Abdelrahim; Secretary, Department of Social Services and (Social services second review)
[2020] AATA 5140
•18 December 2020
Abdelrahim; Secretary, Department of Social Services and (Social services second review) [2020] AATA 5140 (18 December 2020)
AppID: Abdelrahim; Secretary, Department of Social Services and
MatterType: Social services second review
Division:GENERAL DIVISION
File Number(s): 2019/8107; 2019/8108; 2019/8109, 2019/8110; 2019/8111; 2019/8112; 2019/8113; 2019/8114; 2019/8115; 2019/8116; 2019/8117; 2019/8118
Re:Secretary, Department of Social Services
APPLICANT
AndAmira Abdelrahim
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:18 December 2020
Place:Sydney
The decision under review is set aside and substituted with a finding that the Respondent was not a member of a couple for the period from 19 January 2010 to 10 September 2018 and hence owes no debt to the Commonwealth.
................................[sgd]........................................
Chris Puplick AM, Senior Member
CATCHWORDS
SOCIAL SECURITY – Parenting Payment – Family Tax Benefit – whether Respondent was a member of a couple – legally married – influence of cultural norms – financial aspects of relationship – nature of household – social aspects of relationship – sexual relationship – nature of commitment to each other – whether living separately and apart on a permanent or indefinite basis – decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) s 4
CASES
Bishop and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 531
Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
CWJT v Secretary, Department of Education, Employment and Workplace Relations [2012] AATA 910
Day and Secretary, Department of Education, Employment and Workplace Relations [2009] AATA 415
Lynam v Director-General of Social Security (1983) 52 ALR 128
Mehanna; Secretary, Department of Family and Community Services [2005] AATA 575
Melvin v Secretary, Department of Social Security [2016] FCA 375
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Re Katherine Deirdre Peck (Napier) and Secretary, Department of Social Security [1992] AATA 336
Re Secretary, Department of Social Security and Judith Marshall [1991] AATA 91
Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050
Secretary, Department of Social Security v SRJ [1996] AATA 188
SRH and Secretary, Department of Social Security [1996] AATA 21
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
Thomson v Secretary, Department of Social Services (Social services second review) [2017] AATA 255
VBH and Anor; Secretary, Department of Family and Community Services [2006] AATA 1
William Reid and Secretary, Department of Social Security [1995] AATA 304
Zablotsky and Secretary, Department of Social Services (Social services second review) [2020] AATA 374
REASONS FOR DECISION
Chris Puplick AM, Senior Member
18 December 2020
THE PRIMARY ISSUE
The threshold matter which the Tribunal has to determine is whether or not Mrs Amira Abdelrahim (the Respondent) was a member of a couple (with Mr Omar Hassan) for any part of the period from 19 January 2010 to 10 September 2018 (the relevant period), as defined by the Social Security Act 1991 (Cth) (the Act).
In essence, the Tribunal must answer the question raised by paragraph 4(2)(a) of the Act – were the parties, being legally married to each other, living separately and apart on a permanent or indefinite basis, or not, during the relevant period, or any part thereof?[1]
[1] 23 November 2020 transcript page 6 [36]-[39].
It is the position of the Secretary of the Department of Social Services (the Applicant) that the Respondent was, continuously a member of a couple (so defined) throughout the relevant period and the position of the Respondent is that she was not a member of a couple (so defined) at any time.
Once a determination is made on that question, it may well be that a further determination has to be made as to whether a debt has arisen and, if so, whether it should be recovered.
BACKGROUND: FORMAL FAMILY HISTORY
The Respondent was married to Mr Hassan on 1 April 1999,[2] both of them coming from traditional and conservative Islamic families located in rural Egypt,[3] which is where they were married. The couple are still legally married. The Respondent arrived in Australia in 2001.[4] The Respondent and Mr Hassan have seven children born between 2002 and 2018.
[2] Applicant’s Statement of Facts, Issues and Contentions (SFIC) at [6].
[3] Respondent’s Closing Submissions at [11]-[15].
[4] Tribunal documents at [5].
In December 2006, the Respondent, her husband and their (then) four children moved into a property at ‘17 Yagoona’, which was owned by the NSW Department of Housing.[5] However there is some suggestion that the couple also temporarily separated around this time.[6]
[5] Tribunal documents at [5]; AAT1 decision [8].
[6] 23 November 2020 transcript page 73 [29] to page 74 [6]. 24 November 2020 transcript page 118 [19]-[29].
The Respondent claims that on or about 26 September 2008, she and Mr Hassan separated and that he had left the family home (17 Yagoona) where she and the children remained.[7] Following this separation, the Respondent claimed Centrelink support in the form of the Parenting Payment paid at the single rate (PPS) and Family Tax Benefits (FTB).
[7] Tribunal documents at [1217]-[1218].
In May 2011, Mr Hassan purchased the property at ‘19 Yagoona’.[8] The property is adjacent to the home where the Respondent and her children were residing and is separated from it by a low wire-fence at the front and a higher fence at the rear.[9]
[8] Tribunal documents at [482]. Exact addresses are redacted to protect the privacy of the individuals concerned.
[9] 23 November 2020 transcript page 38 [17]-[31].
