Demir and Secretary, Department of Family and Community Services
[2006] AATA 906
•24 October 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 906
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1154
GENERAL ADMINISTRATIVE DIVISION ) Re SELMA DEMIR Applicant
And
SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES
Respondent
DECISION
Tribunal Senior Member, Mrs Josephine Kelly Date24 October 2006
PlaceSydney
Decision The decision under review is set aside and substituted for that decision is the decision that Mrs Demir was not a member of a couple during the period 22 March 2000 to 9 November 2004 and therefore there is no debt. ..............................................
Signed Senior Member, Mrs Josephine Kelly
CATCHWORDS
SOCIAL SECURITY – whether debt raised - whether applicant was a member of a couple during debt period – found applicant not member of a couple – no debt raised – decision under review set aside.
LEGISLATION
s 4 Social Security Act 1991
REASONS FOR DECISION
Senior Member, Mrs Josephine Kelly Summary
1. Mrs Selma Demir (“Mrs Demir”) is seeking review of the decision of the Social Security Appeals Tribunal (“SSAT”) affirming a decision which held that she was a member of a couple during the period 22 March 2000 to 9 November 2004 (“the debt period”) and consequently raised a debt of $38,706.46 against her for parenting payment (single).
2. For the reasons that follow, I accept the evidence of Mrs Demir and witnesses who gave evidence supporting her case, and find that she and Mr Demir were living separately and apart on a permanent basis during the debt period and therefore she was not a member of a couple during that period and there is no debt. The decision under review is set aside and my decision is substituted therefore.
Background
3. Mrs Demir and Mr Ferda Demir (“Mr Demir”) married in 1987. Mrs Demir moved to Australia from Turkey in 1988 to join her husband. They have two children, a daughter born in January 1989, and a son who was born in 1995. They were married throughout the debt period and own a property at Kings Langley (“the Kings Langley property”) as joint tenants. The property was purchased on 21 February 1996 (T20).
4. When Mrs Demir first arrived in Australia she and her husband lived with his parents in Silverwater for about 12 months. Mr Demir’s brother, Ghengis, and his wife, Sevgi, who is also Mrs Demir’s sister, also lived there. They all moved to Seven Hills, and later Mr and Mrs Demir moved back to Silverwater, and then to the Kings Langley property.
5. The evidence discloses that the investigation into Mrs Demir’s circumstances was triggered by a data matching exercise which disclosed what a Centrelink officer described in a file note as a discrepancy in the ATO records which showed that Mrs Demir claimed Mr Demir as a spouse for the financial year ending 2003 (T31). The first of a number of inquiries made was a title search request on 9 September 2004 (T16).
Issues
6. The issue for the Tribunal to determine is whether Mrs Demir was a member of a couple with Mr Demir during the debt period, and if so, whether the debt should be waived due to special circumstances.
Law
7. As they were legally married, the question is whether I form the opinion that they were not living separately and apart on a permanent or indefinite basis (s 4(2) of the Social Security Act 1991 (“the Act”), having regard to all the circumstances of the relationship, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship, and the nature of their commitment to each other (s 4(3) of the Act).
The case put on behalf of the Secretary
8. The case on behalf of the Secretary relied on evidence, mostly in documents, which was said to be inconsistent with Mr and Mrs Demir’s living separately and apart during the debt period. To the extent that there was evidence to the contrary, it was argued that that evidence should not be accepted.
The Evidence
9. Mrs Demir gave evidence. Mr Demir did not give evidence before me but did give evidence to the SSAT. Mr Ghengis Demir and his wife Mrs Sevgi Demir gave evidence to the Tribunal as witnesses called in Mrs Demir’s case. Following is a summary of the oral and documentary evidence.
10. The ANZ Bank provided the following information (T24). Mrs Demir was the trustee for Dilek Demir in an account opened in 1989. She had no other accounts at the bank. Mrs Demir used to have her Centrelink pension paid into.
11. On 28 July 2005, the NSW Police provided to Mrs Demir a report about a domestic incident at the Kings Langley property on 13 June 1998 (T77). Mr Demir telephoned the police after Mrs Demir told him she would do so. The report notes that Mrs Demir returned to her home at 3 pm to find her husband drinking excessively. She told the police that he was swaying as he walked and vomiting. An argument followed. When police arrived she did not require action. She was advised of her rights in relation to an apprehended violence order. She did not provide a statement as it was a verbal argument only. There had been no previous police attendances in relation to domestic situations.
12. Mr and Mrs Demir have taken trips to Turkey together in the past. Records from the Department of Immigration and Multicultural Affairs (“DIMA”) show that Mr and Mrs Demir went to Turkey together in 1993 with their only child at the time, and again in 1999, when Mrs Demir and the children arrived in Turkey two months before Mr Demir, but they all left together.
13. It is not in dispute that a birthday party was held for the Demirs’ daughter around 11 or 16 January 2000 and that Mr Demir had a car accident on 19 January 2000. There is a police report of that date which records that he had an alcohol reading of 0.115 at 23:08 hours at Quakers Hill (T85). The evidence reveals that Mr Demir’s taxi was a write-off and he consequently lost his licence and his livelihood for some period. Mrs Demir’s case is that her husband left the Kings Langley property that night and they have lived separately and apart ever since. They divorced in late 2005 or early 2006.
14. In a letter dated 23 September 2004, Centrelink advised Mrs Demir that a data match indicated that she may be living in a marriage-like relationship which may affect her entitlement to Parenting Payment – Single, and asked her to contact Centrelink to arrange an interview to discuss her circumstances (T21). An assessment of living arrangements form (“the AOLA Form”) was enclosed. Mrs Demir was requested to complete it and take it to the interview. Mrs Demir signed it on 12 October 2004 (T29). Ms Julie Kwok at Centrelink Liverpool is identified in the form as having helped her fill it out. The answers in that form include the following information. Their daughter’s birthday was 16 January 1989. Mr and Mrs Demir are still paying off the house. The total mortgage repayments are $800 per month and she pays $400 a month. They split the rates and water authority half and half. She shares a car with Mr Demir and uses the car to go to school. Mr Demir is responsible for the servicing of the vehicle and she is responsible for the petrol when she uses it. The boxes for “yes” are ticked indicating that she and Mr Demir have purchased or are paying off a car, caravan, trailer, dishwasher freezer and clothes dryer. They do not have access to each others bank account and they do not have a joint credit card. She and Mr Demir have a $3,000 debt for household contents. They are not beneficiaries under the each others will, superannuation or life insurance policies. They do shares bills. The electricity is split 50/50; the phone is paid for by Mrs Demir; Mr Demir pays for the internet, home contents (presumably insurance) and for most of the food. They also split the electricity bills 50/50. Mrs Demir and her mother-in-law are named as persons to contact by Mr Demir’s employer in an emergency.
15. In the section of that form addressing social and personal life, the information includes that Mr Demir mows the lawn and carries out maintenance. In relation to social and leisure activities, they shared “kids birthday”. In response to the question do you and Mr Demir go on holidays together, the box for “No” was crossed and then apparently crossed out and initialled. The “Yes” box was crossed and information written which I understand refers to The Entrance, “2 niths. Family. Ferda Selma Kids”. In response to the question whether they had an ongoing sexual relationship, the “No” box was indicated and then crossed out and initialled, and the “Yes” box ticked, and “maybe” written beside it. During her oral evidence, Mrs Demir explained that her nine year old son was present during the interview. She said that Mr Demir was taking their son to soccer every Tuesday night and she did not want their son to think that that might stop.
16. It was indicated that Mr Demir provided support during illness and in money matters, but not with personal crisis or family disputes.
17. In the section about their children, the initial response to the question whether Mr Demir looked after the children was “No”. It was crossed out and initialled and the “Yes” box crossed and written was “Only Tuesday for soccer”. Mrs Demir’s sisters were identified as contacts in the event of an emergency for school purposes.Both Mr and Mrs Demir attended teachers interviews (perhaps sometimes, it is not clear) and Mr Demir attends soccer. Mr Demir provided financial support to buy clothes and food and give pocket money for the children. In response to a question asking for a description of the relationship, the answer was written: “At this moment I am thinking of reconciling with my partner in the future for the sake of my kids”. “Selma” was written underneath that.
