Tanaskovski and Secretary, Department of Social Services (Social services second review) - [2022] AATA 258

Tanaskovski and Secretary, Department of Social Services (Social services second review) [2022] AATA 258 (18 February 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2019/5150

GENERAL DIVISION )
Re: Vlado Tanaskovski
Applicant

And: Secretary, Department of Social Services
Respondent
DIRECTION
TRIBUNAL:  Chris Puplick AM, Senior Member
DATE OF CORRIGENDUM:            22 February 2022
PLACE:           Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application such that:
1.in the decision outlined on page 1, after ‘Social Security Act 1991 (Cth)’, the words ‘as of 27 July 2018’ are inserted; and
2.at paragraph 72 of the decision, after ‘Social Security Act 1991 (Cth)’, the words ‘as of 27 July 2018’ are inserted.

.................................[sgd]..................................
Chris Puplick AM, Senior Member
Decision date: 18 February 2022
Division:GENERAL DIVISION
File Number(s): 2019/5150
Re:Vlado Tanaskovski
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:18 February 2022
Place:Sydney

The decision under review is set aside and the matter is remitted to the Respondent with a direction that the Applicant is not a member of a couple for the purposes of the Social Security Act 1991 (Cth).
....................................[sgd]....................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – age pension – payments made at the single rate – asset test – whether the applicant is a member of a couple – decision set aside and remitted
LEGISLATION
Social Security Act 1991 (Cth) ss 4 and 1064
CASES
Boskoski and Secretary, Department of Social Services [2014] AATA 915
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Rendell and Anor and Secretary, Department of Family and Community Services [2004] AATA 711
RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35
Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050
Secretary, Department of Family and Community Services and VBH and Anor [2006] AATA 1
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) and Ors [1999] HCA 3
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Zamora and Secretary, Department of Social Services [2018] AATA 309
REASONS FOR DECISION
Chris Puplick AM, Senior Member
18 February 2022

