Kantarovski and Secretary Department of Family and Community Services

[2005] AATA 1153

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1153

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/9

GENERAL ADMINISTRATIVE  DIVISION		)
Re		VESNA KANTAROVSKI

Applicant

And SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date18 November 2005

PlaceSydney

Decision

The decision under review is set aside and in substitution thereof I find that:

(a)    Ms Kantarovski was living separately and apart under the one roof on a permanent or indefinite period during the period 24 February 1999 and 4 May 2004, and that while married during this period was not a member of a couple; and

(b)     No overpayment of parenting payment single has occurred to Ms Kantarovski or a debt owed by Ms Kantarovski.

  Dr J D Campbell, Member  

CATCHWORDS

SOCIAL SECURITY - member of a couple - living separately and apart from each other on a permanent or indefinite basis - issue of overpayment and debt – decision under review set aside.

Social Security Act 1991 - sections 4, 1223

Staunton-Smith v Secretary Department of Social Security (1991) 25 ALD 27

Re Petty &  Davis and Director-General of Social Security (1992) 10 SSR 99

REASONS FOR DECISION

18 November 2005 Dr J D Campbell, Member

introduction

1.      Ms Vesna Kantarovski was born in Macedonia in 1963 and migrated to Australia in the 1970’s. Mr Ljubomir Stankovski was born in Serbia in 1957 and migrated to Australia in 1972. Ms Kantarovski and Mr Stankovski were married in 1985, with two daughters being born in 1990 and 1993. Ms Kantarovski and Mr Stankovski, the two children and Mrs Dragica Stankovski (mother of Mr Stankovski) commenced living at the Hinchinbrook residence in 1996/1997. Ms Kantarovski, Mr Stankovski and the two children occupied the upper floor of the residence, while Mrs Stankovski occupied the lower floor self-contained accommodation, as well as maintaining a bedroom on the upper floor, which was used when babysitting the children. Both sets of accommodation were provided with separate external entrances, with a lockable internal stairway existing between the two floors. The house had been designed to accommodate Mr Stankovski’s parents, but unfortunately his father died prior to completion.

2.      Ms Kantarovski lodged a claim form with Centrelink on 24 February 1999 for parenting payment single, stating that she had separated from Mr Stankovski on 9 February 1999. Following lodgement of further considerable documentation (T8 through to T21), interview and assessment, a Centrelink delegate concluded that Ms Kantarovski was separated but living under the one roof (T24, p120), with parenting payment single to commence from 18 March 1999. Reviews of accommodation arrangements of Ms Kantarovski and Mr Stankovski were undertaken by Centrelink on 21 April 1999 (T25), 19 May 1999 (T26) and 12 August 1999 (T27) with both parties noted as continuing to reside under the same roof in the Hinchinbrook residence in a manner detailed during the initial assessment. Centrelink commenced a detailed review in October 2003 and in early May 2004 determined that Ms Kantarovski had been a member of a couple between 18 March 1999 and 4 May 2004. Centrelink determined that Ms Kantarovski owed the Commonwealth an amount of $56,039.29 resulting from overpayment of parenting payment single (T56). Ms Kantarovski was notified of this outcome on 10 May 2004 (T59). Following further review Ms Kantarovski was advised on 11 June 2004 that the debt owed by her was $51,774.02, as Mr Stankovski’s earnings had been insufficiently clarified an the time of the initial calculation of debt (T82). The decision to cancel Ms Kantarovski’s parenting payment single was taken by the Centrelink Officer in the light of the following issues (T83):

·Living under the same roof since separation from husband in February 1999

·Joint commercial loan after separation

·Joint home loan paid off after separation

·Overseas trip together after separation

·Mr Stankovski claims Ms Kantarovski as a spouse for employment, Workers Compensation Payment and for Private Health Insurance.

3.      On 14 July 2004 an authorised review officer affirmed the decision that Ms Kantarovski was considered to be a member of a couple for the period 24 February 1999 to 4 May 2004 (T101). On 16 September 2004 the same authorised review officer affirmed the decision to review and recover a parenting payment single debt of $51,774.62 (T104). Both of those decisions were affirmed by the Social Security Appeals Tribunal in a decision dated 22 December 2004 (T2).

issues

4.      The issues in this matter are:

·Whether Ms Kantarovski was a member of a couple for the purposes of the Social Security Act 1991 (“the Act”) during the period 24 February 1999 to 4 May 2004?; and if so

·Whether Ms Kantarovski was overpaid parenting payment single during this period in the amount of $51,774.02?; and if so

·Is this a debt due and payable to the Commonwealth?

decision

5.      For the reasons nominated later in this decision I conclude that Ms Kantarovski was not a member of a couple during the period 24 February 1999 to 4 May 2004 as she was living separately and apart from Mr Stankovski on a permanent or indefinite basis. As a consequence, the decision under review is set aside, with the consequence that Ms Kantarovski has not received an overpayment of parenting payment single and does not owe a debt to the Commonwealth.

consideration and findings

6.      In this matter I am mindful that Ms Kantarovski and Mr Stankovski were married in 1985, with both working up to the time of the first child. It is evident that Mr Stankovski continued to work as a subcontractor courier until April 1998 at which time he was retrenched and received a retrenchment payment. I accept the evidence given that Mr Stankovski’s parents made a financial contribution to the costs of building and designing the house at 3 Magnetic Avenue Hinchinbrook, NSW with the expectation that the ground floor accommodation of that residence would be available for their continued use. It is unfortunate that Mr Stankovski’s father died prior to completion and occupation.

