Milosev and Secretary, Department of Family and Community Services

[2005] AATA 363

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 363

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1482

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LJUBO MILOSEV

Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES

Respondent

DECISION

Tribunal Rear Admiral A R Horton AO, Member

Date26 April 2005  

PlaceSydney

Decision The decision of the SSAT dated 27 October 2004 is set aside, and the matter is remitted to the Chief Executive Officer of Centrelink for reconsideration of the circumstances of Mr Milosev, who is to be considered not a member of a married couple from 16 March 2004.  

..............................................

Rear Admiral A R Horton AO
  Member  

CATCHWORDS

Social Security  -  member of a couple – receipt of carer payment as member of couple – wife of applicant in casual employment – assessment of living arrangements  (separated under one roof) - consideration of circumstances in respect of relationship – whether applicant living separately and apart – decision set aside – applicant considered to be not a member of a married couple from 16 March 2004. 

Social Security Act 1991 – sections 4(2), 4(3)

Re Secretary, Department of Social Security and SRJ (AAT 10970 29 May 1996)

REASONS FOR DECISION

26 April 2005   REAR ADMIRAL A R HORTON AO        

1.        This is an application to review a decision of the Social Security Appeals Tribunal (“SSAT”) dated 27 October 2004, that affirmed a decision of the Secretary, Department of Family and Community Services (“the Respondent”) dated 14 May 2004 that Mr Ljubo Milosev (“the Applicant”) was a member of a couple.  The original decision was affirmed by an Authorised Review Officer (“ARO”) of Centrelink on 3 August 2004.

2. At a hearing before the Administrative Appeals Tribunal (“the Tribunal”) on 17 March 2005, Mr Milosev was self represented. Mr James Larcombe, advocate, appeared for the Respondent. The Tribunal took into evidence the documents provided by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”), an extract of a Payment Summary for the Applicant for the period 17 May 2004 to 7 October 2004 (Exhibit A1), the Respondent’s Statement of Facts and Contentions (Exhibit R1) and financial debt calculations in respect of the Applicant from Centrelink (Exhibit R2). 

BACKGROUND

3.        Mr Milosev arrived in Australia in 1971 aged 17 from Yugoslavia and subsequently worked as an unskilled cleaning and kitchen hand and building worker.  In about 1980, he ceased permanent work because of problems with his back, resorting to casual unskilled work which he has since ceased.  For a period he was on sickness benefits, to be followed by Newstart Allowance.   Mr Milosev married in 1982.  He and his wife, Mrs Sharon Milosev, have three children, presently aged 22, 20 and 18, the middle child living away from home.  With his wife, he has lived in a Department of Housing property at Bidwill since about 1988; his wife moved to alternate accommodation in late 2004.

4.        In 2001, Mr Milosev’s mother, who lived separately with his brother, suffered a stroke, leading to Mr Milosev providing care on a part time basis on her return home from hospital.  Mr Milosev has provided this care for his mother about 3 or 4 times a week, often remaining overnight at her property at Brighton.  In March 2003, he applied for Carer Payment and Carer Allowance, the former being approved on 6 November 2003. A Customer Declaration Form for Newstart Allowance dated 11 November 2003 (T5 page 15) was completed, noting his marital status as “married”, and the associated Preparing for Work Agreement records his living arrangements as being with a “partner/spouse”.

5.        In March 2004, Mr Milosev was required to complete an Assessment of Living Arrangements form, which he did, it being signed on 16 March 2004.  In that document, he variously stated that he shared living and utility areas and slept separately, that he paid half the $100 weekly rent, the lease being in his name, that he had no access to his Mrs Milosev’s bank account nor did they have a joint bank or credit card account, and that household bills were shared.  He stated that he and his wife had stopped living as husband and wife some 5 years earlier, but had remained together in the house for the sake of the children.  He further stated he did not tell friends of the real situation.