In November 2012, the Respondent gave birth to a fifth child. There was some concern on the part of Mr Hassan as to whether or not he was the father of this child, however his paternity was established as a result of DNA testing.[10] It also appears that this child was born as a result of Mr Hassan “forcing” himself upon the unwilling Respondent.[11]
[10] Tribunal documents at [215]-[223] and [526].
[11] Tribunal documents at [565].
In 2015, the Respondent and Mr Hassan attempted a reconciliation and lived together for a period of some three weeks (at 19 Yagoona) and in December 2015, a sixth child was born to the couple.
They travelled together, with their (then) six children to visit families in Egypt from 15 November 2016 to 2 February 2017.[12] It was the evidence of the Respondent that she had paid for the tickets for all the parties and was subsequently reimbursed by Mr Hassan for his expenses[13] and that while in Egypt she and the children had visited her family and Mr Hassan had, separately, visited his.[14] The suggestion by the Applicant that he provided her with “spending money” while in Egypt was refuted in both her testimony[15] and that of Mr Hassan.[16]
[12] The Respondent and her children also visited Egypt in 2010 but were not accompanied by Mr Hassan. 23 November 2020 transcript page 28 [18]-[40].
[13] 23 November 2020 transcript page 90 [12]-[41].
[14] 24 November 2020 transcript page 165 [35]-[44].
[15] 23 November 2020 transcript page 91 [14]-[17].
[16] 24 November 2020 transcript page 149 [30]-[34].
For the sake of completeness, it should be noted that (beyond the relevant period), in 2018, the Respondent states that the property at 17 Yagoona had become unfit for her and the children to continue living there. They sought alternate public accommodation[17] but instead, ended up moving into 19 Yagoona, where Mr Hassan was also residing on 1 October 2018. There had been some sort of reconciliation between the Respondent and Mr Hassan; a seventh child was born (November 2018) and in due course the entire family moved to their current address at ‘55 Yagoona’.
[17] Tribunal documents at [586]-[591]. 23 November 2020 transcript page 21 [4]-[39].
BACKGROUND: SOCIAL SECURITY PAYMENTS
The Respondent has received social security payments under a number of different government programmes. In relation to the relevant period, the quantum which the Applicant is seeking to recover as alleged overpayments is set out as follows:[18]
[18] Adapted from the Applicant’s SFIC.
Total
$296,769.59
Parenting Payment Single (PPS)
$159,536.39 for period 19 January 2010 to 10 September 2018
Pension Education Supplement $4,359.09 for period 7 February 2011 to 6 July 2018 Family Tax Benefit • Total Family Tax Benefit – $14,642.48:
- $6,061.08 for period 1 July 2015 to 30 June 2016
- $8,581.40 for period 1 July 2016 to 30 June 2017Family Tax Benefit (newborn upfront payment)
$523.00 for 22 March 2016 Child Care Benefit • Total Child Care Benefit – $86,528.07:
- $4,143.19 for period 5 July 2010 to 3 July 2011
- $1,432.00 for period 4 July 2011 to 1 July 2012)
- $38,619.44 for period 1 July 2013 to 6 July 2014
- $23,102.50 for period 7 July 2014 to 5 July 2015
- $2,562.06 for period 6 July 2015 to 3 July 2016
- $4,535.08 for period 4 July 2016 to 2 July 2017
- $12,133.80 for period 3 July 2017 to 1 July 2018Child Care Rebate • Total Child Care Rebate – $31,180.56:
- $9,381.48 for period 10 August 2015 to 3 July 2016
- $21,799.08 for period 4 July 2016 to 2 July 2017BACKGROUND: REVIEW OF SOCIAL SECURITY PAYMENTS
The first comprehensive review of the Respondent’s social security entitlements appears to have been prompted by the birth of her fifth child, which took place (November 2012) which was some time after she had advised the Department of her separation from Mr Hassan (September 2008). The Department, in February 2013, determined that her PPS should continue. There was no further review following the birth of her sixth child (December 2015).
The Department (Centrelink) made enquiries about the Respondent’s relationship status vis-à-vis Mr Hassan in July 2017 and this was followed by further investigations and personal interviews in about February 2018 and on 14 August 2018.[19]
[19] Tribunal documents at [5]-[6].
The result of these investigations was that on 19 September 2018, Centrelink determined that the Respondent had been overpaid various social security benefits because she had been paid at a single rather than a partnered rate and Centrelink had determined that during the period from 19 January 2010 until 10 September 2018, the Respondent had been a member of a couple with Mr Hassan. On 28 September 2018, the Respondent’s PPS was suspended and thereafter cancelled.[20]
[20] Tribunal documents at [5]-[6]; AAT1 paragraphs [15]-[17].
This decision was affirmed by an Authorised Review Officer (ARO) of the Department on 7 December 2018 and the Respondent then sought a review by the Social Security and Child Support Division of this Tribunal (AAT1).
The AAT1 gave its decision on 30 October 2019 finding that:
·The Respondent was not a member of a couple from 19 January 2010 until 28 January 2015.
·The Respondent was a member of a couple with Mr Hassan from 29 January 2015 to 10 September 2018.