7.      In the period up to the end of 1998, I note and accept the following evidence:

·     The accommodation arrangements for Ms Kantarovski, Mr Stankovski, the two children and Mrs Stankovski at the Hinchinbrook residence and as described by Ms Kantarovski, Mr Stankovski, and Mrs Stankovski.

·     The financial aspects of the relationship between Ms Kantarovski and Mr Stankovski in so far as:

-   joint ownership of the Hinchinbrook residence

-   payout of the mortgage on the Hinchinbrook residence with funds received from Mr Stankovski’s retrenchment package (Mr Stankovski’s evidence)

-   the establishment and operation of a St George joint bank account (evidence of Ms Kantarovski, Mr Stankovski, St George Bank records)

-   the financial management of household expenses by Ms Kantarovski in consultation with Mr Stankovski, with the latter being the provider of the financial revenue (evidence of Ms Kantarovski and Mr Stankovski)

-   the operation of a partnership by Ms Kantarovski and Mr Stankovski to conduct the business of Stankovski’s Couriers – an owner subcontractor courier business (evidence of Ms Kantarovski, Mr Stankovski and tax returns in evidence)

-   the seeking of a business loan by the same partnership from St George Bank on 21 December 1998 in order to replace the courier vehicle. The amount sought was $35,000, with the loan to be secured by a mortgage over the Hinchinbrook residence and monthly repayments to occur over a 60 month period (T3, T4).

8.      Further in the period up to the end of 1998 I note and accept the evidence of Ms Kantarovski , Mr Stankovski and Mrs Stankovski in relation to the following issues:

·The nature of the household in so far as:

(a)Care and support for the children rested primarily with Ms Kantarovski for day to day activities; was shared with Mr Stankovski in relation to outings and special occasion activities. Mrs Stankovski had caring responsibilities when Ms Kantarovski and Mr Stankovski went out on approximately two nights a week.

(b)Household activities such as cooking, washing, ironing and cleaning were generally undertaken by Ms Kantarovski, with Mr Stankovski caring for outside activities such as mowing and garden maintenance. Shopping was often performed by Ms Kantarovski and Mr Stankovski, with Ms Kantarovski also assisting Mrs Stankovski with doctor/medical attendance, as she did with the children.

·The social aspects of the relationship in so far as:

(a)Particular evidence from Ms Kantarovski, Mr Stankovski and Mrs      Stankovski detailed the circumstances and happenings of the relationship between Ms Kantarovski and Mr Stankovski being consistent with two individuals enjoying a satisfactory domestic relationship up to the time Mr Stankovski was retrenched. Thereafter the evidence from all three parties in the household heralds the slow deterioration in the relationship between Ms Kantarovski and Mr Stankovski as demonstrated by increasing argument and conflict between Ms Kantarovski and Mr Stankovski, aberrant behaviour by Mr Stankovski, and increasing angst by Ms Kantarovski in response to such behaviour and a growing concern by her as to the state of dwindling financial resources and available cash.

(b)      That throughout this period they continued to hold themselves out as         married to each other and albeit with some difficulty and conflict continued to engage in joint social activities.

·The sexual aspects of the relationship remained unchanged in this period

·The nature of the commitment to each other:

(a) Despite increasing argument and conflict, the structural underpinnings of the relationship remained up to the end of 1998, although it is evident that the aberrant behaviour of Mr Stankovski was causing deterioration in the emotional relationship that had existed between himself and Ms Kantarovski, with Mrs Stankovski being an unwilling participant in the evolving issues. It is            evident that aspects of the marriage relationship were being tested in the months leading up to the end of 1998.

9.      I am mindful in this matter that Ms Kantarovski and Mr Stankovski had been married since 1985, when Ms Kantarovski made her application for parenting payment single on 24 February 1999. I recognise that with such a marital history, the unwinding of structural arrangements made during that period of marriage will occur in such a way and over a timeframe consistent with the continuing responsibilities that have occurred as a product of the marriage and the ability of Ms Kantarovski and Mr Stankovski to resolve such issues, within the financial resources available. In assessing such circumstances I am mindful that a decision that a person is or is not living separately and apart on a permanent or indefinite basis from another person to whom they are married is fundamentally different to the nature of an inquiry in which the decision involves a determination that a marriage like relationship does or does not exist (Re Staunton-Smith v Secretary Department of Social Security (1991) 25 ALD 27).

10.     I am also mindful that the Respondent has questioned the reliability of evidence given by the three witnesses. In relation to Mrs Stankovski, the Respondent contends that her evidence reflects a situation in which the evidence has been moulded to present a picture most favourable to the Applicant. Such a circumstance is contended by the Respondent to arise from the good relationships shared by Mrs Stankovski with both, her son and Ms Kantarovski, but more importantly for Mrs Stankovski’s welfare and well being as she was dependent on a favourable outcome to secure her continuing accommodation and support needs.

11.     In relation to the evidence of both Ms Kantarovski and Mr Stankovski the Respondent contends that there are a myriad of issues involving the financial and social aspects of their relationship, the commitment to each other and the nature of the household. In so stating the Respondent particularises a number of issues in which it is contended that both witnesses have either singularly or together created inconsistency, misrepresentation or obfuscation by their evidence. If such circumstances are found to exist the Respondent has pressed the Tribunal to adopt the reasoning process stated in the matter of Petty and Davis and Director General of Social Security (1982) 10 SSR 99, where the Tribunal stated:

“Where applicants make an untruthful or misleading statement concerning their relationship, they must realise that the inference is likely to be drawn against them, that they are endeavouring to conceal the true nature of their relationship.”

