Fanula Bosevska and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 499
•31 July 2012
[2012] AATA 499
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/1075
Re
Fanula Bosevska
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Senior Member J F Toohey
Date 31 July 2012 Place Sydney The Tribunal varies the decision under review by finding that the applicant was a member of a couple throughout the relevant period but that her resulting debt should be reduced by one half because of her special circumstances.
.........[sgd]...............................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – whether applicant a member of a couple – applicant claimed forced marriage – domestic violence – applicant claimed she was separated under one roof over ten years – husband claimed normal happy marriage – factors to be considered – applicant’s evidence about the relationship preferred to husband’s evidence – considerable financial interdependence – weight of relevant factors in favour of finding applicant a member of a couple – finding of special circumstances – applicant’s debt reduced by half – decision under review varied as to the amount of the applicant’s debt
LEGISLATION
Social Security Act 1991 ss 4(2)(a), 4(3) and 1237AAD
CASES
Angelakos v Secretary, Department of Employment and Workplace Relations [2007] FCA 25
Beadle v Director-General of Social Security (1985) 7 ALD 670
Falk, In the Marriage of (1977) 15 ALR 189
Groth v Secretary, Department of Social Security (1995) 40 ALD 541Pavey, In the Marriage of (1976) 10 ALR 259
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Balancio and Secretary, Department of Family and Community Services (2003) 74 ALD 204
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Staunton-Smith v Secretary, Department of Social Security (1990) 32 FCR 164REASONS FOR DECISION
Senior Member J F Toohey
31 July 2012
BACKGROUND
Ms Fanula Mufovska came to Australia from Macedonia with her parents and brother when she was six-years-old. In 1982, when she was 20, she married Riste Bosevski, a Macedonian man who was in Australia on a tourist visa. She says she was forced into the marriage against her will. They have three adult sons. They divorced in November 2010. When these proceedings commenced, she was using her married name but has now returned to her maiden name.
In August 1997, Ms Mufovska claimed a sole parent pension on the basis that she had separated from her husband in January 1997. She was granted the pension and, at different times since then, has also received newstart allowance and disability support pension at the rate for a single person.
In July 2010, after receiving certain information, Centrelink determined that Ms Mufovska had not separated from her husband as she had claimed and, consequently, that she had been overpaid $42,036.92 between August 1997 and June 2010. Centrelink further determined there was no reason the debt should not be recovered in full.
At Ms Mufovska’s request, Centrelink reviewed its determination and found that she had separated on 29 October 2008. Her debt was reduced accordingly.
In February 2011, the Social Security Appeals Tribunal (SSAT) set aside Centrelink’s determination and remitted the matter for reconsideration with a direction that Ms Mufovska’s debt be recalculated on the basis that she had been a member of a couple until separating on 29 October 2008. In effect, the SSAT’s decision was identical to the decision under review. The SSAT agreed with Centrelink that Ms Mufovska had remained a member of a couple until 29 October 2008, that she had been overpaid since 21 August 1997, and that there was no reason the resulting debt should not be recovered in full.
Ms Mufovska seeks review of the SSAT’s decision. She maintains her claim that she separated in January 1997. She gave evidence before the Tribunal. Mr Bosevski gave evidence for the respondent. As will be seen, they gave very different accounts of their marriage.
Also before the Tribunal were several volumes of “T-documents” provided by the respondent under s 37 of the Administrative Appeals Tribunal Act1975.
THE ISSUES
I have to decide whether, from 21 August 1997 to 28 October 2008, Ms Mufovska was a member of a couple for the purposes of the Social Security Act 1991 (the Act). If so, then she will have been overpaid, and I will have to decide whether there is any reason the resulting debt should not be recovered in full.
THE MEANING OF “MEMBER OF A COUPLE”
The rate at which a person is paid a social security payment is calculated according to formulae in the Act. A person who is a member of a couple is paid less than if she or he were single, the rationale being that a couple can pool resources and live more cheaply than if each were single.
By s 4(2)(a) of the Act, a person is a member of a couple if she or he is legally married to another person and is not, in the Secretary's opinion, living separately and apart from the other person on a permanent or indefinite basis.
Section 4(3) of the Act provides that, in forming an opinion about the relationship between two people, the Secretary must have regard to all the circumstances of the relationship including, in particular:
(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.
MS MUFOVSKA’S EVIDENCE ABOUT THE MARRIAGE GENERALLY
Ms Mufovska first met Mr Bosevski in 1982 when he came to her parents’ house with his brother, sister-in-law and two family friends, with a proposal of marriage. They said they had asked around in the community and heard that she was “a very good girl”.
Ms Mufovska says she had just started studying at TAFE and did not want to marry anyone at that time; in particular, she did not want to marry Mr Bosevski. As she did not speak Macedonian and he spoke little or no English, they could not even communicate. She believes her married her solely in order to remain in Australia.
