decision The Tribunal affirms the decision under review. (sgd) G. Hughes
Member
SOCIAL SECURITY ‑ Cancellation of disability support pension – value of assets exceeds cut-off point for single homeowner
Social Security Act 1991 s 11(1), s 11(2), s 11(4), s 48(1), s 117(a), s 1064(1), s 1064G
Social Security (Administration) Act 1955 s 80
REASONS FOR DECISION
30 July 2007 Dr Gordon Hughes, Member 1. This matter was heard before the Tribunal on 25 June 2007. The Applicant represented herself. She attended by telephone and gave evidence through an interpreter. The Respondent was represented by Mr David Perdon, a Centrelink advocate. Centrelink acts as the service delivery agent for the Respondent.
Nature of Appeal
2. The Applicant was seeking review of a decision by the Social Security Appeals Tribunal (SSAT) dated 31 August 2006. The SSAT had affirmed a Centrelink decision to cancel the Applicant's disability support pension, effective from 21 April 2006, due to the level of her assets.
Respondent's Contentions
3. Mr Perdon told the Tribunal that the Applicant had been in receipt of a social security pension since 1986. She was initially granted a supporting parent's benefit on 21 August 1986. This was transferred to a widow's allowance on 28 May 1999 and then to a disability support pension on 17 October 2002. Over the years, the Applicant had signed various forms saying she had no other income or assets. In late 2005 the Respondent received advice that the Applicant had assets which she had not previously declared. In early 2006 the Respondent ascertained that the Applicant was the sole registered proprietor of two houses in Hampton, namely 19 and 21 Highett Road, with a combined value of $1,050,000.
4. Specifically, the Respondent asserted that the Applicant and her then husband, Mr Domenic Caminiti, purchased the property at 19 Highett Road as joint proprietors in October 1966, and the Applicant became sole proprietor in February 1989. A caveat was lodged over the property by Mr Caminiti on 28 September 2004, claiming that the Applicant held the property on trust for herself and Mr Caminiti pursuant to a constructive trust. The property was sold in 2006 with the transfer being registered on 15 November 2006.
5. The Respondent further asserted that the Applicant and Mr Caminiti purchased a property at 21 Highett Road as joint proprietors in March 1977. The Applicant became sole proprietor in September 1988. Mr Caminiti lodged a caveat over the property on 28 September 2004, claiming that the Applicant held the property on trust for herself and Mr Caminiti pursuant to a constructive trust. Title was transferred by the Applicant to Mr Caminiti in 2006 as a result of a family law court order. The property was then sold with the transfer being registered on 11 October 2006.
6. Subsequent to the decision by the SSAT which was the subject of this appeal, it was further ascertained that the Applicant and her son Franco Caminiti had been joint proprietors of another property at 42 Kirkford Drive, Mooroolbark, since 5 December 1997. Mr Caminiti also lodged a caveat over this property on 28 September 2004. The Applicant resides at this address.
7. As at April 2006, the assets cut-off value for a single homeowner was $325,500. At the time, the Respondent had been unaware that the Applicant was the joint proprietor of her residence at 42 Kirkford Drive, and accordingly assumed the applicable assets cut-off value was $439,000, being the value for a single non‑homeowner. Either way, according to the Respondent, and regardless of the existence or otherwise of a constructive trust over the properties, it was correct to cancel the Applicant's pension, effective from 21 April 2006.
Applicant's Contentions
8. The Applicant did not dispute the interpretation or effect of the relevant provisions of the Social Security Act 1991 (the Act). Her dispute centred largely upon the nature and extent of the Applicant's interest in the two properties at 19 and 21 Highett Road, Hampton. The Applicant told the Tribunal that the facts as outlined by the Respondent, as far as they went, were essentially correct. There was, however, much more to the story.
9. The Applicant told the Tribunal that she was born in Italy and was subjected by her parents to an arranged marriage. She was married to Domenic Caminiti in Italy on 11 March 1962. Her parents gave her cash of about AUD$4,000 and property in Italy valued at about AUD$2,000 which her husband subsequently used to purchase a property in Australia after they migrated in July 1962. The Applicant said that she was only 15 when she was married. She had claimed at the time that she was 18 in order to make the marriage legal.
10. The Applicant said that the marriage was unhappy and she suffered considerable abuse. She left her husband shortly after her arrival in Australia. Mr Caminiti told the Applicant that he would kill her if she tried to reclaim the property they had purchased.
11. The Applicant said she immediately turned to the Salvation Army for assistance after leaving her husband. There she met a man, Mr Bevilacqua, with whom she subsequently lived and had three children. Throughout this time, she lived in constant fear of her husband. Mr Bevilacqua has since died.
