MARKOVIC and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2010] AATA 781

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 781

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/0862

GENERAL ADMINISTRATIVE DIVISION		)
Re		DRAGO MARKOVIC

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date15 July 2010

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

...................[signed]......................

Senior Member

ADMINISTRATIVE

APPEALS TRIBUNAL

MR G. D. FRIEDMAN, Senior Member

No. 2010/0862

MARKOVIC

and

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

THURSDAY, 15 JULY 2010

MR D. MARKOVIC appears in person
MR T. DE URAY appears for the respondent

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MR FRIEDMAN:  In making my decision I have to look at the totality of the evidence and the authority for that is Pelka v Secretary, Department of Family and Community Services [2006] FCA 735. So what I need to do is look at all the evidence that I have before me from the documentary evidence on the file and from what I have heard today from Mr Markovic. I am required to look at the Social Security Act1991 [the Act] and the Social Security (Administration) Act 1999 and where a person is partnered, the partner’s income and assets have to be taken into account in assessing whether the Aged Pension is payable and that is basically why we are here today.

Section 4(1) of the … Act defines a partner as a person who is a member of a couple, that is, the other member of the couple.  Section 4(2) of the Act says a person is a member of a couple if the person 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 and indefinite basis.  Section 4(3) requires me to take into account a number of factors and they are financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship and the nature of the people’s commitment to each other.

So when I look at all of those things I then have to come to a correct and preferable decision and taking those individually, the financial aspects of the relationship ...  There is no dispute that Mr and Mrs Markovic are the joint owners of three properties.  One in Norlane, where they live, one in Newtown which they are currently renting to a tenant, and a block of land in Lightning Ridge in … New South Wales … There is no dispute that they both own jointly those three properties and that they pay half the outgoings, the rent, the utilities, the gas and electricity, both where they are living in Norlane and for the Newtown property although the rent goes into Mrs Markovic’s name – into her account – they split all the costs of maintaining the Newtown house and also the costs of maintaining the Norlane house and thirdly, any rates or outgoings in relation to the Lightning Ridge property are paid jointly.

So there is quite a lot of joint financial coming together of the resources, although I do acknowledge that Mr and Mrs Markovic have separate bank accounts and operate them separately but in relation to financial commitments, they each pay for not only the utilities but they pay for food and their own housekeeping items although Mr Markovic said that he pays for the car and it is in his name but on occasions, such as trips to Lightning Ridge, Mrs Markovic has paid half the fuel costs.

So I find that there is a fairly strong element of financial interdependence between Mr and Mrs Markovic as a result of the sharing of the three properties and the outgoings involved in those.  As far as the nature of the household is concerned, I accept Mr Markovic’s evidence they have separate bedrooms and their house is a reasonably large house, although it only has one bathroom, one laundry, one kitchen and there is one refrigerator and one freezer, there is one pantry or food area and those facilities, the laundry, kitchen, the bathroom and eating areas and appliances are shared.

That also applies to [the] washing machine and clothes dryer although I accept that Mr Markovic said they do their own washing but on occasions if she puts some of her washing in with his he is not going to take it out and I think the same goes with his washing if he puts something in with her[s].  I accept they cook separate meals but I also accept that on occasions one might take the leftovers of the other or something like that and there is not a great dispute about that and Mrs Markovic apparently does do some of his washing, once again, even though I accept that basically they do most of it for themselves.

In cross-examination, Mr Markovic said that although they do their own shopping occasionally, if he buys a bag of apples or a supply of apples or something, he is not going to object if she takes some of those and that is to be expected.  So as far as the nature of the household is concerned, although they do have separate bedrooms and cook separate meals, I also find that there is a level of sharing of the resources of the household by way of appliances and sometimes food and certainly cleaning products and … [the] sort of things that one would normally have in the household.

As far as the social aspects of the relationship are concerned, Mr Markovic has confirmed what he has said a number of times, he has no intention of divorce and he said he plans, as soon as he is able, to sell the properties, move to Serbia and he said that even then he doesn’t intend to file for divorce which is his perfect right...  As far as activities with his wife are concerned, he said that usually they do their own activity but sometimes he will divert to places such as to the shopping centre even though she will usually catch a bus but he says he sometimes drives her where she wants to go, including to the shopping centre and then they go their own way with their shopping bags.