Ms Mufovska says she strenuously resisted Mr Bosevski’s proposal but pressure was brought to bear on her by him and his family, and then by her parents and extended family. Within three days of their meeting, they went through a form of customary engagement which involved the women of his family inspecting her to establish her virginity. After this, she says, he forced her to have sex with him, in effect to ensure she was no longer marriageable to anyone else. She later learned that his brother had been under the bed while they had sex, apparently to ensure she did not try to escape, a claim denied by Mr Bosevski.
Ms Mufovska and Mr Bosevski were formally married a short time later. It is not in dispute that fights broke out at the wedding between Mr Bosevski and his family, and members of her family. She says she left the wedding with her parents planning not to return to him but he threatened to jump off a bridge and she was persuaded by him, and then by her parents, to go with him, a claim also denied by Mr Bosevski.
From then, Ms Mufovska says, Mr Bosevski was repeatedly violent towards her and the children. When their first son was seven months old, she sent him to live with her mother in Macedonia. He returned to Australia four years later when their second son was born. Ms Mufovska says this was to protect him from his father. Mr Bosevski says it was so they could both work and save money.
Ms Mufovska says she tried many times to leave the marriage, including going overseas, but Mr Bosevski always forced her to return. She says she called an ambulance and the police many times but had to cancel the call each time. She says he would always promise to change and she wanted to believe him but, within a short time, things were the same as ever.
In 2008, Ms Mufovska spent three months in Switzerland and Macedonia with her extended family. She says Mr Bosevski made numerous threatening telephone calls to her while she was away. She returned to Australia in October 2008 and moved into a hotel. She says this was the point at which she finally realised she did not have to endure his treatment any longer. Within several days, she obtained an apprehended violence order. A police record shows the officer who dealt with her in October 2008 thought she had “genuine fears of her safety”.
Ms Mufovska maintains their marriage in 1982 was on paper only; she does not consider herself to have ever been married. She says she and Mr Bosevski had no shared life, and she was “separated” from the day of their wedding.
MR BOSEVSKI’S EVIDENCE ABOUT THE MARRIAGE GENERALLY
Mr Bosevski gives a quite different account of the marriage. He does not dispute that they met for the first time only shortly before their wedding but he denies any motive in marrying Ms Mufovska other than wanting to be married and start a family. He denies the marriage was arranged or that Ms Mufovska was an unwilling participant, and claims that she made all the arrangements.
Mr Bosevski maintains that, up until 2008, it was a “normal, happy marriage” and things only changed when he realised that a property transaction he had entered into with Ms Mufovska’s mother in 2004 had disadvantaged him.
Although he claims it was a happy marriage until 2008, Mr Bosevski does not dispute it had its difficulties. When pressed, he said things were fine until he “found out” she was having affairs on the internet. On one occasion, he threatened to expose her as unfaithful at a public function.
Mr Bosevski denies any violent or threatening conduct toward Ms Mufovska and he denies she ever wanted to, or tried to, leave. He denies there were any periods of separation other than occasions when he had to work away from home. He claims it came as a shock when she returned early from overseas in 2008 and obtained an apprehended violence order against him.
In February 2009, Mr Bosevski filed for divorce and property settlement. The proceedings were finalised in 2010. The affidavits filed in the Family Court in the proceedings form part of the T-documents.
For reasons set out below, I prefer Ms Mufovska’s account of the marriage overall to Mr Bosevski’s. While her evidence was unsatisfactory in many respects, I do not accept it was a “normal, happy marriage” as he claims. It was clearly troubled from its early days.
MS MUFOVSKA’S CLAIM TO HAVE SEPARATED IN JANUARY 1997
The basis of Ms Mufovska’s claim in August 1997 for sole parenting payment was that she had separated from her husband in January 1997. She gave her address as the Green Valley property they had lived in since 1992. She stated her husband’s address was “unknown”. In an application for disability support pension in August 2000, she again stated she had separated in January 1997.
Ms Mufovska claims she left Mr Bosevski in January 1997 after he had become increasingly violent. She says they had spent periods apart before, but this was the first time she actually left him for any length of time. She says she took the children and went to live with her parents for several months (she has also given evidence that she went to live with them for several weeks). She says he threatened to kill himself if she did not return and he promised not to hit her or the children any more. She returned but, within two weeks, his violence resumed. From around this time, she says, he was not at home permanently; he came and went to various girlfriends’ houses and, to her mind, they were separated and lived apart from then onwards.
Ms Mufovska’s claim to have lived with her parents in 1997 is at odds with records of the Department of Immigration and Citizenship which show that her mother was not in Australia between June 1992 and October 1997. Under cross-examination, her evidence was confusing. She said she could not recall whether she had actually left in January 1997. She said her memory for dates was poor and she is hard of hearing, and she might have meant 1987. Medical evidence referred to below indicates that, from around 1997 to 2003, Ms Mufovska was suffering from severe depression and her memory was affected. This may account for her poor recall, and I accept she may have been genuinely mistaken in her evidence. I accept there was a form of separation for some time around January 1997.
