Zablotsky and Secretary, Department of Social Services (Social services second review) - [2020] AATA 374

Zablotsky and Secretary, Department of Social Services (Social services second review) [2020] AATA 374 (28 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0359
Re:Igor Zablotsky
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:28 February 2020
Place:Sydney

The decision under review is set aside and in substitution it is decided that for the period from 11 June 2009 to 27 March 2017 the Applicant was a member of a couple and that for the period 28 July 2009 to 4 October 2012 he was overpaid the Disability Support Pension, thereby accruing a debt to the Commonwealth which currently stands at $10,837.81 and which should now be recovered.
...............................[sgd]................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – rate of payment – whether applicants were a member of a couple – marriage-like relationship – de facto relationship – financial aspects of relationship – nature of household – social aspects of relationship – sexual relationship – nature of commitment to each other – recoverable debt – debt write off – waiver of debt arising from error – waiver of debt in special circumstances – reviewable decisions is set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) ss 40, 42A
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth)
Social Security Act 1991 (Cth) ss 4, 24, 1064-A2, 1223, 1236, 1237A, 1237AAD
CASES
Bixby v Farraday [2009] FMCAfam 647
Boscolo v Secretary, Department of Social Security [1999] FCA 106
Clifford and June Callaghan and Secretary, Department of Social Security [1996] AATA 413
Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415
Ford and Secretary, Department of Family and Community Services [2003] AATA 7
Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470
In the Marriage of Grabar (1976) 2 Fam LR 11,581
In the Marriage of Pavey (1976) 10 ALR 259
Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084
Lambe v Director-General of Social Services (1981) 4 ALD 362
Lynam v Director General of Social Security (1983) 52 ALR 128
Marei v Department of Employment and Workplace Relations [2007] FMCA 458
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Re Katherine Deirdre Peck (Napier) and Secretary, Department of Social Security [1992] AATA 336
Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497
RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35
Roberts v Roberts (1977) 3 Fam LN N59
Secretary, Department of Employment and Workplace Relations and Gilson [2007] AATA 1361
Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050
Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72
Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
VBH and Anor; Secretary, Department of Family and Community Services [2006] AATA 1
Zablotsky and Secretary, Department of Social Services (Social services second review) [2019] AATA 4367
SECONDARY MATERIALS
Explanatory Memorandum, Social Security Legislation Amendment Bill (No 4) 1991 (Cth)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
28 February 2020
HISTORY OF PROCEEDINGS

These proceedings commenced when Merchant Marine Captain Igor Zablotsky (Applicant) applied for a second review by this Tribunal, the General Division of the Tribunal (AAT2), of a decision made by the Social Services and Child Support Division of the Tribunal (AAT1) on 20 December 2018 (AAT1 decision).
That decision (discussed below) related to a determination by the Secretary, Department of Social Services (Respondent) that the Applicant had been overpaid Disability Support Pension (DSP) and that a recoverable debt was owed to the Commonwealth.
The Applicant’s application for review was lodged on 18 January 2019 and the matter was initially heard by this Tribunal on 8 July 2019. At that time evidence was submitted by both parties and the Tribunal heard from a number of witnesses. A further hearing was scheduled for 31 July 2019 to allow both parties to make final submissions. However, that hearing was vacated by the actions of the Applicant who withdrew his application for review under s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). It provides:
Deemed dismissal – applicant discontinues or withdraws application
(1A) A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
On the same day, the Secretary sought an extension of time to apply to AAT2 for a second review of the AAT1 decision. Further to this application the Respondent sought to have her appeal commence as a continuation of the adjourned proceedings of 8 July 2019.
On 1 August 2019, the Tribunal notified the parties that Mr Zablotsky’s application for a second review of the AAT1 decision by this Tribunal had been dismissed in accordance with section 42A(1B) of the AAT Act, with effect from 31 July 2019. Section 42A(1B) provides:
If notification is given in accordance with subsection (1A) or (1AA), the Tribunal is taken to have dismissed the application without proceeding to review the decision.
On 19 August 2019, the Secretary applied to the Tribunal under section 42A(8) of the AAT Act for reinstatement of the dismissed application.
The Tribunal notified Mr Zablotsky of the Secretary’s application for reinstatement and he was given a period of 14 days to advise the Tribunal of his position in relation to this request.
On 5 September 2019, the Tribunal advised both parties that a telephone directions hearing (TDH) had been listed on 18 September 2019 in order to discuss the reinstatement request and set a timetable for the filing of any further evidence and submissions.
Mr Zablotsky formally opposed the reinstatement request in writing on 11 September 2019.
On 16 September 2019, the Applicant wrote to the Tribunal seeking to postpone the TDH scheduled for two days thereafter due to ill-health and his relocation to Queensland. The Secretary objected to this request. At the request of the Tribunal on 17 September 2019 the Applicant provided medical evidence in support of his request and the Tribunal deemed it appropriate to adjourn and re-list the TDH for 4 October 2019, a date within a period specified as appropriate by Mr Zablotsky in his request for postponement.
On 3 October 2019, the Applicant sought a further adjournment on medical grounds. The Tribunal granted this request and decided to list the matter for an interlocutory hearing to consider the reinstatement application on 11 October 2019. This date was then varied at the request of the Respondent and rescheduled for 15 October 2019. The Tribunal heard the matter on that date with both parties appearing by telephone.
On 25 October 2019, the Tribunal granted the Secretary’s application for reinstatement of Mr Zablotsky’s application for review.[1]
[1] Zablotsky and Secretary, Department of Social Services (Social services second review) [2019] AATA 4367.
Thereafter the Tribunal endeavoured to bring the parties together for another TDH to settle dates for the submission of further evidence and the date for a substantive hearing. On 11 November 2019, the Tribunal informed the parties that the matter had been listed for a TDH on 17 December 2019. The Applicant advised, by email dated 3 December 2019, that he refused to participate in any further proceedings in the Tribunal, that he considered his debt to Centrelink to have been paid in full (see below) and that he regarded the matter as being “closed”. Eventually, on 17 December 2019, the scheduled TDH was held and the parties were advised that the substantive matter would be heard on 9 January 2020.
The hearing, as advised, resumed on 9 January 2020. Although the Applicant had refused to be present, the Tribunal proceeded, as it was empowered to do by section 40(1)(b) of the AAT Act:
40 Powers of Tribunal
(1) For the purposes of reviewing a decision, the Tribunal may:
…
(b) proceed in the absence of a party who has had reasonable notice of the proceeding;
At the hearing the Respondent recapitulated evidence presented at the previous hearing of 8 July 2019 and made final submissions as to its position.
In essence, the Respondent contests the finding of AAT1 that, for the purposes of s 4(2)(b) of the Social Security Act 1991 (Cth) (Act), Igor and Elena Zablotsky were a couple for the period from 11 June 2009 to 29 August 2011 but were not a couple for the period 30 August 2011 and 25 August 2014.
The critical issue before the Tribunal is for what period, during which the Applicant was in receipt of the DSP, was he a member of a couple for the purposes of the Act.
That period was originally contended by the Respondent to occur from 17 July 2009 until 4 October 2012. This is the period which was considered by the Department when raising the original debt of $12,419.15, which the Respondent regarded as having been overpaid.[2]
[2] Section 37 Documents (T Documents) at p. 1772.
APPLICANT’S DSP RECORD
Departmental records indicate that the Applicant was paid the DSP for the following periods:
·3 August 2004 to 24 March 2006 (at which date the DSP was cancelled).
·2 June 2006 to 16 June 2007 (at which date the DSP was suspended).
·25 October 2007 to 21 July 2008 (at which date the DSP was suspended).
·28 July 2009 to 5 October 2012 (at which date the DSP was cancelled).[3]
[3] The actual payment period ceased on 4 October 2012.
The record is confusing to the extent that it then records 3 “suspension” decisions on 30 November 2012 of a DSP which had been “cancelled” on 5 October 2012.[4] The Respondent was not able to explain to the Tribunal the import (if any) of these decisions.
[4] T Documents at p. 2030.
THE EXTENT OF THE DSP DEBT
In December 2016, data-matching information from the Australian Taxation Office (ATO) alerted Centrelink to the fact that Igor and Elena Zablotsky were filing tax returns as members of a couple and that, as a result, their DSP entitlements needed to be recalculated.
There is serious confusion in the various notifications sent to the Applicant about the exact nature of his alleged debt. On 3 November 2017 Centrelink informed him that, for the period 17 July 2009 to 4 October 2012, he had been paid $49,588.42 but was entitled to only $37,169.27 thus creating a debt (overpayment) of $12,419.15.[5]
[5] Ibid at p. 1772.
When this matter was reviewed by an Authorised Review Officer (ARO) on 9 November 2017 he found that, for exactly the same period, the total payments made were $29,599.28, the entitlement was $17,101.12 and hence the debt (overpayment) was $12,498.08. The ARO determined that the Applicant’s debt has changed from $12,419.15 to $12,498.08.[6]
[6] T Documents at pp. 1797 and 1800.
There is, however, little explanation in any of the material before the Tribunal as to the precise origin or recalculation of this discrepancy between the two figures.
The ARO’s review was occasioned by a request from the Applicant and the Tribunal notes that the ARO’s letter to the Applicant records:
You requested no further discussion with the department, therefore I did not call you to discuss the decision.[7]
[7] Ibid at p. 1795. See also ARO notes at T Documents p. 1790.
For present purposes it is not necessary to consider any matters related to the Applicant’s receipt of DSP prior to July 2009. There is, however, some confusion in the records about the commencement date of the July 2009 payments. On 9 November 2017, the Department wrote to the Applicant stating that his DSP payments had commenced on 17 July 2009[8] whereas the Department’s record in the Section 37 Documents (T Documents) appears to suggest that payment was made from 28 July 2009.[9] The Department has subsequently advised the Tribunal that the 17 July date is incorrect and that the Applicant was in receipt of DSP from 28 July 2009.[10]
[8] Ibid at p. 1797.
[9] Ibid at p. 2030.
[10] Reponses by the Respondent dated 26 July 2019 following the Tribunal’s request for information and marked as Exhibit R3 (Exhibit R3).
Leaving aside the exact commencement date, the Department claims that from 17 July 2009 to 4 October 2012 the Applicant was paid DSP at the single rate of payment when he was, at the time, a member of a couple and hence should have been paid at the lesser, couple rate.
Out of this confusion the Respondent has advised the Tribunal that, despite commencement of the relevant period being at a later date, the debt calculations remain correct[11] based upon the figures determined by the ARO which clearly modified (or corrected) the initial Centrelink notification. Even so, the ARO’s calculations are mathematically incorrect and the actual sum in question is $12,498.16. This now relates to a period from 28 July 2009 to 4 October 2012 (relevant period).
[11] Exhibit R3.
The Applicant brought an appeal of the ARO decision to the AAT1 which heard that appeal jointly for both Igor and Elena Zablotsky on 6 and 19 March 2018. On 10 December 2018 the AAT1 gave a decision in relation to Elena’s case[12] and on 20 December 2018 it made a decision in relation to the Applicant.
[12] T Documents at pp. 18-35.
That decision in relation to the Applicant was to the effect that:
(a)Igor and Elena Zablotsky were members of a couple from 11 June 2009 to 29 August 2011,
(b)from 30 August 2011 to 25 August 2014 they were not to be regarded as members of a couple, and
(c)as from 26 August 2014 Igor and Elena Zablotsky resumed their status as a couple.[13]
[13] Ibid at 5-17.
The matter was remitted to the Respondent to recalculate the Applicant’s debt in line with the AAT1 decision.
On 18 January 2019, both Igor and Elena Zablotsky lodged appeals against the AAT1 decisions. On this occasion, AAT2 determined that the matters would be heard separately.
On 21 January 2019, in line with the decision of the AAT1, the Department recalculated Mr Zablotsky’s debt to be $1,660.35.[14]
[14] Respondent’s statement of facts, issues and contentions (SFIC) at [74].
On 20 February 2019, this Tribunal ordered a stay of the enforcement of Mr Zablotsky’s debt. Nevertheless, before proceedings in this matter concluded, Mr Zablotsky chose to pay the recalculated debt which he did via a BPay payment through St. George Bank on 30 July 2019.[15]
[15] Copy of a BPay payment receipt dated 30 July 2019 and filed by the Applicant with the Tribunal on 31 July 2019.
THE POSITION OF THE PARTIES
The Applicant contends that he has discharged, in full, his debt to the Commonwealth on the basis that has paid the debt as was determined by the Respondent following the decision of the AAT1. The Applicant also contends that he has withdrawn his application for a review of that decision.
The Respondent agrees that Mr Zablotsky has made, and the Respondent has received, a payment towards the Applicant’s debt but goes on to contend that this merely reduces the size of the debt in question by the amount paid. At the same time, the Respondent continues to seek to overturn the decision of AAT1 and seeks a finding from this Tribunal that the Applicant was a member of a couple for the period from 11 June 2009 to 27 March 2017. In other words, that the AAT1’s determination that Igor and Elena Zablotsky were not members of a couple from 30 August 2011 to 25 August 2014 was made in error. The Respondent’s submissions in respect to some aspects of this case are confusing given its insistence on establishing that the Applicant was a member of a couple from 11 June 2009 to 27 March 2017 (described by the Respondent as the “relevant period”)[16] when the only genuinely relevant period is 17 July 2009 to 4 October 2012 which is the period in which the DSP was allegedly overpaid.
[16] Respondent’s SFIC at [3(a)] and [166].
APPLICANT’S PERSONAL HISTORY
The Applicant was born in 1965[17] in the city of Magadan in what was then the Union of Soviet and Socialist Republics (USSR). At some stage in the 1980s he migrated to Israel where he remained for approximately ten years during which time he acquired (and still holds) Israeli citizenship. He also subsequently acquired Australian citizenship.
[17] T Documents at p. 88.
On 4 December 1991 he arrived in Australia. The Applicant has qualifications as an engineer and a marine engineer, and has completed a Master of Engineering degree at the University of Technology, Sydney.[18]
[18] T Documents at p. 1121.
He came to Australia at the invitation of a number of professional associations including the Institute of Engineers Australia, and worked as a seafarer and marine engineer.[19]
[19] Transcript of hearing on 8 July 2019 at p. 97, lines [4]-[6] and [43]-[45].
On 11 October 2003, the Applicant left Australia and returned to Russia. On 15 November 2003, while there, he married Elena Zablotski[20] who was the mother of a daughter (Victoria, born in 1992). This was the Applicant’s third marriage.[21]
[20] This was the original spelling of the Applicant’s surname which was subsequently changed to Zablotsky per Application for Divorce contained in Supplementary Section 37 Documents (Supplementary T Documents) at p. 11. Elena Zablotsky was born in 1968 (T Documents at p. 88) and in Kazakhstan (T Documents at p. 262).
[21] Statement of Irene Zablotsky dated 7 July 2019 and marked as Exhibit A1 (Exhibit A1).
The Applicant returned to Australia on 28 November 2003, and Elena and Victoria arrived on 27 September 2005. The Applicant’s sister, in her statement dated 7 July 2019, mentions that “DIMIA suspected a marriage of convenience from his third wife Elena’s side.”[22] There is no independent verification of this alleged concern.
[22] Ibid. DIMIA is the Department of Immigration and Multicultural and Indigenous Affairs.
On 25 January 2007 the couple jointly filed an Application for Divorce in which they stated that they had been separated as from 20 December 2005.[23] They attested that this was the date on which they “regarded the marriage as over”. The divorce was granted in the then Federal Magistrates Court of Australia on 15 February 2007, taking effect as from 16 March 2007.[24]
[23] Supplementary T Documents at p. 14.
[24] Ibid at p. 8.
On 4 July 2006, the Applicant was the driver of a car in which Elena and Victoria were passengers when that vehicle was involved in a serious motor vehicle accident which left both the Applicant and Elena with significant injuries.[25] On 26 March 2009, Elena Zablotsky received a compensation payment of $600,000 as a result of this accident and her injuries.
[25] T Documents at pp. 262-263.
At sometime early in 2006 the Applicant received a compensation payment of $200,000 in respect of an accident which he had suffered at work in November 2002.[26]
[26] Reponses by the Applicant dated 26 July 2019 following the Tribunal’s request for information and marked as Exhibit A5 (Exhibit A5).
After an apparent period of not working and being in receipt of the DSP, the Applicant returned to some form of retraining between October 2007 and May 2009, and then on 1 November 2009 commenced working for Go Offshore Pty Ltd. He worked for this company from that date until 1 June 2011 and then again from 9 November to 16 December 2014. His final employment period appears to have been with Swire Pacific Ship Management (Aust) Pty Ltd from where he retired in November 2015.[27]
[27] Ibid.

