Mazevski and Secretary, Department of Employment and Workplace Relations
[2007] AATA 1243
•20 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1243
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2005/1409
GENERAL ADMINISTRATIVE DIVISION ) Re VASIL MAZEVSKI Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date20 April 2007
PlaceSydney
Decision The decision under review is set aside and instead the Tribunal decides that, at 30 March 2005 and continuing, Mr Mazevski was not a member of a couple for the purposes of determining the rate of his disability support pension.
...................[Sgd].....................
Ms N Bell
Senior Member
SOCIAL SECURITY – Disability Support Pension – Marriage like Relationship – Living Separately and Apart on a Permanent or Indefinite Basis – Not a Member of a Couple – Act Prescribes secondary Issues that must be Considered to Decide Whether a Person is a Member of a Couple – The Decision under Review is Set Aside instead it is Found that the Applicant was not a Member of a Couple for the Purposes of Determining the Rate of his Disability Support Pension.
Social Security Act 1991
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
Ms N Bell, Senior Member 1. Mr and Mrs Mazevski have been legally married for more than 35 years. Both were born in Macedonia and married there in 1971. Mr Mazevski had arrived in Australia in 1966. They have two children, Zoran, born in 1972, and Elizabeth, born in 1977.
2. After Mr Mazevski’s injury at work in 1986, a disappointing workers compensation settlement and his continuing disability, Mr and Mrs Mazevski’s marriage suffered. They have both continued, however, to live in the family home. Mr Mazevski maintains that they live separately and apart under the same roof and that, for this reason he is not a member of a couple and should be paid his disability support pension at the higher single rate, with no reference to Mrs Mazevska’s earnings.
3. The Secretary accepted, for some years, that Mr Mazevski was not a member of a couple, having previously rejected the proposition, and he was paid disability support pension at the single rate, with one short interruption, from August 1996 until 30 March 2005. On that day the Secretary’s delegate decided, following another assessment of his living arrangements, to treat Mr Mazevski as a member of a couple. That decision was affirmed by an authorised review officer and then by the Social Security Appeals Tribunal.
issues
4. The central issue in this application is whether Mr and Mrs Mazevski were in a marriage like relationship as at 30 March 2005. In particular, section 4(2)(a) of the Social Security Act 1991 poses the question whether Mr and Mrs Mazevski, being legally married, were at that time living separately and apart from each other on a permanent or indefinite basis.
5. Section 4(3) of the Act prescribes a number of secondary issues or factors that must be considered in resolving the central issue. Broadly, they require an inquiry into:
· The financial aspects of the relationship between Mr and Mrs Mazevski;
· The nature of the household;
· The social aspects of the relationship;
· The sexual relationship; and
· The nature of their commitment to each other.
6. Four of these five factors noted in the section, list further and more specific matters to which a decision maker must have regard. It is not an exhaustive list. A decision maker can go further and wider, and must consider the total picture of the relationship that emerges from these factors, and which of them weigh against a marriage like relationship and which weigh in favour of it. Financial cooperation, cohabitation, a sexual relationship, cooperative household arrangements or mutual commitment, occurring alone, do not disclose, solely, a marriage like relationship. (Pelka v Secretary, Department of Family and Community Services[1])
[1] [2006] FCA 735
7. I am also mindful, in this exercise, of the comments made by the Federal Court in Staunton-Smith v Secretary, Department of Social Security[2] in which the Court, after listing a number of matters relevant to the question of whether a married couple are living separately and apart, said the list is not exhaustive nor will each of the subjects fall to be considered in every case; a particular answer to a single subject will rarely, if ever, supply a final solution; and the Tribunal must make its determination only after assessing the totality of the evidence and other material that is before it.
[2] (1991) 32 FCR 164
the witnesses’ evidence
8. The question of the credibility of Mr Mazevski’s and other witnesses’ evidence had some prominence in this application. Counsel for the Secretary, Mr Kelly, urged me to reject Mr Mazevski’s evidence on the basis of a range of apparent inconsistencies and vagueness of recollection, and to reject the evidence of Zoran Mazevski, his son, Luba Kantarovska, his sister and his friend, Branko Poposki on a similar basis.