12.     I acknowledge the thrust of the Respondent’s arguments. It is my intention to deal with the nominated circumstances in the context of the defined statutory deliberations. Later I shall make clear my assessment of the reliability of the evidence given by the three witnesses prior to concluding an ultimate decision.

13. The legislation is particular in defining that the decision maker must have regard to all the circumstances of the relationship including all those nominated within section 4(3) of the Act. Earlier in this decision I have nominated the circumstances of the relationship between Ms Kantarovski and Mr Stankovski prior to 1999 in order that I am better able to understand any changes that have occurred in the various aspects between 24 February 1999 and 4 May 2004. Section 4(3)(a) of the Act details the particulars that I must have regard in relation to the financial aspects of the relationship. These include:

·     Joint ownership of real estate or other major assets and any joint liabilities; and

·     Any significant pooling of financial resources especially in relation to major financial commitments; and

·     Any legal obligations owed by one person in respect of the other person; and

·     The basis of any sharing of day to day household expenses.

14.     I observe that the ownership of the house at Hinchinbrook has remained in the same ownership (joint) both prior to, during the period in question and after. I note the absence of a will by either owner both prior to, during the period in question and thereafter. I note that the house purchase mortgage was paid out by mid 1998 with contribution from both parties. I observe that a business (Stankovski’s Courier) was carried on since 1986 by a partnership between the two parties. I note that this partnership ceased trading in 1998 (T65, p228). I note that Ms Kantarovski and Mr Stankovski had operated a bank account in joint names prior to March 1999.

15.     I observe the following changes in the financial aspects in so far as it relates to real estate, major assets, joint liabilities and pooling of financial resources in relation to major financial commitments. I also make comments as to the significance of the issue.

Business Loan - St George Bank

(i) An application for a business loan was made apparently by the two partners in Stankovski’s Courier for $35,000 to St George Bank on 21 December 1998. The purpose of the loan was to purchase a new truck. The loan was approved and paid in February 1999. Security for the loan was by way of a mortgage on the Hinchinbrook residence. Repayment for the loan (capital plus interest) was to be paid monthly over 60 months. The loan account was in joint names,with both parties liable for the repayments with final repayment to be made in March 2004. I also note that Ms Kantarovski referred to a monthly mortgage repayment of $700 per month with her contribution being $350 per month in documents lodged on 24 February 1999 (T10) and 2 March 1999 (T19), while other documents lodged on 24 February 1999 (T13) nominated the month by repayment at $600, with her contribution being $300 per month. Subsequent forms submitted by Ms Kantarovski on 11 April 2000 (T35) do not mention the existence of either a mortgage or a personal loan. I note that Mr Stankovski did not declare either a mortgage or a personal loan in forms lodged 25 February 1999 (T18). I also note Ms Kantarovski’s evidence that she declared the mortgage payment initially to secure sympathy for her plight, and that she      made no repayments, evidence reinforced by Mr Stankovski stating that he was responsible for all the repayments.

(ii) From this material I conclude that a business loan was taken out with the St George Bank for $35,000, ostensibly in the name of a partnership which no longer existed, and presumably an issue not drawn to the attention of the bank by either partner. Nevertheless Ms Kantarovski was technically correct in her early forms lodged that there was a monthly mortgage arrangements of $700, the responsibility for payment resting with both parties. I also note that the forms completed by both parties refer to a personal loan. I believe both parties were correct in not attesting to a personal loan, while clearly Mr Stankovski was in error in not detailing the mortgage amendments, with Ms Kantarovski initially misleading Centrelink with her claim that she was making a monthly mortgage contribution post February 1999. I further observe that the loan was paid out in March 2004 and the joint loan account closed. I note the somewhat confused presentation of circumstances that led to both the creation and reporting of the business loan. I observe that the business loan was taken out for the purpose of ensuring Mr Stankovski had a continued stream of income arising from an activity with which he had been associated for 24 years of employment in Australia. Ms Kantarovski’s participation in the business loan process was essentially a business decision taken by her to ensure a continued stream of income in the light of the then existing circumstances, and at a time that choices for her were relatively limited. While some criticism can be pointed at both Ms Kantarovski and Mr Stankovski as to both the adequacy and correctness of details of the mortgage reported to Centrelink, the completion of the forms would suggest that by virtue of the details provided, that such forms were completed by each independent of the other. Further I note that while the business loan was operative from February 1999, which is prior to the period in question, the mortgage security should have been declared. In so doing any negative inference drawn during the review process initiated in 2003 that the loan process was paid out in March 2004 in response to that process would have been avoided, since March 2004 was the date established for the final payment at the time of loan approval.

(iii) As a consequence of the circumstances nominated, I conclude that the issue of the business loan is a matter more to do with a business decision taken by the parties to re-establish and invigorate the Courier business with the main driver of the initiative being Mr Stankovski. While Ms Kantarovski may have had limited choice in whether to sign or not sign the loan documentation, it is evident that the expected financial revenue would have increased as a result of the transaction. It is again noted that Mr Stankovski undertook the responsibility for the monthly loan repayment – an activity he discharged without apparent default (credit check). In summary I consider the business loan to be a transitional business loan activity and from which little can be derived as to the nature of the relationships existing between the two parties during the period 24 February 1999 and 4 May 2004, nor should any negative inference be drawn as to the time of the final payment in relation to that loan in March 2004.