As a seafarer the Applicant spent considerable time away from home, either at sea (particularly off the coast of Western Australia) or at merchant marine training facilities in Newcastle (NSW) or Launceston (Tasmania).[28] These periods are recorded in the Australian Maritime Safety Authority’s Australian seafarer’s service book, or what is colloquially called the “Blue Book”.[29]
[28] Transcript of hearing of 8 July 2019 at pp. 14, lines [4]-[6] and 45, lines [12]-[14].
[29] Exhibit A5.
APPLICANT’S FINANCIAL AFFAIRS
There are a series of financial transactions which appear to involve the direct participation of both the Applicant and his wife, or later, ex-wife:
(a)There is an ANZ Bank record[30] which shows that an account was opened by that Bank on 7 December 2004 in the account name of Igor Zablotsky and Elena Zablotsky with both parties listed as signatories. There is some issue with this in that the Applicant points out Elena Zablotsky did not arrive in Australia until September 2005, so it must be presumed that this account was opened without her being a signatory of any of the relevant documents.
[30] T Documents at p. 1335.
(b)There is a St. George Bank record which shows that on 20 June 2007 an “Express Freedom” account was opened in the name of Elena Zablotsky on which the Applicant is the signatory.[31]
(c)On 26 June 2009, both parties were recorded as recipients of a home loan from St. George Bank.[32]
(d)Both parties appear as joint mortgagors on a registered mortgage with St. George Bank. The document is undated but evidence suggests that it was executed in June 2009.[33]
(e)On 11 April 2011, the Applicant opened a Visa credit card account (with St. George Bank) to which Elena is a signatory. The account is still active.[34]
(f)On 16 April 2012, the Applicant’s step-daughter (Victoria) set up a self-managed superannuation fund (LIV Superannuation Fund) for herself as well as Igor and Elena.[35] Igor and Elena opened St. George Bank accounts under this joint self-managed super fund, one of which was a term deposit account titled E & I & V Zablotsky.[36] It appears that the trustee of the LIV Superannuation Fund cancelled the fund’s Australian Business Number (ABN) on 16 June 2017.[37]
(g)On 11 February 2015, Igor and Elena entered into a contract for the purchase (off-plan) of a duplex property at 1/177 Parraweena Road, Miranda.[38]
(h)Between 19 February 2015 and 5 October 2016 there was a St. George Investment Cash account held in the names of Stephen Malesev, Elena Zablotsky and Igor Zablotsky.[39]
(i)On 12 September 2016, Igor and Elena Zablotsky were joint signatories to an application for a home loan from St. George Bank to purchase the Parraweena Road property.[40]
(j)A statement by Elena Zablotsky was to the effect that when the couple went shopping Igor Zablotsky always paid for purchases using his credit card, that he paid for her visits to the doctor and that she would give him any money paid to her by way of her pension.[41]
(k)From 2014 to at least July 2016, Igor and Elena Zablotsky shared the same Pharmaceutical Benefits Scheme (PBS) safety net entitlement card.[42]
[31] T Documents at p. 343.
[32] Ibid at p. 345.
[33] Ibid at p. 369.
[34] Ibid at p. 531.
[35] Ibid at pp. 1806 and 1959.
[36] Ibid at pp. 1777 and 1959.
[37] Respondent’s SFIC at [64].
[38] Ibid at [54].
[39] T Documents at pp. 343 and 531.
[40] T Documents at pp. 160-161.
[41] Supplementary T Documents at p. 3.
[42] Further Supplementary T Documents at pp. 48-49.
THE WILLS OF IGOR AND ELENA ZABLOTSKY
On 19 June 2017, Igor Zablotsky made a Will in which he appointed Elena Zablotsky as his sole executor and trustee, describing her therein as “my former wife”. He further nominated Elena Zablotsky and Victoria Zablotsky as the “Primary Beneficiaries” of his estate.[43]
[43] Ibid at pp. 40 and 41.
Elena Zablotsky had made her Will previously on 1 November 2011 in which she appointed Igor Zablotsky, therein described as “my former husband”, as her sole executor and trustee. Her Will provides that Victoria Zablotsky is to be her sole heir and beneficiary but that, in the event of Victoria’s prior decease, her entire estate is bequeathed to Igor Zablotsky.[44]
[44] Ibid at p. 140.
APPLICANT’S RESIDENTIAL ADDRESSES
It is difficult to establish with an absolute degree of precision exactly where the Applicant was physically resident at any point in time. This requires careful consideration of the list of addresses which he has supplied to various authorities including banks, Roads and Maritime Services, the Office of State Revenue, Centrelink and his employers. The Tribunal also has evidence from his sister (see below) that he spent time residing with her (and other friends) on some occasions over a period of “a few months”.
The Tribunal has compiled its own list (see Schedule 1) of the stated addresses of the Applicant for the period 15 February 2007 to 25 January 2017.
In addition, the Applicant’s movement records submitted by the Respondent[45] show the Applicant absent from Australia on numerous occasions. Finally, the Applicant’s own Blue Book records significant absences from any Sydney home when the Applicant was engaged in coastal shipping activities or training courses in Newcastle or Launceston.
[45] Applicant’s movement records tendered at the hearing on 8 July 2019 and marked as Exhibit R1.
The Tribunal need, however, only be concerned with the question of the Applicant’s residential status during the period July 2009 to October 2012, being the period during which the Applicant was paid DSP in circumstances currently under dispute.
The narrative outlined in the ARO’s decision (see paragraph 23 above) is as follows:
(a)the Applicant and his wife were divorced in 2007 but continued to reside together in Bourke Street, Woolloomooloo (a public housing premises);
(b)on 11 June 2009, the Applicant and Elena entered into a joint mortgage to purchase 38/108 Boyce Road, Maroubra as owner occupiers. The Applicant updated his records to show this as his place of residence and gave his marital status as “married” in the loan document;
(c)on 20 April 2011, the Applicant secured a further bank loan for the purchase of 19/37 Morley Avenue, Rosebery which was purchased in Elena’s name;
(d)on 26 August 2011, the Applicant and Elena sold the Boyce Road unit;
(e)on 29 August 2011, the Applicant secured another bank loan in order to purchase an adjacent unit at 20/37 Morley Avenue, Rosebery which was purchased in his own name on 13 September 2011.[46] The Applicant then recorded this as his registered address;
(f)on 26 August 2014, the Applicant sold his unit at 20/37 Morley Avenue and moved in with Elena at her unit (19/37 Morley Avenue).[47]
[46] Respondent’s SFIC at [36].
[47] T Documents at p. 1799.
It thus appears that:
(a)from the date of his divorce until his purchase of 20/37 Morley Avenue on 13 September 2011, the Applicant lived together with his ex-wife Elena either at Bourke Street, Woolloomooloo or Boyce Road, Maroubra;
(b)between September 2011 and August 2014, the Applicant lived at 20/37 Morley Avenue and his ex-wife lived at 19/37 Morley Avenue;
(c)from 26 August 2014, both the Applicant and his ex-wife lived together at 19/37 Morley Avenue. In December 2015, this unit was sold and the proceeds were paid to the Applicant.[48] Mr Zablotsky then leased the property back from the purchaser until 1 July 2016, with the rental payments being made out of one of his accounts;[49]
(d)from there the Applicant and his ex-wife jointly purchased and moved to a new semi-detached property (initially bought off-plan) at Parraweena Road, Miranda, taking up residence together since November 2016.[50]
[48] Ibid at pp. 112 and 184.
[49] Ibid at pp. 1834 and 1836.
[50] Ibid at p. 167.
This leads to the conclusion, in relation to the relevant time period, that the Applicant and his ex-wife Elena lived in the same physical premises between 2006 and September 2011 and in adjacent units from September 2011 through October 2012 and until August 2014.
APPLICANT’S STATEMENTS AS TO MARITAL STATUS
The Applicant was married on 15 November 2003 and his divorce became final on 16 March 2007.
Nevertheless, on 26 June 2009 the Applicant listed his marital status as “married” on a loan application form submitted to St. George Bank.[51] He repeated this status as “married” on a further St. George Bank loan application dated 30 March 2011.[52]
[51] T Documents at p. 373.
[52] Ibid at p. 994.
On his next St. George Bank loan application, dated 13 September 2011, Mr Zablotsky noted his marital status as “divorced”.[53]
[53] Ibid at p. 1029.
In terms of statements to employers, the Applicant did not declare any marital status on documents relevant to his employment with Go Offshore Pty Ltd[54] but on those submitted for employment with Swire Pacific Ship Management (Aust) Pty Ltd he gave his status as (de facto) “partner[ed]”.[55]
[54] Ibid at p. 1107.
[55] Ibid at p. 1099.
The Applicant submitted income tax returns as follows:
(a)2012/2013 – claimed a spousal rebate stating that Elena Zablotsky had been his spouse for the full year from 1 July 2012 to 30 June 2013.[56]
(b)2013/2014 – claimed a spousal rebate stating that Elena Zablotsky had been his spouse for the full year from 1 July 2013 to 30 June 2014.[57]
(c)2014/2015 – he did not claim a spousal rebate but stated that Elena Zablotsky had been his spouse for the full year from 1 July 2014 to 30 June 2015.[58]
[56] Ibid at p. 1857.
[57] Ibid at p. 1862.
[58] Ibid at p. 1867.
The Tribunal does not accept the Applicant’s assertions that the incorrect recording of his marital status on the bank documents was the fault of St. George Bank[59] or resulted from the automatic transfer of information previously held to new documents.
[59] Transcript of hearing on 8 July 2019 at p. 67, lines [22]-[36].
It was and still is the Applicant’s personal responsibility to ensure that documents signed by him were accurate in all material respects.
The Tribunal also notes that the income tax returns submitted by Elena Zablotsky show that she declared Igor Zablotsky to be her spouse for the full year from 1 July 2014 to 30 June 2015[60] and claimed a spousal rebate for the 2015/16 financial year listing Igor Zablotsky as her spouse for the full year from 1 July 2015 to 30 June 2016.[61]
[60] T Documents at pp. 1877 and 1881.
[61] Ibid at p. 1885.
LEGISLATIVE FRAMEWORK: COUPLES
As noted above, the critical issue in these proceedings is the Applicant’s status as either a single person or a member of a couple during the relevant period.
The payment rate of DSP for a person who is a member of a couple is lower than the rate for a person who is single because it takes into account the assumed joint pooling of financial resources available to members of a couple.
Section 1064-A2 of the Act provides that where two people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis. It states:
Members of a couple
1064-A2Where 2 people are members of a couple, they will be treated as pooling their resources (income and assets) and sharing them on a 50/50 basis … They will also be treated as sharing expenses (e.g. for rent) on a 50/50 basis …
This requires that membership of a couple be established by reference to the definition of what constitutes a couple under the Act.
Section 4(2)(b) of the Act provides:
Member of a couple – general
(2) Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
…
(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.
Section 4(2)(b)(iii) is subject to s 4(3) and (3A) of the Act which relevantly provide:
Member of a couple – criteria for forming opinion about relationship
(3) In forming an opinion about the relationship between 2 people for the purposes of … 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, 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 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 or a de facto relationship.
(3A) The Secretary must not form the opinion that the relationship between a person and his or her partner is a de facto relationship if the person is living separately and apart from the partner on a permanent or indefinite basis.
There is also considerable judicial authority providing guidance on what elements or factors are to be taken into account when determining whether or not individuals are members of a couple for the purposes of the Act.
Above all, it is stressed that the decision-maker must have regard to both the totality of the circumstances and the potentially unique character of each or any relationship.
In VBH, the Tribunal stated:
The s 4 (3) criteria does have some subjective components but it is overwhelmingly objective in nature and in construct. Additionally, the opinion formed about the relationship is not that of the parties to it, but the regard the Secretary is to have to its circumstances, including the criteria at (3). The opinion formed will be based on the whole of the circumstances of the relationship, viewed objectively.[62]
[62] VBH and Anor; Secretary, Department of Family and Community Services [2006] AATA 1, [94].
In Sperring, it stated:
… being a member of a couple involves a lot more than sharing a common address. However, all the criteria need not be satisfied. In fact, one may satisfy few of them but still be considered to be a member of a couple. All of the circumstances need to be considered. Each matter is different.[63]
[63] Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050, [70].
In Staunton-Smith, the Federal Court explained that:
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.[64]
… it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.[65]
[64] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, 170.
[65] Ibid 173.
In Lynam, Fitzgerald J drew attention to the variety of situations which may be faced by decision-makers in determining membership of a couple, the inter-relationship of factors and the multiplicity of such factors.
Financial arrangements cannot be taken in isolation and considered of particular importance in determining the nature of relationship. Their materiality, like each of the other elements of the relationship, stems from the impact which they have as part of an overall situation. Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.[66]
[66] Lynam v Director General of Social Security (1983) 52 ALR 128, 131.
This Tribunal has recognised the difficulties inherent in attempting to make subjective assessments about the nature of relationships. In Peck, it stated:
The Tribunal would note at the outset that s.4(3) does not contain an exhaustive list of criteria to be addressed when determining whether a "marriage-like relationship" exists and the weight to be given to each factor will vary depending on the circumstances involved, with the object of identifying the presence or absence of the essential character of a marriage-like relationship. Much will depend, in forming the requisite opinion in any instance, on matters of degree and impression.[67]
[67] Re Katherine Deirdre Peck (Napier) and Secretary, Department of Social Security [1992] AATA 336, [13]. Citations omitted. The term “marriage-like relationship” was introduced in the 1991 Act but deleted by enactment of the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 (Cth).
Questions of whether or not individuals regard themselves as members of a couple are always going to be highly subjective, each person will have their own definition of “coupledom” as it relates to their own lives. The Tribunal has recognised this subjectivity and takes it into account. However, it must primarily be concerned with what the objective facts establish and how those are to be interpreted.
Where objective evidence and subjective interpretation are not ad idem, the Tribunal has stated that:
In these circumstances the Tribunal regards it as appropriate, in analysing the evidence before it for the purpose of forming an opinion about the nature and character of the relationship between the applicant and Mr B – in particular, whether or not they had a “marriage-like relationship” within the meaning of s 4(2)(b)(iii) of the Act – in the relevant period, generally to place greater reliance on the relevant objective or independent evidence when the applicant’s evidence is inconsistent with that evidence, and to accept the applicant’s evidence regarding material matters only where it is corroborated or supported by objective or independent evidence.[68]
[68] Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415, [43].

