Brodka and Secretary, Department of Social Services (Social services second review)

[2019] AATA 5179

Brodka and Secretary, Department of Social Services (Social services second review) [2019] AATA 5179 (2 December 2019)

Division:GENERAL DIVISION

File Numbers:         2018/0609 & 2018/0610

Re:Maria Brodka

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Bill Stefaniak AM RFD, Senior Member

Date:2 December 2019

Place:Sydney

The reviewable decision is affirmed.

................................[sgd]........................................

Bill Stefaniak AM RFD, Senior Member

Catchwords

SOCIAL SECURITY – debt – alleged overpayment of Newstart allowance – whether applicant was a member of a couple – where applicant had sworn affidavit in other proceedings stating that she was member of a couple – nature of relationship – financial aspects of relationship – other factors - decision affirmed

Legislation

Social Security Act 1991 (Cth) – ss 4, 408BA, 1064-A2

REASONS FOR DECISION

Bill Stefaniak AM RFD, Senior Member

2 December 2019

1. After being alerted to the possibility that the applicant and her friend Mr Penderetskyy may have been a couple and may well have been overpaid Centrelink benefits, the Respondent Department investigated the matter.

2. The Department ascertained that the applicant had indeed been overpaid Widow Allowance (being $2,992.63 from 28 January 2004 to 16 May 2004 and $13,836.91 from 13 October 2009 to 18 July 2011) and $47,183.93 for Carer Payment for 17 May 2004 to 12 October 2009, resulting in a total debt of $64,013.47.

3. The Department also found Mr Penderetskyy had been overpaid Newstart Allowance to the amount of $3,484.61.

4. This decision was made on 6 July 2016 and was subsequently appealed through the internal appeal avenues of the Respondent department. It was then affirmed by the Social Security and Child Support Division of the Tribunal (AAT1) on 31 October 2017.

5. The applicant appealed that decision to this Tribunal. The matter was heard over six days before this Tribunal, culminating in a final three days of hearing on 21, 22 and 23 October 2019.

6. At all times the applicant was assisted by the services of a Polish interpreter. Mr Penderetskyy’s matter, which was largely intertwined with this matter, was heard at the same time. Mr Penderetskyy was at all material times assisted by a Russian interpreter.

7. There was no dispute by either this applicant or Mr Penderetskyy as to the quantum of any debt owed.

8. There were no legal issues as to the law applicable. The only issue to be determined was whether the applicant was a member of a couple (as defined by the relevant Social Security law). The applicant denied she was a member of a couple.

9. Both Ms Brodka and Mr Penderetskyy have been repaying the debt off at the rate of $20 per fortnight since, as I understand it, it was raised. There was no evidence advanced by either party as to what the debt stands at now.

10. Both Ms Brodka and Mr Penderetskyy maintained in their evidence under oath they were just very good friends and were like brother and sister.

11. They both suggested that the debt arose due to an incorrect tip off to the Department made by a mutual former friend by the name of Bozena Rawicka.

    THE relevant LAW

12. Section 408BA(2)(e) of the Social Security Act 1991 (Cth) (Act) states that a woman does not qualify for widow allowance in respect of a period if she is a member of a couple.

13. Section 1064-A2 of the Act provides that where two people are members of a couple, they are treated as having pooled their resources and are taken to be sharing them on a 50/50 basis.

14. The definition of a ‘member of a couple’ for the purposes of the Act is set out in section 4(2) which relevantly states:

    (2)  Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

    ……….

    (b)all of the following conditions are met:

    (i)     the person has a relationship with another person, whether of the same sex or a different 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 de facto relationship;

    ………

15. Section 4(3) of the Act provides as follows:

    Member of a couple--criteria for forming opinion about relationship

    (3)  In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

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

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

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

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

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

    (b)the nature of the household, including:

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

    (ii)    the living arrangements of the people; and

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

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

    (i)     whether the people hold themselves out as married to, or in a de facto relationship with, 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 or a de facto relationship.

    EVIDENCE

16. Despite being encouraged to do so by the Tribunal on several occasions, both applicants did not call any evidence from anyone who could support their claim that they were not a member of a couple at the relevant times in accordance with Social Security law.

17. Both applicants were assisted throughout by their friend Mr Goldenberg who declined the invitation by me to give evidence as to their relationship (he seemed to know them very well); and proceeded to simply assist them as a support person.

18. I must say I felt this may have been a smart move, although his support seemed more in the form of assisting with evidence and explanations rather than procedurally.

19. Without canvassing the evidence in any great detail, in considering the criteria in Section 4(3) I make the following observations based on the evidence (both written and oral) before me.

    Sexual relationship

20. I am not satisfied one way or the other that this relationship was sexual, but that in itself does not mean that the applicants were not members of a couple for the purpose of the Social Security law.

21. The parties on oath denied a sexual relationship and there was medical evidence dated February 2010 which could be said to corroborate that assertion to an extent, as could the evidence of Mr Penderetskyy who said he had had relationships with other women during the relevant period as well.

22. There was also the sworn documentary evidence that was placed before the Family Court and NSW Supreme Court by the applicants which tended to infer there may have been at some time a sexual relationship in that they shared the same bedroom for a number of years.