18. An interview with Mrs Demir apparently occurred on 29 October 2004 at the Blacktown Area Office (T31). Ms Julie Kwok and Ms Trish Rainbow-Noack from Centrelink were present, although the latter is not identified in the file note she made at that time. A Turkish interpreter was there for part of the interview. The following was recorded in a file note. It was explained to Mrs Demir the review was to determine whether or not she could be classified as living as a member of a couple. Mrs Demir had brought along a number of documents which were in her name. Her Medicare card had only her and her son’s names. Mrs Demir said that she separated at the end of December 2000 because her husband used to drink a lot. He had a bad car accident while driving his taxi, was booked for drink driving, lost his licence and incurred a lot of expense. He was not insured. The Demirs’ daughter is recorded as being a son and her school is not identified accurately. Mrs Demir said that the enrolment form would state that she is married but the emergency contact numbers were her two sisters. She remained in their home and Mr Demir went to live with his brother (Mr Ghengis Demir) at Seven Hills, and also stayed with his parents at Toongabbie, which he was still doing. She gave his mobile telephone number. Mrs Demir said that his mail including Telstra, RTA, electricity, water “etc”, still goes to the Kings Langley address, but not bank mail. She did not know about ATO mail. He works at Timberland which is apparently his own business and in which she had no interest. He sells furniture. Mrs Demir said that the house and contents insurance was shared. She gives Mr Demir half of the bill and the total is taken out of his Westpac Bank account. She did not know which car insurance firm Mr Demir used. The car is garaged at her place about four times a week, then he has it. He also has a company car. She worked for Television & Broadcasting until it closed operation on 15 June 2004. She and the children then went to Turkey for 3 or 4 months, during which time her husband stayed at their home to protect it. She said that she had been on holidays with Mr Demir and the children to the Entrance because his parents were there. Mr Demir was coming over to their home three or four nights a week and he was staying on the lounge. They have a three bedroom house. He stayed to look after the children while she went to TAFE. It was sometimes late and so she allowed him to stay. Mr Demir cooked dinner for the children on those nights. The children want him to be with them rather than one of her two sisters. She said that the Kings Langley property had been on the market for four months with L J Hooker for $480,000 so that the money can be divided between them. The landline telephone for Kings Langley is in her husband’s name but she has a mobile that was given to her by a friend of her ex husband. She prepays credit for it.
19. Centrelink wrote two letters to Mrs Demir on 18 November 2004 suspending her Parenting Payment Single (T36) and suspending her Pensioner Education Supplement because she was not receiving that payment (T35).
20. A Centrelink file note recorded that Mrs Demir attended the Blacktown office on 16 December 2004 querying cancellation of payments and overpayment letters (T56). She said that she was not given an explanation of why she was being interviewed previously about marriage like relationship. The note continued “as per doc by interviewer, cust was explained with via an interpreter”. I infer from the note that Mrs Demir declined to claim payments as a couple. She was advised how to appeal and the “source” of the decision, bank account access, mailing address of “ex”, income tax return lodgements, bank loan application “etc”. Mrs Demir said that she was living with her sister and that the marital home was vacant. She had been using Mr Demir’s car but was no longer doing so. The house was no longer on the market because Mr Demir had changed his mind. She understood that the loan that they had applied for was to buy “ex partner” out of the marital home. It was noted that Mrs Demir inferred that she did not understand a lot of what Mr Demir does and trusts what he says re financial things. Her address was Winston Hills.
21. A Centrelink record refers to Mr Demir’s having written a letter dated 12 January 2005 to Centrelink about the separation (T59). It was not in evidence and the file note suggests it may have disappeared around that time.
22. Mrs Demir’s solicitor wrote to Centrelink on 24 January 2005 (T62). He said that Westpac loan 322 900 was the Demirs’ home loan taken out in 1995. Since 21 March 2000 deposits have been made in equal shares by the Demirs. In relation to a business development loan, it was taken for the purpose of operating a taxi cab, including purchasing a taxi plate. On or about February 2000 Mr Demir had a motor vehicle accident in which another motorist was seriously injured. Mr Demir’s driving licence was cancelled for a high range drinking offence which caused financial difficulties for them which consequently led to their separation. He moved to his brother’s house. He would regularly pick up the children and Mrs Demir would hand him his mail. He did not change his address because he hoped that they would be reconciled. The Wizard Home Loan was made without her knowledge and it was not her signature. The financial pressure caused Mr and Mrs Demir not to obtain orders for child support payments but to come to an arrangement. He accepted he had a financial responsibility to care for the shared children. Mrs Demir had lived with her sister since November 2004 because her husband kept visiting her at the Kings Langley property. He now lived there. She and her husband had agreed when they separated that she would remain in the property with the children. The solicitor was instructed to prepare a contract for sale on 1 May 2004. Mr Demir changed his mind and told his wife that if she wanted to have the house sold she would have to take legal action. The solicitor’s investigations revealed that Mr Demir’s change of mind occurred due to his securing a business loan by a mortgage secured on the Kings Langley property, of which Mrs Demir was ignorant. Mr Demir realized he would have to pay out that loan on selling the Kings Langley property, and that Mrs Demir would be made aware of “his deception”. The solicitor had also found that Mr Demir had dealings with Esanda Finance registering a mortgage over the Kings Langley property.
23. The solicitor also wrote that Mrs Demir attended a holiday in Swansea in 2003 where people from a particular Turkish community went, when Mr Demir was there but she only knew that when she arrived and he stayed with a relative and not her. Mrs Demir denied ever attending any school function with Mr Demir. The solicitor wrote that Mrs Demir advised Centrelink in 2004 that Mr Demir was visiting more frequently and insisting on staying over. He attached a copy of her mobile phone account with the telephone calls highlighted. The visits began when Mr Demir had problems dealing with his father’s terminal illness (a death certificate was attached). The letter emphasised that Mr Demir was hoping for reconciliation. The solicitor also said that Mr Demir had assaulted Mrs Demir in about 1999 and the police were called.
24. There is a Centrelink file note that considers the information in the solicitor’s letter and other information (T63). It stated that there was no record of Mrs Demir telling Centrelink that her husband was staying more often. There had been a conversation with Mrs Demir on 15 February 2005 when she said that her daughter was living with Mr Demir because of the convenience of her school, and her son was with her although she took her daughter to school or collected her. Mrs Demir was told her pension would be affected as she was only looking after one child and responded that she was forced into this situation because her pension had been stopped. The Centrelink officer formed the view that Mrs Demir’s signature was on the Wizard loan application form. It was noted that Mrs Demir only moved out of the family home when her benefit was suspended and she was informed that it would not be restored until her current living arrangement was rectified. The officer had informed Mrs Demir that she could get information from legal aid regarding separation and settlement of the marriage.
25. The solicitor sent a further letter dated 8 February 2005 which repeated the same material as before (T66).
26. On 15 February 2005 Mrs Demir attended an interview seeking review of the decision. Some of this material is referred to in the file note T63. The computer file note made by the Centrelink officer recorded that a Turkish interpreter was present. New or different information recorded not referred to previously in this decision was that Mrs Demir saved and also borrowed money from her brother-in-law for her trip to Turkey in 2003. Mr Demir was not giving her any money since she moved out and she knew nothing about the loans taken out since she began receiving her benefit. She said that the house had been put back on the market with LJ Hooker but that her husband had taken it off the market again. Mrs Demir was reinstated with her benefit for one child from 4 January 2005. The officer checked with LJ Hooker in the area. The home had never been listed with them. Mrs Demir’s address details were updated.
27. On 15 June 2005 solicitors for Mrs Demir wrote to Mr Demir offering a settlement of property and residency issues in relation to the marriage (T76). It states that they separated on 22 March 2000 when he moved out of their home. Mrs Demir moved out in November 2004 and he moved back.