This matter involves the determination of whether Mr Vlado Tanaskovski (the Applicant) is a “member of a couple” for the purposes of the Social Security Act 1991 (Cth) (the Act) as contended by the Secretary, Department of Social Services (the Respondent) or whether he is “living separately and apart, under one roof” with his wife, on a permanent or indefinite basis, as he claims.
The Applicant is currently in receipt of the age pension at the rate appropriate for a member of a couple but claims that he should be paid at the (higher) single rate.[1]
[1] Current single rate = $967.50 per fortnight; partnered rate = $729.30 per fortnight.
He first made this claim when he lodged a “separated under one roof” claim on 27 July 2018.[2] This claim was assessed and rejected by the Respondent on 3 January 2019. Upon review, that decision was affirmed by an Authorised Review Officer (ARO) of the Department on 6 February 2019 and then by the Social Services and Child Support Division of this Tribunal (AAT1) on 7 August 2019.
[2] Tribunal documents (T-documents) at 48-59. The application form is undated but is recorded as being received by the Department on 27 July 2018.
On 19 August 2019 the Applicant sought a review of that decision in this Tribunal where the matter was heard, in person, on 7 February 2022. Where required the Applicant, who was unrepresented, was assisted by an interpreter in the Macedonian language.[3]
[3] The Applicant was born in 1953 in what was then the Federal Republic of Yugoslavia which subsequently became known as the Former Yugoslav Republic of Macedonia (FYROM) and since February 2019 as North Macedonia.
BACKGROUND
The Applicant was involved in a serious work-related accident which, from some time in 2010 prevented him from working. He was initially paid a lump sum of compensation and in due course, the Disability Support Pension. This in turn was converted into the Age Pension (in addition to the coronavirus supplement where applicable) when he turned 65 years of age in July 2018.
The Applicant was married on 15 August 1982 and remains legally married to Mrs Snezana Tanaskovska.
They both reside (together with their adult son) in a house at Mount Warrigal, NSW 2528.
LEGISLATIVE PROVISIONS
The Act provides that age pension is paid at a different rate where a recipient is either a single person or else a member of a couple (married or de facto and including same-sex marriages).
Subsection 4(2) of the Act defines “member of a couple” as follows:
(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; or
(aa) both of the following conditions are met:
(i) a relationship between the person and another person (whether of the same sex or a different sex) is registered under a law of a State or Territory prescribed for the purposes of section 2E of the Acts Interpretation Act 1901 as a kind of relationship prescribed for the purposes of that section;
(ii) the person 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; or
(b) all of the following conditions are met:
(i) the person has a relationship with another person, whether of the same sex or a different sex (in this paragraph called the partner );
(ii) the person is not legally married to the partner;
(iii) the relationship between the person and the partner is, in the Secretary's opinion (formed as mentioned in subsections (3) and (3A)), a de facto relationship;
(iv) both the person and the partner are over the age of consent applicable in the State or Territory in which they live;
(v) the person and the partner are not within a prohibited relationship.
In determining whether or not a person is a member of a couple, the Secretary (and hence in these proceedings, the Tribunal) must have regard to certain legislated criteria as set out in subsection 4(3) of the Act:
(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, or in a de facto relationship with, 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 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 or a de facto relationship.
APPLICANT’S EVIDENCE
Before turning to a consideration of the statutory criteria it is necessary to outline the principal claims made by the Applicant both in his written application and in the extensive oral evidence which he gave at the hearing, on which he was cross-examined by both the Tribunal and the Respondent.
The gravamen of that evidence was to the effect that the Applicant arrived in Australia from his homeland at the age of about 17 years. He met his wife here and the couple had married in 1982 with his wife moving into the house which he already owned (Mount Warrigal, NSW). There is no mortgage on this property and the title deed establishes the Applicant as the sole owner. He testified that his wife asked for her name to be included on the title deed on several occasions, but he declined to agree.
The couple have three children. Two are daughters both of whom are married and live separately, each with a child of their own. There is a son, now aged 28 years who is single and resides in the same home as his parents.
Up until the time of his accident the Applicant worked for the Wollongong City Council in a number of (primarily) manual labouring jobs. His wife worked as a cleaner in several different schools and continues to do so.