Other Financial Aspects

(i) I note that the ABN number for the partnership was cancelled on 13 March 2000 (T45, p151). I note that Mr Stankovski was granted an ABN number as a sole trader from 1 November 1999 (T62, p224). I note the cancellation of the St George joint account on 14 October 1999 (T91, p355). I note the closure of the St George account for Stankovski’s Courier Business on 23 April 1998 (T91, p355). I note the existence of an account for Ms Kantarovski at St George Bank, and both the balance and source of funds for that account (T53, p167).

(ii) I also note the tax returns for Mr Stankovski for the years 1999 through to 2003. I observe his net income as disclosed in those returns, with the years after 1999 demonstrating a net taxable income of $30,000 plus or minus $5,000 approximately. I note his claim for private health insurance and claims for business furniture, telephone, mobile and fax machine. I note the claim for fax and telephone is essentially depreciation (fax) and 5 to 10 % of gross expense (telephone). I observe that he claims tax rebates for health costs greater than $1,500 (year 2003), and states that he is a member of a private health insurance fund with no relation claimed in his tax  returns. I note that a family membership for health insurance was taken out on 29 June 2000 with NIB for the family, including Ms Kantarovski and the children (T92, pp362). I further note the credit and withdrawal of approximately $52,500 in and from Mr Stankovski’s National Bank account on 20 and 21 May 2004 respectively (T84, p340). I note Mr Stankovski’s evidence as to source of funds (mother plus Workers Compensation Payment via a term deposit in his daughter’s name). I note the current quantum and repository of such funds. I observe the agreement for the sale of property by Mrs Stankovski in Macedonia on 28 June 2001 for 35,00 Deutch Marks (Exhibit R2).

(iii) From the provided material I conclude that since 19 March 1999 there is clear evidence of unwinding of a business partnership between Ms Kantarovski and Mr Stankovski and the establishment of Ms Kantarovski as an independent manager of money received in her right. Similarly there is evidence of closure of a joint financial bank account at St George. Further the evidence demonstrates Mr Stankovski as the sole owner and operator of the Stankovski’s Courier Business (tax returns 1999 to 2003). I certainly acknowledge that while there appears relative normality in the accounting processes evident in Mr Stankovski’s annual tax returns for the period 1999 through 2003, his somewhat unusual manner of dealing with large sums of money ($50,000 approx) left open many questions as to both source and ultimate disposition of such funds. While the Respondent made much of Mr Stankovski claiming for telephone, furniture and fax machine and including Ms Kantarovski in his membership of a Private Health Fund as evidence of an ongoing family association, I believe that this is not necessarily the outcome. In so stating it is evident that Mr Stankovski’s tax returns would indicate attention to effective tax planning in his business and personal affairs. Further his claim for tax benefits is essentially his doing and has not necessarily involved any input from Ms Kantarovski. Finally it could be argued that in relation to the health insurance premium it was a cost (including opportunity for rebate) and tax effective way of providing health insurance for a family in separation, the health insurance being viewed as a necessity in the light of the daughter’s ear difficulties.

The Basis of Sharing Household Expenses

(i) The arrangements for the management of household expenses prior to March 1999 involved essentially Ms Kantarovski being the collector, collator and payer of bills, with Mr Stankovski being the provider of funds. The process was essentially consultative between the two, with rate and utility bills reflecting the joint ownership of the property.

(ii) The evidence both in the months before and after February 1999 would indicate a tightening of money supply, associated with some dissipation of funds by Mr Stankovski on other than on household expenses (gambling, going out, etc), and the need for Ms Kantarovski to seek assistance from a charitable organisation. The evidence thereafter, is that after a period of time less hostile relationships existed between the parties, with Ms Kantarovski being able to negotiate a monthly maintenance payment of initially approximately $300 and later $200 a month, with Mr Stankovski meeting and paying the girls’ private school fees and rates. Ms Kantarovski met and paid the utilities bills albeit with some contribution from Mr Stankovski.  Ms Kantarovski did not desire a formal maintenance agreement, as she was concerned it may lead to increasing disputation and violence with Mr Stankovski. Mr Stankovski independently of Ms Kantarovski would provide money and gifts to his daughter or occasions when he was with them.

(iii) This evidence would again indicate a change both of how the financial resources were managed and the processes undertaken to pay the household bills. I note for example the billing of the school fees directly to Mr Stankovski and his payment thereof. I note much was suggested by the Respondent as to why Ms Kantarovski did not take out a formal maintenance agreement and the purported difference in the amount of monthly maintenance voluntarily paid by Mr Stankovski, who incorporated amounts paid by way of rates and any contribution to utilities bills in an average monthly maintenance amount. Again I conclude that the evidence before me supports an alteration in the way household bills were dealt with by the parties – an alteration which is consistent with an alteration in the relationships between the parties.

the nature of the household

16. Section 4(3)(b) of the Act directs consideration of the following:

·     Any joint responsibility for providing care or support of the children

·     The living arrangements of the people

·     The basis on which responsibility for housework is distributed.

17.     It is evident from the material before me that Ms Kantarovski is the prime carer and prime support for the children on a day to day, week  to week and month to month basis. Since February 1999 she has been essentially the sole carer and prime support for the children in that she has had responsibility for nurturing, funding, clothing and organising their every day activities. I recognise that Mr Stankovski provides maintenance support and pays the school and assists with payment of other bills, but his interaction with his children is best described as opportunistic and at least on a weekly basis. I consider the description of his interaction with his children as those of an affectionate father available in an emergency but generally removed from the daily activities of the children. I further recognise that by virtue of the domestic arrangements, Mrs Stankovski has had and continues to play a supportive role in the children’s upbringing.