In March 2000, Ms Mufovska notified Centrelink that her address for correspondence was a post office box in Green Valley; she did not provide her residential address. She did not notify Centrelink of the purchase of a second property, in Hinchinbrook in October 1997, and nor she did notify Centrelink when she moved to live in that property some time in 2000. Centrelink continued to send correspondence to her post office box. It regarded her as separated and continued to pay her at the rate for a single person.
In contrast, in February 2000, Ms Mufovska notified the Road Traffic Authority that she changed her address from Green Valley to the Hinchinbrook address (where she and Mr Bosevski built a house in about 2000). From around 2001, she used the Hinchinbrook address for other purposes including motor vehicle registration and insurance, loan applications, and she gave that address to the police on two occasions when she and Mr Bosevski were involved in motor vehicle accidents. She did not use it for Centrelink purposes or notify Centrelink she was at that address.
The respondent contends that Ms Mufovska’s failure to tell Centrelink in 2000 about the purchase of the Hinchinbrook property or that she was living there, was a deliberate attempt to conceal the real nature of her relationship with Mr Bosevski. Ms Mufovska says she does not know why she failed to notify Centrelink; all she knows is she was scared of her husband and his threats. She says she was forced to use the post office box address so that he would not have access to her mail.
A difficulty with Ms Mufovska’s explanation is that her change of address was not the only thing she failed to tell Centrelink about. She also failed to notify Centrelink about the purchase of the Hinchinbrook property and of other properties, and about rental income she received. She does not dispute this but says she could not have survived without the rental income because Mr Bosevski failed to support her financially. Financial aspects of the relationship are considered further below.
According to the SSAT’s statement of reasons, Ms Mufovska told that tribunal that she “did not actually leave her husband during 1997 as previously claimed and that they continued living together throughout that period but did not share things”. She conceded at the SSAT that she did not actually leave the family home until October 2008 (the respondent accepts she was no longer a member of a couple from that time).
Before this Tribunal, Ms Mufovska conceded that, apart from periods when he would come and go between their various properties (which he denies), she and Mr Bosevski lived together in the same house until 28 October 2008. This is consistent with a statement she gave to the police in December 2008 in proceedings against Mr Bosevski for breach of the apprehended violence order, that they had been separated “on and off since 1996” and that “Riste resided with me at…Hinchinbrook until 6 November 2008” but had “now moved out due to the verbal and physical abuse”. It is also consistent with the statement in her affidavit in the Family Court that they separated on 29 October 2008. It is submitted for Ms Mufovska that the affidavit focussed on their assets and not the nature of the relationship between 1997 and 2008 but I do not think it can be easily disregarded given that she said the same to the police in 2008, and given the concession she has now made.
Given the state of the relationship generally, I accept Ms Mufovska’s evidence that Mr Bosevski would sometimes come and go. There appear to have been “on and off separations” but, in light of her concession that she lived in the same house as her husband until October 2008, I am satisfied that they were living under the same roof until then. What I have to determine is whether they were living separately and apart on a permanent or indefinite basis from January 1997 when she started receiving Centrelink payments.
Physical separation is not a necessary element of living separately and apart (see Falk, In the Marriage of (1977) 15 ALR 189 and Pavey, In the Marriage of (1976) 10 ALR 259). As s 4(3) makes clear, regard must be had to all of the circumstances of a relationship in order to form an opinion about the relationship between two people.
Inevitably, there is overlap between the circumstances described in s 4(3). For example, there is overlap between the financial aspects of Ms Mufovska’s and Mr Bosevski’s relationship, their living arrangements, and the nature of their commitment to each other. For convenience, I will deal with the circumstances of the relationship under the broad headings in s 4(3).
Mr Bosevski’s claim for newstart allowance
Before doing so, I note Ms Mufovka’s claim that Mr Bosevski was aware at all times that she was receiving Centrelink payments and would take her money and gamble it. He denies this. He maintains he only learned she was receiving Centrelink payments in 2008 when he obtained the key to her post office box while she was overseas and found correspondence from Centrelink. However, given the way they appear to have arranged their finances, with him meeting all of the mortgage payments on their properties and her meeting many of the day-to-day expenses, it seems more probable than not that he had some knowledge of her payments.
I note that, in January 1999, Mr Bosevski lodged a claim for newstart allowance with Centrelink when he was out of work for several months. A copy of his claim form is before the Tribunal. He gave his address as being in Brookside. (It appears, from the street address he gave, that he meant the Hinchinbrook address. If so, this would appear to be at odds with evidence that they did not move into that property until the house was finished in 2000.) He stated he had been separated since January 1997 and gave Ms Mufovska’s address as the Green Valley home.
In evidence before the Tribunal, Mr Bosevski agreed he had claimed the allowance as single person but maintained he did not understand the Centrelink application form. He claimed Ms Mufovska made him complete the form, that she read the questions to him and he filled in the answers but, even then, did not really understand the questions.
I accept that Mr Bosevski may not read English as well as Ms Mufovska but I do not accept his explanation. It is improbable that she was able to force him to make a claim against his will. He agreed before the Tribunal that the handwriting and signature on the form were his. In light of his denial that they separated in 1997 and his claim that they were happily married until 2008, it appears he was prepared to claim payment at the single rate when he considered himself to be a member of a couple.