·On the basis of these findings, the cancellation of the Respondent’s PPS was affirmed as of 28 September 2018 and the remaining debts were to be recalculated by Centrelink and thereafter recovered.[21]
[21] Tribunal documents at [3].
The relevant dates are 19 January 2010 (the commencement of PPS payments); 28 January 2015 (the date Mr Hassan stated he returned to live at 17 Yagoona, having previously left that address after separation from the Respondent in 2006) and 10 September 2018 (the date of the Departmental determination of the Respondent’s entitlements).
On 9 December 2019, the Applicant sought a review of that decision in this Tribunal where the matter was heard on 23 and 24 November 2020. The hearing was conducted on the Microsoft Teams platform with parties appearing remotely and with the assistance of an Arabic (Egyptian) language interpreter.
VARIATION IN SUBMISSION BY APPLICANT
During the course of the proceedings, the Applicant shifted its position in relation to some of the crucial dates which it asks the Tribunal to consider. This was outlined by the Applicant’s representative as follows:
DR THOMPSON: The Secretary has shifted her opinion after hearing the evidence today. It was originally that these parties were a member of a couple from 19 January 2010 through to 10 September 2018. I think after hearing the evidence today that they were not a member of a couple up to 26 May 2011. That date, Senior Member, looms large in this case. That’s when 19 [Yagoona] was purchased, the property next door.[22]
[22] 24 November 2020 transcript page 177 [25]-[30].
The Tribunal takes on board the Applicant’s submission in this respect.
ADDRESS HISTORIES
It is necessary to set out the details of the alleged addresses of each of the Respondent and Mr Hassan during the relevant period, as much turns upon the findings of the Tribunal in this regard.
There appears to be no disagreement that the accommodation arrangements for the Respondent herself (together with her children) was as follows:[23]
·31 July 2007 to 30 September 2018: 17 Yagoona, with a period of some three weeks (unspecified) in 2015 when the Respondent attempted a reconciliation with Mr Hassan and moved into his house at 19 Yagoona for that brief period.[24]
·1 October 2018 to 20 December 2019: 19 Yagoona.
·21 December 2019 to date: 55 Yagoona.
[23] Applicant’s Statement – Address Histories (17 November 2020).
[24] 23 November 2020 transcript page 46 [9]-[13].
There is however, considerable difficulty in determining where Mr Hassan lived at various times.[25]
·Prior to 26 September 2008, he appears to have been residing at 17 Yagoona, although there was evidence from the Respondent of a separation in 2006.
·On 26 September 2008, the Respondent contacted the Liverpool office of Centrelink to advise that the couple had separated, that her partner had moved out of the family home but she was not able to state his then current address.[26]
·Throughout the period from at least August 2008 to July 2017, Mr Hassan listed at least four different addresses on various government-based records including drivers’ licences, children’s birth certificates, taxation returns and passport applications,[27] as well as on documents lodged with various banks[28] and health insurance companies.[29]
·At various times, Mr Hassan appears to have lived at ‘28 Bankstown’ with a friend of his with whom he had a subsequent falling out and at ‘8 Yagoona’ where he resided with his brother until falling out with him.[30]
·As noted, Mr Hassan purchased 19 Yagoona in May 2011 and at various times he resided there and on other occasions the property was rented out.[31] After this purchase, when he was not resident at 19 Yagoona he appears to have resided at ‘33 Liverpool’.
·Obviously, at some time prior to October 2018, he returned to live on a permanent basis at 19 Yagoona where he was eventually joined by the Respondent and her children before they all moved to 55 Yagoona in December 2019.
[25] Applicant’s Statement – Address Histories (17 November 2020).
[26] Tribunal documents at [1217]-[1218].
[27] Details are set out in the AAT1 decision at paragraph 30. Tribunal documents at [8]-[9].
[28] Tribunal documents at [513]-[516]; [520], [528]-[529], [538]-[539]; [658]-[667] and [668]-[675].
[29] Tribunal documents at [652].
[30] 24 November 2020 transcript page 150 [29]-[33].
[31] Between January 2017 and April 2018 and between 22 October 2012 and 31 July 2014, Tribunal documents at [485], Respondent’s SFIC at [7]. 24 November 2020 transcript page 152 [37] to page 153 [10].
The following exchange occurred before the Tribunal when Mr Hassan gave sworn evidence:
SENIOR MEMBER: This is my first question. You remember that you gave a written statement to the tribunal when this matter was first heard back in October. Do you remember that?---I believe yes.
In that written statement you said this - I’m going to read you a paragraph and then I’m going to ask you whether that is absolutely true. The paragraph reads as follows:
Mr Hassan gave a written statement, declaring that from 2008 until 2011 he lived with a friend Hassan Abdelrahim - no relation - at 28… Bankstown. He moved to 19 [Yagoona] after purchasing the property until it was rented out in 2012. He stated that he then lived with his brother at 8 [Yagoona] until the end of 2014. After moving from [8 Yagoona] in early 2015, he moved to 33 Liverpool, until 2018 when he moved back to 19 [Yagoona].
Mr Hassan, is that correct?---Yes sir.[32]
[32] 24 November 2020 transcript page 132 [1]-[16].