18.     The domestic living arrangements both before and after February 1999 have been articulated in great detail. I note the layout and photographs provided to the Tribunal, and have no difficulty in concluding that the property offers two discrete self-contained accommodation settings, capable of one being inhabited independently of the other.  

19.     As a consequence of my considerations in the light of all the evidence I conclude that the accommodation arrangement post February 1999 involved Ms Kantarovski and her two daughters occupying the upstairs accommodation and Mrs Stankovski being the prime occupier of the downstairs accommodation, with Mr Stankovski being a frequent but intermittent occupier of the downstairs accommodation. I note the separate entrances for each accommodation, the change of locks taken at the time of rearrangement of accommodation in early 1999 and the permanent locking of the downstairs entry to the connecting stairs to upstairs. In so stating I recognise that such findings are made from the collective evidence of the three adults in residence at Hinchinbrook. While the Respondent made enquiry of the City Council (T95) as to the approval of the existence of a “granny flat”, the Councils’ response to such does little to alter the schematic design evidence before me with neither the documented verbal advice or the attached design from Council being of assistance (T94, p364-5). In relation to the responsibility for housework it is evident that post February 1999 Ms Kantarovski together with the two girls maintained the internal domestic activities for the upper accommodation, while undertaking shopping for themselves and in part for Mrs Stankovski (Ms Kantarovski had use of Mrs Stankovski’s car from time to time). Ms Kantarovski also performed minor garden maintenance. I note that Mr Stankovski, when residing with his mother, also did shopping for his mother, who on occasions cooked for him and his two daughters if they happened to be visiting. I note that Mr Stankovski was left to do his own washing and other domestic activities, no doubt with the help of his mother, while maintaining the general outdoor maintenance of the grounds (mowing etc.).

20.     In summary and without specific evidence to the contrary I conclude that there has been significant change in the nature of the household from early 1999. Such change involved the more significant role played by Ms Kantarovski in the care and support of the children, the living arrangements and the basis on which responsibility for housework is distributed.

The Social Aspects of the Relationship 

21. Section 4(3)(c) instructs consideration of the following:

·     Whether the people hold themselves out as married to each other

·     The assessment of friends and regular associates of the people about the nature of the relationship; and

·     The basis on which the people make plans for, or engage in joint social activities.

22.     I note applications received by the William Carey Christian School on 28 November 2001 (T56) for the enrolment of their two daughters in 2003. It is signed by both parents with Ms Kantarovski describing herself as a secretary for Stankovski’s Courier, and clearly giving no indication that they were separated. Advice on separation (name change) was forwarded to the school on 3 April 2004 (T56, p195). Ms Kantarovski told the Tribunal that she made the applications the way she did to enhance the likelihood of the two girls being accepted into the school, and did not see any need to inform the school of the separation. While I do not accept or advocate the adoption of such a misleading application, I am well aware that such school applications are enhanced by parents in the hope of securing positive outcomes.

23.     I further note that Mr Stankovski detailed Ms Kantarovski as an emergency contact on his employment form with First Choice Transport on 18 February 1999 (T76, p291). I also note the Royal Sun and Alliance document concerning Mr Stankovski’s claim for Workers Compensation dated 11 December 2002 (T78) in which he describes himself as married with two dependant children. While the Respondent argued that this indicated that Mr Stankovski was holding himself out as a married person, I conclude that his Workers Compensation Claim was no more than a statement of fact, with entitlements flowing according to whether amongst other things he was married and had dependant children. The issue of whether he was separated was not a question asked, and it would seem unusual to expect an individual to volunteer such information in such circumstances. In relation to the emergency contact nomination, it would not appear unreasonable to nominate Ms Kantarovski even in the light of their evolving circumstances at that time. I do not believe significant inference can be reviewed from either circumstance, or indeed where Mr Stankovski elected to cover the family for private health insurance.

24.     I am aware that the Respondent also placed emphasis on the issue of the joint attendance by both parties at Dr Seeto’s surgery in 2002 in relation to Mr Stankovski’s knee injury and in relation to the daughter’s ear problems. I note the evidence of Ms Kantarovski in relation to her concern about the nature of Mr Stankovski’s knee injury and associated compensation payments and their joint concern about her daughter’s ear problems. I also note the evidence recorded as being given to the Social Security Appeals Tribunal by Dr Seeto. In summary I conclude that all this evidence does little to clarify the issue, as many contradictory inferences could possibly be drawn even in the context of the issues in question in this matter.

25.     The evidence in relation to what friends and associates consider to be the nature of the relationship is dependant of what they have been told and what they have observed. Ms Kantarovski states that she has told close friends and relatives, that they were separated, but only informed her Macedonian relatives in August 1999 that there were difficulties in the marriage. Questionnaires to this effect were completed by Ms Joanne Stillitano and Mr David Stankovski in February 1999 (T15, p78), while Ms Tran and Dr Tien concluded in February 1999 that they were separated but were uncertain as to whether the separation was temporary or permanent (T15, p74-77). I also note the evidence of Mrs Stankovski who has given evidence as to the deterioration in the relationship, separation and arrangement of accommodation. I consider that this evidence at face value is far superior from inferential supposition derived from membership of a health fund, failure to disclose separation in a workers compensation claim and holding out that she was a secretary, while failing to declare her separated status in the application to the William Carey Christian School. I consider the failure to fully inform the relatives in Macedonia of the full circumstances of her marital difficulties understandable in the circumstances that prior association with them had been many years earlier as a young child.

