Potros and Secretary, Department of Employment and Workplace Relations and Anor
[2007] AATA 1556
•17 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1556
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/282
GENERAL ADMINISTRATIVE DIVISION ) Re INDIRA POTROS Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS
SECRETARY, DEPARTMENT OF FAMILIES, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondents
DECISION
Tribunal Senior Member N Isenberg Date17 July 2007
PlaceSydney
Decision The Administrative Appeals Tribunal sets aside the decision of the Social Security Appeals Tribunal and finds that in the period under review Mrs Potros was not a member of a couple.
...................[sgd]...........................
N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – marriage like relationship – member of a couple – circumstances of the relationship – whether a member of a couple – payment of social security benefits at single rate – decision set aside
Social Security Act 1991 – section 4
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7
Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Re Secretary, Department of Employment and Workplace Relations and Anor and Finn (2006) 92 ALD 223
REASONS FOR DECISION
17 July 2007 Senior Member N Isenberg BACKGROUND
1. Mr and Mrs Potros met in Yugoslavia and were married in about 1988, later coming to Australia where their children, who are now aged 18, 14 and 6, have been raised.
2. Mrs Potros notified the Family Assistance Office that she was separated from her husband on 13 July 2001 (T8). It was claimed that the separation occurred on 2 July 2001. On 23 July 2001 Mrs Potros lodged a claim for Parenting Payment Single (“PPS”). Shortly afterwards Mrs Potros lodged a form dated 25 July 2001 to be used by Centrelink to decide whether Mrs Potros was entitled to payment of benefits as a single person (T9). That form indicated Mrs Potros was separated from her husband, although living under the same roof, at 74 Medley Ave, Liverpool (“Medley Ave”). The claim for PPS “Separate Under One Roof” was rejected on the basis that the delegate was not satisfied that Mrs Potros’ marriage had completely broken down (T11, T12).
3. A further claim was lodged on 20 September 2001 (T13) in which Mrs Potros stated that she separated from her husband on 7 September 2001. She further advised that her husband had moved out of Medley Ave on 6 September 2001 (T14). She advised that he now lived at 3 Marciano Close, Edensor Park (“Edensor Park”). Her claim for parenting payment at the single rate was accepted and she was notified of this by letter dated 12 October 2001 (T15).
4. On 5 December 2001, Mr Potros lodged a claim for a social security payment. On the form submitted to Centrelink he stated that he had been separated from his wife since 5 July 2001 and that he had been living at Edensor Park for three months (T16).
5. Following an interview at Centrelink on 18 October 2004, and after considering other information obtained about Mrs and Mr Potros, Mrs Potros’ parenting payment was suspended on 20 October 2004 “pending enquiries about your future entitlement” (T40). This was followed by a further suspension notice dated 7 November 2004 stating the PPS was suspended, pending an investigation, as evidence had been obtained indicating that Mrs Potros was living in a “married like relationship” (T50). Mrs Potros was notified by letter dated 10 November 2004 that Family Tax Benefit (“FTB”) would not be paid because information requested about income details had not been provided (T49).
6. Based on the finding that Mrs Potros was a member of a couple, a notice was issued on 22 December 2004 advising of an overpayment in respect to the parenting payment (T57 p 426) and notices were issued on 24 December 2004 and 21 January 2005 advising her that she had been overpaid an amount of FTB for the 2001/02, 2002/03 and 2003/04 financial years (T57 pp. 432-3, 438-9, 444-5).
7. On 19 January 2005 the applicant sought review by an Authorised Review Officer (“ARO”) (T61). The ARO affirmed the decisions to cancel PPS and recover the excess amount paid (T76), as did the Social Security Appeals Tribunal (“SSAT”) (T2).
LEGISLATION
8. The Social Security Act 1991 (“the Act”) contains calculators to determine at what rate a person is to be paid certain benefits. Essentially, a higher pension is payable (pro rata) if a person is not a member of a couple.
9. Subsection 4(2)(a) of the Act provides that, in relation to married persons, a person is not a “member of a couple”, if, in the opinion of the Secretary, they are “living separately and apart from [their spouse] on a permanent or indefinite basis”. In order to form an opinion as to whether someone is a member of a couple subsection 4(3) of the Act states that all of the circumstances of a relationship must be considered, including the following:
·financial aspects of the relationship,
·nature of the household,
·social aspects of the relationship,
·any sexual relationship between the people, and
·nature of the people’s commitment to each other.
ISSUE BEFORE THE TRIBUNAL
10. The first issue is whether, during the period of 6 September 2001 to 16 December 2004, Mrs Potros was a “member of a couple” as defined in section 4 of the Act, for the purpose of calculating her entitlement to social security benefits.