Of course, mere establishment of some sort of couple status is not in itself sufficient. There must be some evidence of what may be described as couple behaviour. The Act (at s 4(3)) identifies a series of behaviours – financial, emotional, social and sexual – which go to establishing coupledom.
The legislated criteria
Financial aspects of the relationship (section 4(3)(a))
Financial dependency, interdependency or mutual pooling of resources are not the only matters to be taken into account when determining whether a couple relationship exists. They are, however, factors which should be given considerable weight, although they must be considered in terms of the circumstances of each case or situation.[69]
[69] Lambe v Director-General of Social Services (1981) 4 ALD 362, 369.
The Federal Court was more specific when it comes to the concept of “pooling of financial resources” (s 4(3)(a)(ii)) saying: “It plainly involves something more than financial cooperation or separate contributions to different elements of household expense”.[70] The underlying concept is the mingling of resources, the creation of a common pool into which both parties contribute resources and from which expenditures are made which are mutually beneficial to both/ all parties.
[70] Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546, 556.
Nature of the household (section 4(3)(b))
Decision-makers here are somewhat more dependent on subjective evidence from individuals, both members of the potential couple and their immediate families, relatives, friends and others, to describe the nature of the household.
There are certain objective facts such as whether people have been residing in the same place together, whether there is a sharing of household chores/responsibilities and whether there is a degree of mutual and on-going interaction. A household where such activities take place is different from, for example, a large shared house in which each person has their own room and takes care of their own needs without any significant degree of mutual interaction.
Social aspects of the relationship (section 4(3)(c))
This requires consideration of the extent to which two people lead almost entirely separate lives or whether they share a significant amount of time together, socialise together, meet with others as a couple or interact as members of a larger social network or family group.
Evidence of various forms of mutual engagements is important as is the perception of independent witnesses as to the nature of the interpersonal relationship in question.
Sexual relationship (section 4(3)(d))
Unless there is any form of evidence of a sexual relationship between the parties, decision-makers must necessarily be guided by what the parties themselves are prepared to make public and discuss.
The nature of mutual commitment (section 4(3)(e))
This is evidenced by the extent that the parties undertake to provide some form of support, encouragement, care or nurturing to each other. This can be at a very minimalist level, barely speaking but at least making sure the other party is not in danger of harm, through to the most intimate form of caring and concern for every aspect of another party’s life and wellbeing.
In assessing any of these legislated criteria, a decision-maker must necessarily take into account the credibility of persons giving evidence, whether that be the parties themselves or those in a position to speak about them. As the Tribunal said in RFZX:
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.[71]
EVIDENCE BEFORE THE TRIBUNAL
[71] RFZX and Secretary, Department of Education, Employment and Workplace Relations and Anor [2010] AATA 35, [35].
Applicant’s evidence
Igor Zablotsky gave extensive evidence by way of oral submissions, and under examination by the Tribunal and cross-examination by the Respondent on 8 July 2019. His evidence may be summarised under a number of headings as follows.
Characterisation of his relationship with Elena
Igor Zablotsky characterised his relationship with Elena as being more akin to that of a carer than anything else.
So since we divorce in 2016 (sic) after the accident, after the car crash, so it was (indistinct) about the care, and I remember when Linda Kirk she asked me, she said, ‘So how you describe it in one word, what do you think of you?’ And I said carer, that’s what we were doing. So we started - we started as a care.[72]
[72] Transcript of hearing of 8 July 2019 at p. 10, lines [38]-[42].
However, Mr Zablotsky never received any formal carer allowance in relation to Elena. Rather, he appears to have held some power of attorney or right to act on her behalf, as is evidenced by his oral submissions:
Now, indeed, you have told the tribunal that you were an official carer - sorry. I think your words were you were her authorised Centrelink carer?‑‑‑Some - at some times, yes. Authorised, yes, Centrelink carer. I can’t remember what time but there was some point of time when I had to - and then we actually write the authority, and I remember probably a couple of times we did it with Victoria.
Do you remember getting carer allowance or carer payment from Centrelink for being a carer for Ms Zablotsky?‑‑‑No, I never receive anything. There was - - - What do you mean an authorised Centrelink carer?‑‑‑I act on her behalf. There is a form in the Centrelink where you talk to them and when you act on - on - on her behalf (indistinct).
An authorised representative?‑‑‑A representative, yes, that’s right.
So you didn’t mean that you were an authorised carer?‑‑‑Well, you can’t do it (indistinct) I think - I think Victoria was, because I work at that time and I wasn’t - I don’t think I was entitled even for anything. Victoria did, and at the same time, even if you have got two carers caring for the same person, is only one can get the carer payment or allowance.
And your daughter got that, did she?‑‑‑I think she did.[73]
[73] Transcript of hearing on 8 July 2019 at pp. 59, line [38] – 60, line [14].
He described his relationship with Elena as one in which “there was no conventional life”.[74] He asserted that none of his family or friends regarded himself and Elena as a married couple and noted that his sister had in fact never met his wife, even at the time when they were undisputedly married.[75] He drew the attention of the Tribunal to the fact that for long periods of time he was at sea (as a merchant captain). For example, he indicated that he was at sea for 11 of the 12 months of 2010[76] and, at the request of the Tribunal, produced his Blue Book which records all his maritime commitments.
[74] Ibid at p. 47, line [27]-[28].
[75] Ibid at p. 48, line [23].
[76] Ibid at p. 13, line [27].
He denied that there had been anything improper about the details of the couple’s divorce.[77]
[77] Ibid at pp. 61, line [46] – 63, line [3] and 82, lines [43]-[44].
Household and social interactions
Mr Zablotsky agreed that both he and Elena regularly went shopping together and that he always accompanied her to appointments with the doctor.
Two or three times a week on average in 2016 - - -?‑‑‑Yes.
You were taking your - your wife at that stage to her doctors?‑‑‑To her doctors, yes.
Thank you. You acted as an interpreter with the doctors?‑‑‑Interpreter and just helping.
And drove her to the doctors?‑‑‑Yes.
Did you ever accompany her on public transport, a taxi, for example? Was it always in your car?‑‑‑I think so. I - I had a - I had a car.[78]
[78] Transcript of hearing on 8 July 2019 at p. 41, lines [12]-[24].
They shared responsibility for getting Victoria to school[79] and the family regularly went out for coffee. He agreed that during 2008 this pattern of behaviour was “commonplace”.
Mr Zablotsky, I put it to you that in 2008 it was commonplace for you and Ms Zablotsky and Victoria to go out to cafes and restaurants, as Dr Smith describes?‑‑‑Yes, this is - this is why we were not (indistinct). Yes.[80]
[79] Ibid at pp. 39, line [23] and 44, lines [20]-[44].
[80] Ibid at p. 66, lines [44]-[46].
They lived for prolonged periods in the same accommodation. Mr Zablotsky indicated at the hearing that Elena cooked at home occasionally and while she did not do his washing, she did the ironing.
But in 2006, you cooked at home for the family as much as Ms Zablotsky?‑‑‑No, no, no, not as much, but sometimes. As - as - - -
Not as much as Ms Zablotsky?‑‑‑No, no.
So she cooked for the family more than you did?‑‑‑She - she - she would cook - that’s what Victoria would prefer, because she got used to it, of course. She would - - -
And most of the time when Ms Zablotsky did the cooking at home, you attended - - -?‑‑‑I would cook as well.
No. You would eat that meal as well with the family?‑‑‑Yes.
Thank you. All right. You can see I’m getting a family picture here?‑‑‑Yes. Yes.
All right. Who did the washing in 2006?‑‑‑Me.
So did you do it for the family?‑‑‑My washing.
So who did - - -?‑‑‑She has never done my washing, even when we were married.
All right. So she - - -?‑‑‑I was doing one, and she was doing the others.
All right. And she did the washing and ironing for herself, and so you did ‑ ‑ ‑?‑‑‑She doesn’t - she doesn’t iron, really. Or maybe that - she was at that time. Yes, she did, but not - not anymore.[81]
[81] Ibid at p. 46, lines [7]-[35].
However, the Tribunal was also told by the Applicant during oral submissions that he was in litigation against his ex-wife in the NSW Supreme Court where he is attempting to force the sale of their current home in Miranda and she is resistant to that. The Applicant said, moreover, in both his oral testimony and previously in written submissions, that he is seeking to have all such matters finalised in Australia so that he can return to Israel to live.[82]
[82] Applicant’s email to Dr Stephen Thompson dated 2 May 2019 and marked as Exhibit A4 (Exhibit A4).