26.     On 20 August 1999, Ms Kantarovski advised Centrelink that she and the two children were traveling to Macedonia on 22 August 1999 (T27). On 20 October 1999 Ms Kantarovski advised Centrelink that she and the two children had returned from Macedonia on 11 October 1999 and that she was unaware as to where her ex-husband was living (T29, p125). Ms Kantarovski is recorded as stating to Centrelink that she was unaware Mr Stankovski had traveled to and from Macedonia with them, and that on return they had exited through customs together. Both Ms Kantarovski and Mr Stankovski were particular in detailing a series of events and circumstances that kept them separate and apart both in Macedonia and when traveling to and from that country. I note the evidence from Qantas regarding the return leg from Bangkok to Sydney that would indicate that they had four seats together.

27.     It is the evidence about the trip, the circumstances of their association or lack thereof during the flights and in Macedonia and the statement made to Centrelink on 20 October 1999 as to an absence of knowledge as to the whereabouts of Mr Stankovski that causes me much difficulty. I experience such difficulty because of the obfuscation and evasion inherent in the story as it has unfolded over time. The whole trip may well have been an attempt at reconciliation between the parties which was unsuccessful but there is no evidence to this affect. On the evidence as it stands on this issue I have much difficulty in accepting that the story of events as detailed by Ms Kantarovski and Mr Stankovski as a valid rendition of actually what occurred. Part of the material may well be authentic, but I am not in a position to determine what is and what is not.

28.     In returning to the issue of planning or engaging in joint social activities, I again note the oral evidence given by the three witnesses. Planning for social occasions would appear to deliberately exclude Mr Stankovski attending family affairs such as Christmas and birthdays at which Ms Kantarovski and the two children are present. It would appear that Mr Stankovski has to make separate arrangement to celebrate such occasions with his two daughters. It would appear on the other hand that Mr Stankovski attends independently at the daughters’ school sporting activities and may on occasions take the children away from such occasions independently of Ms Kantarovski.

29.     In relation to the evidence in paragraph 28, I would conclude that such arrangements are congruent with one parent having controlled access to the children in particular circumstances only.

sexual relationship

30. Section 4(3)(d) of the Act provides that consideration be given to any sexual relationship between the parties. The only evidence available in this matter states that a sexual relationship between the parties ceased in December 1998.

nature of commitment to each other

31. Section 4(3)(c) of the Act stipulates that consideration be given to:

·     The length of the relationship

·     The nature of any companionship and emotional support that each provide to each other

·     Whether the relationship is considered by each person is to continue indefinitely; and

·     Whether each party sees their relationship as a marriage like relationship.

32.     In this matter the parties were married in 1985, with two children being born in the early nineties. The evidence is particular in detailing the accrual of assets (house) with commitment by the parties to accommodation by Mrs Stankovski in the lower floor accommodation. The evidence is particular in describing the relationships which existed between the three adults in the residence until 1998. Consequent to this, the evidence is succinct in describing the deterioration in the relationship between Ms Kantarovski and Mr Stankovski, with his mother caught in the middle of escalating arguments between the married couple, for both of whom she had high regard. The process in the deterioration of the relationship is described with relative congruence by the three adult parties with reference to the behavior of Mr Stankovski being nominated as the cause of the increasing friction which eventually resulted in the rearrangement of accommodation and significant alteration of the relationship between Ms Kantarovski and Mr Stankovski. Further evidence post 1999 would indicate a continuance in Mr Stankovski’s behavior in seeking friendships with other women and adopting a lifestyle in which he had only himself to answer to. It would appear that his accommodation requirements could be described as transient, although it would appear that he perceives that he has a right to live in the accommodation with his mother as he sees fit and that accommodation either with his brother or elsewhere is somewhat more opportunistic. It is further evident that both Ms Kantarovski and Mr Stankovski see the current accommodation arrangements as continuing indefinitely, despite the granting of a divorce in 22 April 2005.

33.     I further note that support to the facts detailed is to be found in a letter from the Legal Aid Commission dated 20 December 2004, which detailed that Ms Kantarovski attended at the Commission on 22 August 2000 at which time she stated that she had been separated from her husband for 18 months (Exhibit A5),

34.     In summary the evidence from the three witnesses would indicate that the essence of any continued association between Ms Kantarovski and Mr Stankovski was more to do with a continuing independently held concern for the welfare of their two children and also the welfare of Mrs Stankovski. While much of the angst and violent behavior apparent at the time of the separation has ameliorated, continued interactions between Ms Kantarovski and Mr Stankovski are structured in such a manner by Ms Kantarovski to involve issues of financial support and little to do with emotional support or companionship. It is evident from the evidence given by both parties that they view the current circumstances, where any interaction that may occur is associated with the childrens’ activities and/or to do with issues of financial support, as continuing indefinitely. Further it is evident that they consider that any emotional and or supportive assistance for the other is at best marginal where it involve issues relating to the children.

other issues

35.     Attention was drawn to the issue of Rent Certificate Forms lodged by and for Mrs Stankovski. Evidence detailed by the son that Mrs Stankovski paid him $70 per week by way of board not rent in that she made no contribution to the general household expenses. He also stated that she paid him other amounts in relation to particular shopping items she requested. I further note that the Rent Certificates lodged on 8 April 2002 (T41) and 28 November 2003 (T47) clearly identify Mrs Stankovski as living alone. It is evident from evidence given by her son that his accommodation with his mother could be described as a person that regularly stays at the accommodation nominated.