Other documentary evidence
28. The Demirs’ medical practitioner provided answers to questions from Centrelink as follows (T33). Mr and Mrs Demir had been his clients since 1996; their address in his records was the Kings Langley property; Mrs Demir was married, and they sometimes attended medical appointments together.
29. A Wizard loan origination summary was in evidence (T7). It shows the borrower to be Mr Demir and the primary loan purpose to refinance existing owner occupied dwelling. Mr and Mrs Demir were listed as the borrowers and the current address given for both was the Kings Langley property, although that was indicated as not being his mailing address. There was no Wizard document in evidence that contained signatures. It is also unclear whether the loan was actually taken out as its status as of 19 June 2002 was “cancelled”. The final repayment date was noted to be 19 July 2032 which suggests it was to be a 30 year loan but did not proceed.
30. A business search shows that Timberland Furniture Penrith was registered on 10 September 2002 and in Mr Demir’s name on 15 September 2002. The principal place of business and service of notice address were the Kings Langley property (T94). An ASIC search shows that Timber Style Furniture Pty Limited was registered on 17 August 2001 (T103). The registered office was at Kings Langley. There are notifications of dismissal of application for winding up on 11 November 2004 and 6 April 2006.
31. The Demirs’ daughter’s school provided the following information. In a document dated 11 November 2004, it was stated that she was enrolled on “02/01” and her grandfather’s name and telephone number had been provided as an emergency contact. An enrolment form was also included (T34). It was dated 18 October 2000 and showed the mailing title as Mr and Mrs Demir, gave the family address as Kings Langley and Mr Demir’s name as the emergency contact with his work telephone number. Curiously the relationship was stated to be father or uncle. Details of both Mr and Mrs Demir were provided in separate forms reflecting that they were residing at the same address as the student. It appears that Mr Demir signed the form referring to him on 19 October 2000 and Mrs Demir signed hers on 18 October 2000. In cross-examination, Mrs Demir said that she could not recall what she did about enrolment and thought her daughter had got the forms. The daughter of Mr Ghengis and Mrs Sevgi Demir was also enrolled there. In evidence, Mrs Demir said that she recalled the date she signed the document. The date and signature were in her writing. The writing in the boxes was Mr Demir’s. She did not know the work telephone number given for her. At that stage she was not working as a shopkeeper. The Demirs’ daughter’s date of birth was given as 11 January 1989.
32. A search of Roads and Traffic Authority records dated 18 November 2004 show that the address recorded for both Mr and Mrs Demir throughout the debt period was the Kings Langley property (T37). On 5 December 2000 Mr Demir transferred a Honda Civic car from himself into Mrs Demir’s name. A Holden Commodore was also registered in her name on 9 December 2000 and disposed of on 15 January 2001. During cross-examination, Mrs Demir said that Mr Demir’s father had bought her an old car after the car she was using was burned. However, she could not use it. A friend found the Holden Commodore in the paper and helped her acquire it for $700. She sold her car to her younger sister’s husband before she went to Turkey. She was very confused she said and did not understand much about cars.
33. A TAFE transcript of academic record shows that Mrs Demir withdrew without penalty from three subjects in a small business management course in 2004. Handwriting states “18 July – Start. 30 October Finish”.
34. Mr Ghengis Demir signed an undated printed letter stating that Mr Demir had been living at his house in Seven Hills and at his mother and father’s house in Toongabbie since 2000 (T42). The received stamp is illegible.
35. Mr Demir’s income tax returns for the years ending 30 June 2001, 2002 and 2003 were in evidence. They were prepared by the same tax agents as were Mrs Demir’s for those years. They were not completed in hand-writing. In Mr Demir’s 2001 tax return, his spouse is identified as “Demir Selda”. His home address is given as something misspelt but recognisable as the Kings Langley property. His postal address is a Guildford post office box. In his 2002 tax return the Kings Langley property address is given as his home address but again the post office box at Guildford is provided as his postal address (T30). The space for spouse’s name was not filled in.
36. In Mrs Demir’s 2002 tax return, her postal and home address were given as the Kings Langley property. The section for spouse’s name was not filled in. The 2004 tax return was the same. Mr and Mrs Demir changed tax agents for the 2003 tax year but again used the same one. In her 2003 tax return Mr Demir’s name appears as spouse (Exhibit A1). The spouse income was also filled in. Three ABN numbers were provided for three different income amounts for Mrs Demir. The sum of $6,749 was paid by the ABN number for Timber Style Furniture Pty Ltd.
37. In Mr Demir’s tax return for that year, the following information was provided in relation to the Medicare levy items. The figure “2” appeared in the box opposite “Number of dependent children”, the spouse details filled in included a date of birth, “01/10/1977”, (Mrs Demir’s date of birth was 01/10/1971); “yes” was given in answer to the question “Did you have a spouse for a full (tax) year“; and the sum of $27,239.00 was in the box beside spouse’s 2002-03 taxable income.
38. Mrs Demir was cross-examined about the tax returns. In essence she said that the questions should be asked of her tax agent. She gave him all the documents. She thought Mr Demir had provided the information provided in her 2003 return.
39. Primus telephone bills for a landline payable on 19 November 2001 and 18 December 2002 were addressed to Mrs Demir at the Kings Langley property (Exhibit A6 and T9).
40. A water bill for the Kings Langley property payable on 26 August 2004 was addressed to Mr and Mrs Demir (T14).
41. A document from a business consultant and chartered accountant states that a company extract is attached and confirms that Mr Demir is the sole director and shareholder of Timber Style Furniture Pty Limited and that Mrs Demir has no direct financial interest in that company (T41).
42. On 29 November 2004, First National Real Estate at Kings Langley provided a copy of an agency agreement which shows that Mr and Mrs Demir had the Kings Langley property listed for sale on 3 May 2004 for $489,950. The agent’s estimated price was $465,000. The house was then withdrawn from the market on an unknown date sometime in mid-May 2004 based on the verbal instructions of Mr Demir (T46). There are also advertisements for the property listed with the same agent on 27 April for $475,000 and 22 June and 29 June for $459,950. A letter from First National Real Estate dated 4 May 2005 shows that the Kings Langley property was on the market in May 2005. I infer that it was on the market from April to June 2005.
43. Documents from the Professionals at Blacktown show that the property was again on the market in August and September 2005 for $455,000 (Exhibit R3).
44. Westpac provided information on 19 November, 30 November, 7 and 13 December 2004 and in February 2005 about the accounts in the name of Mr and Mrs Demir (T84), (T99), (T49), (T101) and (T70). As of 7 December Mrs Demir’s current residential address was the Kings Langley property and Mr Demir’s current residential address was a street in Penrith. There were five accounts. Mrs Demir had a trust account for her daughter which was opened on 6 December 2004 (032 173/2173). The account address was the Kings Langley property. The application recorded Mrs Demir’s occupation as “wood machinist/lathe operator: wood turn” in typed letters. Mr Demir and Mrs Demir had a passbook account which they opened on 3 February 1999 (032070 184921). As of 30 November 2004 the address was Mr Demir’s Penrith address. There were two other accounts. A business development loan was opened on 14 July 1998 in the names of Mrs Demir, Mr Demir, Mrs Sevgi Demir and Mr Ghengis Demir (032 179 135 453). The account address was Mr Demir’s address and a Seven Hills address which I infer was that of his brother and sister-in-law. The other account was just in Mr and Mrs Demir’s names (037 112 322 900). It was a Premium Option Home Loan opened on 8 March 1996. There was a redraw document for this account but the mortgage was not increased, and on 16 November 2004 the nomination for people receiving statements for this account was changed (T70). The redraw facility is dated 1 February 2000 and is apparently signed by Mrs Demir (T86). As of 7 December 2004 all of these accounts were still open.
45. There was a further account in Mrs Demir’s name only (032173 244 114) which was opened on 6 October 2000 and closed on 4 January 2005.
46. On 24 September 2004, Australia Post was requested to provide information about who was receiving mail at the Kings Langley property. Australia Post responded that it was Mrs Demir.