He stated that, as a couple, they had no mutual friends nor did they ever travel anywhere together other than for local shopping or medical appointments. On the other hand, the Applicant also indicated that his most serious accident, in a car crash (referred to in paragraph 43 above), occurred when they had (as a family) all been returning from a celebratory outing in light of it being Independence Day in America.[83]
[83] Transcript of hearing on 8 July 2019 at p. 38, lines [20]-[22] and [46]-[47].
Financial considerations
The Applicant agreed that at various times the couple had opened joint bank accounts, had taken out mortgages and owned property together, had joint insurance and health insurance arrangements and were joint partners (with Victoria) in a self-managed superannuation fund.[84] Both Elena Zablotsky and Victoria Zablotsky had beneficial interests in the fund.[85]
[84] Ibid at p. 27, lines [45]-[47] (regarding superannuation); pp. 49, line [18] – 51, line [43], pp. 23, line [13] – 25, line [33] (regarding joint bank accounts); p. 26, lines [6]-[7] (regarding health insurance) and p. 69, lines [43]-[46] (regarding joint tenancy).
[85] Ibid at pp. 27, line [44] – 32, line [2].
The Applicant also stated directly, in relation to any prospective debt that:
I can pay this money, I can pay it now, you know, from my credit card, but what I said to Stephen last time it’s not about the money to me, it’s the principle. I will never ever accept something that is not true, and it’s not just true for me as a person of interest, as you can say, but it’s just for everyone around. So to me it’s just a matter of principle. I can pay this money, but that to me legally that means I am actually admitting this, which is - which is not true.[86]
[86] Ibid at p. 10, lines [30]-[36].
Health condition
The Applicant told the Tribunal that he suffered a series of serious accidents, injuries and ill-health, and had been hospitalised 11 times in the last 3 years.[87] There had been a very serious car accident when he was the driver, on 4 July 2006,[88] for which Elena blamed him,[89] and his most recent accident was at sea off Western Australia in November 2015.[90]
[87] Transcript of hearing on 8 July 2019 at p. 12, lines [36]-[37].
[88] Ibid at p. 38, lines [10]-[11].
[89] Ibid at p. 39, line [44].
[90] Ibid at p. 14, lines [36]-[43].
Witnesses’ evidence
The Applicant called four people to give some form of evidence on his behalf, each also supplying some form of written statement to the Tribunal.[91]
[91] Ibid at pp. 83-86 (Dr Alex Pilsky); pp. 87-90 (Igor Ivantsov); pp. 91-95 (Irene Zablotsky); pp. 122-128 (Michael Terterov).
Dr Alex Pilsky
Dr Alex Pilsky[92] is a consultant psychiatrist who has treated both Igor and Elena Zablotsky. The Tribunal was at pains to ensure that his evidence related only to his dealings with the Applicant as a patient as he had no authority to disclose any matters related to Elena. He gave evidence to the effect that he treated the Applicant from 2016 following a workplace injury and that this injury had caused the Applicant to become depressed about future work prospects. He indicated that the Applicant’s health situation is such that he is unable to effectively care for himself let alone anyone else including Elena, and that the level of painkilling opioids which had been prescribed to Mr Zablotsky have led him to lack concentration and has caused a degree of irritability on his part.
[92] T Documents at p. 239.
Ms Irene Zablotsky
Ms Irene Zablotsky,[93] the Applicant’s sister, told the Tribunal that it was “the weirdest thing in the world” that she had never met or spoken to her sister-in-law, Elena. She told the Tribunal that she was aware that the couple’s relationship had broken down quite soon after Elena’s arrival in Australia and provided testimony to the effect that her brother frequently resided with her for periods of days, weeks or months in order to be away from his wife and household. She was of the opinion that Elena was resentful of the fact that Victoria had a better relationship with her stepfather than with herself and that Elena was totally dependent upon the Applicant for any degree of support and assistance. The Respondent, rightly, pointed out that Ms Zablotsky’s evidence was based exclusively on what she had been told by her brother and that she had never been in a position to make an independent evaluation of the domestic situation or relationship between the Applicant and Elena.
[93] Exhibit A1.
Mr Igor Ivantsov
Mr Igor Ivantsov[94] is an engineer who has known and worked with the Applicant for many years. In his written statement Mr Ivantsov remarked that:
They [Igor and Elena] had to live under one roof after they divorced because it was easier to provide care and having the same doctor treating all of them.
…
I frequently asked Igor about his living under one roof with Elena and Victoria. He said, because of his frequent absence at sea and medical circumstances, it was easier to provide care to Elena, raise Victoria and generally to survive.
[94] Statement of Igor Ivantsov dated 7 July 2019 and marked as Exhibit A2 (Exhibit A2).
He had met Elena but after the divorce rarely, if ever, saw her and had no communications with her, saying that she was totally non-responsive to anyone else. He described the Applicant as having “tried to keep the relationship alive” although he has no recollection of Igor and Elena ever having done things together as a couple. Specifically, he stated:
Now, I think you said earlier - and I just want to make sure I understood you correctly - that Mr Zablotsky tried to keep the relationship alive. Is that what you said?---Yes, that’s my perception of that. It was probably back to when (indistinct) started relationships (indistinct) housing commission, that kind of stuff. How many years ago, maybe two, three years ago. That kind of stuff.
In the last 12 years has it been your impression that Mr Zablotsky has tried to keep the relationship alive?---No, not since - she’s tried. He’s tried to keep - care about Elena in the first - I’m not sure what was his goal in (indistinct) but my impression was tried to care about her, because, as I mentioned before[95]
[95] Transcript of hearing on 8 July 2019 at p. 89, lines [35]-[44].
Mr Michael Terterov
Mr Michael Terterov[96] describes himself as the Applicant’s close friend. He describes Mr Zablotsky as a person of great honesty and integrity. He writes that the Applicant has “primarily devoted himself to care for Elena because of daughter Victoria, which he loved dearly and he raised her in Australia”. He goes on to state “[w]hile they circumstantially had to live under one roof, they don’t share co-habitat (sic) and live in separate sections of Igor’s home”. Mr Terterov states that he has never seen Igor and Elena together as a couple but that many people are of the view that Igor is “unbelievable [because he provides] support” to Elena.[97] He does say that on a number of occasions (including very recently) he has driven Elena to the hospital (Prince of Wales Private Hospital) to visit Igor when he has been there for treatment and that he did so at the request of the Applicant himself.[98] On the other hand, he also writes that “Igor would never ever return to any relationship with his ex-wife, because she hates him beyond any common sense or rational understanding”.
Elena Zablotsky’s evidence
[96] Statement of Michael Terterov dated 8 July 2019 and marked as Exhibit A3 (Exhibit A3).
[97] Transcript of hearing on 8 July 2019 at p. 124, lines [24]-[25].
[98] Ibid at pp. 125, lines [39]-[44] – 126, lines [1]-[3].
To this Tribunal
The Respondent submitted, as part of the Supplementary Section 37 Documents (Supplementary T Documents),[99] a some 7 page letter from Elena Zablotsky signed and dated 15 January 2019.
[99] Supplementary T Documents at pp. 1-7.
The Respondent indicated to the Tribunal that it was intending to call Elena Zablotsky as a witness but she failed to present herself having previously indicated that she was intending, and indeed anxious, to do so.
The Tribunal notes that the Respondent is also in dispute with Elena Zablotsky over a similar issue of overpayment of DSP based upon its assessment of her as being a member of a couple. While the AAT1 heard both Igor and Elena’s cases together in March 2018, giving separate decisions on 10 December 2018 (Elena) and 20 December 2018 (Igor), the second-tier reviews of both cases are now being heard separately.
Elena Zablotsky’s letter makes some extraordinarily serious allegations against the Applicant. These include allegations that he forged her signature on the divorce application, that he had defrauded her of certain monies, that he has been physically and emotionally abusive of her, that he is addicted to painkillers, that he has committed various acts of illegality and that he has manifestly taken advantage of her, especially because of her lack of English language skills or familiarity with how to conduct business in Australia.
Given both Elena Zablotsky’s own admissions about her English language skills and the complexity of the language used in the letter, the Tribunal surmises that this letter must have been written for her by some other (unknown) person. Her lack of presence at the Tribunal meant that there was no opportunity for cross-examination of her evidence or any testing of what she has asserted.
To another panel of the Tribunal
This Tribunal was provided, by the Respondent, with the transcript of the hearing at the Tribunal before Senior Member Poljak on 19 July 2019 dealing with the separate appeal of Elena Zablotsky against the reviewable decision of the AAT1 regarding her potential DSP debt. That hearing has been concluded but, as at the time of writing, a decision had not been forthcoming.
However, in that hearing, Elena Zablotsky makes many of the same claims that she made in her letter of 15 January 2019 by affirmation including that of her signature being forged on the divorce application and her actually not wanting to be divorced.[100]
[100] Transcript of hearing in matter 2019/0362 dated 19 July 2019; Further Supplementary T Documents at p. 63.