36.     I further note that emphasis has been placed upon the issue that there was one phone line to the residence with extensions emanating from that line. More pertinent however seemed to be the suggestion that it was somehow irregular for Mr Stankovski to be claiming a tax benefit for five to ten per cent of telephone expenses relating to that line, when it was his evidence that he made a contribution to the payment of such expenses.

37.     I would conclude that in both situations the issues upon which negative inference has been implied by the Respondent do on closer scrutiny appear to involve either a matter which should have been investigated further by Centrelink as the material was very much in evidence before them (rent certificate issue) or was a matter upon which they should have taken advice as to whether it was proper for Mr Stankovski to be claiming a tax benefit (phone bill). In either situation, it is evident that Ms Kantarovski had an effective imput into either situation which was either nominal or on the tax claims, non-existence.

credit of witnesses

38.     The respondent submitted that the reliability of the evidence of the three major witnesses was a major issue. In relation to Mrs Stankovski the Respondent submitted that her evidence was both consciously and unconsciously tainted by circumstances of her continuing good relationships with both her son and Ms Kantarovski and her continuing welfare in relation to both accommodation and caring assistance given. I am unable to accept such assertions in that I believe Mrs Stankovski’s evidence was consistent with that of an elderly person, with language difficulties articulating responses in as much detail as she was able to remember to questions covering a six to seven year period. In summary I consider Mrs Stankovski’s evidence to be reliable in so far as she has been able to describe her understanding of the evolving difficulties in her son’s and Ms Kantarovski’s relationship over the years, her relationship with both parties and the particulars of the domestic and accommodation arrangements existing over time at the Hinchinbrook residence.

39.     In relation to Mr Stankovski and Ms Kantarovski, I find that their evidence has to be assessed in a cautious manner. I have difficulty with accepting the totality of their evidence in relation to the visit to Macedonia in August 1999. I also note that while Ms Kantarovski did notify Centrelink of her and the two childrens’ departure, the failure to detail Mr Stankovski’s similar travel arrangements to and from Macedonia in August and October 1999 until some years later raises particular questions. This is reinforced by Ms Kantarovski notifying Centrelink on 20 October 1999 (T28) of her return on 11 October 1999 and that she had not seen her ex-husband since her return. I further note that the details and circumstance of the traveling arrangements and separate destination arrangements as described by Mr Stankovski and Ms Kantarovski have been more particularized as the matter has proceeded through the review processes. Having considered all the evidence in relation to the travel and activities in Macedonia in August to October 1999. I express reservation about the reliability of evidence relating to the actual traveling arrangements both to and from Macedonia and the circumstances whereby it would appear that Mr Stankovski had contact with his two children in Macedonia but not with Ms Kantarovski.

40.     In relation to other evidence given by Ms Kantarovski, I have previously considered and concluded as to the circumstances surrounding the mortgage and business loan, the application to the William Carey Christian School and the attendance upon Dr Seeto in 2002 in relation to Mr Stankovski’s Workers Compensation knee’s injury. While in the particulars of each situation there is an inference that Ms Kantarovski may have provided evidence to either mislead, misrepresent or obfuscate the situation, the alternative inference could be drawn that she was somewhat confused, albeit correctly (mortgage/business loan) while seeking to overstate her position, was deliberate in her misrepresentation to ensure children's school entry (application form) or was indeed concerned about the compensable nature of Mr Stankovski's knee injury. I note the circumstances of each of these situations. I accept the evidence as given in each situation by Ms Kantarovski. As a consequence critical analysis of that evidence in each circumstance would suggest that Ms Kantarovski may have been both correct and wishing to extract sympathy (mortgage/business loan), misrepresenting for a particular purpose relating to her children (school application) or seeking confirmation as opposed to caring (Workers Compensation surgery attendance). The critical analyses of such circumstances allows the analyzer to draw inference, whether it be positive or adverse, in relation to those particular circumstances, and places the decision maker on notice, particular where adverse inference has been suggested as to the reliability of the evidence given generally. 

41.     I have been particular in the light of the analysis undertaken of particular aspects of Ms Kantarovski’s evidence. I have drawn attention to the difficulties and the adverse inferences that could be drawn from the particular circumstances. I have analyzed the remainder of her evidence, having been placed on notice over difficulties with some of her evidence as outlined. In such circumstances I accept Ms Kantarovski’s evidence as reliable within the parameter earlier detailed in the decision in circumstances where it relates to the financial aspects of the relationships, the nature of the household, the social aspects of the relationship, the sexual aspects of the relationship and the nature of the commitment of each to the other. In so finding I acknowledge the similar fact evidence from Mrs Stankovski and Mr Stankovski on these issues. While I note the inferences that could be drawn from the particular circumstances outlined, I conclude that such inferences, while adverse, do not allow me to draw a conclusion that all of Ms Kantarovski’s evidence is unreliable, in the absence of further particular material allowing me to draw such a consideration.

42.     Evidence given by Mr Stankovski portrays a failure to notify the existence of the mortgage/business loan, a description of his overseas travel and itinerary in August through October 1999, an outline of his financial machinations including the placement of significant funds in particular situations, the naming of his separated wife as an emergency contact for his employer on 18 February 1999 and again as being married in his workers compensation claim in 2002. Further evidence has been led with regards his taxation claims for phone and fax deductions and issues surrounding the payment of maintenance and the placement of his separated wife on the private health insurance schedule as a family.