It is, in fact, not absolutely necessary to determine Mr Hassan’s place of residence at every moment from 2010 to 2018. What has to be determined is whether or not, for any of the period from 19 January 2010 to 10 September 2018, the Respondent and Mr Hassan cohabited, that is, they shared the same physical accommodation.
It was the affirmed testimony of both the Respondent, her daughter (Eyman) and Mr Hassan that Mr Hassan did not live at 17 Yagoona at any time during the relevant period, while the Respondent resided nowhere else.[33] Ms Eyman Hassan testified to the effect that:
MR RIZK: Thank you. Eyman, between 2010 and September 2018; did your father ever live with you at 17 [Yagoona]?---No, not live.
Did he visit from time to time?---Yes, but very rarely.[34]
[33] 23 November 2020 transcript page 37 [4]-[15].
[34] 24 November 2020 transcript page 163 [33]-[36].
The brief, three-week period of cohabitation at 19 Yagoona in 2015 has been noted. However, “[t]he number of nights that two people spend together under one roof is not determinative of the issue as to whether or not they are in a marriage like relationship”.[35]
[35] Bishop and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 531 at [46].
Mr Hassan’s explanation for the variety of addresses is to the effect that his accommodation arrangements after he separated from the Respondent were “unstable” and he needed a single, stable address to give for his dealings with government departments (such as NSW Roads and Maritime, the Australian Taxation Office etc) and he used 17 Yagoona for that purpose. It was the “only way to get the loan”[36] he applied for by ensuring he appeared to have a stable address. He says that mail was sent there, one of the children contacted him to notify of its arrival and he went there to collect it.[37] His evidence on this matter was as follows:
SENIOR MEMBER: Mr Hassan, let me put it to you this way: we have a document in front of us that records that from the 23 September 2004 until the 29 April 2011 your residential address was 17… Yagoona. Is that a correct record?---Apparently not, but actually at that time I had to put it that way because I was doing lots of things required that I have an address and then address to receive the document for. And address won’t be moved for (indistinct), that’s why. I didn’t know that from the beginning it’s wrong, but that’s as far as my knowledge.
You say that the record that says that between 2004 and 2011, the record showing you living at 17… Yagoona is not correct?---For the RTA - I did put the address myself, because actually I have to do it that way because I have six address to stay on. This is the only place I can make sure that’s safe, like if I’m going to come over there I can receive it or I could come over and take it, (indistinct) to pass it to me, if it’s possible. To be honest at first I have no idea about it. [38]
[36] 24 November 2020 transcript page 140 [29]-[30].
[37] 23 November 2020 transcript page 51 [4]-[9].
[38] 24 November 2020 transcript page 135 [15]-[30].
This was also the gravamen of the testimony of Ms Eyman Hassan.[39]
[39] 24 November 2020 transcript page 167 [29]-[40].
Conclusion on addresses
The Tribunal has weighed very carefully the obviously conflicting evidence as to where Mr Hassan resided throughout the relevant period. It notes the considerable volume of material which suggests that he resided for at least part of that time at 17 Yagoona. This is reflected in numerous documents created by a number of government agencies, each of which appears to have relied on primary information supplied by Mr Hassan himself.
Mr Hassan admits that on some occasions the information he gave to various authorities was untrue.[40] When asked directly, he stated:
So whatever the date of the form is, the information that you lived at 17… Yagoona for the past four years, you’re saying that’s untrue, is it?---No, it is not, but that’s required for the (indistinct) for the loan.[41]
[40] 24 November 2020 transcript page 137 [24]-[28], page 140 [19]-[26], [37]-[39].
[41] 24 November transcript page 140 [37]-[39]. Meaning that his statement to the loan authority was untrue.
Mr Hassan’s evidence is that he did not reside at 17 Yagoona but that he maintained it only as a “secure” place for important correspondence to be sent while he was otherwise experiencing “unstable” accommodation arrangements.
SENIOR MEMBER: Mr Hassan, let me put it to you this way: we have a document in front of us that records that from the 23 September 2004 until the 29 April 2011 your residential address was 17… Yagoona. Is that a correct record?---Apparently not, but actually at that time I had to put it that way because I was doing lots of things required that I have an address and then address to receive the document for. And address won’t be moved for (indistinct), that’s why. I didn’t know that from the beginning it’s wrong, but that’s as far as my knowledge.
You say that the record that says that between 2004 and 2011, the record showing you living at 17… Yagoona is not correct?---For the RTA - I did put the address myself, because actually I have to do it that way because I have six address to stay on. This is the only place I can make sure that’s safe, like if I’m going to come over there I can receive it or I could come over and take it, (indistinct) to pass it to me, if it’s possible. To be honest at first I have no idea about it. [42]
[42] 24 November 2020 transcript page 135 [15]-[30].
Equally, there is the sworn testimony of the Respondent and her eldest daughter to the effect that Mr Hassan never resided at that address after he had left the relationship in September 2008.
The Tribunal finds that during the relevant period Mr Hassan never lived at 17 Yagoona.
A QUESTION OF CULTURE
A vital part of the Respondent’s submission to the Tribunal involves the constraints and expectations placed upon her (and to a lesser extent Mr Hassan) as a result of their personal backgrounds and family upbringing.[43]
[43] 23 November 2020 transcript page 8 [42] to page 9 [5].