He said that they sometimes go to church together, even though he goes more than she does, he will take her there and bring her home and when they have social outings to friends or family, they, on occasions, go together.  He also said, quite openly that he hasn’t told his friends or family, even his own children, that they consider themselves to be separated and when asked his response was basically that it was no one else’s business.  I wasn’t clear whether he was a little embarrassed to tell people that he and his wife consider themselves to be separated or that it was just no one else’s concern but it is a little surprising that his own daughter, who he appears to be reasonably close to, still hasn’t been told even though she has visited the house quite a number of times.

He also agreed that the last time he went to Lightning Ridge to visit the block of land and to spend some time in Lightning Ridge, they went with a cousin and some other people and his wife also went with him.  When asked why he remained in the house in Norlane instead of selling the Newtown house and using the proceeds to buy something else for himself, Mr Markovic’s response was that – well, it wasn’t at all clear – it seemed to be, firstly, that he wants to go to Serbia anyway so he just wants to sell everything and leave, even though his house in Norlane has been on the market, he said, for two years and an offer he has had on the house is so close to the amount that he is taking, that I imagine that if the proceeds of sale of the amount he was offered was invested, I have no doubt that the amount of interest received would more than offset the amount that he says he believes the house is worth more than the best offer.

So in answer to questions from me, it seems that Mr Markovic understood that it was his choice to remain in the house in Norlane rather than selling the house at Newtown and he himself understands his rights under the Residential Tenancies Act [1997 (Vic)] that if he sells the house then the tenant has to leave and whether it is two months or three months, whatever it is, it was open to him to do so and I find Mr Markovic’s decision to remain in the house in Norlane with his wife is purely a matter of choice of his and is not a matter of financial necessity.

So for those reasons I find that there is quite a strong degree of interdependence with regard to the social aspects of the relationship.  As far as the commitment of Mr and Mrs Markovic to each other, the fact that they are still remaining in the same house and they do share a number of activities suggests to me that there is some commitment to each other.  When asked about his will, Mr Markovic said he doesn’t have a will and when I pointed out to him that that left the possibility open, and I wasn’t giving a legal opinion here, that the possibility that if he dies without a will and he is legally married, there is a possibility that his wife might have a claim to his estate.

That did not seem to be any great surprise to Mr Markovic and to me it suggests that even though he says he wants to go to Serbia and have nothing more to do with her, clearly, at the moment … [he] doesn’t appear to have … [made] that intention … very clear.  It was open to Mr Markovic at any time to make a new will and to ensure that the wishes of him are made clear in that regard.

He was asked whether he would drive his wife to seek medical attention and he said, yes, of course he would.  Now, you might say that any decent human being would come to the aid of someone else, but this is his wife we are talking about and if they are living in the same household and she is ill and he says, of course I would drive her to the doctor, although he said, “I wouldn’t visit her if she stayed in hospital” that suggests to me a level of commitment to her that he would not have if he had a decision that he was just going to leave the house and move somewhere else.

The question of whether Mrs Markovic told her employer that he was the contact person in case of emergency, there is some dispute about that on the form, and I can’t really make a finding about that in the absence of evidence from Mrs Markovic.  So overall I find that there is a degree of commitment, despite the fact that Mr Markovic says that he and his wife have long ceased to be close in their marriage.  As far as a sexual relationship is concerned, I accept his evidence that there is no sexual relationship and there has not been one for some time.

On the question of Mrs Markovic’s absence from the Tribunal, she has made it clear on a number of occasions, as far as I am aware, that she doesn’t wish to participate in proceedings of this nature and that is her decision … I understand what he is saying that he can’t bring any witnesses, because he hasn’t told anybody that they are separated.  Given that I have to make a decision on the totality of the evidence, I find that even though the marriage – Mr de Uray described it as an estranged relationship – I would describe it as a marriage that is not a happy one and I accept what Mr Markovic says that they don’t talk to each other very much but in terms of the Social Security legislation, I find that, for all the reasons I have given, for each of the factors under s 4 of the … Act, I find that there is a sufficient … relationship which is maintained by choice by Mr Markovic, especially given he owns a number of properties with his wife, that they are or they were, at the relevant time, in a marriage-like relationship as a member of a couple and therefore I am going to affirm the decision of the Social Security Appeals Tribunal.

END OF EXTRACT