12. In essence, the Applicant stated that she had not been involved in the transactions which resulted in the acquisition of the properties at 19 and 21 Highett Road. To the extent that her name appeared on the titles, this was a consequence of her signing documents provided to her by intermediaries and which she did not understand. She had not seen her husband for 40 years but her husband had tried to maintain the appearance that they were still married, either for reasons of cultural acceptability within the Italian community or, more cynically, in order to ensure that he continued to receive financial assistance from the Applicant's parents in Italy who were unaware of the true domestic situation.
Contentious Facts
13. The Applicant's evidence was marked by numerous inconsistencies, contradictions and incongruities. The Tribunal accepts that this may be explained in part by the passage of years since many of the events in question. Nevertheless, the Tribunal ultimately had difficulty in accepting much of the Applicant's evidence, either because it was contradicted by public records or because, in some instances at least, the Applicant's reconstruction of past events appeared implausible.
14. The Applicant's passport states she was born on 8 November 1944. Elsewhere, she has variously given her year of birth as either 1944 or 1945. This would mean she was either 16 or 17 at the time she was married, not 15 as she claims. Nothing turns on the fact, other than that it is the first of numerous assertions by the Applicant which prove to be uncorroborated by public records, or which are inconsistent with prior written statements.
15. The Applicant said her husband had lived in Australia before their marriage and spoke English. The Applicant said he ran an excavation business with his brother. The title of the first property purchased by the Applicant and Mr Caminiti in 1966 describes the husband's occupation as spray painter but again, nothing turns directly on the point.
16. The Applicant said she ran away from her husband in 1962, almost immediately upon arriving in Australia. This assertion is inconsistent with a record of interview with a social security officer on 19 August 1986 in which the Applicant stated that she separated from her husband on 7 June 1986. The Applicant provided the Tribunal with two alternative explanations for this discrepancy. At one stage she told the Tribunal that if she had given the date of separation as 1986, then this would have been a mistake, as they had separated earlier. On another occasion, however, the Applicant recalled to the Tribunal that the form in question had deliberately been filled out incorrectly by relatives.
17. The Applicant said that the first of her three children was born in 1963. The child's name was Maria, but she is also known as Nicolina. The Applicant's second child, Nancy, was born in 1968 and her third child, Franco, was born in 1984. The Applicant said all children were born to Mr Bevilacqua; yet Maria's birth certificate nominates Mr Caminiti as the father. The Applicant explained that a friend had completed Maria's registration papers and she did not know what she was signing. She said her friend rubbed out the surname Bevilacqua and inserted the surname Caminiti.
18. The Applicant said the property at 19 Highett Road was bought in the early 1960s before she ran away from home. When it was pointed out to her that the Titles Office records show that the property was purchased in October 1966, the Applicant said that this was incorrect – she said this was the date when the mortgage had been paid off after the property in Italy had been sold. The Applicant could not explain Titles Office records which showed that the mortgage had not been paid off until April 1993. The Tribunal has difficulty reconciling the Applicant's assertion that she ran away from home in 1962, and her assertion that she then met Mr Bevilacqua who fathered her first child in 1963, with the fact that the property at 19 Highett Road was purchased in 1966.
19. The Applicant was vague about proceedings commenced against her in the Victorian Civil and Administrative Tribunal in 2005 by a tenant who named her as a landlord of rented premises at 19 Highett Road, which had sustained water damage to two rooms. Furthermore, when asked how the tenant seemed to be sufficiently familiar with her to refer to her by the nickname Josie, the Applicant said that that was because the name would have appeared on rates notices. The Respondent pointed out that this name had in fact not appeared on any official correspondence.
20. The Respondent provided evidence of a bank account operated between 17 August 2001 and 13 February 2006 in the names of Domenic Caminiti, Franco Caminiti and Giuseppina Bevilacqua, and that rent from 19 Highett Road had been paid into that account. The Applicant denied knowledge of the joint bank account. She simply explained that Mr Caminiti knew how to do things to avoid taxes. He would have organised where the rent had to go. He had never asked her to sign forms in this regard.
21. Titles Office records show that the property at 21 Highett Road was purchased in joint names in March 1977. The Applicant said she knew little about this transaction. It would have been arranged between her husband and her father. She only found out details through her mother. Her father was not aware of her domestic problems and thought she was still living with Mr Caminiti. Mr Caminiti was seeking to maintain good relations with the Applicant's father so as to preserve the financial support he provided. The implication is that the Applicant's mother knew her true domestic situation, but her father did not. While in isolation this is of course possible, it is yet another element in an increasingly improbable history recounted by the Applicant.