In this hearing Elena Zablotsky also details what she describes as “domestic violence” by the Applicant and a change in his attitude towards her which started in late 2018 or early 2019. She asserts that they stopped doing such things as going out for coffee together and that he became increasingly aggressive and controlling.[101]
[101] Transcript of hearing in matter 2019/0362 dated 19 July 2019; Further Supplementary T Documents at pp. 64-65.
In answers to Senior Member Poljak, Elena characterises the relationship between herself and Igor as being one where they lived together in the same house but did not live as a married couple and did not have any sexual relationship. She outlined how Igor would drive her to the doctor, have coffee with her and live “on the same territory”.
The following exchange took place:
Senior Member: So do you agree that you were not single and you were a member of a couple during this period of time?
[Ms Zablotsky via an] Interpreter: We had a joint account. We lived on the same territory. And he paid for the medical insurance because my pension was not enough. So there was some financial support or some support from his side, but not the big one …
Senior Member: … what’s the state of your relationship with Igor now? Are you separated or are you still living as you have been?
[Ms Zablotsky via an] Interpreter: So we lived under the same roof but my money – he was using my money but I used his credit card because it was not enough for me to pay for the doctors. So every evening we would go to have a cup of coffee. We had walks together, we would go to meet his friends, so ---
Senior Member: Are you talking now or are you talking over the years since 2007?
[Ms Zablotsky via an] Interpreter: ’17. I’m talking from 2017.
Senior Member: From 2017 you’re still spending time together and going for walks and having coffee?
[Ms Zablotsky via an] Interpreter: Till December 2018.
Senior Member: Okay. So December 2018 was when things changed?
Ms Zablotsky: Yes.[102]
[102] Ibid.
It is clear from the transcript that Elena Zablotsky regarded herself as being part of a couple, although not a “married couple” up until at least December 2018 and indeed accepted that Centrelink was right to assess her as part of a couple for the purposes of social security payments.
In summary, under examination by the Tribunal and cross-examination by the Respondent, Elena Zablotsky told the Tribunal, inter alia, that:
·she did not want a divorce from Igor Zablotsky in 2007 and that it came as a surprise to her that divorce papers had been lodged as she claims that she neither signed nor consented to such a course of action;
·she regarded herself as being a member of a couple from the time of their marriage up until December 2018;
·she disagreed with the proposition stated in divorce papers that she and Igor Zablotsky did not live together as man and wife;
·she agreed that in May 2015 she and Igor Zablotsky were in a de facto relationship.[103]
[103] Transcript of hearing in matter 2019/0362 dated 19 July 2019; Further Supplementary T Documents at pp. 63, 64-65, 73 and 117, respectively.
In relation to whether or not there was a sexual relationship between the couple, Elena attested that “[w]e didn’t have any sexual relationship” which she equates to not living “as a married couple”. However, she also attests that while living at 19/37 Morley Avenue “sometimes we sleep in the same bed”.[104]
[104] Ibid at pp. 63 and 115.
This Tribunal finds some difficulty accepting all of Elena’s evidence at face value. This is the case given both her apparent difficulty in managing the English language and hence being aware of the nature of some of the financial and other transactions in which she was involved, and recognising that there is now bad blood between the parties. To some degree this reinforces the final comments recorded in the evidence of Michael Terterov.
Emma Kamensky’s evidence
The Respondent provided the Tribunal with a statement[105] and a subsequent email[106] from Ms Emma Kamensky who, around 2011, was a Lending Manager at the Maroubra Junction branch of St. George Bank. It was in this capacity that she got to know both Igor and Elena Zablotsky, and became a personal friend of both of them. The three of them went out for coffee together and she visited them at their home.
[105] Further Supplementary T Documents at pp. 50-52.
[106] Ibid at p. 138.
Ms Kamensky’s statement is at times rambling and discursive but she makes it clear that Igor Zablotsky, when seeking a loan to make the purchase of the 19/37 Morley Avenue unit, was seeking to use Elena’s compensation payment as the principal source of funding for the purchase.
Her statement goes into some details about the relationship of Igor and Elena which she characterises as close and loving. It reports that while the couple separated after Elena’s accident they subsequently reconciled, at which stage Igor moved into Elena’s unit. It states that while Igor was in hospital it was common for Elena to bring him cooked meals. However, it reports that sometime around December 2018 there was a significant change in the relationship with Igor becoming depressed, aggressive, abusive and disrespectful both to Elena and to Ms Kamensky – so much so that she became afraid of him. Her statement goes on to indicate that she raised the issue of Igor’s behaviour with Dr Pilsky, who properly declined to discuss the matter with her, and with the Police, although it is not clear when this might have occurred.
Ms Kamensky also gave evidence in the separate proceedings involving Elena Zablotsky’s appeal. She attested that until December 2018 she had always been told that Igor and Elena were married, that they were a loving couple and that Igor spoke to Elena with great affection.[107]
[107] Transcript of hearing in matter 2019/0362 dated 19 July 2019; Further Supplementary T Documents at pp. 100-101, 106 and 107, respectively.
CONSIDERATION OF THE CRITERIA
Each of the five criteria set out in s 4(3) of the Act was considered by the Secretary (via her delegate) in order to allow the Secretary to “form an opinion” about the nature of the Applicant’s relationship and his status as a member of a couple with Elena Zablotsky. The same exercise now has to be undertaken by the Tribunal “standing in the shoes” of the original decision-maker.
However, as the Tribunal warned in Spencer:
It would obviously be unsatisfactory to perform the task of categorising a relationship by reference to a “tick-off list”, with a particular points tally in mind. For in essence, the adumbrated factors are signposts to a goal for which the decision-maker is searching. That goal is the isolation of some exquisite quality in a relationship between two people which distinguishes it from the others built up in the course of their lives.[108]
[108] Re Spencer and Secretary, Department of Social Security (1987) 13 ALD 497, 500.
Financial aspects of the relationship
The legislation requires consideration of several separate issues.
Joint ownership of real estate or major assets and joint liabilities
During the relevant period there is evidence of:
(a)a joint bank account opened on 7 December 2004 – the nature of which the Applicant questions as Elena had not arrived in the country at that time;
(b)an Express Freedom account with St. George Bank opened on 20 June 2007 in Elena’s name to which the Applicant was a signatory;
(c)a joint home loan from St. George Bank taken out on 26 June 2009 with which is associated a joint mortgagor arrangement;
(d)a Visa card account opened on April 2011 in the Applicant’s name but with Elena as a signatory;
(e)on 8 June 2011 both the Applicant and Elena Zablotsky signed a deed of agreement which outlined, in considerable detail, a series of financial arrangements made between them. These include the pooling of resources to purchase property, sole right and title to certain superannuation, and bank accounts, properties and indemnifications between themselves.[109]
(f)a joint account at St. George Bank opened on 16 April 2012 in relation to the establishment of the LIV Superannuation Fund.
[109] Supplementary T Documents at pp. 23-30.
Pooling of financial resources
The Applicant and his ex-wife lived together at two separate addresses (in Woolloomooloo and Maroubra) up until September 2011 and then, until the end of the relevant period, were living in adjacent units in Rosebery. Apart from the joint financial arrangements noted above:
(a)it appears that part of Elena’s compensation payment of March 2009 was put towards the purchase of the Boyce Road unit in 2009,[110] although there is some contradictory evidence about this that was apparently placed before AAT1 by the Applicant.[111] This is similarly reflected in the evidence of Ms Kamensky cited above. However, in the deed of agreement signed by both parties and discussed above, there is a clear statement that “Elena has made a cash contribution towards the purchase of the property [38/108 Boyce Road, Maroubra] in the sum of $450,000”;[112]
(b)on 29 August 2011 and on 11 June 2012 there were several internet withdrawals by the Applicant from one of his bank accounts, which are designated as being in the form of an allowance for Elena;[113]
(c)the AAT1 found that, on the evidence before it, the Applicant had paid for the upkeep expenses of 19/37 Morley Avenue, despite the fact that the property was not owned by him but was owned by Elena;[114]
(d)both the Applicant and Elena lodged tax returns during the relevant period each indicating the other to be their spouse and on occasion obtaining the associated tax benefit of being regarded as a couple;[115]
(e)both parties shared the same email address;[116]
(f)both parties shared a joint Medicare card with each listed at the same address.[117]
[110] Respondent’s SFIC at [101(d)(i)].
[111] T Documents at p. 12.
[112] Supplementary T Documents at p. 23.
[113] T Documents at pp. 698 and 711, listed variously as “Allowance for Lena”, “Scheduled Allowance”, “Allowance for Elena” or “Elena Regular Allowance”.
[114] T Documents at p. 12 [57].
[115] Ibid at pp. 12 and 1799.
[116] Ibid at p. 1799.
[117] T Documents at p. 1799.
Legal obligations owed between the parties