The financial aspects of the relationship
After the wedding, Ms Mufovska and Mr Bosevski lived for a time in a flat with his brother’s family until renting a flat of their own nearby. Over the course of their marriage, they bought several properties. It is common ground that their plan was to provide, eventually, a home for each of their three sons.
The Green Valley property
In September 1992, Ms Mufovska and Mr Bosevski bought a house and land package in Green Valley, for approximately $149,000. They owned it as joint tenants and lived there for several years. Ms Mufovska says her mother paid the deposit of $35,000. Mr Bosevski denies she made any contribution. I prefer Ms Mufovska’s evidence on thios point but nothing really turns on it.
The Green Valley property was unencumbered from 1999 after Ms Mufovska’s father paid the balance owing on the mortgage. She and Mr Bosevski owned the property, and others they bought later, until the settlement in the Family Court in 2010. In the meantime, after they moved to the Hinchinbrook address around 2000, it was apparently let to tenants for most of the time. Ms Mufovska did not declare her income from the property to Centrelink.
The Hinchinbrook property
In October 1997, Ms Mufovska and Mr Bosevski bought a block of land in Hinchinbrook, which they held as joint tenants. She says approximately $40,000 of the $178,000 purchase price came from her parents. She says Mr Bosevski persuaded them to give him money after her brother had died. He denies they made any contribution. Again, I prefer Ms Mufovska’s evidence but nothing really runs on this.
Ms Mufovska says she did not want to buy the Hinchinbrook property. She says Mr Bosevski did not consult her and did not want her on the title because he wanted it for himself and the children but the bank required her to be on the loan. They had “a massive fight” about it and he assaulted her and threatened to kill her parents if she did not agree. She says she told the bank she was receiving Centrelink payments and the officer said that would not be disclosed on the loan application or “it would not go through”, and she was made a guarantor. She claims that, because Mr Bosevski could not read or write English properly, the bank would fill out documents for their signature and he would force her to sign.
In about 2000, Ms Mufovska and Mr Bosevki finished building the house at Hinchinbrook. She agrees she was involved in decisions about the house but says he did most of the choosing. Mr Bosevski claims they made all decisions together and went shopping together for fittings. The truth is probably somewhere in between.
Ms Mufovska and Mr Bosevski give different accounts of who moved in, and when, to the Hinchinbrook property. There are also some inconsistencies in her own written and oral accounts.
In a written statement to the SSAT, Ms Mufovska wrote that, once the Hinchinbrook house was built, Mr Bosevski told her she had no right to live there; they argued a lot, he assaulted her; he left when he got the keys to the house and would occasionally come back to Green Valley where she was living with the children. She stated that, when she had the chance, she took his keys and moved into the new house with the children; she did not tell him where they were and enrolled the children in a new school. After a month, he found her and again assaulted her, then moved into the house with them.
In evidence before the Tribunal, Ms Mufovska said she moved into the Hinchinbrook house first and changed the locks, and Mr Bosevski remained in the Green Valley house. Otherwise, she repeated her claim that, when he learned she was living at Hinchinbrook, he came to the house, assaulted her, then moved in with her. She claims he continued to move between the two properties and later came and went between Hinchinbrook and another property they bought.
Mr Bosevski denies that he came and went between the two houses and maintains the Green Valley property was let to tenants at all times. He denies they ever lived apart other than for a few days after the lockup stage when he stayed at the Hinchinbrook property to secure it before they all moved in.
At the time of the property settlement in 2010, there was approximately $50,000 owing on the Hinchinbrook property.
The Casula property
In August 2003, Ms Mufovska and Mr Bosevski bought a property in Casula. It was to be for their second son, Majkol, who was under 21 and could not obtain a loan in his own name. The contract shows they paid $330,000 and held the property as joint tenants. They paid the deposit from their joint savings. Ms Mufovska guaranteed for the loan. She maintains she did not want to buy the property but Mr Bosevski insisted and, again, he did not want her on the title but the bank required it. Later that year, Majkol paid approximately $30,000 towards the mortgage, and he and Mr Bosevski made the repayments.
Ms Mufovska did not declare the purchase of the Casula property to Centrelink.
The Bankstown property
In March 2004, Ms Mufovska’s mother and Mr Bosevski entered into a contract for the purchase of a unit in Bankstown which they held as tenants-in-common with 99% and 1% shares respectively. He borrowed $240,000. He met all the mortgage payments. The unit was let to tenants.
Ms Mufovska knows little about this transaction other than that, when Mr Bosevski learned that her mother had some $100,000 available, he persuaded her to buy the unit with him. (It was transferred to Ms Mufovska in the property settlement and she now lives there with one of her sons.)
Mr Bosevski gave evidence that, when he went to sign documents for the purchase at the solicitor’s office, the solicitor explained that the property would be held in 99% and 1% shares. He claims he refused to sign and walked out of the office. He claims Ms Mufovska forged his signature on the documents the following day and he did not know, until the Australian Taxation Office (ATO) raised the matter in 2008, that he did not own a half share. The ATO raised the matter in a routine audit because he had been claiming 100% of the deductions associated with the property.