43.     I have already considered the travel to and from Macedonia in August/October 1999. I draw no further inference. I understand that Mr Stankovski considered the business loan to be his sole responsibility, with his failure to declare the mortgage an oversight. In relation to the other circumstances in which an adverse inference is sought to be made, Mr Stankovski denies that such an adverse inference should be drawn in that it was not inappropriate and was indeed appropriate to nominate his separated wife as a contact in times of emergency, that his claim for compensation was correct in nominating that he was married with two children: that his taxation claims were appropriate and that any issue as to the difference in the amount of maintenance paid was a consequence of how he assessed the amount (cash plus contribution to whereby bills) and the amount nominated by Ms Kantarovski (cash in hand each month). Similarly he stated that he listed his separated wife on the private health insurance without her knowledge, as it was of no greater cost to him. While such activities by Mr Stankovski may suggest a continuing relationship, I consider and so find that such activities documented over a five year period are limited and which in the light of explanation given, do little more than describe particular issues from which little can be drawn.

44.     I also note the rent certificate notifications made by Mrs Stankovski and Mr Stankovski’s certification of same. I note the discrepancy as to the advice that Mrs Stankovski was living on her own. The nature of Mr Stankovski’s use of the accommodation with his mother is a matter for Centrelink, and no evidence was led by Centrelink as to whether a not the circumstances as described would be material in the assessment of Mrs  Stankovski’s rental assistance.

45.     Apart from the particular circumstances detailed in relation to the travel to and from Macedonia and circumstances referred to in earlier paragraphs of this decision, I conclude that the remainder of the evidence provided by Mr Stankovski is reliable and that his credit as a witness is only impugned in the circumstances that I have detailed.

summary and decision outcome

46.     I have been particular in working through the inconsistencies, discrepancies and misleading statements made over time in this matter. I have analyzed such in the context of their particular circumstances with varying resolutions. Some evidence from Mr Stankovski and Ms Kantarovski I have found wanting, but in over all assessment I have concluded that the evidence of Mrs Stankovski, Ms Kantarovski and Mr Stankovski can be accepted as both reliable and relevant as I have found in those nominated circumstances.

47.     I acknowledge that in this matter that at the time of the commencement of the separation the marriage had been ongoing since 1985. Dependants, assets and in law responsibilities had been accumulated. Breakdown in the relations between the marriage parties has been described by them and Mrs Stankovski. The reasons for the breakdown in the relationship have been given and are accepted.

48.     Initiating documentation by Ms Kantarovski to seek parenting payment single in hindsight raised some inconsistency in 2003/2004. Apparent obfuscation concerning travel to and from Macedonia superimposed on inconsistencies in later documentation created an impression that the situation was not as being put forward by Ms Kantarovski. Other evidence was sought, and from which reinforcement of a view emerged that Ms Kantarovski and Mr Stankovski were members of a couple. Predominant factors in reaching such a view were the continuance of the accommodation arrangements over time, inconsistencies concerning the amount of maintenance, the failure to report financial arrangements and the holding out to the public that they were still married.

49. In overview I have already stated that the consideration of all the issues including those nominated within section 4(3) of the Act must be undertaken within the environment and the circumstances prevailing at the time of the separation. In this matter there is a house, a business, two children and a grandmother to be considered. That arrangements as to separation in relation to accommodation were particular is to be understood within the needs to accommodate all satisfactorily. Further the evidence is particular as to the nature of the discrete, accommodation and the activities undertaken and practices adopted to ensure that such discreetness has been maintained. I note that such is to continue until the children are finished with education is a view held by both even through a divorce decision was issued in April 2005.

50.     I further acknowledge that there has been a considerable change in the conduct of management of financial relationships between the two parties, with the exception of the jointly owned residence and Ms Kantarovski’s financial need for managing the household costs for her and the two children. In essence by nature of the accommodation arrangements the two parties have negotiated the circumstance whereby each has responsibility for particular household outgoings, while each retains financial independence. I note that much comment was made in retrospect that a formal maintenance arrangement should have been sought by Ms Kantarovski. I reject both the criticisms either stated or implied by the Respondent for her failure to do so. I accept Ms Kantarovski’s reasons for not so doing.

51.     Without once again going in the particular circumstances of each issue which has to be considered I am satisfied that on the balance of probabilities that the evidence given by the three witnesses clearly portrays a significant change in the nature of the household, the social aspects of the relationships, the sexual aspects of the relationship (nil after December 1998) and the nature of the commitment of each to the other. In relation to the latter it is evident that concern and care for the welfare of the two children held independently by both parents should not necessarily imply a concern for each other. This aspect was explored in evidence with any concern for each other being more a respect for the responsibilities owed to the children and the care of Mrs Stankovski, and not the case of being concerned for the individual welfare of each other.

52. Having considered all the issues, including those nominated in section 4(3) of the Act, I find that on the balance of probabilities that:

· Ms Kantarovski and Mr Stankovski while married during the period 24 February 1999 to 4 May 2004, were living separately and apart under the one roof on a permanent or indefinite basis, and as a consequence Ms Kantarovski is not considered to be a member of a couple pursuant to section 4(2)(a) of the Act.

53.     The decision under review is set aside and in substitution thereof I find that:

(i)       Ms Kantarovski was living separately and apart under the one roof on a                 permanent or indefinite period during the period 24 February 1999 and                  4 May 2004, and that while married during this period was not a   member of a couple; and

(ii)       No overpayment of parenting payment single has occurred to Ms       Kantarovski or a debt owed by Ms Kantarovski.

I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of  

Signed:         Associate

Date/s of Hearing    20 July 2005
Date of Decision                      18 November 2005
Representative for the Applicant                 Jackie Finlay
Advocate for the Respondent                     George Lozynsky