6.        On 15 April 2004, that is, one month after providing the above response to Centrelink, he provided a Statement confirming separation from his wife, probably since 1997.  He stated that he had not previously declared this separation to Centrelink as both parties were not working, but he now did so, as his wife was working as a casual, which in turn affected his pension payment rate. He further stated that there was no chance of reconciliation, but divorce was not being considered because of the children. 

7.        On 14 May 2004, Centrelink decided that Mr Milosev remained a member of a married couple, this decision being affirmed on 3 August 2004.  In due course a claim for recovery of an overpayment debt was raised.  The detail and calculations relating to the claimed overpayment, which is being challenged by Mr Milosev, are not before this Tribunal. However, a decision on whether or not Mr Milosev and Mrs Milosev have separated, and if so when, will have a bearing on the matter of overpayment, and the calculations thereof. 

8.        On 5 July 2004, Mr Milosev formally advised the Department of Housing (T13 page 43) that he was separated from his wife, and before this Tribunal, the Respondent contended that Mr Milosev “should be considered separated from that date”, accepting that the relationship broke down irrevocably sometime in the latter half of that year.  Thus the position of the Respondent is that Mr Milosev was a member of a couple until that occurred.

LEGISLATION

9. Section 4 (2)(a) of the Social Security Act 1991 (“the Act”) defines the criteria under which a person may be considered a member of a couple, and section 4(3) defines the circumstances that must be considered when having regard to a relationship between 2 persons in respect of section 4(2)(a). The Act relevantly states:

“4(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:

(a) the person is legally married to another person and is not, in the Secretary's opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis;

…

4(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:

(a)      the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets and any joint liabilities; and

(ii) any significant pooling of financial resources especially in relation to major financial commitments; and

(iii) any legal obligations owed by one person in respect of the other person; and

(iv)      the basis of any sharing of day-to-day household expenses;

(b)      the nature of the household, including:

(i) any joint responsibility for providing care or support of children; and

(ii)       the living arrangements of the people; and

(iii) the basis on which responsibility for housework is distributed;

(c)      the social aspects of the relationship, including:

(i) whether the people hold themselves out as married to each other; and

(ii) the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii) the basis on which the people make plans for, or engage in, joint social activities;

(d)      any sexual relationship between the people;

(e)      the nature of the people's commitment to each other, including:

(i)       the length of the relationship; and

(ii) the nature of any companionship and emotional support that the people provide to each other; and

(iii) whether the people consider that the relationship is likely to continue indefinitely; and

(iv) whether the people see their relationship as a marriage-like relationship.

4(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a marriage-like relationship if the person is living separately and apart from the partner on a permanent or indefinite basis” 

EVIDENCE

10.      The SSAT decision stated that whilst it was not indicated on Centrelink file, Mr Milosev appeared to have requested at the outset that he be paid carer payment at the single rate.  Mr Milosev gave evidence to the Tribunal that that was not the case.  The Tribunal notes that his application for Carer Payment and Carer Allowance (the latter not being approved) at T4 shows Mrs Milosev as his current partner, and a Preparing for Work Agreement dated 17 November 2003 (T5) has been completed to record that he was not a lone parent, but lived with a partner/spouse.  It seems evident that Mr Milosev was paid pension as a member of a married couple. 

11.      Notwithstanding the above, Mr Milosev stated that the marriage broke down “7 to 8 years ago”.  His wife intended to leave the home at that time with the children, but advice from the Ombudsman was that she could not do so unless under a court order.  In the circumstances, and given that they shared the cost of running the home, and for the sake of the children, they remained under the one roof.  His wife ran the accounts, he providing her with his share of the money necessary to do so.  He had a car, and occasionally when necessary he drove her to an appointment.  Then and now, he attends his mother at Brighton about 3 to 4 times a week, often staying overnight.  Whilst his brother lives with his mother he has a serious medical condition and is not reliable. 