22. The property at 21 Highett Road was transferred into the Applicant's sole name in September 1988, and the property at 19 Highett Road was transferred into her sole name in February 1989. The Applicant said that this was done by her husband in order to preserve his own pension. She said this was an assumption because she had not spoken to him for 40 years but she was aware that he had been doing everything possible to prepare for old age. She reiterated that she never received rent from either property and was not involved with them in any way. She never visited the properties and never paid rates on them.
23. The Applicant said that she understood Mr Caminiti had lodged a caveat over the properties at 19 Highett Road and 21 Highett Road on 28 September 2004. She said this was the result of family court proceedings which she was too afraid to attend.
24. The Applicant said she only became aware that the properties had subsequently been sold in 2006 because her daughter had found some papers in Mr Caminiti's possession. This explanation seems inconsistent with the fact that she signed a statutory declaration regarding a lost Certificate of Title on 1 August 2006, and subsequently a Transfer of Land, in respect of the property at 21 Highett Road. When asked why her daughter was associating with Mr Caminiti, the Applicant explained that Mr Caminiti was now trying to become closer to her children (regardless of the fact, it seems, that the children were Mr Bevilacqua's and that Mr Caminiti refused to associate with the Applicant).
25. The Tribunal reviewed a letter from Mr Caminiti which stated, in part:
I would like to inform you that both properties [19 Highett Road and 21 Highett Road, Hampton] were under my care and supervision. I did not allow Mrs Bevilacqua near these 2 properties. As she walked away from the marriage 40 years ago – leaving me literally overnight. Therefore I believe that I had all rights and not her to these two premises.
…
The 2 properties and all financials and profits were mine and my responsibility.
26. Mr Caminiti was not called to give evidence. Based on what the Tribunal was told about the manner in which Mr Caminiti conducted his affairs, it would have reservations about his credibility in the absence of cross‑examination.
27. The Respondent observed that, in addition, a property had been purchased in 1983 at 17 Highett Road. The Applicant, Mr Caminiti and Nicolina Caminiti were registered as joint proprietors. The Applicant had never disclosed this interest to the Respondent; although she had notified the Respondent that she had changed her residential address to 17 Highett Road from 10 October 1989. The Applicant said she knew nothing about the proprietorship of 17 Highett Road. Mr Caminiti made her sign some papers but she did not know what they related to.
28. When the Applicant claimed the pension in 1986, she said she was living at 45 Wilson Street, Highett. She said she simply signed papers which were put in front of her and did not know what they said. She was in fact living with friends in Northcote at the time. Mr Caminiti was living at 45 Wilson Street and a friend, who did not know she was separated, filled out the forms.
29. Correspondence regarding the Applicant's pension was sent by the Respondent to 45 Wilson Street. The Applicant stated that her daughter Maria, and/or her brother, would bring the letters to her in Northcote. They would still visit Mr Caminiti twenty-five years after the separation and the Applicant's brother, at least, did not know about the separation. Her brother would not have realised that Mr Caminiti was not residing at 45 Wilson Street, she said, because Mr Caminiti was rarely there anyway and he would have expected the house to have been empty when the correspondence was collected. They were able to gain entry because they knew a key was in the letter box. They would take the letters to Northcote, believing that the Applicant was there only temporarily, while recovering from a hip operation and receiving psychiatric treatment. The Tribunal has difficulty accepting this explanation.
30. The Applicant was not sure of the address in Northcote where she had resided. She had been living there with Mr Bevilacqua. She subsequently moved away from Northcote and lived with friends at a variety of addresses.
31. The Applicant claims to have been living at 42 Kirkford Drive since 1997. She said the property was owned by her son, although she acknowledged she had been registered as a joint proprietor of the property with Franco Caminiti since 5 December 1997. The Applicant said the money required to purchase this property had been sent by her mother in Italy and that her interest was only as a trustee for her son. She organised nothing and merely signed papers that were put in front of her. The papers were prepared by her eldest daughter, Maria. The Applicant was unaware whether Mr Caminiti had an interest in the house. She acknowledged that Mr Caminiti had placed a caveat over the house in 2004.
32. The Tribunal finds it difficult to reconcile the Applicant's assertion that she had no contact with Mr Caminiti for 40 years with the fact that she appears to have periodically signed a range of documents jointly with him. It is also inconsistent with the fact that on 3 June 1988, she sought and obtained an intervention order against Mr Caminiti at Sandringham Magistrates Court.
33. The Applicant said her family had stopped writing to her. She said this was because Mr Caminiti had told the family that she was a person of ill-repute. Nevertheless, the Applicant stated that Mr Caminiti kept putting her name on the title of properties because he wanted to preserve financial support from her parents. The Tribunal queries whether the Applicant's assertion that she was estranged from her family in Italy is consistent with her assertion that the family continued to provide financial support, through her husband, under a misapprehension that the Applicant and Mr Caminiti remained living together.
