Milovanovic and Secretary, Department of Employment and Workplace Relations

[2006] AATA 930

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 930

ADMINISTRATIVE APPEALS TRIBUNAL       )          No N2006/56

GENERAL ADMINISTRATIVE DIVISION		)  )
Re		MIRJANA MILOVANOVIC

Applicant

And SECRETARY, DEPARMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Professor I. Shearer, Senior Member

Date31 October 2006

PlaceSydney

Decision The Administrative Appeals Tribunal affirms the decisions under review.

………………………………
    

Professor I. Shearer
Senior Member

  

CATCHWORDS

SOCIAL SECURITY – first decision under review concerning disability support pension – second decision under review concerning whether Applicant was a member of a couple – history of previous determinations – consideration of the evidence – relevant applicable law – evaluation of the evidence – the decisions under review are affirmed.

Social Security Act 1991

Administrative Appeals Tribunal Act 1975

Woodward J in McDonald v. Director-General of Social Security (1984) 1 FCR 354

Re Holmes and Secretary, Department of Social Security (1987) AATA 4046

Re Anderson and Secretary, Department of Social Security (1993) 31 ALD 155

REASONS FOR DECISION

31 October 2006 Professor I. Shearer, Senior Member      

The decisions under review

1.      The first decision under review is the decision of the Social Security Appeals Tribunal (“SSAT”) dated 1 December 2005 affirming a decision by Centrelink to pay the Applicant a Disability Support Pension (“DSP”) from 23 July 2005 and not from any earlier date.

2.      The second decision under review is the decision of the SSAT dated 8 March 2006 affirming the decision that the Applicant was a member of a couple and therefore cancelling the DSP from 3 January 2006.

3. Section 1283 of the Social Security Act 1991 (“the Act”) provides for the review of decisions of the SSAT by this Tribunal.

The background facts

4.      The general background to the case was described by the SSAT. It is consistent with the findings of fact by the present Tribunal.

5.      The Applicant, Mrs Milovanovic, and her husband married on 27 May 1979. They are not divorced or legally separated. They have two sons, one presently aged 28 and living independently, and Stefan, presently 16, who lives with his parents.

6.      Mr and Mrs Milovanovic first resided in rented accommodation until they jointly purchased their present home in early 2002. They have a joint mortgage which is paid by Mr Milovanovic.

7.      Mr Milovanovic also pays for most of the running expenses of the household. He supports his son financially but not Mrs Milovanovic. They had a joint credit card which Mrs Milovanovic did not in fact use. She borrowed money from friends for her own living expenses. They have no other joint liabilities.

8.      During the periods relevant to the case they had separate sleeping quarters but shared the other areas of the house. They each provided support and care for their son Stefan. Mrs Milovanovic cooked and washed for herself and Stefan only. She was often unable to undertake household duties because of her medical conditions. She would then obtain assistance from Stefan and from friends. Mr Milovanovic maintained the yard and the lawns.

9.      Mr and Mrs Milovanovic did not engage in social activities together. Her friends are aware that they are separated under the one roof, as is her doctor and a local priest.

10.     They do not have a sexual relationship. Its absence has been a source of friction between them.

11.     Mrs Milovanovic is unwilling to move out of the matrimonial home as she wishes to stay for the sake of her son Stefan, who is attached to his father. She may consider divorce and physical separation when their son is older and able to be independent.

The history of previous determinations

12.     Mrs Milovanovic lodged a claim for a DSP on 16 June 2004. This claim was initially rejected on the ground that she did not medically qualify for the payment. Mrs Milovanovic requested a review of this decision. During the course of this review process she raised the issue that, although she was living with her husband in the same house, they were in fact living separately and apart on a permanent or indefinite basis. Mrs Milovanovic provided further medical evidence in support of her claim. When the rejection of her claim on medical grounds remained unchanged, she successfully appealed to the SSAT which, on 30 June 2005, decided that she was medically qualified for the pension.

13.     Mrs Milovanovic’s file papers were then returned to Centrelink, which granted the DSP from 23 July 2005 rather than from the date of her original claim. Centrelink decided this on the basis that Mrs Milovanovic had been a member of a couple prior to 23 July 2005, and that her husband’s income was sufficient to reduce her rate of pension to nil.

14.     Mrs Milovanovic requested a review of this decision. It was, however, reaffirmed by an Authorised Review Officer (“ARO”). On appeal to the SSAT the decision was again affirmed to pay Mrs Milovanovic DSP from 23 July 2005 and not from any earlier date.