23. However, as previously stated this factor is not definitive in determining whether two people are a member of a couple in accordance with the Social Security law. There is no point canvassing this point further as a result.

    Financial aspects of the relationship

24. In terms of the other criteria the evidence before the Tribunal showed that the applicants held a joint account with the Commonwealth Bank from 2 September 2005 until 19 March 2013 and both were authorised to operate the account. The applicant said she only used it once but agreed that it was available for her to use for living expenses if need be.

25. The closing of the account was contemporaneous with the applicant telling the Department that she was separated from Mr Penderetskyy but living separately and apart under the one roof.

26. They both described a close friendship whereby Mr Penderetskyy, as well as operating a joint bank account with the applicant, also supported her financially on regular occasions during the subject period. I found the financial aspects of the relationship supportive of the contention that they were a couple.

    Social aspects of the relationship

27. The fact they travelled together to Poland in 2011 together but returned separately is something this Tribunal finds inconclusive in that it is reasonable for good friends to initially stay in the one place overseas and go together to an event such as a family event of Ms Brodka’s family. The fact they came back separately is also consistent with them being just good friends. There was little evidence as to the social aspects of the relationship and whilst they shared accommodation at all relevant times and were there for each other, they did not appear to have much of a social life.

28. Accordingly the Tribunal is of the view that travelling to Poland together is not conclusive one way or another, nor can it be said when one considers the other social aspects of the relationship that there is any compelling evidence one way or another to say if they were a couple or not.

29. It is however clear from the evidence that they spent a great deal of time together.

    Nature of the household

30. The evidence before the Tribunal showed that the applicants lived and shared accommodation at a number of locations from 2004 to 2016, including sharing living areas in the one bedroom property at Canley Vale from 21 July 2009 until September 2016.

31. It is also clear from the evidence that the explanations of their living arrangements at the one bedroom Canley Vale residence are not convincing given the length of time both parties were there, as well as the statement made in  their affidavits tendered to the Family and Supreme Courts. It is also perhaps stretching the imagination when looking at the facts of this case to accept that Mr Penderetskyy spent seven years sleeping on the couch.

    Nature of commitment to each other

32. It is not clear from a lot of the evidence if they held themselves out as a married or de facto couple or not. No documentary evidence was called by them to dispute this however, and the documentary evidence before the Family Court and NSW Supreme Court clearly stated that they indeed held out that they were.

33. It is clear from the above that any relationship they had, be it as just good friends or as a de facto couple, was a lengthy one.

34. Were it not for the documentary evidence filed with the Family Court and the NSW Supreme Court,  I feel  I would have to conclude that one could not be satisfied that  they were a couple for the purposes of the Act.

35. However, both applicants swore affidavits and filed a property settlement document that were before the Family Court and the NSW Supreme Court that clearly stated that they were members of a couple at all relevant times. This evidence is in my view decisive.

36. I am satisfied taking into account all the evidence given orally and in documentation, and  especially as a result of the family law documents sworn and filed by this applicant and Mr Penderetskyy, that the applicant was a member of a couple the purposes of the applicable law.

37. The relevant court documents filed in those proceedings were:

    a) a Financial Agreement made under section 90UC of the Family Law Act 1975;

    b) an Affidavit of Maria Brodka sworn 2 July 2012 for the NSW Supreme Court; and

    c) an affidavit of Volodymyr Penderetskyy sworn 13 June 2012 for the NSW Supreme Court.

38. These documents are attached to this decision as Annexures A, B and C respectively.

39. These documents, sworn under oath, clearly indicated that the applicant and Mr Penderetskyy commenced cohabitation from January 2004 and continued to live together as a couple until the relationship broke down irretrievably on 14 October 2010. The documents further stated that they had made equal financial and non-financial contributions to the relationship.

40. These documents further stated that in October 2010 the applicant went to Poland and upon her return in January 2011 she and Mr Penderetskyy continued to live under the same roof but separately and apart.

41. Both the applicant and Mr Penderetskyy, when pressed in cross examination by the representative of the respondent, said that what they swore in those affidavits and documents filed before the Family Court and Supreme Court was not correct.

42. They both maintained that the people drafting the documents added their own words without the knowledge of the applicants. This was despite the fact that they were both assisted by interpreters and qualified independent solicitors, in this applicant’s case by a solicitor who had been handling her affairs since she arrived in Australia in 1999 and whom the Tribunal formed the view, from the documentation, appeared to be to all intents and purposes honest and competent.

43. After a lengthy and rambling series of answers by both the applicant and Mr Penderetskyy, I was left with the conclusion from their evidence that whilst initially trying to blame their nemesis Ms Rawicka for possibly having something to do with the content of their affidavits, they both settled on the explanation that what was contained in their affidavits was incorrect information put in by the third parties drafting them, without their knowledge and consent.

44. Both applicants also said that they did not understand the documents due to language and cultural differences. 

45. Needless to say I was not satisfied with their explanations.

46. The respondent’s representative submitted that the applicant and Mr Penderetskyy could not have it both ways, but the fact was that they had not lied to the Family Court or the Supreme Court because what they had put in those documents was indeed true.