After the accident the Applicant says that he became financially dependent upon his wife and she started to exercise a degree of control over him in terms of how she provided him with financial support. He felt ashamed about this as it did not comport to the norms of the community in which he had been raised (i.e., in (North) Macedonia). He felt equally ashamed when, from time to time because of financial pressures he had to borrow money from his son.[4]
[4] This is confirmed by a statement from his son provided as part of the Applicant’s Bundle of Evidence.
The home in which the Applicant and his wife live is relatively large and consists of three bedrooms, a bathroom, kitchen and there is a “garage” attached to the house which contains a separate toilet/bathroom, a kitchen and the sole laundry.
Both the Applicant and his wife own separate motor vehicles.
The Applicant’s claim for single rate of pension payment does not give a date on which he says that the couple “separated”. It is dated in July 2018 and in oral evidence the Applicant claimed the date of separation would have been “about a year” prior to that date. His wife’s form is dated in November 2018 and she claims that the separation was “about 6 months ago”.[5]
[5] T-documents at 68.
When pressed about the perceptions of his relationship by members of his family and friends, the Applicant was quite explicit in saying that, for cultural reasons, and because of a sense of “shame” he did not make it explicit that he and his wife were separated. He had not contemplated divorce because he believes that, in his words, “marriage is for life”. He said that not getting divorced was in part to set an example as a role model to his children and further added (again essentially in his own words) “she can get divorced when I die”.
He agreed that he and his wife shared certain family arrangements, especially when all the family was together at Christmas or Easter and when the grandchildren were brought to visit. Otherwise, he said that the couple lead separate lives.
Both the Applicant and his wife sleep in separate bedrooms.
In his oral evidence the Applicant stated that they do not cook for each other whereas in his written claim he answered the question, “Do you and the other person eat together at meal times?” by ticking the NO box while responding to the question, “Do you and the other person prepare meals for each other?”, by writing “every day”.[6] By contrast his wife ticked the NO box in answer to both questions on her form.[7]
[6] Ibid at 52.
[7] Ibid at 71.
Both the Applicant and his wife shop separately. They make arrangements for the washing of their clothes separately. His wife undertakes the cleaning of the house, including the garage where he uses the bathroom and kitchen, and both use the laundry, while he (occasionally assisted by his son) looks after the external maintenance of the property.
Payments of the Council rates, phone bills and utilities are shared between the couple,[8] again with occasional support from their resident son.
[8] Ibid at 74.
Payments of social security benefits to the Applicant have been paid into an account over which he had sole control. His form states that it is a Savings Account with the CBA and that, “[i]t’s a passbook that only I hold, she has no access.”[9] The Applicant’s wife states that there have been various accounts held jointly by the parties, but all of which are described as “old account”.[10] She also states quite explicitly that she has no access to any other accounts of her husband’s, nor does he have any access to accounts of hers.[11]
[9] Ibid at 54.
[10] Ibid at 73.
[11] Ibid.
There was oral evidence to the Tribunal by the Applicant that his wife had taken out a personal loan with the house as security, but this loan was taken out in 2014 and while the details (amount of loan and the length of time) are not clear,[12] it is the evidence of Mrs Tanaskovska that the loan has been repaid.[13]
[12] The Applicant suggested in his testimony that this was associated with the wedding of their second daughter.
[13] T-documents at 74.
What household goods there are appear to be equally owned; the Applicant, his wife and son all appear on the same Medicare card and relevant insurance policies appear to be held jointly.
The Applicant indicated that his wife was not a beneficiary under his Will and he has no superannuation. Mrs Tanaskovska indicates that the Applicant is a nominated beneficiary under her Will and in relation to her superannuation. However, there is no evidence to the extent of this, nor is there evidence, for example, as to how much might equally be provided in either the Will or superannuation to the three children.
The simple fact that the Applicant is a nominated beneficiary as suggested above does not provide much insight into the nature of the relationship. As the Tribunal noted in passing, William Shakespeare died a rich man, and, in his Will left his wife of 34 years merely their “second best bed”.
It is uncontested that the couple have not been in any form of sexual relationship for many years. The Applicant stated that his value system would not allow him to form any other sexual relationship while still legally married and he presumed the same of his wife, although he professed no knowledge of her personal relationships outside the home.