47. A death certificate shows that Mr Demir’s father died on 8 December 2004 from cancer which he had had for 17 months (T100).
48. The DIMA records show that from May to August 2003 Mrs Demir and the children went to Turkey. Mr Demir did not join them on this trip (T95).
49. There were two Optus bills for a landline at the Kings Langley property in Mrs Demir’s name for the September and December quarters 2004.
50. In a typed letter stamped received on 26 November 2004, the Demirs’ 15 year old daughter wrote about her parents’ relationship and separation (T38). She said that they separated in 2000 after her father had a car accident due to his drinking problem. She said that her father had an alcohol and drinking problem, and described the arguments between her parents which included yelling and screaming, and how she would stay in her room, and sometimes take her younger brother to the park to wait for their father to go to sleep so the fighting would stop. She said that while her father has never hit her, he had hit her mother on several occasions, “even next to his own parents”. She described how her father was drunk on 24 November 2004 and reported his saying that he was stressed about her grandfather, who had spinal-cord cancer and could not walk. She also said that Mr Demir would visit them maybe every 15 to 16 days, sometimes not even for a month and when he visited he was usually drunk. Since the separation their lives have been more enjoyable as people now came home with a happy face. She believed the only reason he visited was because of her younger brother. She also said that since her mother got a phone call from a lady from Centrelink she has been depressed and “stressed out” like before when her parents were together. Her brother told her one afternoon when she came home that their mother was crying after she went for an interview with a lady that was asking all these questions. Her final paragraph was a plea not to bring her parents back together:
“So from the bottom of my heart as a 15 year old girl I do not want my parents back together, we are much more happier. So stop bringing the past back into the present and just leave my family alone so we can just live our lives and grow up like normal people”.
51. There are two signed type written letters dated 25 November 2004 from individuals who say they know Mrs Demir and vouch for her not having lived with Mr Demir since 2000 and during the last four years the person has known her, respectively (T39 and T40).
52. Mrs Demir signed a printed letter stamped received on 28 November 2004 as far as I can tell, stating that she had been living separate from her husband since March 2000, that she received no money from Mr Demir, she takes care of the children and her family assistance payment is spent on them (T43).
53. A report from Westmead Hospital Emergency department recorded that Mrs Demir presented on 13 October 2005 with depression secondary to multiple family and financial stressors (Exhibit A7). She was referred to a community mental health centre and her current antidepressants were ceased. She was advised of the need for legal advice and a referral given to a legal referral centre (Exhibit A8). Mrs Demir said during her evidence that before this she thought divorce was expensive because friends had told her that the person who applies to the Family Court has to pay all the costs. When she received this advice from Westmead she went to Kings Cross and the person on duty told her where to go and apply because she lived in Winston Hills.
Mrs Demir’s evidence
54. Mrs Demir described how in the early years of their marriage the whole family lived together and Mr Demir had an alcohol problem, but his family was managing it. After he got his taxi plates in 1996 his behaviour changed completely. He was coming home very late. He was always drunk and could not stand up. She found out he was gambling. It was putting them under a lot of pressure at home because he was managing the money. She had no money of her own, and no bank account of her own. The only account was a joint home loan account for which he had the passbook. Sometimes she could use it to deposit money. They argued about his behaviour. In the beginning they argued about alcohol, and then about his not being able to pay the home loan, and then about his not really being interested in the children. There was shouting and screaming at home. He was frightening her and the children. He hit her. He used to call his parents when they had a fight and they would come within five minutes. Her mother-in-law blamed her for his getting drunk and gambling. She thought about leaving him every day but did not because the children were small, she had no income and she was so scared.
55. She said that there was a picnic from about 10 am for her daughter’s birthday early in 2000. There were about seven or eight families, all friends of Mr Demir. When he arrived at about 12 noon he was so drunk he could not stand up. He disturbed everyone and said bad things to her. She was so upset she could not stay. She picked up the children and left. He came home that evening with his parents. They had an argument. The next morning he could not remember what he had done and pleaded for forgiveness which she declined to give.
56. For the last three or four months of their marriage, she slept in her children’s bedroom and locked the door. In relation to their sexual relationship, she was praying until the morning that Mr Demir would not come close to her.
57. Two or there days after the birthday party Mr Demir had a car accident. He called her to tell her. He was drunk and could not even speak. His brother and parents picked him up from the police station and brought him to their home. They had a huge argument and she said that either he goes or she would. His mother told her he was going to gaol and if he did, that would be her “guilt”, and that she was to stay there with her children until they were 18. It was not her house, and after that she was on her own.
58. They took Mr Demir away that night. He went to his brother’s house. He took some of his things, but his brother came back and picked up his belongings two or three days later. He did not come back to the house to stay over night.
59. He went to court with his parents and lost his licence. He could not continue as a taxi driver. She did not know whether he worked after that.
60. She saw him seven or eight months after he moved out, when her younger sister came to Australia to marry and there was a family reunion.
61. She had financial difficulties after Mr Demir moved out. She went to places where she had worked looking for jobs, and to Centrelink where she was told about the parenting payment. The original form has disappeared. She also registered with the Child Support Agency (“CSA”) the same day when she went to Centrelink where she was told to do so. She received letters from CSA saying that she would get $20 per month.
62. She was paying for everything herself but not the home loan. She tried to change the water and council bills but the council told her because it was under two names she could not. At some stage she and Mr Demir came to an arrangement that they would each pay half of the home loan. This was done through her younger sister’s husband and Mr Demir’s brother. She started working for the Television and Broadcasting Service (TARBS) in the middle of 2001. They were each paying half of the home insurance.
63. Towards the end of 2002 Mr Demir started giving money for the children. Mrs Demir used some of that money to connect the internet. He started seeing the children at the end of 2002. He first saw the children about 10 months after he moved out. He saw them once in two or three months; it varied. His brother picked them up and brought them back.
64. After he moved out, the social security benefit was paid into her and her daughter’s ANZ bank account. Her wages were also paid into it. Mr Demir did not have access to that account. She received statements for the home loan until she left the Kings Langley property. She knew nothing about the loan for the taxi licence. She received no statements for a business development loan. Mr Demir took the joint passbook when he moved out.
65. When Mr Demir first moved she received mail for him may be once every two months and she threw it into the garbage. When he started seeing the children, mail was still coming for him about once every three months. She used to give it to her daughter or Mr Ghengis Demir to take to Mr Demir.
66. After he moved out she went to TAFE and started to study English. She had put her son into school. In 2001 she worked at TARBS, a call centre for Turkish community promotion and telemarketing. She did that until the middle of 2004, with a break in 2003 when she visited Turkey. She worked in a different location when she returned from where she had worked before she went away.
67. Mr Demir started visiting the children at home in August 2004 twice a week because of his father’s terminal lung cancer. He would take the children to the hospital. She also visited her father-in-law by herself in the morning. Mr Demir did things for the children that he would not normally do, such as giving them chips, drinks, lollies and sometimes McDonald’s. He used to talk to their daughter all the time on the telephone. He did things with their son including soccer, which their son started to play around the end of 2003.
68. Mrs Demir started a small business management course at TAFE in July 2004 which she was supposed to attend twice a week from 6 pm until 9 pm. However, she did not go more than six times in two months. Her younger sister took her or sat with the children and Mrs Demir took the car. She borrowed Mr Demir’s car three or four times to go to TAFE. If her sister could not come, Mr Demir looked after the children, which he had never done before. He used to stay until midnight or 1 am and returned to his place to sleep. Sometimes at this time he did stay over but slept on a sofa. She denied that there had been any sexual relationship after he left in 2000, and said that the time his father was in hospital about to die was not a time to fight.