9. Dealing first with Mr Mazevski’s evidence, some of the points raised by Mr Kelly go to inconsistencies between answers he gave to questions on Centrelink forms over the years, the oral evidence he gave to the Tribunal, the evidence he is reported to have given to the Social Security Appeals Tribunal and his statements. The inconsistencies raised include:
·In 1994 he said he and his wife had agreed to sell the house and other assets once the children had left home but in oral evidence he agreed there had never been any agreement as to disposal of household goods until now.
·He told the Social Security Appeals Tribunal he had not driven his wife’s car since she bought it but gave evidence to this tribunal that he had driven it.
·He said on a Centrelink form that he had not obtained a divorce because of concern about the cost but in oral evidence to the Tribunal he agreed that answer was false.
·When some confusion about the meaning, in his language, of the word “visit” was put to him as nonsense, he agreed and apologised.
10. Mr Kelly also submitted that when challenged, Mr Mazevski sought to explain the inconsistencies in his evidence, and particularly his answers on Centrelink forms, as having arisen from a lack of understanding or from his answers having been recorded incorrectly by people who were assisting him. Mr Kelly pointed out that, at these times, Mr Mazevski generally had the questions interpreted to him. He described Mr Mazevski as evasive and truculent.
11. Dr Sant, Counsel for Mr Mazevski, directed my attention to the effect of his medical condition on his calibre as a witness. In particular, she pointed to reported psychiatric, cognitive, pain and sleeping difficulties suffered by Mr Mazevski as early as 1990, with memory problems becoming worse in 1993 (Dr Sharar, 3 January 1990 and 10 March 1993); gross psycho-neurotic overlay and attendant symptoms (Dr Grady, 6 February 1991); sleep disturbance and memory and concentration loss in 1997 (Dr McCullum, Health Services Australia Medical Adviser, 8 September 1997); and inability to think and sleeplessness in 1997 (Dr Bosnic, 24 April 1997). I note that, although this evidence is rather old, there is no evidence that his condition has improved.
12. Dr Sant pointed to the effects of his medical conditions on his memory and concentration and to the evolving course of the estrangement between Mr and Mrs Mazevski, rendering a statement made in the 1990s, while accurate then, appear inconsistent with a statement made on the same topic in 2005. She also pointed to a number of concessions made by Mr Mazevski that, she submitted, exhibit his candour and support his credibility. Those included a concession that a garage, which Mr Mazevski now claims to inhabit, was originally built to accommodate cars; that he does use his wife’s car; does not assert that all friends and relatives know they are separated; and acknowledged, up until 1996, a hope for reconciliation.
13. Mr Mazevski was not a good historian. His evidence was often vague and confused and it appeared, throughout his evidence, that the interpreter had difficulty communicating to him. In some instances, in cross examination, he appeared to respond to inconsistencies that were raised with him with an attempt to provide an excuse for the inconsistency. I accept that his medical conditions, and their symptoms reported by practitioners, gave rise to some of his vague and confused responses. I am also mindful that he was, of necessity, sometimes asked questions about events and circumstances that took place a decade ago. In addition, I am mindful that the relationship itself may have changed over that long period and answers to a question asked in 1994 may, if given now, be quite different. I also note the concessions he made and I consider they indicate a degree of candour. For these reasons, I will not, as urged to do by Mr Kelly, reject Mr Mazevski’s evidence as not credible. I approach it with caution and in some minor respects I give it little weight but I do not reject it entirely.
14. Mr Kelly also urged me to regard Mr Mazevski’s sister, Luba Kantarovska, as a witness of little credit. Her evidence as to how often she visited or cleaned for Mr Mazevski was confused and inconsistent – that much is clear. The inconsistencies in her evidence do not detract from other evidence to the effect that Mrs Mazevska does not clean for Mr Mazevski. I see no particular significance in the absence of reference to her in the statements of Mr Mazevski or of his son, Zoran. Where her evidence is consistent, I have no reason to reject it.
15. The evidence of Zoran was the subject of a similar submission by Mr Kelly who submitted that the credibility of Zoran Mazevski’s evidence was undermined by a written statement that included a comment on the effect, on answers given in Centrelink forms, of the limited space provided in those forms. I note that the statement was made in the context of other comments about the difficulty he has had when he assists his parents with Centrelink forms. Mr Kelly also pointed to inconsistencies with the evidence of Mr Mazevski senior about where he slept at different times over the years and differences about who had paid for the construction of the garage. Mr Kelly also referred me to Zoran’s answer to a question in cross examination as to whether he was prepared to misrepresent the truth to assist his father and his answer which was “yes”. At the time the answer was given I queried whether he had understood it. In re-examination he was asked whether he had done his best to tell the truth in answer to every question and he answered “yes”.