The Respondent states that she comes from a very socially conservative family and community in Upper Egypt where women are expected to perform only subordinate roles in the community and where divorce is regarded as shameful and unacceptable.[44] It is for this reason that the Respondent and Mr Hassan have never formally divorced (although this is permitted in Islam) and have concealed from their immediate family and most of their friends (especially those outside Australia) that they are separated, and it is why they maintain a “veneer” of being together at important community/religious festivals and gatherings. Both the Respondent and Mr Hassan agree that were they to be formally divorced, that this would not only bring shame on both families, moreover, it would (within their community) make it harder for them to secure suitable marriages for their daughters.[45]
[44] Ibid page 13 [7]-[38].
[45] 23 November 2020 transcript page 13 [20]-[23]; 24 November 2020 transcript page 150 [6]-[12].
Furthermore, the Respondent maintains that, despite her being separated from Mr Hassan, when they have been physically present together (including brief periods of reconciliation) he has coerced her to have sexual intercourse with him, resulting in several pregnancies and births. Her belief was that she was incapable of resisting such demands and was “culturally” required to submit to them.[46] Mr Hassan admitted as much in his own testimony.[47]
[46] 23 November 2020 transcript page 18 [34] to page 19 [2].
[47] 24 November 2020 transcript page 154 [44]-[46].
While the Australian community might find some of these “cultural norms” to be unacceptable and indeed offensive, the Tribunal recognises that they are real and meaningful for the parties concerned and that the Tribunal should take them into account in its deliberations.
IN THE MATTER OF CWJT
In 2012, the Tribunal heard a matter bearing extraordinarily remarkable similarities to this case. The matter of CWJT v Secretary, Department of Education, Employment and Workplace Relations[48] contained the following elements:
[48] [2012] AATA 910.
[* Cultural background and family pressures:]
[2] The Applicant was born and raised in Australia to parents born and raised in Lebanon. Her application to the Tribunal raised details of the cultural norms brought by her parents and other family members to their life here.
[16] The Applicant said she suffered her parents’ shame and rejection because of her attitude to her marriage. She said it was very uncomfortable.
[26] In early 2004 the Applicant found she was pregnant. She said that after an argument with her husband he left the house. This, she said, was the beginning of an enduring separation. She said she did not tell her family about the separation because she was too frightened by what had happened to her before and expected her parents to be devastated and to do something drastic. Once her brother found out, he put pressure on the Applicant to reconcile with her husband. She said that when the rest of her family finally found out about the separation they yelled and screamed at her and begged her not to bring such shame upon them.
[27] The Applicant said this pressure continued throughout the course of their separation and was the cause of two ill-fated attempts at reconciliation. The Applicant said she made some inquiries about divorce in 2005 and actually obtained the Family Court forms, but she said she did not have the courage to do it. She said she did not know what her family would do. She said that when her brother finally heard she was thinking about divorce, he and her male cousin came to her house and beat her. She said she was scared for her life. She said she knew if she ran away that lots of people would come looking for her. She said that at around this time she heard that her husband had moved to her mother’s house. Her husband’s father was her mother’s brother. The Applicant and the Applicant’s husband were cousins. The Applicant said she felt she could not be at her mother’s house.
[28] The Applicant’s evidence about her family’s attitude to her separation and their cultural approach to divorce was corroborated by her mother who said that in her culture divorced women are looked down on. She said her daughter should not have brought such shame on the family and that their community looks down on the family because of what the Applicant has done. She said she and her husband have been together for 37 years and have had many fights but she has never left him. The implication was that the Applicant should have done the same.
[89] I consider that the brief attempts made by them to reconcile were made under intense family and cultural pressure — on both parties to the marriage — and do not indicate a commitment to each other.
[* Becoming pregnant after separation / Paternity denials / Occasional visits / Sexual demands]
[51] In January 2004 she found she was pregnant. She said it was a surprise to her because she had let her former husband into the bedroom on just one occasion in the recent past. She said she found out because she had a blood test to measure her iron levels. She said she had bled through the early part of the pregnancy.
[52] The Applicant said her former husband did not believe the baby was his. She said they had a big fight and he walked out, returning one or two weeks later to collect some things and leave again. She said she was glad. She said she did not ask him where he was sleeping and did not know. He came back to visit his child but did not speak to the Applicant. The Applicant said she did not tell her family because she feared what they might do. She said her former husband also told no-one.
[53] The Applicant said that after the first month her former husband would occasionally stay a night either on the couch or in her child’s room. His purpose was to see his child.
[68] She said that one night he forced himself on her. Her former husband corroborated this. She said it only happened once and thereafter she locked her door. She said, and her former husband confirmed, that he stayed for just two to three weeks and after she told him again that she wanted a divorce, that she would not run away and take the children and that she just wanted to be left alone, he left for the last time. Her third child, from this isolated union, she said, was born in 2007.
[80] Two children were born to the Applicant and her former husband during their separation. The first is said to have been conceived just prior to their separation in January 2004 and the second as a result of the Applicant’s former husband forcing himself on her during a period of reconciliation in 2006.