It is clear that Mrs Tanaskovska benefits from the fact that she does not appear to be paying any rent to the Applicant as the sole owner of the home in which they jointly reside.
The Applicant indicated that the couple were prone to have fairly frequent verbal disagreements which often resulted in both parties “screaming” at each other but was at pains to make it clear that none of these altercations ever resulted in any form of physical confrontation or violence.
The Tribunal notes that it heard direct evidence only from the Applicant and, to the extent that it can draw any conclusions about the position or opinions of Mrs Tanaskovska it must rely upon the written material before it as was the case with the AAT1 which also did not hear from her directly.
MEMBER OF A COUPLE RATE OF PAYMENT
The Applicant is paid his age pension at the rate determined for individuals who are members of a couple.[14] In this respect, his rate of payment is affected by the inclusion of his wife’s earnings in the calculations for the assets test which is applied to all age pension payments. Were he determined not to be a member of a couple then his age pension would be calculated with the exclusion of his wife’s income and solely on the basis of his assets (with the family home being excluded).
[14] Social Security Act1991 (Cth) s 1064.
CONSIDERATION OF STATUTORY CRITERIA
The criteria as set out above from subsection 4(3) of the Act may be taken in five general categories.
Financial Aspects
There is no joint ownership of real estate and there are no “major” assets owned jointly. The joint liabilities are the payment of rates, telephone and utility bills and certain insurance policies.
There is a degree of “pooling” of financial resources[15] in that Mrs Tanaskovska’s salary obviously provides some support for both parties, although there are no apparent “major” financial commitments.
[15] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735 at [52].
It does not appear that there are any legal obligations (of a financial nature or otherwise) owed between the parties other than any which attach to the state of being legally married.
It is clear that there is a sharing of day-to-day household expenses.
In filling out the “separated under one roof” claim, Mrs Tanaskovska stated that she intended to live at the same address as the Applicant “at this stage indefinitely” and, in response to the question, “Give the reason(s) why you intend to live with the other person for this length of time” wrote “financial reasons”.
In Rendell the Tribunal held that:
After a consideration of all the evidence before it, the Tribunal is of the view that financial necessity is the cornerstone of the relationship. It is the sharing of their resources that enables the applicants to survive monetarily. In the opinion of the Tribunal an arrangement based on mutual affordability of housing and material welfare does not of itself correspond to a marriage-like relationship. More is required.[16]
[16] Rendell and Anor and Secretary, Department of Family and Community Services [2004] AATA 711 at [38].
In Zamora[17] the Tribunal echoed the sentiment in Rendell and held that if the pooling or resources was “driven by financial necessity rather than choice” then this did not support the conclusion that such an aspect of the relationship established it to be marriage-like.
[17] Zamora and Secretary, Department of Social Services [2018] AATA 309 at [36].
The Tribunal concludes that certain aspects of the financial relationship between the Applicant and his wife establish that they have the characteristics of a couple in the sharing of some expenses and the pooling of some resources. However, this is not extensive and does not extend to any matters which might be characterised as “major”. There are no significant assets jointly owned. Therefore, in this respect the Tribunal disagrees with the finding of the AAT1 that there is a “significant pooling of resources”.[18]
[18] T-documents at 6, AAT1 decision at [16].
Nature of the Household
There are no dependent children involved and the evidence establishes that while the couple live under the same roof they share very little of their lives together. The housework is distributed on a stereotypically gendered basis – the wife cleans the house (including the garage where she also uses the laundry) and the husband looks after the exterior.
The Tribunal concludes the nature of the household is typical of any shared cohabitation and does not distinctly evidence the presence of a “marriage-like” relationship. The AAT1 found that the facts “indicate some degree of demarcation” but its characterisation of the living arrangements as “interdependent” could apply equally to any cohabiting and sharing arrangement.[19]
[19] Ibid, AAT1 decision at [17].
Social Aspects of the relationship
Both the Applicant and his wife have given evidence to the effect that are separated and no longer consider themselves as members of a couple, but equally that they do not (and have not) broadcast this fact to members of the family or to others in their social circle.