16. None of these matters incline me to disregard Zoran’s evidence as not credible.
17. The evidence of Branko Poposki, Mr Mazevski’s friend, was challenged by Mr Kelly on the basis that he said inconsistent things about whether he had visited Mr Mazevski at home prior to his accident; that he said he visited him at home approximately once per month but Mr Mazevski said he visited once per fortnight; and that Mr Poposki was not mentioned in statements by any other witnesses. Although I consider Mr Poposki’s evidence to be of limited utility, these matters do not convince me to discount or reject his evidence generally.
18. A particular difficulty in this application was the unavailability of Mrs Mazevska to give oral evidence and to be cross examined. The report of Dr Kitchkin dated 15 February 2007 stated she is suffering from major depression and was unable to give evidence before the Tribunal. Her statement of 16 February 2007 was in evidence but it could not be tested. The weight that I could give to her evidence was therefore limited.
financial aspects
19. Early questionnaires and statements made by Mr Mazevski (‘Review of Separation Under one Roof’, 3/2/93 and ‘Statement by Mr Mazevski’, 29/11/93) indicate that in 1993 he was entirely without funds and Mrs Mazevska paid for all expenses prior to the 1994 settlement of his compensation claim.
20. Mr and Mrs Mazevski’s evidence is that, after the settlement, there was an attempt by Mr Mazevski, and a corresponding expectation by Mrs Mazevska, to pay his share of household expenses and to purchase his own food. He was firm in his evidence that from about this time he has paid for his own food. From Mr Mazevski’s answers in a “Living Arrangements” form in August 1996, it seems that he regarded meeting a share of the “general household expenses – food, washing, clothing” as a debt of $60.00 per week to his wife. This sits uncomfortably with his statement that he only pays for food for himself. She, in turn, in October 1996 stated she pays for food for the children only. Both say, at that point, that Mrs Mazevska pays for electricity, gas and telephone and payment of none of these items is shared. This is a change from January/February 1996 when Mr and Mrs Mazevski said on similar forms that they share payment of these items but he pays for his own food.
21. It appears from the forms completed by Mr and Mrs Mazevski that, by 1997, further financial separation had developed with Mrs Mazevska paying most of the household bills and Mr Mazevski paying for his own food. At this point, in March 1997, Mr Mazevski was accepted as not a member of a couple and commenced to be paid at the single rate of pension with considerable arrears.
22. No further documentation appears in the T documents until 2003. In a statement dated 13 June 2003, Mr Mazevski said his wife does not earn much money and so she demands that he pay half of every bill and pays for his own food, clothing and necessities. A form in 2005 refers to the payment of bills being split four ways between Mr and Mrs Mazevski and their two children.
23. It was Mr Mazevski’s oral evidence, and that of his son, Zoran, that he has not always been able to meet Mrs Mazevska’s expectation that he pay a share of the cost of utilities. She has often taken up the slack and, in more recent times, his children have covered some of his contributions.
24. The evidence is that by March 2005 household expenses and utilities were paid by way of separate contribution with no subsidisation of Mr Mazevski by Mrs Mazevska or vice versa.
25. I note that, since 1994 they have not had a joint bank account as they did before. Mr Mazevski said this was Mrs Mazevska’s wish. They own the house as joint tenants but it is not clear to me that Mr Mazevski understands that this means that, on his death, his share will go to Mrs Mazevska.
26. The motor vehicle is in joint names; there is no satisfactory explanation for that. His evidence that he had been advised that he must do so by the Roads and Traffic Authority because he drives it occasionally is, at best, very confused. However, I note and accept his evidence that when he does use the car he replaces the petrol he has used. The house and car insurance are held jointly.
nature of the household
27. One of the most telling aspects of the evidence in this case is the evidence given of the nature of the household.
28. A map of the house, and Mr Mazevski’s evidence in relation to his occupation of it, showed that he occupies separate sleeping and cooking quarters. This appears to have developed from the situation in 1993 where forms completed indicate that they slept separately but shared the living area and utilities. By 1996 the forms indicate he was sleeping on a mattress in the living area and sharing that area and the kitchen but he also indicated that his wife does not cook for him. By June 2003 he said in a statement: “I live in a one bedroom room with my own kitchenette and laundry area separate from my wife which lives in the main house with my son and daughter”.