Mr Bosevski’s evidence about this transaction was difficult to follow and made little sense. He does not dispute that he met 100% of the mortgage repayments. If, as he says, he refused to sign any documents, there would have been no transaction from his point of view and he would have had no reason to make the repayments. However, I accept that he genuinely believed that, because he made the repayments, that he had at least a half share in the property.
Properties in Macedonia
Not long after they married, Ms Mufovska and Mr Bosevski bought a property in Macedonia with money given to them at their wedding. They gave his father in Macedonia $15,000 to buy the property for them. They built a house on it and, according to Ms Mufovska’s Family Court affidavit, have made other payments towards the property.
Ms Mufovska did not disclose her interest in this property in her claim for Sole Parent Payment in August 1997 or subsequently. She says she did not know she was required to disclose a property overseas.
Mr Bosevski also had an interest in a second property in Macedonia that had been owned by his father and was left to him after his father’s death. Ms Mufovska appears to have had little or no knowledge or interest in this property.
Bank accounts
For some years, Ms Mufovska and Mr Bosevski had bank accounts in common including a joint account opened in 1998. For the most part, they held separate bank accounts for every day expenses. She says he knew her PIN and would take money from her account. He denies this.
Mr Bosevski says Ms Mufovska maintained control of the bank accounts and kept his access cards from him. He claims she paid all the bills and would give him $100 each week in cash. She denies ever having access to his credit card or bank accounts but I note that her Family Court affidavit indicates she had access to at least one of his accounts.
Household expenses
Ms Mufovska and Mr Bosevski are at odds about who paid for particular expenses. However, it is not in dispute that he always paid the mortgages on the properties. He also appears to have paid most of the outgoings on the properties, although Ms Mufovska says she paid all the utilities and only the council rates were in joint names. She says he did not contribute to food or electricity bills, which she met from her Centrelink payments, family tax benefit and the compensation payment she received in 2002 (which she reported to Centrelink). He says she paid for everything from his bank account.
It is difficult to determine who is telling the truth but it seems unlikely Mr Bosevski could have met all the expenses including the mortgages from his earnings as a truck driver, even allowing that Ms Mufovska had work at different times. I am satisfied they had a form of divided financial responsibilities which they met through their combined efforts. I am also satisfied that Ms Mufovska managed the household budget.
Motor vehicles
Ms Mufovska and Mr Bosevski had their own motor vehicles although it appears they drove each other’s car from time to time if the need arose.
In January 1997, Ms Mufovska took out a car insurance policy and nominated Mr Bosevski as a driver. She claims this was “just a practical matter” because he used it sometimes, for instance to take the children to school, and sometimes he took it without asking so she included him in the policy to make sure he was covered. She also nominated him as an authorised driver when she took out a car insurance policy in August 2006.
In February 2001, Mr Bosevski listed Ms Mufovska as a nominated driver for his vehicle on his insurance policy. He gave their address as Hinchinbrook. She says she has no idea why he nominated her as a driver as she did not drive his car. It is likely, however, that it simply reflected the fact they were living together and might drive each other’s car occasionally.
Compensation payments
Throughout the relevant period, Ms Mufovska and Mr Bosevski both received compensation payments.
Ms Mufovska was injured in a motor vehicle accident in 2000. Her claim was settled in 2003 for $47,000. She was injured in a second motor vehicle accident in 2004 and settled her claim in 2008 for $125,000. She claims the second accident happened when Mr Bosevski deliberately collided with another vehicle in an attempt to kill her, which he denies. The compensation payment led to a preclusion period from August 2004 to January 2008 during which she was not entitled to Centrelink payments.
In about 1982, Mr Bosevski was injured in a motor vehicle accident for which he received approximately $25,000, $4000 of which went to purchase a motor vehicle and the rest went into their joint savings account. In 2008, he settled a workers compensation claim for an injury in January 2006 all of which was repaid to the workers compensation insurer.
There is some dispute about how some of the payments were used but, for the most part, they appear to have gone into joint savings or been applied to their joint expenses one way or another.
Mr Bosevski’s taxation returns
Mr Bosevski’s taxation returns for the years 2005 to 2009 are before the Tribunal. He did not disclose in any of them that he had a spouse. In his 2005 return, no spouse is listed or claimed for. In each subsequent return, he responded “No” to the question of whether he had a spouse.
Following an audit by the ATO in 2008, it was found that Mr Bosevski was claiming 100% of the tax deduction associated with the rental properties. After correspondence between the ATO and his accountant, his taxation return was reduced and he was required to repay some amounts to the ATO.
It is submitted for Ms Mufovska that Mr Bosevski’s taxation returns are evidence of their separation but I do not think that follows from his failure to declare he had a spouse. Correspondence from the ATO to his accountant suggests that the accountant understood that Mr Bosevski wholly owned the properties. As already noted, it appears that he genuinely believed he was entitled to the full benefit of the tax deduction because he paid all the mortgage payments. He appears to have considered the property an arrangement with her mother that was none of her business.