11. The second issue is, if Mrs Potros was a member of a couple and there is a debt to Centrelink, are there reasons why it should not be repaid?
DISCUSSION OF THE EVIDENCE
12. Mrs Potros gave evidence, as did Mr Potros and their eldest child, Filiks. A surveillance video containing approximately 10 minutes of footage was played.
13. In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.
Financial Aspects Of The Relationship
14. While there was evidence of Mrs Potros having some paid employment in the past it appears that predominantly Mrs Potros’ role in the household was as homemaker. It also appeared that during their marriage Mr Potros took charge of the couple’s financial responsibilities because he said she was “not experienced”.
15. There are no major assets owned together. Mr and Mrs Potros do not jointly own any real estate. Mr Potros owns Medley Ave, the former family home where Mrs Potros continues to live with the children. Mr Potros said he bought it in his name alone because he wanted to control the situation. He continued throughout the period to pay the mortgage.
16. All rates and bills relating to the house remained in Mr Potros' name, for most, if not all, of the period under review. He said he had hoped the separation would be temporary.
17. At first, for a few weeks after he left, Mr Potros asked Mrs Potros for rent to stay at Medley Ave out of revenge and to “give her a hard time”. He said he did not need her money.
18. Mr and Mrs Potros were divorced in 2005. There has yet to be any property settlement. It is likely that Mr Potros will have a legal obligation to Mrs Potros in due course, although Mr Potros thought that he has no need of the Family Court as the “house is not hers”. He permits her to stay there because of the children.
19. Mrs Potros has no assets of her own. For that reason Mrs Potros asked that when a black Toyota LandCruiser was being purchased, on the evidence, primarily for Filiks’ use, it be “in her name” so as to provide her with some financial security. Mr Potros agreed. He appeared in his evidence to take some delight in having misled her because, unbeknownst to Mrs Potros, the car was heavily financed and she had no real equity in the vehicle at all. She had told Centrelink that the car had been bought for her to transport the children. She paid the CTP and Mr Potros made the repayments. In the surveillance video Mrs Potros was seen to be using this vehicle. However, at a later date this vehicle was replaced by two cars bought for the use of Mr Potros and Filiks.
20. On the advice of his accountant, Mr Potros’ business was in a partnership structure with Mrs Potros, so as to minimize tax. Both Mr and Mrs Potros gave evidence that she just signed whatever document she was asked to. A tax refund was paid into a joint account, of which she was not a signatory. That partnership was dissolved in September 2001, following their separation, and Mr Potros started a business in his own name.
21. There was no evidence of any other major financial commitments.
22. Mrs Potros stated that Mr Potros pays child support of $500 per month but there does not appear to be any formal arrangement in place regarding this payment. Both gave evidence, as did Filiks, that the money is paid to Filiks to distribute between him and his sisters as necessary. The arrangement is that they ask their father for money or he takes them shopping for necessities. Filiks’ evidence was that he gives his mother money from his jobs to support the family. All witnesses said that Mr Potros gives Mrs Potros nothing.
23. Mr and Mrs Potros’ financial circumstances were necessarily linked by the partnership. This however was dissolved near the commencement of the period under review. They do not own any property together, nor do they have any joint accounts.
24. The evidence in relation to outgoings was that Mr Potros pays the mortgage, and Mrs Potros is responsible for the bills. She pays these from the money Filiks gives her. Mr Potros pays for the children’s needs.
Nature of the household
25. When Mr Potros left Medley Ave Mrs Potros understood him to have gone to live with his brother at Edensor Park. He also said he lived with another friend close to the house. His brother later moved to Cecil Hills, and he moved with him there. As to the arrangement between them, he said that his brother owes him $10,000.
26. Filiks did not know where his father had gone. He has not stayed with him and their communication is by mobile phone.
27. The video evidence disclosed that Mr Potros continues to have a presence at Medley Ave. The accompanying surveillance report disclosed that he was seen at the matrimonial house on 8, 10 and 11 December 2004 (T85). In particular he was seen leaving Medley Ave at 11 am one Saturday morning when surveillance had commenced at 6 am. Mrs Potros’ evidence before the SSAT was to the effect that Mr Potros visited the children at home or took them out between two and four times per week and that he attended school functions. Sometimes the children would go to another place to meet him. She stated that Mr Potros stayed overnight when one of the children was sick. Mr Potros’ evidence before the SSAT and this Tribunal was to the effect that he visited his children almost every day and sometimes stayed overnight at the house. There is a back room – a sunroom – where he stays. Filiks said there was no pattern to how often his father might stay over. He gave evidence of his mother not being able to handle things and that was a reason his father came over often, although not daily. Mr Potros said he provided emotional support for his children. His son got into some trouble and needed a father-figure. (Filiks described his father as his “best friend”.) The elder daughter had experienced trauma as a child which left her emotionally fragile.