69. She said that she advised Centrelink at the beginning of September 2004 that he was coming around more frequently. As she usually did, she rang the Turkish line and received a form a week later which she filled out at home without any help (the AOLA Form). She rang Centrelink and said that she had filled out the form and she was told to take the form personally to an interview, which she did. She was in a rush because she went to where she thought it was and was given a different address. She had her nine year old son with her and had to take a taxi to the second address. Julie took the form and was in a great hurry. She was writing quickly. She described how the Turkish interpreter left in the middle of the interview and she continued speaking to them as best she could. Not all questions were interpreted while he was present. She specified that some questions had been asked after the interpreter had left. Some changes were made to the form. When she crossed something out she signed what was changed. Where she wrote that Mr Demir mowed the law and did maintenance, she said that they spelt out the words and she wrote them down. She said he did not do that and she never had a lawnmower. When cross-examined about this form, Mrs Demir denied having a sexual relationship with Mr Demir when he stayed over. She said that she did not know which boxes she ticked and which Julie ticked. When empty boxes were filled out she was not asked to sign. Mrs Demir said that at the first interview she told them that she collected her son from school as it was five minutes away and picked up her daughter at the bus stop. Julie asked for an approximate value of Mr Demir’s car. She put petrol in the car when she used it. She was taking the car so Mr Demir would not drive the children while he was under the influence. She described an incident when Mr Demir took their son to his father’s place and her son called her to ask her to come and pick him up because he was scared, because his father was under the influence.
70. She made her share of the home loan payment by giving it to her husband via her daughter or Mr Ghengis Demir. She denied giving various answers as written. For example, she said that Mr Demir does not come for the childrens’ birthdays. He would take them to McDonald’s or to his parents’ home.
71. Mrs Demir said that when she answered the question to what extent did Mr Demir provide care during illness, to which she had answered yes, she was thinking of her father-in-law’s illness. She helped her father-in-law. She liked him. She visited while the children were at school because no-one was with him. He told her what she needed and she got it. He did not speak English at all after 38 years in Australia. If he asked a nurse for anything, Mrs Demir would help. During his father’s illness, Mr Demir provided child support money regularly.
72. She explained what happened on holidays. She had gone with her younger sister and her family to the Entrance in 2003 and 2004. Mr Demir used to come and see the children there. He was staying with his parents. The Corum Turkish community used to go to The Entrance in the December/January holidays. During cross-examination she was asked about the use of Swansea in her solicitor’s letter rather than The Entrance as the holiday destination. She said that there was only one place and that at the interview she mixed them up, The Entrance being where she went when she first came to Australia.
73. In relation to the question in the AOLA asking her to describe her relationship with Mr Demir, she said that it was Ms Kwok’s writing but then said that she spelt the words to her and made her write them down. The words were “At this moment I am thinking of reconciling with my partner in the future for the sake of my kids”. She said having her son there “tore me down”. She did not wish to reconcile with her husband at that time but did not want to upset her child. There was no need for the child to know all this. She also said that in response to a question asking her about the question in the form about their sexual relationship where the original response of “no” had been crossed out and “maybe” inserted, that there was nothing more shameful or embarrassing. She also denied ever owning a caravan, trailer, dishwasher, freezer or clothes dryer, although that was indicated on the form.
74. She said that at the end of the interview after the interpreter had left she had asked whether the purpose was because she had left work. She was told that it was something to do with taxes and home loans. She did not understand what they were saying. During cross-examination, she said that Julie and Trish never gave her a chance. When she tried to explain, Julie said that she was closing the file and sending her precisely how much she owed and hung up on her. Trish was very polite but Julie asked the questions at great speed and told her that they would put a camera in the house. When Trish called her the next time to Liverpool, an interpreter was present. Trish told her that the first day she was learning the job. Mrs Demir thought she seemed to be apologising, and took all her details down again. She said that she could not change the decision but would send it to the appropriate places.
75. Mrs Demir said that after the first interview she left the house where she was living and moved in with her younger sister and her family. She had a big argument with Mr Demir on the telephone and asked what he had been doing behind her back. He said that the loan was not taken out. It was cancelled. She left the house in early November. Her evidence about what her daughter did when she left the house was a little unclear. The daughter spent the December/January holiday with her but then moved back to Kings Langley. Mr Demir moved back there in January 2005 and continues to live there with their daughter. Mrs Demir said that she did not want to move her daughter because she was in the last year of high school preparing for university, she had all her things there including computers, and the school bus stop was very close to that house. Later in cross-examination she said that her daughter was going into year 11 in 2005 and was currently doing her HSC, and that she slept on the couch at Mrs Demir’s younger sister’s house in the school holidays 2004-2005. A second reason for not moving her daughter was that her younger sister’s house has only three bedrooms. Mrs Demir and her son share one. The other two are used by her younger sister and her husband, and their two children.
76. Mrs Demir wants to sell the house but cannot as it is shown as security for the business. She and Mr Demir were divorced about eight or nine months ago. She first saw a lawyer when Mr Demir again tried to get a loan in her name. She learned that through her accountant. She had a panic attack and went to hospital. She also went to the police. She got the loan cancelled. Mr Demir threatened her and insulted her on the telephone. She has seen counsellors and a specialist doctor and is taking depression tablets. She knows where to ask for help. She also speaks more English than she did before. Legal Aid had arranged a conference about a property settlement but Mr Demir did not attend.
77. She denied knowing anything about the Wizard Loan until told by Centrelink. She denied ever working for a food shop at Circular Quay or for a particular food company. She denied having more than the Westpac trust account. She never used telephone banking, for Westpac or NAB. She later explained that she did ring Westpac to make inquiries to see if payments were being made to the home loan but she made no transfers.
78. It was her suggestion to put the house on the market in the middle of 2004. She wanted to leave the house. Every day spent there was disturbing. Mr Demir cancelled the sale without consulting her. She said that she knew nothing about Mr Demir’s business. She was not a director and had no shares in it. She denied receiving money from Timberland Furniture in 2003.
79. Mrs Demir gave detailed evidence about a number of questions on the AOLA Form.
80. In addition to the already set out, Mrs Demir gave the following evidence during cross-examination. She said that it was her signature on a redraw authority with Westpac dated 1 February 2001 (T86 p 374). She said that the police could not do anything about the 2005 loan. She does not have the piece of paper about this and did not think it relevant to these proceedings as it happened in 2005. She denied that she and Mr Demir approached GE Capital for a loan in October 2005. She said that apparently he made an application forging her signature. She denied being involved in getting an overdraft in June 2006 from the Bank of Queensland.
81. She still wants to sell the house but she believes she cannot sell it because it is security for the business. She has spoken to the bank manager who said that she has to pay loans that do not belong to her to sell the house. She filled out another form for Legal Aid after Mr Demir failed to attend the conference. She does not know how the property settlement will be done. The property was last listed eight or none months ago for $440,000 but there was no buyer.
82. She denied that she claimed the benefit because the family income dropped when Mr Demir had his car accident in January 2000. She said that she looked for work for one month after he left the house and then went to Centrelink looking for work. She wanted to learn better English. She saw an advertisement for a free English course.
83. She spoke in Turkish to the solicitor who wrote the letter dated 25 January 2005. She gave him all the necessary documents. She went alone.
84. She was aware of her obligation to tell Centrelink about changes in her income and living arrangements. She denied that Mr Demir moved back in or that their relationship improved as 2000 went on.
85. She was cross-examined about the $6,000 income disclosed in her 2003 tax return which she said she did not receive. She said she blamed Mr Demir for that. She gave her information to the tax agent and asked him to fill out the form according to that information. She said that that agent was recommended by an owner of the Blacktown Timberline store, and that the agent did the accounts for 15 different Timberline stores. She said that she did modelling at Casula or Crows Nest for that owner and his partners. They advertise everywhere through free catalogues and brochures. She also said that she did not receive payment and did the work because she liked doing it.
86. In relation to the claim in her 2004 tax return for motor vehicle expenses, she said that she had sold her car to her younger sister’s husband. Her workplace was sending her to different locations all the time. Sometimes she used her father-in-law’s car. He always supported her. She has not worked since TARBS went bankrupt because she is having problems which occupy all her time. She has been seeing doctors and solicitors to find out where she could get help. She is not able to sleep and so takes sleeping tablets, and also takes tablets for depression. She is unable to concentrate and is forgetful. She said that a lady called Talay asked her if she would like to work at the Turkish call centre because she had call-centre experience, that she could apply for a job like that but she was not able to communicate with her again and needed to know what to do to apply.