There do not appear to be any such legal obligations in existence.
Sharing of day-to-day household expenses
In his evidence to the Tribunal, the Applicant insisted that he paid for all the regular shopping expenses, but at the same time he indicated that he spent considerable time away from the family home when he was at sea or training facilities. It is to be presumed that during these periods Elena was responsible for the payment of day-to-day expenses for shopping and that she was able to do so on the basis of being the signatory of a number of credit cards or accounts which allowed her to access funds.
On the basis of this evidence, the Tribunal is satisfied that the Applicant and his ex-wife Elena were in a state of financial interdependence, and that there was a mingling of finances throughout the relevant period. While the Applicant may have been in effective control of the couple’s finances they were nevertheless pooled and operated jointly, and there is no doubt that some of Elena’s compensation payment was integrated into these arrangements. As noted above, Elena states that her pension payments were also turned over to Igor on a regular basis.
Nature of the household
This criterion has three elements.
Joint responsibility for children
Throughout his evidence the Applicant has stressed, and the Tribunal accepts, that he has taken primary responsibility for the support and welfare of his step-daughter Victoria. During the relevant period, however, she would have been between 17 and 20 years of age and therefore no longer a minor for a majority of the relevant period. As such, issues of “joint parental responsibility” do not seem particularly relevant.
Furthermore, there is no independent evidence to establish the extent of Elena’s parental activities or contributions. It is also not clear as to whether Victoria was living at home throughout the whole of the relevant period.
Living arrangements
The Applicant’s evidence was to the effect that while he and his ex-wife lived in the same apartment(s) they effectively lived separately. There is no independent verification of the actual living arrangements during the relevant period, prior to the couple residing in the Parraweena Road property, but the Applicant gave a description of the separate bedroom arrangements there.[118] Although the Applicant and his ex-wife may have had separate bedrooms (or sleeping arrangements) it appears that within the properties in which they lived in during the relevant period there would have been sharing of bathroom, kitchen and lounge room facilities. Another aspect of Elena’s evidence is to the effect that occasionally they shared a bed, at least while they were sharing accommodation at 19/37 Morley Avenue, Rosebery.[119] The Tribunal recognises that this is outside the period from July 2009 to October 2012 but falls within the broader period (June 2009 to March 2017) as contended by the Respondent.
[118] Transcript of hearing of 8 July 2019 at p. 17, lines [9]-[26].
[119] Transcript of hearing in matter 2019/0362 dated 19 July 2019; Further Supplementary T Documents at p. 115.
Distribution of housework responsibilities
The Applicant’s evidence was to the effect that both parties undertook some duties in relation to cooking but that he frequently had meals cooked (particularly when hospitalised) by Elena who he described as being a good cook. Apparently she also took care of some of the washing and ironing, although the Applicant insisted that she did not wash his clothes. The Applicant agreed that they did the shopping together and that on some occasions they went out for walks or for coffee.
In terms of assessing this criterion, the court has stated that the test to be applied is a “test that requires consideration of all elements, and in which no one element is a necessary pre-condition”.[120] Taking all the elements together, the Tribunal finds that the Applicant and his ex-wife shared a household as a couple and were not so “separate under one roof” as to qualify as living separately.[121]
[120] Marei v Department of Employment and Workplace Relations [2007] FMCA 458, [75].
[121] In the Marriage of Pavey (1976) 10 ALR 259.
Social aspects of the relationship
This criterion also has three elements.
Persons holding out that they are married or in a de facto relationship
There is considerable evidence that the Applicant has represented himself as being “married” or “de facto (partnered)” after his divorce. In particular, this occurred in relation to claims made to the ATO (for spousal rebate), and in applications for bank loans and to employers. On the other hand, it is clear that the Applicant has represented himself to his friends as being either divorced or single.
The assessment of friends or regular associates
Evidence from the Applicant’s witnesses (including his sister who writes that “[t]hey never posed as a couple anywhere”)[122] make it clear that none of his close associates regarded the Applicant as being other than divorced or single from at least the time they became aware of his divorce. It is not altogether clear, however, when this became the case for some of them and it may not necessarily have been at the time of the actual divorce in 2007.
[122] Exhibit A1.
On the other hand, the evidence of Ms Kamensky suggests otherwise. She speaks of the three of them going out together, and of Igor and Elena undertaking walks, coffee sessions and spending time together. This is also the evidence given by Elena herself.
The Tribunal, however, gives some weight to the statement of the couple’s daughter, Victoria, to the effect that Centrelink was wrong in “assuming that she [Elena] is in a relationship, while (sic) she is not capable of having it all”[123] and that “[h]aving all living and social means separated a long time ago, my parents Elena and Igor have never been seen as a couple by any of my dad Igor’s friends (my mother Elena doesn’t have friends at all) and this status is continuously recorded and legally confirmed not just by our family lawyer, but also by all their medical specialists, including psychiatrists”.[124] It is unfortunate that the documents in which Victoria makes these statements are undated, although the Respondent suggests they were dated sometime in July 2017. Finally, the Tribunal notes the record created by Dr Selwyn Smith on 23 September 2008, who was treating Elena for major depressive episodes, in which he states “Ms Zablotsky stated that she is estranged from her husband who has since separated”.[125]
[123] T Documents at p. 207.
[124] T Documents at p. 209.
[125] Ibid at p. 260.
Joint social activities
The Applicant agreed in response to questions from the Respondent that he and his ex-wife occasionally went for walks or out for coffee together. The Applicant also stated that the motor vehicle accident of 4 July 2006 occurred when he and his (then) wife Elena and daughter were returning from some sort of function or celebration marking American Independence Day. Apart from this there is no evidence of any other form of meaningful or ongoing socialising between the Applicant and his ex-wife during the relevant period.
Consideration of all the elements of this criterion lead the Tribunal to conclude that during the relevant period there was nothing that would indicate that the Applicant and his ex-wife maintained anything other than a minimal degree of a social relationship. Although, the Applicant was not averse to claiming that there was when it suited his interests. However, it cannot be said that there was no social relationship at all.
Sexual Relationship
The Tribunal accepts the Applicant’s evidence to the effect that there was no degree of sexual relationship during the relevant period. The Applicant apparently had been on a number of casual dates after his divorce, and indeed he refers to “my genuine relationship with my current women”.[126]
[126] Exhibit A4.
Nevertheless, in Gordon the Tribunal observed:
The Tribunal accepts the applicant’s evidence that there is no longer a sexual relationship between her and Mr Gordon. That factor is one element indicating the nature of the relationship between two people and must be carefully considered but is not alone conclusive in establishing they are not members of a couple.[127]
[127] Gordon and Secretary, Department of Employment and Workplace Relations [2006] AATA 792, [34].
This reflects an earlier Tribunal comment in Ford where the Tribunal was considering the nature of a particular relationship and how it was organised. It stated that:
The sharing of finances and the nature of the household suggest that those aspects are organised along traditional lines. The fact that there is no sexual relationship is not decisive…[128]
[128] Ford and Secretary, Department of Family and Community Services [2003] AATA 7, [35]. Cited by the Tribunal in Hartley and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 470, [51].
The difficulty of giving a precise definition of what might constitute a marriage-like or de facto relationship was explored at length in Bixby where Federal Magistrate Halligan concluded that:
It is trite law that a marital relationship may subsist even when the spouses are not physically living under the same roof. It is also trite that the existence of a sexual relationship is neither necessary to the existence of a marital relationship, nor alone indicative of such a relationship. The same applies to a de facto relationship.[129]
[129] Bixby v Farraday [2009] FMCAfam 647, [45].
There may be many elements which go to establishing whether or not a couple are cohabiting. For example, in Roberts v Roberts the Supreme Court of Western Australia made it clear that it could find a couple are “living together as if they were husband and wife” without there being any finding of a sexual relationship between them.[130] It cited the comment in Graber to the effect that:
Cohabitation means living together as husband and wife or as if husband and wife. It is not always easy to define, as the numerous cases relating to whether or not parties were cohabiting although remaining under one roof, can instance.[131]
[130] Roberts v Roberts (1977) 3 Fam LN N59.
[131] In the Marriage of Grabar (1976) 2 Fam LR 11,581, [32] per Asche J.
Nature of mutual commitment