29. This is consistent with the conclusions reached by Ms Verrender, Social Worker, following a visit to the home last year. She described quite separate living arrangements and did so referring to evidence of day to day living including foodstuffs, cooking utensils and garbage in the kitchen and a bed, television and personal effects in the living area of the flatette. She also observed Mr Mazevski retrieve his medication from there, when she inquired about it.
30. These arrangements are also generally consistent with the evidence of Zoran and Mr Poposki. I accept that the household is separate to the extent described by these witnesses, and was at the time of the decision under review. I do not have any reason to reject the evidence of Mr Mazevski that he cooks for himself and does his own washing and cleaning with the assistance of his daughter. This was also supported by the evidence of Zoran.
social aspects of the relationship
31. Mr Mazevski’s evidence was that he and Mrs Mazevska attend important social gatherings, like weddings, together but this occurs rarely. They do not visit relatives together and relatives visit them separately. The forms lodged over the years indicate embarrassment about their circumstances and a reticence about speaking to others about it. According to forms lodged in 2003 they considered others were generally not aware of their separated status because they do not like talking about it. Mr Mazevski’s statement of 21 February 2006 describes the negative attitude of Macedonians, of the Mazevskis’ age, to divorce and family breakdown. Mr Poposki’s statement supports this. I also note Mr Poposki’s evidence that Mr Mazevski told him he and his wife no longer sleep together.
32. I note a letter dated 3 August 2005 from Dr B Kuzmanovski, General Practitioner, to the effect that, to that doctor’s knowledge, the couple has been separated since 1988 despite living in the same house.
33. I accept that Mr and Mrs Mazevski have virtually no shared social life. While they have not announced their estrangement to others, there is no evidence that they actively promote themselves as a committed couple. I accept that they do not wish to discuss the matter with others.
34. I accept the evidence of Mr Mazevski and Mrs Mazevska that there are few visitors to the house and no visitors come to see them together. I accept Mr Mazevski’s evidence that on Mrs Mazevska’s days off he arranges to be out of the house or to stay out of her way. This is supported by Zoran’s evidence.
sexual relationship
35. The only evidence as to a sexual relationship between Mr and Mrs Mazevski is that it ceased many years ago. I cannot find otherwise.
36. There is no evidence to suggest that either of them has entered into a sexual relationship with another person over the years.
nature of their commitment to each other
37. Mr and Mrs Mazevski have been legally married for over 35 years. That is a very long association.
38. Mr Mazevski’s answers to questions on forms between 1993 and 1996 indicate a vague hope on his part that he and his wife will reconcile. By 1997, he says simply that they do not have a relationship. By 1996 Mrs Mazevska said that the marriage had broken down and they would not reunite. Earlier that year she had said they hardly speak any more. I accept that by March 2005 they provided no companionship or emotional support to each other. Nor is there any evidence to support a conclusion that they regard their relationship as marriage like. On the contrary, their statements made in early 2006 make it clear that neither entertains any possibility of reconciliation.
39. One of the questions asked in the forms is whether the person’s spouse would provide care, support or help in the event of illness, personal crisis, money matters or family disputes. As Dr Sant pointed out, this requires speculation on the part of the person answering the question. It also fails to allow for an exercise of compassion on the part of a person with whom the other has a long history that includes the developments of young adulthood, the birth of children and the shared parenting of them. In any event, both Mr and Mrs Mazevski indicated, in their answers to those questions over the years, a declining and rather grudging inclination to assist the other in the event of crisis. I do not consider it indicates a commitment to each other beyond any that arises automatically from a 35 year association.
40. In any event their evidence was that they each are assisted by their children when the need arises.
41. Mr and Mrs Mazevski’s intentions to formalise their separation by divorce or otherwise appear to have waxed and waned, although in her statement Mrs Mazevska was firm about her intention to sell the house when both the children have finally left. It appears likely to me, from their varying answers to questions on forms, and from Mr Mazevski’s oral evidence, and now Mrs Mazevska’s illness, that they will not sell the house and move to separate residences. The reasons for this conclusion are canvassed under the following heading.
convenience or commitment?
42. Mr Mazevski’s evidence was that he now has no intention of leaving his house because it is the only place he has and he has no money to find another place to live. He also described himself as too old and sick to begin living somewhere else and that it is right that he and Mrs Mazevska be in the same house when his children come to visit. He also mentioned that he has a dog and for that reason must live in a place with a yard. For these reasons, he said, he has no intention of leaving his house or divorcing his wife. He insisted, however, that he is prepared to continue to live separated from her.