87. She said that when she reported her earnings to Centrelink she asked for the Turkish service, even waiting for 20 minutes.
88. She was shown the bank application where her occupation was recorded as wood machinist/lathe operator. She said that was not correct. She had worked in a weaving company for seven years from 1989 to 1997, and took maternity leave as she was having her second child. He was born in December 1995, was sent to pre-school in 2000, and started school in 2001. She started working for TARBS in 2001 doing promotions at shopping centres as required. The small debts raised while she was working at TARBS arose because she told Centrelink every two weeks what her earnings were. She said that she did that as soon as she started working.
89. She said that Mr Demir’s taxi plate was for nights only. He started at noon. He got home at 2 am or 3 am or other times 6 pm. Sometimes he was drunk. She thought that the accident was the first time he had been caught under the influence, although he may have had speeding fines.
90. She described the domestic violence incident when Mr Demir called the police. She said that she did not speak a word of English in 1998 and no one explained her rights to you. She was scared and crying and her children were scared. She was trying to give them courage. She only learned about AVOs in the last two years. Although she believes she needs one, and described threats she had received, she does not want to provoke Mr Demir. She also explained that in “our culture” if you get divorced, your name is stained.
91. She said that in 1999 her marriage was in turmoil and the trip to Turkey when her husband came later with his parents was an effort to put the marriage back together. She denied that the payment from Mr Demir’s company to her in 2003 was anything to do with her trip to Turkey in that year. She borrowed money from her younger sister’s husband and still owes him a small amount. She stayed with her parents who met her expenses while there.
92. She was asked about telephoning the Centrelink multi-lingual service on 24 September, 5 and 6 October 2004 and said that she had. She acknowledged receiving a letter enclosing an AOFA form but could not recall receiving a letter dated 23 September 2004. She understood that there was a telephone number and she rang that number. She was sure the letter had arrived in October.
93. She had wanted to open her own business as a driving school. She was not able to finish her TAFE business studies in 2004 because these problems had started and put her life in turmoil and she is still struggling with the same problems 679 days later, including difficulties with her relationship with her daughter as a consequence of leaving her at the Kings Langley property. In 2006 she put her name down for a TAFE child care course which is free of charge. She also put her name down for a window dressing course. She goes there but she is not able to concentrate. She wants a normal job. She said that she had never signed a tax declaration. When asked about her younger sister and her husband not giving evidence, she said that her sister was in Turkey and her husband was a very busy engineer. She said that she was divorced but that Mr Demir is still dragging her along.
94. Mr Ghengis Demir gave oral evidence. His parents, his wife and Mr and Mrs Demir lived together at Silverwater and then Seven Hills for seven or eight years. He said that Mr and Mrs Demir argued more than a normal husband and wife, but he did not want to get involved in their business. Mr Demir drank a little bit more than normal. Their father had influence over Mr Demir and tried to help out. Their father asked Mr Demir why he could not get on with his wife. Mr Demir understood but did nothing about it. Once Mr and Mrs Demir moved back to Silverwater and then Kings Langley, he saw them occasionally. Mr Demir tried to speak about his relationship with his wife in 1999 but Mr Ghengis Demir did not want to get involved and told his brother it was his problem, deal with it. Mr Demir told him that he and Mrs Demir could not get along. He could tell that they had had arguments but they did not argue in front of him.
95. He recalled a birthday party for Mr and Mrs Demirs’ daughter early in 2000 when about 14 to 20 people went to a park. He said that nothing happened at that time, but towards the middle of the day he could see Mr and Mrs Demir looked like enemies. He thought his parents took Mr Demir home that day. Mr Demir was drinking but was not overly aggressive. He did not know that Mr and Mrs Demir’s daughter had cried at the picnic. No-one was upset and he could not recall Mr Demir’s making people uncomfortable. He did not and does not want to know whether there was a problem.
96. He said that Mr Demir telephoned him after his car accident. His car was a write-off. He had been breathalysed and was just over the limit. The ambulance attended and the police took Mr Demir to the police station. He took Mr Demir home. His parents were there. His brother, Mrs Demir and his parents were upset. He wanted to forget about the whole thing. He said to Mr Demir, you idiot, you could have been killed, what did you do that for? His father had spoken to Mr Demir about his drinking which had started when he was a teenager and got heavier and heavier. He was not aware of his being violent but he did have a short fuse. He raises his voice every now and then if things do not go right. Mr Demir hired out his tax plates to a taxi company after the accident and sold them a year or 18 months later.
97. After the car accident he asked Mr Demir to come and live with him and his family. They have a five bedroom house and Mr Demir had his own room. Mr Ghengis Demir’s wife did not want Mr Demir to live there. Mr Demir brought his clothes and Mr Ghengis Demir collected his belongings in plastic bags. He stayed with them for three or four days a week and the rest of the time with his parents. Mr Demir would call him to get him to pick him up from nightclubs. Mr Demir knew if he was picked up over the limit he would be caught again. He had lost his licence after the accident for six or eight months. Mr Ghengis Demir told Mr Demir he was drinking too much.
98. Mr Ghengis Demir sometimes saw Mr Demirs’ children at his house. He would use the Demirs’ lawn mower and would mow the law for the children once a blue moon but then bought himself one. He or his wife picked up the Demirs’ children or Mrs Demir sometimes dropped them off.
99. Mr Demir received mail at their house, and his wife would put it underneath his bedroom door. Mr Demir helped out with groceries. He moved to his parents’ house in 2004 when his father got very sick to help out, about a month before their father’s death. Before their father was very sick Mr Demir used to stay there over night. Their father’s death in late 2004 affected him and his brother a lot, and his wife and children. He said that Mr Demir was calmer and has cut down on alcohol. He was aware that the Kings Langley had been put up for sale but did not sell. Mr and Mrs Demir did not own a caravan and he had never noticed a trailer. He did not know about other items such as a dishwasher.
100. He described the holidays at The Entrance. He goes there towards the end of December. Mrs Demir stays with his younger sister since she has been separated. Mr Demir comes when Mrs Demir has left and stays with Mr Ghengis Demir’s family in a tent.
101. In 2004 Mrs Demir stayed with her younger sister who takes a cabin at The Entrance. Mr Demir is there for a couple of days because he runs a store and is not there at the same time as she is. At Christmas 2002 and 2003 Mr Demir had the same constraint of running his business, a Timber Style Furniture store at Penrith. He had no idea whether Mrs Demir had done work for another Timberland store in Casula. Mr Ghengis Demir looks after Timberland Transport. He has owned his business since November/December 2005.
102. He had never seen Mr Demir threaten Mrs Demir although his wife had told him that had occurred.
103. The Demirs’ children are like his children. The children used to have sleepovers up to the ages of 13 or 14 but he did not take much notice. Mrs Demir went to the Entrance for a day or so. He and Mrs Demir have not got on since a couple of years after he married her sister.
104. He said that he would not lie for Mr or Mrs Demir and had no idea of how much she owes Centrelink. He gave his brother $40,000 last year. He was also a guarantor for Mr Demir’s shop, using his own home as security for unlimited liability. He has no concerns about being Mr Demir’s guarantor. Mr Demir is paying back the $40,000. Mr Demir respects him because he is older. He thinks his parents may have blamed Mrs Demir for Mr Demir’s deterioration. Blood is thicker than water he said.