12.      Since that breakdown of the marriage, they have shared common rooms in the home, with him sleeping on the lounge, until late 2004, when his wife moved to alternate accommodation. Generally he prepared his own meals.  They had no sexual relationship. That they had no social life together and having few friends meant that, other than to one close friend, they did not have to reveal their separated situation. In his view, their separation did not become known until March 2004 when he completed the Assessment of Living Arrangements form and subsequently provided a statement in more detail in April 2004 (T7).  Whilst it did not become generally known until that point, Mr Milosev emphasised that they had been for many years living, as it were, as separated under one roof.  Mr Milosev further stated that until that point he had not been asked about the nature of the relationship by Centrelink.  As to the perceptions of the children, he and his wife sought to avoid them becoming aware of the strained relationship, and it was it was not until quite recently that the children understood the true nature of their relationship.  That he slept in the lounge room was attributed to a painful back.  

13.      The work history of Mr Milosev has been referred to in paragraph 3 above, in that following the cessation of full time work in about 1980, he worked on a casual basis for some time and was then on sickness benefits until being granted Newstart Allowance. Mr Milosev and his wife held no joint bank accounts and Mr Milosev indicated he had no will. In those periods, his wife ran their accounts, and they shared expenses. At times he did not have the capacity to pay his share, and he would pay that ”debt” at a later stage when he had the resources to do so.  The SSAT makes reference to a period of some 6 months, based on the evidence of Mrs Milosev, when he failed to make payments.  Mr Milosev stated this was not correct as whilst he could not always pay on time, he did meet his commitments.

14.      When asked by the Respondent why he completed the Assessment of Living Arrangements in the manner he did in March 2004, he stated that his wife had told him to move out at that time.  She had, for the first time, told him that she would not financially support him.  His financial situation was difficult in that he was in receipt of a reduced carer payment because of the income earned by his wife as a part-time  teacher’s assistant, although this reduction in payment did not occur at the outset as he had not declared his wife’s income.  

15.      The evidence of Mr Milosev was to the effect that following receipt by Centrelink of his Assessment of Living Arrangements and his subsequent statement earlier referred to, Centrelink considered him to be separated and he was accordingly paid carer payment at the appropriate rate from 15 May 2004.  Shortly thereafter, this decision was reviewed and it was determined that he remain categorised as living in a marriage-like arrangement, but Centrelink continued to pay him at the single rate, to which he believed he was entitled in the circumstances, and hence an overpayment continued.

16.      On 5 July 2004, Mr Milosev completed the aforementioned Housing Statement for the Department of Housing, stating that “I am separated from my partner Sharon Milosev”, and it is at that point that the Respondent concedes that he could be considered separated.  When asked why he had referred to the Department of Housing at that stage, Mr Milosev stated that he had been advised to do so by his local Member of Parliament as it would formally record his separation from his wife.   

17.      In August 2004, Mrs Milosev considered moving into new premises with the middle child and made an application for tenancy.  This did not happen at that time as her son changed his mind, but some four months later, Mrs Milosev relocated, and she remains living in alternate accommodation to the present.   Mr Milosev stated that he now has little communication with his wife, however she visits the other children at his home.  In terms of where the relationship might be heading, he sees no reconciliation, and probably divorce.                

CONSIDERATION AND DECISION

18.      The Respondent concedes that Mr Milosev is not in a marriage like relationship, and that such a circumstance became evident in mid to late 2004, when the relationship broke down irrevocably.  The particular indices that pointed to this conclusion are seen to be the notification of separation to the Department of Housing in July 2004, the attempt by Mrs Milosev to move to separate accommodation in August that year, and her relocation in December.  That the Respondent considers 5 July 2004 as an appropriate date for recognition of this separation and for Mr Milosev to be considered not a member of a couple, is based on the earliest evidence of a “public demonstration of separation”.  