[81] Theirs is, and can be, the only evidence available on this matter and their evidence is consistent.
[84] The Applicant’s former husband gave evidence that he and the Applicant had sex during their marriage far less frequently than he thought appropriate — just once or twice a month. He said she would often rebuff him. He said that because they had sex so infrequently he thought the baby she told him about in January 2004 could not be his. He said he could not remember whether they had sex in 2004 and was definite that they did not have sex in 2005. He admitted to having forced himself on her on one occasion in 2006.
[* Use of the family address]
[72] Much was made of the Applicant having advised the Registry of Births Deaths and Marriages that the children’s father’s address was the original family home. The Applicant said she was concerned about her child feeling shame or embarrassment about the child’s parentage. In relation to hospital admission forms that show her former husband’s details as “next of kin”, the Applicant said she does not recall telling the hospital reception anything about her former husband. She surmised that they must have obtained the details from other records. I am mindful that at the time the forms were completed the Applicant was in labour and likely to have been concerned with other matters.
[74] I consider the evidence of separation in January 2004 with two brief attempts at reconciliation in 2005 and 2006 consistent and compelling. I consider that inconsistencies in documents, including the provision of address details of the Applicant’s former husband, are explainable in the way proffered by the Applicant and her former husband. I find accordingly.
[* Foreign travel – together and apart / Payment for tickets / Presentation as couple]
[76] In 2009 the Applicant and her former husband travelled together to Lebanon. I note that the Applicant had made this trip alone, with her children, in 2005. She said she had planned to make the trip in 2009 on her own with her children as well but that when she consulted a travel agent he told her she must get her former husband’s permission to take the children out of Australia. She said she spoke to her former husband and he attended the agent’s office with her. He bought a ticket as well. The Applicant’s former husband said he was worried the Applicant wanted to take his children away from him. There was disagreement between the Applicant and her former husband as to who had paid for the children’s tickets, but they agreed that each of the adults had paid for his or her own ticket. Their evidence was consistent that, once in Lebanon, they had gone their separate ways with the children moving between them for distinct periods. They did not see each other there even though they travelled there and back together. They each spent time with their respective immediate families.
[77] Apart for the initial period of their separation, the Applicant and her former husband did not present as a couple. There is no evidence of them having done so thereafter, even on their trip to Lebanon in 2009.
[78] The evidence of the Applicant’s friend, the social worker and her colleague was of an assessment that the Applicant and her former husband were separated.
[* Primary commitment to children not each other]
[87] They each appear, in their own ways, to be committed to their children, although the Applicant’s former husband’s commitment to his second child remains unclear.
[88] Commitment to children held in common does not amount to commitment to each other. The evidence is that there has been and is now no companionship, affection, care or support between the Applicant and her former husband except for an occasional arrangement for the borrowing and repayment of money and the necessary arrangements for maintaining the house in which the children live with the Applicant.
[* Conclusion on balance]
[101] I am not deterred from this conclusion by the documents that show the former husband’s persistence in availing himself of the convenience of the Applicant’s postal address, and the Applicant’s having noted her address as his when she applied for birth certificates for her children. Nor do I consider that an effectively forced joint refinancing of their mortgage is illustrative of a marriage like relationship. Similarly, the birth of a child after non-consensual sex is not an indication of a marriage like relationship. Other minor discrepancies in surrounding documentation are to be expected over the course of six years.
EVIDENCE BEFORE THE TRIBUNAL
The Respondent gave extensive evidence before the Tribunal which does not need to be summarised here but is referred to extensively throughout these reasons.
Evidence was also given by Mr Omar Hassan and by the couple’s eldest daughter Ms Eyman Hassan. The former appeared by telephone and the latter by videoconference. The Tribunal has not summarised their evidence separately but refers to it extensively throughout these reasons.
Membership of a Couple
“Coupledom” for these purposes is defined in the Act. Subsection 4(2) sets out the definition of “member of a couple” for the purposes of the income and assets tests in the Act. Paragraph 4(2)(a) is relevant to the Respondent because she was, and still is, legally married to Mr Hassan during the relevant period. Paragraph 4(2)(a) states:
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:
(a) the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; …
The Act then goes on to state that the decision-maker is to have regard to all the circumstances of the relationship including, in particular, those factors specified in subsection 4(3). Subsection 4(3) provides as follows:
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 paragraph (2)(a), subparagraph (2)(aa)(ii) or subparagraph (2)(b)(iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(a) the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets and any joint liabilities; and
(ii) any significant pooling of financial resources especially in relation to major financial commitments; and
(iii) any legal obligations owed by one person in respect of the other person; and
(iv) the basis of any sharing of day-to-day household expenses;
(b) the nature of the household, including:
(i) any joint responsibility for providing care or support of children; and
(ii) the living arrangements of the people; and
(iii) the basis on which responsibility for housework is distributed;
(c) the social aspects of the relationship, including:
(i) whether the people hold themselves out as married to, 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.
As I set out in Zablotsky,[49] there is 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.
[49] Zablotsky and Secretary, Department of Social Services (Social services second review) [2020] AATA 374.