Four elements are identified in this criterion, three of which may easily be assessed.
Length of the relationship
In this instance, the Applicant and Elena were married in November 2003 in Russia and spent two weeks together before the Applicant returned to Australia. His wife arrived in September 2005 and in the divorce application (filed January 2007, granted and effective from March 2007) the parties agreed that the relationship had broken down in December 2005. That would imply that there was a marital relationship existing for just over two years but where the parties were actually physically together for less than 4 months.
Expectations of the relationship continuing
There are none expressed by either party.
Perceptions by the parties as to their being in a marriage-like or de facto relationship
Neither party now hold such perceptions, although Elena’s evidence about the way in which their divorce was obtained is highly troubling but this is a matter for resolution elsewhere. Elena Zablotsky’s evidence is to the effect that during the relevant period she regarded herself as still being married or at the very least in a de facto relationship with the Applicant. As noted above there are difficulties in accepting all of her evidence at face value but it is clear enough that her own perception of her marital/de facto status and that of the Applicant himself are at wide variation.
Mutual companionship and emotional support
This is probably the most difficult part of the assessment which the Tribunal needs to consider.
Throughout his oral testimony and in previous correspondence, the Applicant made frequent reference to his role as Elena’s “carer”.[132] He states that she is largely incapable of looking after herself and that he assumes a large proportion of the burden of care for her, assisted by his step-daughter Victoria.
[132] Exhibit A4.
The Applicant provided the Tribunal with a number of letters and reports from a variety of medical practitioners, in particular from Ms Nataliya Meylakh, a psychologist. In a letter which is dated 17 September 2018, written in support of Elena Zablotsky’s application for the DSP, Ms Meylakh writes that “Ms Zablotsky requires direct and constant assistance with daily living, activities as well as supervision”. She states that Ms Zablotsky experiences problems with “preparing food and fulfilling daily needs related to hygiene and cleaning”. Moreover, she “needs assistance with transportation to medical appointments, chemists, shopping, etc … she requires regular assistance to administer her medications due to her cognitive impairments … and further prevention of unsafe behaviours”. Ms Meylakh concludes that Ms Zablotsky “is unable to live independently as she needs regular support from her daughter who is her full-time carer and her ex-husband in order to function properly”.[133]
[133] Exhibit A4.
On 8 June 2011, both the Applicant and Elena signed a formal deed of agreement which dealt with a number of primarily financial and property matters but which included the following statement: “The parties have been cohabiting since their divorce however have not resumed a marital or de-facto relationship”.[134]
[134] Supplementary T Documents at p. 23.
The Respondent submitted to the Tribunal a series of photographs showing Igor and Elena together in various situations both domestically and outside the home environment.[135] Some of these were apparently taken in 2011 or thereabouts. There is one photograph which shows Elena holding hands with Igor who is in a hospital bed. The Applicant identified this as a photograph taken sometime between 2013 and 2015 at Prince of Wales Private Hospital and stated that it was taken by either Victoria or her partner.[136] However, subsequent identification would suggest this as being taken in December 2018 at the Royal Hospital for Women.[137] Another photograph, again of the Applicant in a hospital bed with Elena sitting on the bed and his arm around her, was taken some time in 2017 again at the Prince of Wales Hospital.[138] In relation to Elena’s visits to the hospital the Applicant was asked, “You were glad she visited you?” and he answered, “No”.[139] On the other hand, in his uncontradicted testimony, the Applicant’s close friend Michael Terterov told the Tribunal that he had provided transport for Elena to get to the hospital and that he had done so at the request of the Applicant. Although it is not clear as to which hospital visit this references, in either case, these statements appear to be irreconcilable. Further photographs between March 2014 and December 2018 show the couple together in a series of situations which suggest that they are sharing time together, either on their own or with friends and family.[140]
[135] Further Supplementary T Documents at pp. 33-38.
[136] Ibid at p. 38.
[137] Further Supplementary T Documents at p. 148. Although the photograph is stamped as being taken on 2 December 2018 at the Royal Hospital for Women it is problematic to accept that the Applicant would have been a patient at that particular institution. However, the Tribunal notes that the Royal Hospital for Women is co-located with the Prince of Wales Private Hospital.
[138] Further Supplementary T Documents at p. 146.
[139] Transcript of hearing of 8 July 2019 at p. 82, line [27].
[140] Further Supplementary T Documents at pp. 143-153.
In his written submission Mr Igor Ivantsov says, in relation to the Applicant and his ex-wife, “[t]hey had to live under one roof after they divorced because it was easier to provide care and having the same doctor treating all of them”. Further, “I frequently asked Igor about his living under one roof with Elena and Victoria. He said, because of his frequent absence at sea and medical circumstances, it was easier to provide care to Elena, raise Victoria and generally to survive”.[141]
[141] Exhibit A2.
Michael Terterov in his statement writes that “[a]s a close friend I am well aware of a good care that he always provided for his ex-wife Elena and daughter Victoria over the last 15 years … He primarily devoted himself to care for Elena because of daughter Victoria, which he loved dearly”. He goes on to confirm that the couple “[w]hile they circumstantially had to live under one roof, they don’t share co-habitat (sic) and live in separate sections of Igor’s home”.[142]
[142] Exhibit A3.
The Applicant’s sister writes: “I believe my brother has never regained any relationship with this woman since they divorced except he was honestly providing care to her with their daughter Victoria”.[143]
[143] Exhibit A1.
Were the Applicant remaining under the same roof as his ex-wife solely for the purpose of caring for Victoria it would be easy to follow the conclusion in Gilson that:
The arrangement that Mr and Mrs Gilson entered into was one of mutual convenience, and for the housing and material and emotional welfare of the children. Whilst there was a commitment to the children, there was not a relevant commitment to one another.[144]
[144] Secretary, Department of Employment and Workplace Relations and Gilson [2007] AATA 1361, [55].
In that case the Tribunal found that neither of the parties were a member of a couple for the purposes of a parenting payment. However, in this instance the Applicant’s commitment appears to extend beyond that of mere care for a child.
Evidence provided to the Tribunal by Mr Zablotsky indicated that Victoria left the family home sometime in 2012[145] and so it cannot be assumed that he was discharging any carers responsibilities for her in the domestic environment beyond that date, and in any case by this stage Victoria was an adult and not a minor.
[145] Transcript of hearing on 8 July 2019 at p. 11, lines [39]-[40].
The Tribunal is persuaded that the weight of evidence is to the effect that during the relevant period Elena Zablotsky relied upon Igor Zablotsky for a degree of emotional and physical support, in relation to him helping her out with day-to-day activities, going to the doctors, etc. There was, as between the couple, at least some element of mutual companionship as attested by both the evidence of Ms Kamensky and the (limited) evidence of the photographs tendered.
SUMMARY OF EVIDENCE REGARDING COUPLEDOM
The Tribunal notes the direction of the Courts about making such assessments. An assessment must be based on:
(a)“… the whole of the circumstances of the relationship, viewed objectively.” (VBH)
(b)“All of the circumstances need to be considered.” (Sperring)
(c)“ … the totality of the evidence and other material that is before it.” (Staunton-Smith)
(d)“Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error.” (Lynam).
Considering the various elements of s 4(3) of the Act, in summary:
(a)Financial aspects of relationship: The evidence demonstrates that the Applicant and Elena were involved in numerous joint financial arrangements (insurance policies, health insurance, property ownership, superannuation funds, and joint bank accounts). There was significant pooling of resources.
(b)Nature of the household: There was significant sharing of living arrangements and domestic events such as shopping, washing, cooking and related activities.
(c)Social aspects of the relationship: Although limited, and at times strained, both parties were engaged in a number of joint activities such as going for walks, regularly going for coffee and occasionally attending functions or events.
(d)Sexual relationship: The Tribunal accepts that there was no sexual relationship between the parties.
(e)Nature of mutual commitment: At various stages the Applicant acted as carer for Elena and when the Applicant was in hospital it appeared that she did the same by bringing him cooked meals. There was a degree of mutual interdependence arising from the emotional and physical support given by each to the other during periods of injury or ill-health which they both suffered. Both were committed to the welfare of their daughter. Whatever the exact nature of their relationship, they continued for a prolonged period of time to physically cohabit.
CONCLUSION
It is on the basis of taking all of the elements of s 4(3) of the Act together that the Tribunal has come to form the opinion that, during the relevant period, the relationship between Igor and Elena Zablotsky was a de facto relationship, Therefore, the Applicant was a member of a couple for the purposes of the Act.
CONSEQUENCES OF THAT DECISION
Legislative framework: Debts and recovery
The Act provides a detailed framework for establishing whether a debt is due to the Commonwealth:
1223 Debts arising from lack of qualification, overpayment etc.
(1) Subject to this section, if:
(a) a social security payment is made; and
(b) a person who obtains the benefit of the payment was not entitled for any reason to obtain that benefit;
the amount of the payment is a debt due to the Commonwealth by the person and the debt is taken to arise when the person obtains the benefit of the payment.
…
(1AB) Without limiting by implication the circumstances to which paragraph (1)(b) applies apart from this subsection, a person who obtained the benefit of a social security payment is taken not to have been entitled to obtain the benefit if the payment should not have been made for any one or more of the following reasons:
(a) the payment was made to the person by mistake as a result of a computer error or an administrative error;
(b) the person for whose benefit the payment was intended to be made was not qualified to receive the payment;
(c) the payment was not payable;
(d) the payment was made as a result of a contravention of the social security law, a false statement or a misrepresentation;
(e) the payment was made in purported compliance with a direction or authority given by the person who was entitled to obtain the benefit of the payment but the direction or authority had been revoked or withdrawn before the payment was made;
(f) the payment was intended to be made for the benefit of someone else who died before the payment was made.
This section clearly applies to the Applicant in that he has received DSP payments at the single rate. Given the Tribunal has found that in the period from at least 28 July 2009 to 4 October 2012 Igor Zablotsky was a member of a couple, and therefore was not entitled to be paid DSP at the single rate and should have been paid at the partnered rate, it follows that he has been overpaid DSP and a debt is due to the Commonwealth.
The Tribunal is in no position to make its own calculations of the exact amount of that debt but sees no reason not to adopt the figures established by the ARO in his assessment of 9 November 2017, which properly should be $12,498.16.[146]
[146] T Documents at p. 1795 and see para 28 above.
From that should be deducted the sum of $1,660.35 paid by the Applicant on 30 July 2019. This leaves an outstanding debt of $10,837.81.
SHOULD THE DEBT BE RECOVERED?
There are provisions in the Act which allow the Secretary to exercise a discretion not to enforce the payment of a debt if the Secretary determines that some “special reason” exists for taking that course of action.
“Special reasons” considerations
Section 24(2) of the Act confers a discretion on the Secretary to determine that a person who is in a de facto relationship with another person is to be treated not as a “member of a couple” for s 4(2) purposes, if the Secretary is satisfied that some “special reason” exists in each particular case.
As is so often the case, the term “special reasons” is not legislatively defined, but it appears from the authorities that it “does not require that the case be extremely unusual, uncommon or exceptional”.[147]
[147] Boscolo v Secretary, Department of Social Security [1999] FCA 106, [18].
The legislative scheme distinguishes unpartnered and partnered individuals with separate rates of payment based on the ability of a couple to pool resources and thus achieve economies in their living expenses.[148] Where two people pool their resources and take advantage of this pooling then it is intended that they be treated as a couple for social security payment purposes.[149]
[148] Explanatory Memorandum, Social Security Legislation Amendment Bill (No 4) 1991 (Cth), 17.
[149] Kazmierczak v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] FCA 1084, [39]-[42].
The Secretary has come to the conclusion that because Igor and Elena Zablotsky were able to pool their resources, and actively did so, there is no reason to conclude that special reasons exist for them to be treated as other than members of a couple. The Tribunal has reached the same conclusion in relation to the status of the couple.
Legislative framework: Write-off and waivers
The Act also provides a detailed framework for circumstances in which, if a debt exists, it may be written off or waived by the Secretary. The relevant sections of the Act are:
1236 Secretary may write off debt
(1) Subject to subsection (1A), the Secretary may, on behalf of the Commonwealth, decide to write off a debt, for a stated period or otherwise.
(1A) The Secretary may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor‘s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Commonwealth to take action to recover the debt.
1237A Waiver of debt arising from error
Administrative error
(1) Subject to subsection (1A), the Secretary must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Commonwealth if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt.
(1A) Subsection (1) only applies if:
(a) the debt is not raised within a period of 6 weeks from the first payment that caused the debt; or
(b) if the debt arose because a person has complied with a notification obligation, the debt is not raised within a period of 6 weeks from the end of the notification period;
whichever is the later.
1237AAD Waiver in special circumstances
The Secretary may waive the right to recover all or part of a debt if the Secretary is satisfied that:
(a) the debt did not result wholly or partly from the debtor or another person knowingly:
(i) making a false statement or a false representation; or
(ii) failing or omitting to comply with a provision of this Act, the Administration Act or the 1947 Act; and
(b) there are special circumstances (other than financial hardship alone) that make it desirable to waive; and
(c) it is more appropriate to waive than to write off the debt or part of the debt.
Taking each of these sections in turn:
(a)Section 1236: There is no evidence that the debt is not recoverable at law. Furthermore, as has been noted, the Applicant in his own oral evidence told the Tribunal that he is fully capable of repaying the debt.
(b)Section 1237A: There is no evidence of any administrative error on the part of the Department. Even if there were, it is not evident that such error would be solely attributable to the Commonwealth.
(c)Section 1237AAD: This section has three elements for consideration:
(i)“knowingly making a false statement or representation”: the evidence discloses that the Applicant failed, at material times, to provide information to the Department which was accurate in relation to his financial, residential and relationship status.[150] He had an obligation to provide this information correctly and failed to do so.[151]
(ii)“special circumstances (other than financial hardship)”: this is a broad and ill-defined/undefined concept. However, “special circumstances” means that there are circumstances which take the Applicant’s case “out of the usual”[152] or are different, unusual or exceptional. Although the Applicant has suffered a number of serious medical problems and been involved in several accidents, this alone does not constitute special circumstances and there is no other basis upon which to conclude that the debt in question should be waived under this provision.
(iii)“appropriate to waive than to write off the debt”: there is no evidence to suggest that such a course of action should be followed. Rather, the Tribunal accepts the Respondent’s contention that there is a public interest in the debt being recovered.[153]
[150] See Clifford and June Callaghan and Secretary, Department of Social Security [1996] AATA 413.
[151] Secretary, Department of Family and Community Services and Jonauskas [2001] AATA 72.
[152] Groth v Secretary, Department of Social Security (1995) 40 ALD 541, 545.
[153] Skinner and Secretary, Department of Social Services (Social services second review) [2015] AATA 569, [48]-[49].
There is no reason that the debt should not be recovered.
DECISION
The decision under review is set aside and in substitution it is decided that for the period from 11 June 2009 to 27 March 2017 the Applicant was a member of a couple and that for the period 28 July 2009 to 4 October 2012 he was overpaid the DSP, thereby accruing a debt to the Commonwealth which currently stands at $10,837.81 and which should now be recovered.
SCHEDULE 1: INFORMATION PROVIDED BY APPLICANT TO VARIOUS ORGANISATIONS REGARDING CURRENT RESIDENTIAL ADDRESS