28. Another explanation given for Mr Potros’ frequent presence at Medley Ave was that there is a garage there where he parks his van and stores all his tools.
29. Mr Potros and Filiks said that sometimes Mr Potros mows the lawn, but mostly Filiks does it.
30. Their son appears to essentially manage his mother’s finances.
31. They each manifest their support for the children quite independently, such as through the purchase of separate gifts and separate celebrations.
32. There was evidence that Mr Potros had been in Queensland at the same time Mrs Potros and her children had been on holiday, on two occasions. I was asked by the Respondent to infer that the family had holidayed together. This was denied by all witnesses. Filiks said he told his father that they were going to Queensland. Mr Potros decided to go as well. He did not stay with them nor meet up with them at all. However, he was in constant communication with Filiks. Filiks would tell him where they were going for the day and Mr Potros would invariably go to that venue also. He kept a distance of about 100 metres or so, ensuring they did not see him. Filiks did not know his father was at the same venues. Mr Potros agreed that he was spying on his family. Mrs Potros holidayed overseas taking the children to visit her family, on that occasion Mr Potros did not accompany or follow Mrs Potros or his children.
Social aspects of the relationship
33. There was no evidence of how Mr and Mrs Potros’ friends and regular associates regard their relationship, but each said their family and acquaintances know they are no longer together.
34. No changes were made to contact details provided to the children’s school regarding the address of the children’s father (T43 p 294, T45 p 304) although the application for enrolment for long day care for the younger daughter did state that the couple were separated (T44 p 301). Mrs Potros would attend school parent/teacher sessions and Mr Potros would attend, separately, school functions if the children asked him to.
35. There was no evidence of any joint social activities whatsoever. Mr and Mrs Potros did attend their younger daughter’s birthday party at the same venue this year but did not travel to the venue together. Birthdays are not otherwise celebrated together and they give the children separate gifts. The family does not assemble on religious holidays.
Sexual relationship
36. There is no evidence of an ongoing sexual relationship. Mrs Potros said she had not had sexual intercourse with her husband since July 2001. Mr Potros has had girlfriends both prior to, and since that time.
Nature of Commitment
37. Mr and Mrs Potros married in 1988. They both gave evidence, as did Filiks, that prior to July 2001, and as early as 1999 they argued incessantly, and over “nothing”. Mr Potros had struck his wife and had had affairs since 2000. If his wife had had affairs he indicated he would have been more violent towards her.
38. They stayed separately in the same house from July 2001 until September 2001 when, their evidence was, Mrs Potros said “enough is enough” and made Mr Potros move out. Despite claiming a breakdown of the marriage from as early as July 2001, though, Mr and Mrs Potros did not divorce until 2005. Mrs Potros said her husband had not wanted to “sign the papers” (nor pay the filing fee as she told Centrelink) so she ultimately filed for divorce herself.
39. There was no evidence of any companionship and emotional support provided by Mr and Mrs Potros to each other. On the contrary, there was evidence of continual bickering when they spoke, and that Mr Potros gives Filiks, not Mrs Potros, money for the welfare of the children.
40. There was no evidence that the circumstances were going to alter for the better. Since the period under review, they have divorced. A possible change, according to Mr Potros was that he may sell the house at some stage. A property settlement will occur sooner or later.
41. Mrs and Mr Potros continued to describe each other as spouse in their tax returns after they had allegedly ceased being a couple. They had not told the accountant, who had prepared the returns, of their separation.
42. The evidence discloses that Mr Potros continually represented to third persons that he lived at Medley Ave. He continued to use this address when lodging his income tax returns although he had left the address some time ago (T42). He maintained this address with his bank (T54). He applied for a loan in December 2003 representing that he was married and that he resided at the matrimonial home for the past 5 years (T78). (Mr Potros explained that this was a deception necessary to secure the loan.) He provided this address to a mobile phone company on 6 August 2004 (T30). He also uses the address as his business address (T51).
43. One of the few occasions where his address was changed was with the RTA (T28). However, even in relation to this organisation, he represented that he resided at Edensor Park from 14 March 2002 to 5 August 2003 and then returned to the matrimonial home from 6 August 2003, which is not consistent with other evidence regarding his residence at that address.
44. The evidence regarding Mr Potros’ living arrangements is inconsistent and conflicting. Mrs Potros told Centrelink that her husband had moved to Edensor Park on 6 September 2001 (T14). She also advised Centrelink that her husband was living at Edensor Park in February 2004 (T19). She provided a rent certificate to Centrelink on 13 September 2004 signed by Mr Potros stating that he was living at the Edensor Park address. Centrelink confirmed with the real estate agency which let these premises that Mr Potros had not been added to the lease of the premises (T39). The tenant of this property responded to a request by Centrelink and advised that Mr Potros had lived in the house from late 2001 to late 2003 and then stayed there from time to time (T77). This conflicts with information provided by the tenant to Centrelink when lodging the rent certificate which did not indicate that Mr Potros was an occupant (T79 p 508).