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, if 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.[50]
[50] VBH and Anor; Secretary, Department of Family and Community Services [2006] AATA 1, [94].
In Sperring, the Tribunal 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.[51]
[51] 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.[52]
… 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.[53]
[52] Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164, 170.
[53] 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.[54]
[54] 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.[55]
[55] 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.
In a passing nod to Tolstoy, the Tribunal has also recognised that:
Application of the criteria will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in s4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.[56]
[56] Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789, [16].
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.[57]
[57] 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 subsection 4(3)) identifies a series of behaviours – financial, emotional, social and sexual – which go to establishing coupledom.
Where two people are legally married, as is the case in this instance, regard must be had to the specific wording of paragraph 4(2)(a) of the Act which establishes coupledom where:
the person is legally married to another person and is not, in the Secretary’s opinion … living separately and apart from the other person on a permanent or indefinite basis
It is in forming this opinion that the criteria of subsection 4(3) are to be considered.
4(3)(a) Financial aspects of the relationship
Applicant’s position: The Applicant concedes that at no stage during the period from 19 January 2010 to 28 September 2018 did the Respondent and Mr Hassan maintain any joint bank or savings accounts. It also agrees that Mr Hassan’s purchase of 19 Yagoona was done in his sole name.
On the other hand, it points to evidence that there was “pooling”[58] of resources to the extent that Mr Hassan paid certain items such as utility bills, health insurance premiums and expenses related to the children. The extent of support for the children is difficult to ascertain as the Respondent denies that he made any significant contribution to their expenses[59] although Mr Hassan attests to making some purchases for them.[60] Mr Hassan told the Tribunal that the Respondent paid most of the school expenses for the children.[61] In addition, he made regular payments which related to the Respondent’s rental responsibilities. There was also some pooling of resources involved in paying for the costs of the family trip to Egypt.[62]
[58] Pelka v Secretary, Department of Family and Community Services [2006] FCA 735, [52].
[59] 23 November 2020 transcript page 91 [5]-[18].
[60] 24 November 2020 transcript page 146 [46] to page 147 [2].
[61] 24 November 2020 transcript page 147 [15]-[19].
[62] Applicant’s SFIC at [103]-[107]. Tribunal documents at [577]-[578] and [1146].
There appears to have been one large financial transaction in or around February 2017 when Mr Hassan lent the Respondent approximately $14,000 to assist her with the purchase of a motor vehicle as she needed one to accommodate transport for herself and the seven children.[63] It was her evidence that she was in the process of repaying him but could not remember how much had been repaid and had no records of repayment.[64]
[63] 24 November 2020 transcript page 133 [33]-[39]; page 151 [30]-[34].
[64] 23 November 2020 transcript page 96 [32] to page 97 [46].
Finally, the Tribunal notes the Respondent’s evidence that although Mr Hassan is the owner of 19 Yagoona, she nevertheless paid rent when she lived there and at present, she pays the rent on the 55 Yagoona accommodation.[65]
[65] Ibid page 101 [14]-[37].
Respondent’s position: The Respondent does not contest that these financial arrangements were in place but emphasises that they should be characterised primarily as constituting support for the children rather any sense of commitment by Mr Hassan to the Respondent.[66]
[66] Respondent’s SFIC at [3]-[6].
Finding: Although there were no joint bank accounts or common property arrangements in the relevant period, nor were there any mutual legal obligations, there was clearly a general pooling of resources and a degree of sharing of household expenses. Overall, an ongoing financial relationship persisted through the period between the Respondent and Mr Hassan.
In addition to the matters described above, there was some form of child support paid via the Child Support Agency.[67] To the extent this was explored in the hearing, it appears that there was some sort of “informal” agreement between the parties that Mr Hassan should make child support payments[68] and there is some evidence that he made taxation rebate claims in this respect.[69] However, such payment appears sporadic, not properly recorded and contested between the parties. The Tribunal cannot come to any safe conclusions about the extent to which support was provided to the Respondent by Mr Hassan as part of any formal arrangement under the supervision of the Child Support Agency, but notes the continuing financial transactions which are indicative of payments by Mr Hassan to the Respondent.
[67] Tribunal documents at [225]. 24 November 2020 transcript page 132 [39-45].
[68] 24 November 2020 transcript page 132 [22-45].
[69] Tribunal documents at [1190], [1198], [1202], [1206], [1210]. 24 November transcript page 156.
4(3)(b) Nature of the household
Applicant’s position: The Applicant maintains that Mr Hassan clearly lived at 17 Yagoona with the Respondent and the children prior to their separation in September 2008. However, it goes on to assert that Mr Hassan continued to use the 17 Yagoona address as his nominated principal place of residence long after that date. Furthermore, it asserts that it was Mr Hassan’s regular practice to “stay over” at that address regardless of wherever else he might have been temporarily resident. It notes extensive evidence of Mr Hassan sharing responsibility for the welfare and support of their children.[70]
[70] Applicant’s SFIC at [110]-[135].
Respondent’s position: The Respondent relies primarily on its assertions that after the separation in September 2008, the Respondent and Mr Hassan lived apart[71] and, as such, did not maintain a “household”.
[71] Respondent’s SFIC at [7].