Child support payments
In a written statement submitted to the SSAT, Ms Mufovska said that Mr Bosevski paid her child support payments of $10 per week through the Child Support Agency when they separated in 1997, that sometimes he paid it to the children and sometimes he did not pay at all. It appears from the SSAT’s statement of reasons at [58] that a “child support agreement” was provided to Centrelink in 1997 but the SSAT found it was “simply for the purpose of obtaining Centrelink benefits”.
It is not clear what the SSAT meant by the agreement provided to Centrelink in 1997. There is no evidence before this Tribunal of child support payments having been made by Mr Bosevski and he denies making such payments. I am satisfied no such payments were made.
Nature of the household
Ms Mufovska claims she and Mr Bosevski never shared a bedroom. He denies this. She concedes they shared all other areas of the house. She claims he did not share in looking after the children, that she took them to judo, folk dancing and, football and music lessons. He denies this. I think it likely that they shared a bedroom for some time, possibly years, after they married but from some point later in the marriage had separate bedroom.
There are some inconsistencies in the accounts Ms Mufovska gave the SSAT and this Tribunal about the household arrangements. According to the statement of written reasons, she told the SSAT that she prepared meals throughout their marriage and Mr Bosevski would eat what she prepared each evening. In evidence before this Tribunal, she said that, while she did the cleaning, she never cooked for him but sometimes he would eat leftovers from what she had made for herself and the children.
Ms Mufovska denies ever doing his washing, unless she accidentally put his clothes in with hers and the children’s. He says she cooked, cleaned and did the laundry for him and did all of the indoors housework, and he did the outdoors work. He says they went shopping together and would fill up the trolley together.
Given her evidence to the SSAT, I find it more probable than not that Ms Mufovska did cook for Mr Bosevski and that she did most of the housework.
Social aspects of the relationship
Mr Bosevski claims that he and Ms Mufovska had a normal, happy social life. They would have friends over on the weekend and they would go together to different social events. She says they had no real social life together. She agrees he invited friends over to the house on weekends but says he made her cook for them and then derided her cooking. On one occasion, she says she went to a friend’s wedding with a black eye; she had to cover it with foundation and said she had run into a door at home. She also recounted an occasion at a function when he was holding her hand very tightly in a threatening manner to ensure she would not say anything against him. I accept her evidence about this.
Ms Mufovska says that, outwardly, they looked like any suburban family and she presented them as “neat and clean and respectful”. They gave the appearance of being together but they were not. Her parents only knew a little of his violence and, until they separated, her extended family thought she had a “perfect marriage”. No one at church knew the real state of their relationship.
On the other hand, there is some evidence that Ms Mufovska told others she was separated. In mid-1997, she started seeing a psychiatrist, Doctor Abdus Samad, who diagnosed her as suffering from Major Depressive Reaction and Grief Reaction following the death of her brother. He described her in a letter to her general practitioner as “this thirty five year old separated woman” and said “she and her husband used to have a lot of arguments and he left her on 3 January 1997”. In a report in July 1998, he recounted her reference to a friend “who did not know she was not with her husband” who was “going to take the children during the week but he did not turn up”.
Dr Michael Prior, a psychiatrist who examined Ms Mufovska in 2000 in connection with her Centrelink claim, took a history that her husband had left her in 1997 after the death of her brother. (He also took a history that the marriage “was apparently happy initially”). He diagnosed her as having partially treated Major Depressive illness or a partially treated Dysthymic Disorder of mild severity.
Sexual relationship
According to Ms Mufovska, she never loved her husband and she never had sex with him willingly and never once said she loved him. She says he forced himself on her, sometimes tearing her clothes, and he raped her. She says her pregnancies were the result of him raping her. When she locked herself in the bedroom, he would force the door open with an implement such as screwdriver, and then force himself on her. She conceded that there were some occasions when he did not force her to have sex, but only when she was drunk or depressed. I note that Dr Samad recorded in September 1997 that “she lost sexual desire since her brother died”, suggesting she had felt some desire before then.
According to Mr Bosevski, they shared a normal, consensual sex life throughout their marriage. He denies ever forcing her.
Where two people disagree so completely about the state of their sexual relationship, it is almost impossible to know where the truth lies. However, having seen both give evidence, I think it probable that Ms Mufovska’s version is closer to the truth than Mr Bosevski’s.
Nature of commitment to each other
Ms Mufovska gave evidence that she “stayed with him for 30-odd years” because she always thought he might change, and he made her feel guilty that the state of the relationship might be her fault. She claims there was no communication between them other than his screaming and abuse. He accused her of having affairs and she would lock herself in her bedroom. He continually assaulted her. She would try to call the police or an ambulance and he would pull the phone out of the wall. He assaulted her daily from 2004 to 2008; she was in a deep depression and thought either he would kill her or she would kill herself. Mr Bosevski disputes her claims.