34. The nature and implications of the Applicant's relationship with Mr Bevilacqua are unclear. As indicated above, the Applicant's account of how and when she met Mr Bevilacqua, and when her first child was born to Mr Bevilacqua, does not tally with Titles Office record of when she jointly purchased a home which she says she lived in with Mr Caminiti.
35. Mr Bevilacqua died on 14 November 1987. The Applicant said that she and Mr Bevilacqua were never married because Mr Caminiti would not divorce her at the time (although the Applicant and Mr Caminiti were subsequently divorced). The Applicant said she had changed her surname by deed poll to Bevilacqua prior to Mr Bevilacqua's death. She denied that she changed her name to Bevilacqua in 1988, after Mr Bevilacqua's death. However, in a statement accompanying her Sole Parents 12 Weekly Review on 23 February 1989, the Applicant stated:
I wish to advise that as from January 1989 my name has been changed to Guiseppina Bevilacqua, not Caminiti. The name change has been carried out legally through the Deed Poll Office. I have my deed poll at home and will bring it in for your office to copy as soon as possible.
A notation, presumably made by the relevant departmental officer, states Deed poll paper brought in 23/2/89.
Conclusion as to Facts
36. Based on the inconsistencies and incongruities in the Applicant's evidence, the Tribunal is reluctant to accept any of her assertions of fact which are uncorroborated by public records, or which are inconsistent with her own prior statements.
37. The Tribunal is satisfied that as at April 2006, as a matter of public record, the Applicant had a joint proprietary interest in properties at 19 Highett Road and 21 Highett Road, Hampton. It is uncontested that the value of the two properties was $1,050,000.
38. The Tribunal does not accept that the Applicant was completely unaware of her interest in these properties. It is unnecessary to decide, for the purposes of these proceedings, the extent to which (if at all) the Applicant has benefited directly or indirectly from rental or proceeds of sales in the past. If the accuracy of some of the Applicant's assertions could be verified, other avenues of legal redress might be open to her; but it is not necessary or appropriate for the Tribunal to engage in further speculation in this regard.
39. The Tribunal further accepts that as at April 2006, as a matter of public record, the Applicant was a joint proprietor of her residence at 42 Kirkford Drive, Mooroolbark; and, as evidenced by the fact that she lived there for nearly 10 years, had reasonable security of tenure in that home.
Relevant Law
40. The applicable legislation, assets test and calculations were not disputed by the Applicant. These can be summarised as follows:
·under section 11(1) of the Act, an asset means property or money (including property or money outside Australia);
·in relation to jointly owned assets, section 11(2) of the Act provides that the value of a particular asset means, if the asset is owned by the person jointly or in common with another person or persons, a reference to the value of the person's interest in the asset;
·section 11(4)(a) of the Act defines a homeowner as a person who is not a member of a couple and who has a right or interest in the person's principal home and that right or interest gives the person reasonable security of tenure in the home;
·under section 98(1) of the Act, the disability support pension is not payable if the person's disability support pension rate would be nil;
·under section 117(a) of the Act, a person's disability support pension rate is worked out using Pension Rate Calculator A at the end of section 1064(1)(b). Module A of the Rate Calculator establishes the overall rate calculation process and the remaining Modules provide for the calculation of the component amounts used in the overall rate of calculation;
·under section 1064G of the Act, assets in excess of the assets value limit progressively reduce the rate of pension payable until the assets reach a cut-off point; and
·the effect of section 98 of the Act and section 80 of the Social Security (Administration) Act 1999 is that if, at a particular time, a person's assessable assets are over the assets test cut-off such that their rate of disability support pension payable is nil, then the disability support pension is not payable and must be cancelled.
41. Based on the Tribunal's finding of facts, the Applicant was a single homeowner as at April 2006 for the purposes of the Act and the principal issue remaining for the Tribunal is the level of her assets as at that time.
42. Even if Mr Caminiti's assertion that he had an interest in the properties at 19 Highett Road and 21 Highett Road was sustainable, this was in the form of a constructive trust on behalf of himself and the Applicant; and this would still leave the Applicant's share of the assets in excess of $325,500.
43. The SSAT was acting under the misapprehension that the Applicant was a single non-homeowner when it referred to the Applicant's asset cut-off limit being $439,000. Nothing turns on the point for the purposes of these proceedings.
44. For the above reasons, the Tribunal affirms the decision under review.
I certify that the forty‑four [44] preceding paragraphs are a true copy of the reasons for the decision herein of
Dr Gordon Hughes, Member
(sgd) Dianne Eva
Clerk
Date of Hearing 25 June 2007
Date of Decision 30 July 2007
Advocate for the Applicant Self‑represented
Advocate for the Respondent Mr D. Perdon, Centrelink Legal Services Branch
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