47. Further evidence backing that contention  was the applicant’s relationship details contained in her ‘Separated Under One Roof’ (SUOR) document filed with Centrelink on 15 March 2013 where she stated “Yes” in answer to question 2  - “Have you been married to, or been in a registered relationship or in a defacto relationship with another person?“

48. She went on to add in Question 11 and 12 the current state of the relationship living separately and apart under one roof:

    Question 11: How was your relationship changed since you separated?

    Answer:          -     We live in separate bedrooms

    -    We eat our meals separately

    -    We do not go out together

    -    We do not entertain friend [sic] together

    -    Each of us pays his/her expenses

    Question 12: How does your relationship differ from that of a married, registered or de facto couple?

    Answer:We are not together as a couple any more and we do not represent to other people that we are together.

49. It is interesting to note that Mr Penderetskyy a similar Relationship Details form dated 13 March 2013 answered  “No“ to the question of whether he had been married to, in a registered relationship or in a de facto relationship with the other person.

    Ms Bozena Rawicka

50. I feel it is necessary to devote a few paragraphs to this bete noire of the applicant and Mr Penderetskyy.

51. Despite the submissions of the representative of the respondent, I can confidently say from the evidence before me and my own deductions from the applicants’ and Mr Goldenberg’s statements that:

    ·there is strong evidence to suggest that Ms Rawicka appeared to be selling her services as an interpreter and provider of general assistance to the applicant for what appeared to be an exorbitant rate. Ms Rawicka initiated proceedings in the NSW Supreme Court against Ms Brodka and Mr Penderetskyy and sought an order for payment of $551,000 in relation to translation and other services;

    ·the inference I draw that the claim was very much an ambit one is based on the fact that it was subsequently withdrawn with the agreement that each party pay their own costs;

    ·the applicant, and to a lesser extent Mr Penderetskyy, were scared of her; and

    ·if they arrived at the financial settlement in part or even fully because of these events they were misguided, as can be seen by her making her claim against both of them for the very reason of preventing them from divesting assets.  

52. Accordingly I cannot be satisfied that was the sole or even a substantial reason for the applicant and Mr Penderetskyy entering into the financial arrangement. At any rate the financial agreement preceded the action in the court by Ms Rawicka.

53. Given the circumstances where they signed their affidavits, thereby accepting what was said in them as being the truth, in the applicant’s case assisted by her long time solicitor who one can assume knew her personal and legal situation well, I can be satisfied on the balance of probabilities that what they said accurately described their relationship, despite their suggestion that they may well have also prepared these documents with a view to protecting the applicant’s property from Ms Rawicka.

54. There is also no evidence before me to indicate that anyone forged any documents, despite the applicants suggesting some may well have been. When pressed neither applicant was able to identify any specific document  as a forged document.

55. Accordingly, despite the obvious grief suffered by the applicant as a result of her relationship with Ms Rawicka, Ms Rawicka’s involvement in this case is of no material relevance to the issue at hand, save for the obvious conclusion that it was her who reported the applicant and Mr Penderetskyy to Centrelink within days of withdrawing her claim.

    DISCUSSION 

56. As can be seen in the documents filed for the Family Court and filed with the NSW Supreme Court, the parties accepted and put themselves before the court as a de facto couple.

57. Apart from the issue (which is not crucial) as to whether they were having sexual relations, to all intents and purposes what they purported to be fitted into the description of what constituted being a ‘member of a couple’ for the purposes of the Social Security law at all relevant times.

58. Further the applicant, in her SUOR form dated 15/3/2013 prepared for her by her solicitor at the time, clearly stated that she had been in a de facto relationship with Mr Penderetskyy. This document in my view is further icing on the cake.

59. Accordingly, I am satisfied on all the evidence that the applicant and Mr Penderetskyy were at all material times living as members of a couple as alleged and as stated under oath by them in the documents mentioned above.

60. I am further satisfied that they correctly swore the affidavits of financial circumstances and thus did not commit perjury, but have attempted a belated and unconvincing attempt to persuade the Tribunal that they were really just very good friends.

    SPECIAL CIRCUMSTANCES

61. There is no departmental error in this case, nor are there in my view any special circumstances.

62. The amount of the debt is not in dispute nor is any of the other factors the Tribunal needs to consider in relation to writing off or waiving the debt relevant in this case.

63. The whereabouts of the applicant and Mr Penderetskyy are known and they are both paying off their respective debts at the lowest rate applicable, namely $20 per fortnight, by way of deductions from their Centrelink benefits.

64. In all the circumstances I cannot see any reason why this state of affairs should not continue.

    Decision

65. Accordingly, the decision of the AAT1 is affirmed.

I certify that the preceding 65 (sixty - five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

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Associate

Dated: 2 December 2019

Date(s) of hearing:	18 January 2019, 21 October 2019, 22 October 2019, 23 October 2019
Advocate for the Applicant:	Mr L Goldenberg
Advocate for the Respondent:	Dr S Thompson
Solicitors for the Respondent:	Department of Human Services

ANNEXURE A

ANNEXURE B

ANNEXURE C