Ms Mufovska and Mr Bosevski travelled overseas twice after January 1997. Their evidence is that they went to Macedonia on each occasion. Records from the Department of Immigration show:
(i)in May 1995, Ms Mufovska left Australia; Mr Bosevski left in October 1995; they returned on the same day in January 1996;
(ii)in May 2002, Ms Mufovska left Australia; Mr Bosevski left in October 2002; they returned on the same day in November 2002;
(iii)on 24 September 2003, they both left Australia; they returned on the same day in November 2003.
Ms Mufovska claims that, each time, she tried to leave Mr Bosevski but he followed her and brought her back. He denies this and says that, each time, his work commitments prevented him from leaving when she did or staying away for as long.
The 2003 trip was to visit her father in Macedonia who was very ill. Ms Mufovska says she did not want him to accompany her and the children but he insisted because he feared she would leave him.
I am not satisfied that Ms Mufovska’s trips in 1995 and 2002 were attempts to leave her husband. If they were, the marriage would probably have ended sooner than it did. It is quite possible that she liked being away from him but I do not accept she tried to leave him each time and he forced her to return with him. I prefer his evidence that his work commitments prevented him from travelling with her.
Consideration
In Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, O’Loughlin J noted the comments of Watson J in In Marriage of Todd (No 2) (1976) 25 FLR 260, at 262-263:
In my view, separation means more than physical separation – it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used in the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. Marriage involves many elements, some or all of which may be present in a particular marriage – elements such a dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in private and public relationships.
The factors in s 4(3) are not exhaustive and nor do they limit the inquiry. What comprises the marital relationship between any particular couple will vary. As stated in Staunton-Smith (above) at 170:
The Tribunal will make its determination whether a man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
In Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, French J (as he then was) considered a number of authorities on the meaning of the term “marriage-like relationship” and said (at 555) that:
Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2Must have regard to each of:
(a)the financial aspects of the relationship;
(b)the nature of the household;
(c)the social aspects of the relationship;
(d)any sexual relationship between the people;
(e)the nature of the people’s commitment to each other.
3In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a)financial cooperation;
(b)cohabitation;
(c)a sexual relationship;
(d)cooperative household arrangements;
(e)mutual commitment.
His Honour noted, at 556:
The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
Observations about the parties’ evidence
Overall, I did not find Mr Bosevski to be a credible witness. I do not accept his claim that theirs was a “normal, happy marriage”. It clearly was not. The hostility between him and Ms Mufovska was evident at the hearing. By his own evidence, he thought she was having affairs for which he was prepared to humiliate her publicly. Moreover, his demeanour before the Tribunal tended, in my view, to bear out Ms Mufovska’s claims about his temperament.
In its written reasons, the SSAT observed that Ms Mufovska presented as a witness who lacked credibility and whose evidence was “self-serving [and] unreliable”. Among other things, it noted her admission that she had deliberately concealed her income from rental properties from Centrelink because she knew it would affect her pension. It found that the first reliable evidence of separation was in October 2008, consistent with her Family Court affidavit. I note that Mr Bosevski did not give evidence before the SSAT.
I did not find Ms Mufovska’s evidence unreliable and lacking in credibility to the same degree as the SSAT. Medical evidence shows she suffered from major depression for several years from 1997 and this may explain in part her poor recall of events around this time and her failure to disclose information to Centrelink. I also think it more probable than not that she suffered from violence by her husband over many years. The fact that there is no evidence that she reported her husband’s violence to the police is not proof that it did not happen. I accept that she was genuinely afraid of him for much of the time.
Although in many respects Ms Mufovska’s evidence was unsatisfactory, I think it probable that her account of the marriage was closer to the truth. It appears to have had few, if any, of the characteristics of a happy relationship. I accept that she did not want to marry Mr Bosevski and that she found aspects of the marriage ceremony demeaning and humiliating, and the rather hasty circumstances of their marriage and the state of their relationship generally suggest she may be correct as to why he married her.
That is not to say that I accept Ms Mufovska’s evidence uncritically because there are inconsistencies in her evidence, in particular about the circumstances of her claimed separation in January 1997, and her failure to disclose information to Centrelink about her address and her income weigh heavily against her.
It seems probable there was a separation for at least some weeks, and possibly months, in 1997 which marked some turning point in the relationship. It also seems that there were times before then, and since, when Mr Bosevski did not come home or spent time away from the home. However, all of the evidence points to the conclusion that the relationship resumed and continued, no matter how unsatisfactorily for both.
Despite Ms Mufovska’s unhappiness in the marriage, she and Mr Bosevski bought two properties after 1997. Plainly, they were both committed to providing for their children. They assumed considerable financial liabilities which they managed between them by him paying the mortgages and her paying for many, if not most, day-to-day expenses. There was considerable financial interdependence. They had separate bank accounts but each contributed to what they acquired through their joint assets. They presented themselves, even to their families, as being together.
Despite all the difficulties and unhappiness in the marriage, I am satisfied, on the evidence before me, that Ms Mufovska was not living separately and apart from her husband on a permanent or indefinite basis in the relevant period. It follows that she was a member of couple throughout that period and, consequently, that she was not entitled to social security payments at the single rate.