43. Mrs Mazevska, in her statement, said she could not bear living alone with Mr Mazevski in the house. She said she intends to have the house sold. I note that Zoran is now married and, at the time of the hearing the Mazevskis’ daughter, Elizabeth, was due to be married soon.
44. I do not consider that Mr Mazevski’s desire to remain in the house indicates any more than a desire to avoid the inconvenience and expense of moving. It does not indicate any particular commitment to Mrs Mazevska or to living with her.
45. Similarly, an overseas trip taken by the Mazevskis in 2004 was a matter of convenience. I accept Mr Mazevski’s evidence that, at the time Mrs Mazevska wanted to visit her sick father in Macedonia, Mr Mazevski wished to visit his friends and relatives there and to obtain treatment at a mineral spa. Their children, who paid for them, insisted that they travel together for safety and convenience. On the flight they sat together but spoke little and after visiting his father in law briefly, Mr Mazevski went to his own village about eight kilometres away. He saw Mrs Mazevska only when he visited her father. They did not want to alert him to their estrangement and he was fond of his father in law anyway. I accept this evidence and I do not consider that it indicates any more than taking advantage of the convenience of simultaneous travel.
were mr and mrs masevski in a marriage like relationship as at 30 march 2005?
46. The nature of the financial subsidisation of Mr Mazevski that Mrs Mazevska has undertaken over the years is not necessarily indicative of any wish on her part to assist or support him. The payments she has shouldered have been for bills which had to be paid – for utilities and rates. Failure to pay them would have made it impossible for her to live in the house. Where contributions have been made by Mr Mazevski I do not consider they amount to pooling of resources. In Pelka, French J said such pooling involves something more than financial cooperation or separate contributions to different elements of household expense.
47. I am satisfied that the household is one in which Mr and Mrs Mazevski live separate and alienated lives. The physical arrangement of the household points to the existence of each exclusive of the other. This is underscored by Mr Mazevski’s self sufficiency, as far as Mrs Mazevska is concerned, with cleaning, cooking and washing. Instances of cooperation are rare, if they occur at all. Now there is not even the unifying effect of caring for and supporting children.
48. Mr and Mrs Mazevski engage in few social activities together and, when they do, the occasions appear to be public ones where they will be observed by members of the Macedonian community. Their reluctance to make their estrangement widely known, in the context of that community’s reputed mores, is understandable. However, close family and friends, such as Luba Kantarovska and Mr Poposki, know of their separation. I do not consider that they hold themselves out as being married as much as they are embarrassed and reluctant to have their circumstances be common knowledge.
49. I consider their commitment to each other is minimal or even non existent, in spite of the many years they have been legally married and living under the same roof. They remain prepared to cooperate with each other in some instances, for example in attending formal occasions together or in being available to their children in the family home, but this appears to be for the sake of their community or for their children. Mrs Mazevska’s commitment to Mr Mazevski appears to have disappeared entirely, although her evidence could not be tested and her recent illness may mean she is less able to take action to formalise their separation. Mr Mazevski, while generally avoiding Mrs Mazevska in the home, is committed to remaining there. This does not mean he is committed to any ongoing relationship with her.
50. There are some inconsistencies and irregularities in the evidence. There are a few surviving connections between Mr and Mrs Mazevski that remain anomalous or unexplained. However, the overwhelming tenor of the evidence is that their continued cohabitation is an arrangement of convenience. They live with far less interaction and connection than do platonic flatmates. After weighing all the evidence pointing to and against the existence of a marriage like relationship as at March 2005, I consider that Mr and Mrs Mazevski, at that time, were living separately and apart and consequently not in a marriage like relationship.
decision
51. The decision under review is set aside and instead the Tribunal decides that, at 30 March 2005 and continuing, Mr Mazevski was not a member of a couple for the purposes of determining the rate of his disability support pension.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ...................[Sanjiv Shah].......................
AssociateDates of Hearing 22 February 2007, 23 November, 18 October, 1 August and 31 July 2006
Date of Decision 20 April 2007
Counsel for the Applicant Dr Kathy Sant
Solicitor for the Applicant Parastou HatamiCounsel for the Respondent Mr Brendan Kelly
Solicitor for the Respondent Sharon Hanstein
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