15.     In late 2005 Centrelink conducted a further review of Mrs Milovanovich’s living arrangements. This review led to a decision, dated 3 January 2006, to cancel Mrs Milovanovich’s DSP on the ground that she was a member of a couple and that her husband’s earnings were above the limit set for the payment of that pension.

16.     Mrs Milovanovich sought a review of this decision. On 24 January 2006 an ARO affirmed the decision to cancel Mrs Milovanovich’s DSP on the ground that she was a member of a couple.

17.     On 8 March 2006 the SSAT dismissed an appeal and affirmed the decision that Mrs Milovanovic was a member of a couple from 3 January 2006.

The evidence

18.     Mrs Milovanovic gave evidence through an interpreter. She stated that, after she and her husband arrived in Australia in 1981, she worked for about 8 months. She then fell ill and underwent an operation on account of breast cancer. She had not worked since. 

19.     Problems arose in the marriage in about 1998. “We just didn’t get on”. They stopped sexual relations at that time. Despite this turn for the worse in the marriage Mr and Mrs Milovanovic, who had previously been living in rented premises, bought a house in joint names in 2002. Asked why they did so, Mrs Milovanovic said that she considered it “better for the child”, i.e the younger son Stefan.

20.     Mrs Milovanovic described the relationship between herself and her husband as one of “living apart. We do nothing together”. Asked about the prospect of divorce, she stated she did not want this, again “because of the child”.

21.     According to Mrs Milovanovic, neither of them had formed other relationships, although she would be unconcerned if her husband did.

22.     Regarding the financial aspects of their relationship, Mrs Milovanovic stated that her husband paid the mortgage and other outgoings relating to the house, including Council rates, gas and electricity. In 1997 Mr Milovanovic bought a car which they shared, but this was transferred into her name in about September 2005. Mr Milovanovic paid for the telephone, except for Mrs Milovanovic’s personal calls.

23.     Mr Milovanovic also gave evidence. He stated that he considered himself separated from his wife since 2002 when they bought the house. It was at about that time that she ceased to cook and clean for him. He did not contemplate divorce because of Stefan. He might contemplate moving to separate accommodation in the future but not before Stefan had finished school. There was hardly any interaction between them, but he still loved his wife “in a certain way”. They did not argue together, out of consideration for Stefan.

24.     Mr Milovanovic considered that he and his wife had separate financial affairs. He had not given her money since 2002, except for the sum of $1,000 which he had received by way of refund this year on his taxation return, having claimed his wife as a deduction. His wife was the beneficiary of his superannuation policy but he planned to change this “soon”.

The applicable law

25. Section 1064 of the Act provides that a person’s rate of pension depends on the person’s family situation. Section 1064-B1 distinguishes a person who is “not member of couple” from “partnered”.

26. Section 4(2) of the Act defines the meaning of the expression “member of a couple” for the purposes of the Act as - relevantly to the present case:

“(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.”

27. Section 4(3) relates to the forming of an opinion about whether a person is 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 the 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.”

Evaluation of the evidence

28. A preliminary point should be made regarding the existence of any onus of proof in proceedings such as the present. There is no requirement that the respondent must positively establish that the applicant is a member of a couple in accordance with section 4 of the Act. It is clear from the statutory scheme that the task of the Tribunal, like that of the original decision-maker, is to form an opinion as to whether or not during the relevant period the applicant was living separately and apart from her husband on a permanent or indefinite basis. As was stated by Woodward J in McDonald v. Director-General of Social Security (1984) 1 FCR 354, at 358; 6 ALD 6, at 11, there can be no evidential onus of proof in proceedings before the AAT unless the relevant legislation provides for it. The only onus borne by either party is to put before the Tribunal the material that that party considers is relevant to the Tribunal’s determination of the question posed by section 4(2) of the Act. Woodward J. continued:

“If the AAT finds itself in a state of uncertainty after considering all the        available material, unable to decide a question of fact either way on the   balance of probabilities, it will be necessary for it to analyse carefully the    decision it is reviewing. If, for example, it is a decision whether or not to            cancel a pension in the light of changed circumstances, then it has failed to          achieve the statutory requirement of reaching a state of mind that the pension    should be cancelled. If, on the other hand, it is a decision, to be made in the    light of fresh evidence, whether or not the pension should ever have been      granted in the first place, then it has failed to be satisfied that the person ever    was [so entitled].”