105. Mrs Sevgi Demir gave oral evidence. She described how Mr and Mrs Demir argued about the smallest thing from the beginning when they were all living together. Mr Demir did go out without his wife but did not come home too late at the beginning. It was hard to recall so many years ago. She said that Mr Demir often came home drunk and was more aggressive. His father had about 80% influence over him. He told Mr Demir not to drink and not to come home late, but Mr Demir did not listen. Mr Ghengis Demir told him that he was married, and the same things as his father. Apparently Mr Demir was the same before he married, in that he liked to go out and go drinking. Mr Demir started to drink and go out more after he moved away from his father back to Silverwater. He became more sure of himself, saying nobody could interfere with him. Mrs Demir complained during that time. They were arguing. Mrs Demir told him not to gamble and drink. His drinking and gambling continued when they moved to Kings Langley and the arguments were more frequent. Mrs Sevgi Demir did not visit them there frequently and does not see her sister very often now. She agreed that she had not seen Mr Demir gambling but believed her husband had because he got angry and told Mr Demir not to.
106. She said that she had seen Mr Demir raise his hand a few times but he was not able to hit Mrs Demir because they held him. She had heard her scream or shout at Mr Demir very often.
107. She recalled that Mr Demir had been drinking at the birthday party. When he was drinking he acted differently with friends. Mrs Demir told him to stop drinking. It was possible that the Demirs had had an argument at home. She thought his brother or his father took him home. In cross-examination she said that he had an altercation with her cousin and Mrs Demir told him not annoy the guests. He did not wreck the picnic.
108. She said that Mr Demir’s father had rung her husband about the car accident. Her husband and she went to the accident. Mr Demir was under the influence of alcohol and not in a state to talk. She took the children from Kings Langley to her home so that they were not there when Mr Demir came home. Mr Demir came to live with them. There was no discussion about that. Mr and Mrs Demir could not have stayed in the same place; someone had to leave. She did not want Mr Demir to come because when he drinks he causes trouble; he screams, shouts, breaks doors and windows. She saw the punching of holes at her place, at Silverwater or Seven Hills. After he moved in with her, she tried not to have much to do with him because she was going to work, he was going to bed and in general they communicated through her husband. At the beginning he stayed except for Saturday and Sunday when he went to his parents’ place. When he learned that his father was sick he started to go more often. She agreed during cross-examination that he was more often away from her home by the middle of 2004.
109. He had his own bedroom at her home. He received two or three letters a week which she would slide under the door or his brother gave to him. “To see him normal was hard”, he was drinking two or three glasses. She complained to her husband and they were starting not to get on. Mr Demir moved out in November 2004 after living with them for about four years. She did not see Mrs Demir during that period, although their children did. She also avoids seeing Mrs Demir at their younger sister’s house. She feels very sad for her sister because she knows what she went through. Mr Demir did not see his children for about seven or eight months after he moved out. His daughter told her daughter that she did not want to see him because of how harmful he was to her mother when he was drinking. The two girls are good friends and are in the same class at the same school. Mr and Mrs Demirs’ children would go to her place once a week or every two weeks. She might collect and drop them off, or Mrs Demir might drop them off and Mr Ghengis Demir would sometimes take them back.
110. Mr and Mrs Demir’s daughter had complained to Mrs Sevgi Demir about her father’s drinking. At some stage she cried all the time. She had also told Mrs Sevgi Demir in 1999 or 1998 that Mr Demir had hit her mother.
111. Mrs Sevgi Demir denied that she had discussed her evidence with Mrs Demir or that she would lie for her sister. She said that when she first arrived in Australia his parents used to tell her that Mr Demir had been expelled from school for lifting his hand or a knife to his teacher.
112. Evidence was given Ms Aurisch an Acting Deputy Manager at Centrelink call centre at Liverpool. In her written statement she referred to a record showing that Mrs Demir called 13 1202 and had a 10 minute conversation with an English speaking operator at Moreland in Victoria on 24 September 2004 (Exhibit R7). There is a record of this call in Ex R6 and Exhibit R8. She said that there was no record of Mrs Demir speaking to a Turkish customer service adviser at that time. The only time she would not expect a record of a conversation to be generated was if the customer just wanted general information.
113. Ms Talay a bi-lingual interpreter at Centrelink gave evidence that if a customer telephoned and said that her husband from whom she was separated was coming around more often and wanting to stay over at night, she would enter the customer’s reference number, confirm the address and other questions to identify the period and send a form to assess living arrangements. A receipt number would be generated for the call.
114. Ms Tricia Rainbow-Noack, a Centrelink Officer, provided a written statement and gave evidence. She set out the history of the review of Mrs Demir’s circumstances. She was present at the interview on 29 October 2004 with Ms Kwok as set out above. Ms Kwok is at present on maternity leave. It was one of Ms Rainbow-Noack’s first cases about the question of marriage like relationship. She was being tutored. Her role was to take notes during the interview and make the review decision. She said that Mrs Demir arrived very late, 40 to 45 minutes late, and the Turkish interpreter who had been booked had to leave before the interview finished, which she said made it “very awkward for us”, and they had to wind down the interview “as best we could”. The interview was listed for two hours. She went back to the office with Ms Kwok and then spoke to Mrs Demir by telephone. In her statement she wrote that Mrs Demir agreed to continue in English and they did so for a short while and completed the interview. She described how they worked systematically through the AOLA Form to see whether Mrs Demir’s oral answers were consistent with the answers in the form, to clarify or correct where necessary and to make sure Mrs Demir thoroughly understood it. Ms Kwok asked the questions. She gave evidence about alterations of various answers in the form during that process. She said that nothing was changed unless Mrs Demir told them and she initialled it. Some things were added but she did not recall Ms Kwok adding anything. Ms Kwok had the form in front of her. At the end of the interview they asked questions and made written notes. Ms Rainbow-Noack acknowledged that she was mistaken about the Demirs’ daughter being a son and about who had named the other as spouse in a 2003 tax return. It was Mr Demir. Mrs Demir’s first name was also misspelt in his 2001 tax return. She identified a number of computer documents of which she was the author. She referred to the interview on 15 February 2005 as recorded in documents T63 and T67, already referred to earlier in this decision. After the first interview, she added to her notes afterwards. She had to carry out more checks. She wrote up the report and spoke to Mrs Demir on a few occasions, to Mr Demir once, and to Mrs Demir’s solicitor a couple of times.
115. During cross-examination Ms Rainbow-Noack agreed that she had not recorded that the interpreter had to leave or when he left. After initially feeling sorry for Mrs Demir, Ms Rainbow-Noack concluded that Mr Demir had not moved out, that he came and went as he or she wanted him to and that the majority of the time he was living at his home address. She gave her reasons for the conclusion. This seems to be conveniently set out in T79 which she prepared for the Authorised Review Officer.
116. She was very busy at that time working on about 20 cases as Ms Kwok was winding down to go onto maternity leave, and was handing over to Ms Rainbow-Noack. The report of the interview at p 317 of T80 may have been prepared over the course of a week or two. She did not speak to Mrs Sevgi Demir or Mr Ghengis Demir.She was doing a lot of interviews. The interview was held at an oval table and Ms Kwok handed the form across the table to Mrs Demir. She thought that Mrs Demir referred to TAFE specifically and to school when referring to the children. Other people also worked on the file gathering information.
Mr Demir’s evidence
117. Mr Demir gave evidence by telephone to the SSAT. He said that he should have left Mrs Demir a long time ago and wanted nothing to do with her. He said that they started to have problems in their marriage around 1998 or 1999. They argued and could not get along. He liked to go out and to gamble a bit and although he drank he did not drink too much. They often argued about money. On one occasion the police were called. He moved out to this brother’s house for a while and then went to live with his parents. Initially he had very minimal contact with Mrs Demir. After about a year he started giving money for their daughter and wanted to give it directly and not to Mrs Demir. He said that he was still very emotionally attached to his children and that his daughter was living with him and they got on very well. He admitted that he had forged his wife’s signature to finance his business. He registered his business at the Kings Langley address because he did not know if he would be living at his brother’s house or his parent’s house or elsewhere. Also, giving that address which he owned, would give more stability when he was requesting loans from the banks. He confirmed that the Kings Langley property had been put on the market several times but was hard to sell. He did not really want to sell the house and would rather pay her out. He said that Mrs Demir sometimes borrows the company car to pick the children up from school or to go shopping, as well as to take their son to soccer. He permits her to do so for the sake of the children. He said that Mrs Demir had never worked for Timberland (sic) and the tax declaration form in her name was a mistake. (No such declaration was in evidence before me.) He also said that she may have filled it out in relation to a “photo shoot” done for the owner. He then confirmed it was his own business.