45. Mrs Potros provided a letter to Centrelink from Vaso Djukich dated 25 October 2004 (T46) stating that Mr Potros had been living with him at 163 Elizabeth Drive Liverpool (“Liverpool”) since “early this year”. When Centrelink contacted the premises, the tenant advised that she had been living at that address since 5 March 2005 with her daughter. The landlord also confirmed that Mr Potros did not live at that address.
46. Before the SSAT, Mr Potros stated that he lived with his brother for two and a half to three years at Edensor Park following his separation from his wife – until early 2004. He then moved into a friend’s place at Liverpool where he stayed for a couple of months. Then he moved with the same friend to another address at 6 Hale Place, Fairfield Heights where he stayed for a couple of weeks to a month. He then returned to live with his brother who was about to move to Cecil Hills at the time of the SSAT hearing.
47. I accept the evidence that between 1999 and 2001 the Potros household was one characterised by constant arguing, violence and infidelity. Although I found Mr Potros’ evidence as to where he actually lived to be somewhat unsatisfactory, the evidence of all witnesses was that Mr Potros left Medley Ave in September 2001. He may occasionally stay there, but not with any pattern. When he does so, he stays in the sunroom. His tools, which he needs for his work, are in the garage.
48. No witness held out any realistic expectation of reconciliation so it seems the relationship, in its present form, is likely to continue indefinitely.
CONCLUSION
49. Mr and Mrs Potros were not divorced until 2005. However I must determine if Mrs Potros was a member of a couple between 6 September 2001 and 16 December 2004. As to the indicia set out in subsection 4(3) of the Act, there is no one feature in Mr and Mrs Potros’ relationship that stands out as dictating a conclusion. I have reached my conclusion after weighing up each factor from the totality of the evidence in accordance with Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546.
50. In Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7, the Tribunal said that while the provisions of subsection 4(3) of the Act provide objective criteria for determining if a person is a member of a couple, there is no guidance as to how much weight is to be attributed to each criterion. It falls to the Tribunal to consider all of the circumstances of the relationship and what weight is to be accorded to those circumstances.
51. It was submitted by the Respondent that with the exception of the absence of a sexual relationship and the lack of commitment there is every other indicia that Mr and Mrs Potros are a couple.
52. In Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789 (at paragraph 16) Senior Member McCabe observed that:
Application of the criteria [in section 4(3) of the Act] will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in section 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.
53. Determining whether two people are members of a couple is a difficult task. The assessment is made somewhat easier by the commonsense criteria identified in the legislation, as addressed above.
54. Even without looking at the relationship in a ‘narrow way’ and without having a ‘fixed view’ of what constitutes a marriage (per Cullinane), I do not consider Mr and Mrs Potros to be members of a couple. They are bound together by their children. They live separately; they have no sexual relationship; they do not communicate other than through their children and they do not go out together. Their extended family now know them to be separated, as do their friends. They could not even be described as friends unlike in Re Secretary, Department of Employment and Workplace Relations and Anor and Finn (2006) 92 ALD 223.
55. As to Mr Potros' conduct in Queensland – effectively stalking his family – I accept that he was not on holidays with them. His behavior, while bizarre, is consistent with his evidence that he would have been jealous if his wife had a lover; that he had controlled all aspects of their relationship, including the financial aspect; that he had no intention of making a property settlement in Mrs Potros’ favour, that he gave her no money to support the children, instead giving it to their son to distribute.
56. So, upon reviewing the totality of the evidence, and particularly in light of the relative consistency of the evidence from all witnesses, I have come to the view that Mrs Potros was not a member of a couple during the relevant period.
57. Having come to this view it was not necessary to consider the remaining issue.
DECISION
58. The Administrative Appeals Tribunal sets aside the decision of the Social Security Appeals Tribunal and finds that in the period under review Mrs Potros was not a member of a couple.
I certify that the preceding 58 paragraphs are a true copy of the decision and reasons for decision of Ms N Isenberg, Senior Member:
Signed:
....................[sgd]......................................Associate
Dates of Hearing 7 and 8 June 2007
Date of Decision 17 July 2007
Solicitor for the Applicant Mr S El-Hanania, Slattery Thompson Solicitors
Advocate for the Respondent Ms D Watson, Australian Government Solicitor
Solicitor for the Respondent Ms S Mantaring, Centrelink Legal Services
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