SHOULD ANY OR ALL OF MS MUFOVSKA’S DEBT BE WAIVED?
By s 1236(1A) of the Act, a debt may be written off if, and only if, it is irrecoverable at law, the debtor has no capacity to repay, the debtor’s whereabouts are unknown, or it is not cost-effective to try to recover the debt. None of these applies in Ms Mufovska’s case.
By s 1237A(1), a debt must be waived if it is attributed solely to administrative error and was received in good faith. There is no suggestion in this case of administrative error.
By s 1237AAD, the Secretary may waive recovery of some or all of a debt if satisfied that there are special circumstances (other than financial hardship alone) that make it desirable to do so. In doing so, the Secretary must be satisfied that the debt did not result wholly or partly from the debtor or another person knowingly making a false statement or a false representation or failing or omitting to comply with a provision of the social security law.
For Ms Mufovska it is submitted that her debt did not arise from knowingly making a false statement or false representation, or from failing to comply with a provision of the relevant law. The Tribunal is referred to Dr Samad’s report in September 1997 in which he stated she was “depressed all day with suicidal thoughts”. She was “definitely paranoid” and her “disturbance of memory is due to marked anxiety and depression” and her “retention, recall and concentration is poor”.
In December 1997, Dr Helen Brown, a Health Services Australia medical officer assessed Ms Mufovska for Centrelink as suffering Major Depressive Disorder with suicidal preoccupation; her impairment rating was 30 per cent and she was unfit for fulltime employment or training. She was transferred to a disability support pension in January 1998. In August 2000 she was transferred to newstart allowance; the reasons why are not clear.
In January 2003, Dr Samad wrote to Ms Mufovska’s general practitioner that her main diagnoses remained chronic alcohol dependency, chronic major depressive reaction with acute episodes, and adjustment disorder. He strongly recommended she go into detox for her alcohol problem but felt she had no insight into her drinking. Ms Mufovska gave evidence that she is still seeing a psychiatrist “trying to come up with voices that I have in my head”. I accept that is so, although there is no recent medical evidence and she does not appear to suffer to the same extent she apparently did as in 2003.
On the basis of the medical evidence, there is sufficient doubt about Ms Mufovska’s mental functioning for a period from 1997 to around 2003, and possibly later, that I am not satisfied that information she gave – or failed to give – to Centrelink amounted to knowingly making false statements or representations. I accept that her capacity to fully understand her obligations under the Act was affected at least from around 1997 to 2003. (see Re Balancio and Secretary, Department of Family and Community Services (2003) 74 ALD 204).
The Act gives no guidance as to what might constitute special circumstances but the expression has been considered on many occasions by the courts and by this tribunal. A precise rule is not possible; it will depend on the circumstances of the particular case whether they are special: Beadle v Director-General of Social Security (1985) 7 ALD 670. Circumstances need not be unique but they must have “a particular quality of unusualness” in order to be special: Re Beadle and Director-General of Social Security(1984) 6 ALD 1, at 3. If something “unfair, unintended or unjust” had occurred it would follow that there must be some feature out of the ordinary: Groth v Secretary, Department of Social Security (1995) 40 ALD 541 per Kiefel J at 545. See also Angelakos v Secretary, Department of Employment and Workplace Relations[2007] FCA 25.
Ms Mufovska gave evidence that she is “up to date with everything” financially. She does not work. She lives on a disability support pension minus an amount being recovered on account of the overpayment. She lives in the unencumbered Bankstown unit with one of her sons who contributes to the household expenses; another of her sons helps out from time to time. She has no money in the bank but says she can sometimes save up to $50 a fortnight from her pension.
I accept that Ms Mufovska lived for many years in an abusive relationship. I am also satisfied that there was a period of separation in 1997 It is impossible to say how long it lasted. Although as late as 2003 Dr Samad referred to her as “divorced”, that is clearly not correct, especially given her concession that she and Mr Bosevski continued to live together until 2008. However, I accept there were times when he did not come home and it was not unreasonable for her to consider herself as separated for much of the time.
I have already noted that I do not accept Mr Bosevski’s claim that he had no knowledge of Ms Mufovska’s Centrelink payments until 2008. I am satisfied that the way in which they arranged their finances means that he knew about her payments possibly as early as 1997. He appears to have benefitted from them, even if indirectly. In those circumstances, she appears to have borne a disproportionate burden of the debt. I am satisfied that, together with the abuse she suffered over many years and the effects of her alcohol dependence and depression, special circumstances exist. I do not think it justifiable to waive the debt wholly but, in my view, it is reasonable to reduce it by one half.
The Tribunal varies the decision under review by finding that the applicant was a member of a couple throughout the relevant period but that her resulting debt should be reduced by one half because of her special circumstances.
I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey. ..............[sgd]..........................................................
Associate
Dated 31 July 2012
Date(s) of hearing 6 - 7 February and 14 May 2012
Counsel for the Applicant Mr N Angelov Solicitors for the Respondent Ms H Schuster, DHS Program Litigation & Review Branch
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