19.      The Respondent submitted that prior to that date, the circumstances were such that whilst there were undoubtedly some difficulties in the relationship, and the marriage may have been difficult, the fact was that they continued to live together, with one exception their friends and outsiders considered them to be married, and that claims for carer payment and Job Network Assistance had clearly described Mrs Milosev as his partner.

20.      The legislation requires that the Tribunal have regard to all the circumstances of the relationship, and expressly refers to various matters.  On the evidence before the Tribunal, some aspects of the circumstances in the relevant period are quite clear.  Mr Milosev and his wife had no ownership, either jointly or otherwise, of property or major assets.  There is evidence of contributing on an equal basis to living and household expenses, and stress when Mr Milosev could not comply on time, but there is no evidence of major financial commitments.  There was no formal financial arrangement between the parties.  

21.      Both parents felt obligated and wished to provide care for the children.  Mr Milosev indicated that their concern for the children in the home led them to keep the children in ignorance of the failed relationship.  Divorce was not contemplated for that reason.  The evidence from Mr Milosev in respect of the nature of the household arrangements indicated little sharing of jobs.   The evidence in respect of social relationships was that they had few friends, which he attributed to the need to keep the strained relationship private;  that is, by his evidence, they held themselves out as married to each other. 

22.      The evidence is that there was no sexual relationship between Mr and Mrs Milosev.  They seemingly had a commitment to each in the context of the upbringing of their children, but the evidence of Mr Milosev is that they otherwise conducted their relationship as if they were separated.  Nonetheless, Mr Milosev accepted that he had an obligation to assist his wife in the event she became sick.

23.      Mrs Milosev was not present at the hearing, but the Tribunal notes from her evidence to the SSAT in October 2004, by which time she had initially sought to move from the home, that following a “terrible fight” many years ago, she stopped talking to him, that he moved to sleeping in the lounge room about 1998 and in her view there was no chance of reconciliation. 

24.      The Respondent accepts that the relationship broke down irrevocably in the latter half of 2004, and that thereafter Mr Milosev could be considered as separated.  Whilst the relocation by Mrs Milosev to alternate accommodation was a clear demonstration of this situation, the Respondent considers that the formal beginning of separation should be 5 July 2004 when Mr Milosev notified his separation to the Department of Housing.  It is argued that this was the earliest evidence of a public demonstration of separation.

25.      If the Tribunal accepts the reasoning of the Respondent, then it is difficult to see why an earlier date of separation might not be recognised.  On 16 March 2004, Mr Milosev completed an Assessment of Living Arrangements form, albeit at the instigation of Centrelink, in which he stated he shared living areas and utilities but had separate living arrangements, that he paid half of the rent, that he owned but did not share the use of his car, that he shared no social or recreational pursuits with his wife, that they had no joint bank or credit card accounts and that separation had occurred five years previously.  His statement one month later further addressed these facts as he saw them, and elaborated on the reasons for maintaining to that point the public impression of a married relationship. 

26.      In all the circumstances, and taking into account the evidence before it and the concession by the Respondent, the Tribunal decides to its reasonable satisfaction that Mr Milosev can be considered not a member of a couple from 16 March 2004.  In reaching this decision, the Tribunal also takes into account the reasoning in Re Secretary, Department of Social Security v SRJ (AAT 10970 29 May 1996), referred to by the Respondent as being applicable in this matter in that the marriage could be described as a “bad” rather than “broken” marriage.  On the evidence before it, the Tribunal is of the opinion that “broken” is a more realistic and appropriate definition.  

27.      The decision of the SSAT dated 27 October 2004 is therefore set aside, and the matter is remitted to the Chief Executive Officer of Centrelink for reconsideration of the circumstances of Mr Milosev, who is to be considered not a member of a married couple from 16 March 2004.   

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Rear Admiral A R Horton AO, Member.

Signed:         A. Garcia       
  Associate

Date of Hearing  17 March 2005
Date of Decision  26 April 2005  
Representative for the Applicant    Applicant self-represented

Advocate for the Respondent        Mr J Larcombe