Date information supplied Given to Notified Address Comment Reference

Pre-15.02.07

Centrelink

16/1 Racecourse Pl, Eastlakes

Appears to be address given on original DSP application which was granted on 15.02.17. It is his sister’s address.

Respondent’s SFIC at [13]

26.06.09

St. George Bank

163 Bourke St, Woolloomooloo

Igor and Elena jointly resident. Public housing.

T Documents at pp. 352 & 354

26.06.09

Joint St. George Bank loan –$70,000 – For joint purchase of 38/108 Boyce Rd, Maroubra.

T Documents at p. 349

17.07.09

Igor & Elena registered as joint tenants of 38/108 Boyce Rd, Maroubra.

T Documents at p. 992

21.07.09

Roads & Maritime Services (RMS)

38/108 Boyce Rd, Maroubra

Residential address until 08.09.11.

T Documents at p. 327

30.03.11

St. George Bank

38/108 Boyce Rd, Maroubra

Applicant advises that he has been living there for 26 months.

T Documents at p. 994

30.03.11

Igor obtains home loan from St. George Bank – $480,000 – For Elena to purchase 19/37 Morley Ave, Rosebery.

T Documents at pp. 531 and 994; Respondent’s SFIC at [26]-[29]

20.04.11

Elena purchases 19/37 Morley Ave, Rosebery and is registered as the sole proprietor.

Respondent’s SFIC at [30]

26.08.11

Igor and Elena sell 38/108 Boyce Rd, Maroubra – Sale price $595,000.

Respondent’s SFIC at [31]

08.09.11

RMS

20/37 Morley Ave, Rosebery

Residential address until 08.08.2014.

T Documents at p. 327

13.09.11

Igor obtains loan from St. George Bank – $375,000 – For Igor to purchase 20/37 Morley Ave, Rosebery.

Respondent’s SFIC at [34]

13.09.11

Igor purchases 20/37 Morley Ave, Rosebery and is listed as the sole registered proprietor.

T Documents at p. 1015

08.08.14

RMS

19/37 Morley Ave, Rosebery

Residential address until 06.12.2016.

T Documents at p. 327

26.08.14

Igor sells 20/37 Morley Ave, Rosebery – Sale price $560,000.

T Documents at p. 1779

30.08.14

Citibank

19/37 Morley Ave, Rosebery

This is the recorded address for Elena Zablotsky.

T Documents at p. 1264

11.09.14

St. George Bank

19/37 Morley Ave, Rosebery

Updates previous address of 20/37 Morley Ave, Rosebery.

Respondent’s SFIC at [51]

09.11.14

Go Offshore

19/37 Morley Ave, Rosebery

Applicant stays there from 9 November 2014.

T Documents at p. 1119

11.02.15

Joint off plan purchase – 1/177 Parraweena Rd, Miranda.

T Documents at p. 165

28.05.15

Swire Pacific Ship Management (Aust)

19/37 Morley Ave, Rosebery

T Documents at p. 1099

11.12.15

Elena sells 19/37 Morley Ave, Rosebery – Sale price $625,000 – Money paid to Igor.

T Documents at pp. 112 & 184

11.12.15

Elena leases back 19/37 Morley Ave, Rosebery – Lease till 01/07/16 at $500 per week – Rent paid by Igor.

T Documents at pp. 1834 & 1836

Undated

1/777 Parraweena Rd, Miranda purchase contract

19/37 Morley Ave, Rosebery

T Documents at p. 165

Undated

Office of State Revenue

20/37 Morley Ave, Rosebery

Igor and Elena jointly resident.

T Documents at p. 146

12.09.16

St. George Bank joint loan – $880,000 – To assist with 1/777 Parraweena, Miranda purchase.

T Documents at p. 160

28.11.16

Joint purchase completed – Igor & Elena both move into 1/777 Parraweena, Miranda.

T Documents at p. 167

06.12.16

RMS

1/177 Parraweena Rd, Miranda

Igor and Elena Zablotsky jointly resident.

T Documents at p. 327

25.01.17

Centrelink

1/177 Parraweena Rd, Miranda

Igor Zablotsky indicates that he lives there from 25/01/2017.

T Documents at p. 2025

I certify that the preceding 184 (one hundred and eighty-four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...............................[sgd]...............................
Associate
Dated: 28 February 2020

Date(s) of hearing: 8 July 2019 and 9 January 2020

Applicant: In person

Solicitors for the Respondent: Dr S Thompson, Department of Human Services

Date information supplied	Given to		Notified Address	Comment	Reference
Pre-15.02.07	Centrelink		16/1 Racecourse Pl, Eastlakes	Appears to be address given on original DSP application which was granted on 15.02.17. It is his sister’s address.	Respondent’s SFIC at [13]
26.06.09	St. George Bank		163 Bourke St, Woolloomooloo	Igor and Elena jointly resident. Public housing.	T Documents at pp. 352 & 354
26.06.09	Joint St. George Bank loan –$70,000 – For joint purchase of 38/108 Boyce Rd, Maroubra.				T Documents at p. 349
17.07.09	Igor & Elena registered as joint tenants of 38/108 Boyce Rd, Maroubra.				T Documents at p. 992
21.07.09	Roads & Maritime Services (RMS)		38/108 Boyce Rd, Maroubra	Residential address until 08.09.11.	T Documents at p. 327
30.03.11	St. George Bank		38/108 Boyce Rd, Maroubra	Applicant advises that he has been living there for 26 months.	T Documents at p. 994
30.03.11	Igor obtains home loan from St. George Bank – $480,000 – For Elena to purchase 19/37 Morley Ave, Rosebery.				T Documents at pp. 531 and 994; Respondent’s SFIC at [26]-[29]
20.04.11	Elena purchases 19/37 Morley Ave, Rosebery and is registered as the sole proprietor.				Respondent’s SFIC at [30]
26.08.11	Igor and Elena sell 38/108 Boyce Rd, Maroubra – Sale price $595,000.				Respondent’s SFIC at [31]
08.09.11	RMS		20/37 Morley Ave, Rosebery	Residential address until 08.08.2014.	T Documents at p. 327
13.09.11	Igor obtains loan from St. George Bank – $375,000 – For Igor to purchase 20/37 Morley Ave, Rosebery.				Respondent’s SFIC at [34]
13.09.11	Igor purchases 20/37 Morley Ave, Rosebery and is listed as the sole registered proprietor.				T Documents at p. 1015
08.08.14	RMS		19/37 Morley Ave, Rosebery	Residential address until 06.12.2016.	T Documents at p. 327
26.08.14	Igor sells 20/37 Morley Ave, Rosebery – Sale price $560,000.				T Documents at p. 1779
30.08.14	Citibank		19/37 Morley Ave, Rosebery	This is the recorded address for Elena Zablotsky.	T Documents at p. 1264
11.09.14	St. George Bank		19/37 Morley Ave, Rosebery	Updates previous address of 20/37 Morley Ave, Rosebery.	Respondent’s SFIC at [51]
09.11.14	Go Offshore		19/37 Morley Ave, Rosebery	Applicant stays there from 9 November 2014.	T Documents at p. 1119
11.02.15	Joint off plan purchase – 1/177 Parraweena Rd, Miranda.				T Documents at p. 165
28.05.15	Swire Pacific Ship Management (Aust)		19/37 Morley Ave, Rosebery	T Documents at p. 1099
11.12.15	Elena sells 19/37 Morley Ave, Rosebery – Sale price $625,000 – Money paid to Igor.				T Documents at pp. 112 & 184
11.12.15	Elena leases back 19/37 Morley Ave, Rosebery – Lease till 01/07/16 at $500 per week – Rent paid by Igor.				T Documents at pp. 1834 & 1836
Undated	1/777 Parraweena Rd, Miranda purchase contract		19/37 Morley Ave, Rosebery	T Documents at p. 165
Undated	Office of State Revenue		20/37 Morley Ave, Rosebery	Igor and Elena jointly resident.	T Documents at p. 146
12.09.16	St. George Bank joint loan – $880,000 – To assist with 1/777 Parraweena, Miranda purchase.				T Documents at p. 160
28.11.16	Joint purchase completed – Igor & Elena both move into 1/777 Parraweena, Miranda.				T Documents at p. 167
06.12.16	RMS	1/177 Parraweena Rd, Miranda		Igor and Elena Zablotsky jointly resident.	T Documents at p. 327
25.01.17	Centrelink	1/177 Parraweena Rd, Miranda		Igor Zablotsky indicates that he lives there from 25/01/2017.	T Documents at p. 2025

Date(s) of hearing:	8 July 2019 and 9 January 2020
Applicant:	In person
Solicitors for the Respondent:	Dr S Thompson, Department of Human Services