29.     It is to be noted that the present case falls into the first of the above categories, that is, the cancellation of an allowance.

30. A second preliminary point should be made regarding persons living under the one roof. It has been recognised in many previous decisions that a married couple may live separately and apart within the meaning of the Act yet under the same roof. As was said by the Tribunal in Re Holmes and Secretary, Department of Social Security (1987) AATA 4046:

“The living situations of different people that could constitute separation ‘under     the one roof’ are too numerous to detail. At the least, the evidence must      satisfy the decision maker that a couple’s lives are led separately, not only in      the personal but also in the social and economic sense and that joint activity           is not because of the existence of an exclusively binding relationship but for   some material advantage. Commonly, in the quite numerous similar cases            coming before this Tribunal, the reason for remaining under the one roof is the     fact that the property is jointly owned and that division would be economically     disastrous.”

31.     Regarding the financial aspects of the relationship between Mr and Mrs Milovanovic, it is clear that the jointly owned house is the major factor. This should not of itself result in an adverse decision to Mrs Milovanovic, for the reasons quoted above from the case of Holmes.  However, responsibility for the mortgage repayments rests solely on Mr Milovanovic as well as for the payment of Council rates. A car was shared between Mr and Mrs Milovanovic until September 2005, when it was transferred into the name of Mrs Milovanovic. Mrs Milovanovic is the nominated beneficiary of Mr Milovanovich’s superannuation policy. Mr Milovanovic passed over to his wife a sum of money he had received by way of a tax refund in 2005. These latter factors speak of a significant degree of financial dependence by Mrs Milovanovic on her husband.

32. Regarding the nature of the household, the major factor is the son Stefan. Both Mr and Mrs Milovanovic stated that their reason for staying under the one roof was to care for him until he was old enough to live independently of them. While one would not want to lay down a rule that joint care of a child automatically disqualifies a person from being regarded as anything other than a couple for the purposes of the Act, there was evidence in the present case that there was a significant degree of dependence by Mrs Milovanovic on the continued existence of the relationship, and especially its financial aspects, in caring for their son. What was said by the Tribunal in Re Anderson and Secretary, Department of Social Security (1993) 31 ALD 155, would seem to apply to the present case. In that case the Tribunal considered a case involving the care of two children, and where “any interpersonal and mutual seeking of consortium and intimacy was entirely dead.” It stated:

“Though the living arrangements emphasised the fact that they had no close        or personal relationship, especially the use of separate bedrooms and     refrigerators, there was nevertheless a sense that the house provided a   facility for keeping the four persons in some kind of family relationship.”

33.     Regarding the social and sexual aspects of the relationship, the evidence was clear that such were absent.

34.     Regarding the nature of the people’s commitment to each other, it is clear that that the only shared aspect was the care of their son. Mrs Milovanovic did not offer an opinion as to their future together. Mr Milovanovic stated that he had no present plans for separate accommodation and that “perhaps after Stefan finishes school it might be possible.”

Conclusion

35. It is difficult not to feel sorry for people living in such circumstances. Yet an unhappy marriage does not of itself mean that the parties to it are not a couple within the meaning of the Act and for the purposes of the entitlement of one of them to a pension or allowance.

36.     The Tribunal finds itself in agreement with the overall assessment made by the SSAT in its decision of 8 March 2006:

“After considering all the evidence before it, the Tribunal has concluded that, for a number of reasons, the parties have stopped short from completely severing their marriage relationship. These reasons include concern for the welfare of their son; financial considerations; a degree of residual responsibility on the part of Mr Milovanovic for his wife, if not sympathy, as is evidenced by the transfer of his car to her late in 2005 and his continuing to support the household by paying the mortgage instalments and all the outgoings for rates, electricity and the like. There seems to be an understanding or arrangement in place between the parties both in the management of the household and the use of the facilities of the house which suggest there is an ongoing family unit still in existence. Even though this arrangement is unconventional in many respects, it is in the view of the Tribunal sufficient to preclude a finding that in terms of the Act the couple were now living separately or apart on a permanent or indefinite basis.”

Decision

37.     The decisions under review are affirmed.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Shearer:

Signed:         Associate

Date of Hearing  24 August 2006        
Date of Decision  31 October 2006
Representative for the Applicant               Mirjana Milovanovic,
  Self-Represented
Advocate for the Respondent                    James Larcombe,
  Centrelink Legal Services Branch