118. He financially supports his children but not Mrs Demir. He confirmed that he was paying the mortgage on the house and that he changed his address with various authorities to his parents’ address when his father became ill. At that time his wife had abused him on the telephone. He also confirmed that he had helped her out recently attending TAFE but also said that he was not aware that she was actually attending TAFE. He also confirmed that he had recently received a letter from her solicitors about divorce proceedings but had done nothing about it. He would leave it to her to pursue. Having said that he had informed “you people” lots of times about his circumstances, he confirmed that he had never spoken to any Centrelink staff member about their circumstances.
Consideration
119. In summary, the Secretary’s submission is that I should infer from the material summarised above, in particular bills, tax returns, bank statements, real estate agent records, school enrolment forms, the answers in the AOLA and interviews with Mrs Demir, that she and Mr Demir were in a marriage like relationship throughout the period March 2000 to November 2004. Mr Kenny who appeared for the Secretary argued that Mrs Demir had made up stories including that it was her ringing the call-centre that started the investigation, that the Kings Langley property was listed with LJ Hooker and that the holidays were to the Entrance when they were really at Swansea. That Mrs Sevgi Demir and Mr Ghengis Demir said that the holidays were at The Entrance and did not mention that Mr Demir had been staying over around October 2004 cast doubt on their credibility. He said that there were no serious attempts to sell the Kings Langley property, obtain a property settlement or get divorced until the debt was raised. That Mrs Demir moved out of a house to live on her own only after questions were asked was remarkable. Leaving her daughter with Mr Demir given that child’s attitude to her father was also remarkable. It was more consistent with the Kings Langley property being Mr Demir’s normal place of residence. The divorce was a sham. The application for the benefit was made when there was a severe money shortage when Mr Demir lost his licence 2000. Mr Kenny also referred to the different perception of what happened at the birthday party as told by Mr Ghengis Demir compared to that of Mrs Demir, as reflecting unfavourably on her version of events.
120. I do not accept the case proposed by Mr Kenny. I find that Mrs Demir was a truthful witness. There were some inconsistencies in her evidence over time, however, when her circumstances are considered in light of her evidence being truthful, such inconsistencies as there are understandable. I also found the evidence of Mr Demir, Mr Ghengis Demir and Mrs Sevgi Demir convincing and consistent. Each witness has a different perspective of what has happened. Mr Ghengis Demir did not want to get involved in his brother’s marital difficulties and while accepting that he drank and gambled, downplayed the seriousness of his brother’s behaviour, and is prepared to assist him financially: “Blood is thicker than water”. Mrs Sevgi Demir had a greater appreciation of the circumstances in which her sister has lived.
121. I find that the Demirs’ marriage was deteriorating from 1998 and the car accident in January 2000 was the end. That night Mrs Demir said that one of them had to leave the home. Mrs Sevgi Demir said during her evidence that one of them had to leave at that time. I accept Mrs Demir’s evidence that the night of the accident her mother-in-law said that she could stay until the children were 18 and then she was on her own. I also accept that divorce stains a person’s name in the Demirs’ community. That she should stay in the house with the children while Mr Demir lived with his brother and his parents is completely believable. Over time, Mr Demir began to contribute financially to support the children and re-established contact with them. He was taking his son to soccer one night a week from the end of 2003 and speaking to his daughter by telephone. Once his father became very ill, he saw them more often as he took them to see their grand-father in hospital. At the same time, Mrs Demir borrowed his car on some occasions to drive to TAFE.
122. The filling in of the AOLA form was hurried and Mrs Demir was ill-at ease having her son present, having rushed after going to the wrong address, and having been late. I also do not know how much of the form was filled in while the interpreter was there. I do not know the extent to which the people involved misunderstood the questions and answers given. I do not accept that because some answers are inconsistent with what Mrs Demir has said later, she is now not telling the truth. Rather I find that the answers in the form are unreliable.
123. That some billing addresses were not changed does not cause me to doubt Mrs Demir’s veracity. The home was jointly owned and they both contributed to payments. It was in both their interests and the interests of the children that that should be so. Some bills are sent to the owners of the property. That they did not disclose to real estate agents that they were living at different addresses does not lead to an inference that they were living at the same address. They were the joint owners of the property they were trying to sell. There was no reason why their daughter’s school should be told that they were living separately.
124. I infer that Mr Demir considered that the Kings Langley property was his “home” in that he owned half of it and his estranged wife and children lived there, and he had no other. He moved between the homes of other people. Once his wife moved out, he moved back. There was evidence he did not want to sell it. That may also be because it is security for his business.
125. In relation to the tax returns, I accept that Mrs Demir never received income from her husband’s business. He acknowledged that he had forged her signature to finance his business. The data matching record about the tax declaration form (T82 p 326) shows that it was lodged on 18 November 2002. That was about the time Mr Demir was establishing his business. Mr Demir was not asked if he had forged his wife’s signature on the declaration form, which was not in evidence. This form and the income attributed to Mrs Demir for the 2003 tax year from his business lead me to infer that Mr Demir was engaged in some income tax minimisation exercise using his business, of which Mrs Demir was unaware.
126. I also accept Mrs Demir’s evidence that she was not involved in the various loan applications made by Mr Demir after they separated, except for the Westpac redraw facility in February 2000 which she said she signed. Mr Demir’s evidence supports this view. That Mr Demir would show his address as the Kings Langley property is hardly surprising if he was using it as security for loans.
127. As far as contributing to the household expenditure, I find that Mr Demir gave his daughter money directly from about 2002, but that otherwise his contribution to their care was ad hoc, occurring mostly for a period from September 2004 when he was taking them to visit their grandfather and sometimes staying over, and involving buying some takeaway food and lollies.
128. Mrs Demir’s evidence about the December/January holidays during the period 2000 to 2004 was confusing as to when and where she went and whether Mr Demir was present. However, I do not consider that she was seeking to mislead. I am satisfied on the evidence including that from her sister and brother-in-law, that on at least one occasion she went to some kind of camping facility near The Entrance and stayed with her younger sister and her family. While staying there she may have taken the children to see their grandparents who were also camped there. If Mr Demir was staying at the same camp site it was with his brother and his family. There is no doubt that Mr Demir did not go to Turkey in 2003 when Mrs Demir and the children went.
129. I find that Mr and Mrs Demir did not attend school interviews together. That is consistent with the evidence already referred to about his seeing his children at the Kings Langley property in 2004, taking his son to soccer and seeing the children at his brother’s house. That was his only involvement in their lives.
130. Mrs Demir’s moving out of her home and leaving her daughter to live there the next school year with her father, do seem remarkable. However, upon reflection, I consider that Mrs Demir was desperate and saw moving out as the only way to show the Department that she was not living with her husband. She was very angry that Mr Demir had been doing things behind her back which had caused this huge problem for her. She considered that it was in her daughter’s best interests to stay in the home where she could study. This decision has adversely affected their relationship.
131. In conclusion, taking into account all the circumstances, including those prescribed in s 4(3) of the Act, I find that Mr and Mrs Demir were living separately and apart on a permanent basis during the debt period. Consequently Mrs Demir has no debt.
Decision
132. The decision under review is set aside and substituted for that decision is the decision that Mrs Demir was not a member of a couple during the period 22 March 2000 to 9 November 2004 and therefore there is no debt.
I certify that the 132 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member,
Mrs Josephine KellySigned: Ms Preethi Nimmagadda
Associate
Date of Hearing 7, 8, 9 & 21 August 2006
Date of Decision 24 October 2006
Solicitor for the Applicant Welfare Rights Centre
Counsel for the Applicant Ms Kathy Sant
Advocate for the Respondent Centrelink Legal Services Branch
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Social Security Appeal
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Decision Review
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