In his evidence the Applicant stated that this was in large part for cultural reasons and because of a sense of stigma in his community (Macedonian) which he says attaches to divorce or failed marriages.
In filling out her version of the “separated under one roof” form Mrs Tanaskovska answered the question “Are the children aware of the separation” by writing “Not ready to share this with them. Don’t want them to worry him.”[20]
[20] Ibid at 77.
The Tribunal has before it, as evidence supplied by the Applicant,[21] short and generally formulaic statements from each of the three children which were apparently co-ordinated by the eldest daughter. To the very limited extent to which they are of any utility they at least bespeak of a strained relationship between their parents, a relationship which is “fractured”, one which is beset by financial difficulties and which is indicative of them leading largely separate lives. They attest (as do both the Applicant and his wife) to the parties jointly participating in major family events such as Christmas or Easter, name days or other “family functions”.
[21] Applicant’s Bundle of Evidence includes statements from Michelle Josifovska, Kristina Tanaskovska and Jason Tanaskovska. None of these statements is dated or signed.
Apart from family functions[22] there is no indication that the Applicant and his wife have any “friends or regular associates” who would necessarily be aware of their nature of their relationship and they do not undertake any non-family activities together.
[22] T-documents at 72.
The Tribunal notes that the AAT1 regarded the evidence about the social aspects of the relationship as “inconclusive” and indeed contradictory.[23] In this respect the Tribunal believes that the AAT1 did not give sufficient regard to the cultural sensitivities which were explained by the Applicant and which this Tribunal accepts. It concludes that the social aspects of the relationship fail to establish that this is a marriage-like relationship and rather affirm that the couple live separate and distinct lives coming together only for family related activities.
[23] T-documents at 6, AAT1 decision at [18].
Sexual relationship
It is accepted by the Respondent, and equally by the AAT1 and this Tribunal that there is no sexual relationship between the parties and that (at least on the expressed part of the Applicant), neither appears to feel free to form sexual relationships with other people.
The criterion related to sexual relationship is taken to support a conclusion that the parties are not a couple.
Nature of the commitment to each other
In answer to the question, “Do you and the other person provide care or practical support/help to each other in any of the following circumstances?” Mrs Tanaskovska in relation to the issue of “Illness” wrote “Yes, as no other people to assist if needed.” In relation to other circumstances, namely “Personal crisis”, “Money matters” and “Family disputes”, she wrote “NO”.[24]
[24] Ibid at 72.
In his documentation the Applicant answered “NO” to the same questions about illness and personal crises and left blank responses related to money matters or family disputes.[25] In his oral evidence he indicated that if his wife became ill in the house he would provide what assistance he could but that he was limited in what he might be able to do.
[25] Ibid at 53.
Frankly, one would expect no less between any people who happen to be living in the same space (especially for such a long period of time) or who have any sense of personal responsibility for the wellbeing of other people – even strangers.
Although the relationship is, in a formal sense, longstanding (since at least 1982), there is no current evidence of any “companionship” in a meaningful or genuine sense. The Applicant made it clear that he rarely speaks to his wife, the statements (noted to be of limited utility) from the children confirm this and there is no reason to believe otherwise. Far from emotional support, the evidence suggests frequent verbal arguments and disagreements between the Applicant and his wife.
It is more problematic in attempting to address the speculative question of any possible reconciliation. Mrs Tanaskovska says that this is “hard to say one way or another”[26] and the Applicant simply ticked the box “not sure”.[27] In his oral testimony on the matter the Applicant referred to it being “too late to reconsider”, generally that he felt “too old” but that, ultimately “who knows?”.
[26] Ibid at 68.
[27] Ibid at 49.
The Tribunal does not accept the conclusion of the AAT1 that this “indicates in fairly clear terms they do not consider themselves permanently and indefinitely living separately and apart.”[28] That constructs far too definitive a conclusion upon such shaky ground.
[28] Ibid at 6, AAT1 decision at [20].
The AAT1 placed some emphasis on the fact that “there had been no application or intention to commence divorce proceedings”,[29] but again the Tribunal in this instance sees that as subject to cultural nuances and does not draw such adverse conclusions from the facts.
[29] Ibid.
As to the perceptions of both the Applicant and his wife, they both see themselves as “separated” and have both completed the relevant forms to this effect.
The Tribunal concludes that the nature of the commitment between the Applicant and his wife is based upon circumstantial considerations and not grounded in any loving, emotional or companionship considerations.
DISCUSSION
As has been famously noted, all unhappy families are unhappy differently and as this Tribunal said in Sperring “[e]ach matter is different”.[30]
[30] Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050 at [70].
Mr Tanaskovski and Mrs Tanaskovska live in an unhappy relationship which manifests itself in the fashion described in the Applicant’s evidence.
The Tribunal is required to determine the nature of this relationship with proper regard to the legislated criteria, however it should be noted that “all the criteria need not be satisfied”.[31] While the evidence from various parties on various aspects of the relationship is necessarily subjective, the Tribunal must apply an “objective view of the facts”[32] in reaching its conclusions. Equally that objective view must encompass “the whole of the circumstances of the relationship.”[33]
[31] Ibid.
[32] Boskoski and Secretary, Department of Social Services [2014] AATA 915 at [63].
[33] Secretary, Department of Family and Community Services and VBH and Anor [2006] AATA 1 at [94].
Comprehensively, the Federal Court in Staunton - Smith indicated:
It is not suggested that this list is exhaustive nor will each of these subjects fall to be considered in every case. It must also be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding tribunal is to have regard to all the material facts of each case, treating the matters listed above only as indicators. The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it. [34]
[34] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 at [21].
As noted, although the Tribunal heard evidence only from the Applicant, in this instance it was pleased that it was at least able to conduct its hearing in person rather than by the remote and de-personalising medium of the Microsoft Teams platform. This is because:
In matters involving a determination of whether a person is a member of a couple or in a marriage-like relationship, an assessment of credibility is frequently of vital importance.[35]
[35] RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35, at [35]. The Tribunal is mindful of the warning given by Kirby J on this issue in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) and Ors [1999] HCA 3 at [88].
The Tribunal found the Applicant to be a witness of credibility and is prepared to accept the gravamen of his evidence which was well tested in cross-examination.
While aspects of the financial relationships, limited as they are, and the pooling of resources, again to a limited extent, might suggest the continuation of some sort of marriage-like relationship or some sense of coupledom, they do so to only a limited degree. Most of the financial intermingling or interdependency is of a minor nature, none rising to the point of involving a “major” degree of sharing or pooling of resources.
The nature of the household, the social aspects of the relationship, the sexual dynamics and the nature of mutual commitments are all such as to favour finding that the Tribunal is dealing with the separate lives of two people who, more out of financial necessity and shaped by values of their own cultural heritage continue to live, unhappily, under the same roof and intend to do so for the foreseeable future.
CONCLUSION
Taking the evidence as whole, the Tribunal is satisfied that the Applicant meets the statutory test of “living separately and apart from the other person on a permanent or indefinite basis” and hence the decision-maker (originally the Secretary, and in this instance the Tribunal) cannot make a finding that the Applicant is a member of a couple for the purposes of the Act.
DECISION
The decision under review is set aside and the matter is remitted to the Respondent with a direction that the Applicant is not a member of a couple for the purposes of the Social Security Act 1991 (Cth).

I certify that the preceding 72 (seventy -two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate
Dated: 18 February 2022

Date(s) of hearing: 7 February 2022

Applicant: In person

Solicitors for the Respondent: Ms K Dunlop, Services Australia

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2019/5150
GENERAL DIVISION	)

Date(s) of hearing:	7 February 2022
Applicant:	In person
Solicitors for the Respondent:	Ms K Dunlop, Services Australia