Finding: The Tribunal has already stated its conclusions in relation to the matter of where each of the parties was resident during the relevant period. It does not find that, after September 2008 there was any physical “household” shared by the parties in the sense of cohabiting together or sharing domestic or household chores. The Tribunal accepts that there was a continuing degree of support by Mr Hassan for the children, although his access to them was not upon any formal or regular basis. The Tribunal notes that the authorities cited by the Applicant in support of the proposition that care for the children somehow is sufficient to establish the existence of a “household” is compromised by the fact that in each of those authorities there was evidence of the mutual sharing of accommodation.[72] The Tribunal finds that until the parties resumed cohabitation at 19 Yagoona in October 2018, there had not existed any “household” arrangement between them since September 2008.
[72] Applicant’s SFIC at [133]-[135].
To the extent to which a “household” for these purposes encompasses the children who live there, the Tribunal notes Mr Hassan’s evidence that:
DR THOMPSON: Were you welcome to visit at 17… Yagoona from 2010 to 2018 to see the children whenever you wanted to?---MR HASSAN: Not when I wanted to.
So you had to make arrangements with Mrs Abdelrahim to do that?---I used to call my daughter, not her, to be honest.
So you did the arrangements through your daughter, Ivana, did you?---Aman, not Ivana - Aman.
So you made the arrangements through your daughter?---Yes.
(Indistinct) - - -?---(Indistinct) her how to communicate with Amira.
Were you always able to make those arrangements to come over to visit whenever you wanted to between - - -?---(Indistinct) - - -
Sorry?---Not always, no. Not always, no.
Was it most of the time you were able to make those arrangements?---Not most of the time either.
So most of the time, your approach through your daughter was rejected, was it, to come over and visit?---Sometimes they answer; sometimes they didn’t answer.
What, answer the phone you mean?---Yes, sometimes they answer the phone, and sometimes they send messages, they didn’t answer, and they’re just, like, I just cooled (?) down, I said that’s it. Whenever they answered, they answered not to put too much pressure on them, because the kids would start feeling what’s going on and it’s no good for them.[73]
[73] 24 November 2020 transcript page 148 [1]-[31].
4(3)(c) Social aspects of the relationship
Applicant’s position: The Applicant stresses that the Respondent and Mr Hassan continued to present themselves and socialised as a family unit on a continuing basis; they concealed from friends and family any suggestion that they were separated and they took a family holiday together to Egypt. Moreover, in matters such as taking out joint family health insurance, applying for bank loans, reporting to employers or registering the birth of some of their children, Mr Hassan at least (and the Respondent in relation to the health insurance[74] and passport matters[75]) clearly presented themselves as members of a married couple.[76]
[74] 23 November 2020 transcript page 81 [21]-[44].
[75] Tribunal documents at [571]: Respondent stated: “By law he is still my husband. Just for documents.”
[76] Applicant’s SFIC at [136]-[138].
Respondent’s position: It is at this point where the Respondent draws to the attention of the Tribunal the raft of cultural facts/norms which should be considered to account for the behaviour of the parties. In her detailed Statement of 14 October 2019,[77] the Respondent sets out the reasons why she (and to a lesser degree Mr Hassan) maintained the fiction of a married relationship, especially in representations to their families. It was the testimony of Ms Eyman Hassan that the Respondent and Mr Hassan never “went out together without the kids being present.”[78]
[77] Tribunal documents at [1144]-[1148].
[78] 24 November 2020 transcript page 165 [31]-[33].
Finding: The Tribunal accepts the explanations given by the Respondent for the way in which she and Mr Hassan either promoted, or at least allowed, a continuing perception of their status as a married couple. It was for legitimate (in their eyes) culturally-based reasons and in this respect mirrors the Tribunal discussion and findings in CWJT. It is more readily understandable that the Respondent concealed her marital problems from her family in Egypt, although the explanation that her brother-in-law and his wife in Australia were similarly unaware is more problematic,[79] however given some support by Mr Hassan’s own testimony on this point.[80]
[79] 23 November 2020 transcript page 94 [33] to page 95 [27].
[80] 24 November 2020 transcript page 150 [29]-[34].
Ms Eyman Hassan indicated that, as the eldest child in the family, she had attempted on occasions to effect a reconciliation between her parents – however her efforts had been without success.[81] In terms of the relationship between her parents she said: “It was not improving, it was getting worse.”[82]
[81] 24 November 2020 transcript page 164 [19]-[38]. Page 168 [33]-[35]. Page 171 [26]-[31].
[82] 24 November 2020 transcript page 172 [30].
On the other hand, there is evidence to the effect that the details of the Respondent’s separation was known to authorities such as the children’s school[83] where such cultural sensitivities would have been of less relevance and the status of the children’s parents of more relevance.
[83] Tribunal documents at [566].
The Respondent cannot be held accountable for Mr Hassan’s representations to banks and employers and has given a rational explanation in relation to the joint health insurance account – it saved money.[84] The social presentation of the relationship between the Respondent and Mr Hassan was, after September 2008, a confected one and in no way evidence of their status as a couple within the contemplated meaning of the Act.
[84] 23 November 2020 transcript page 80 [30]-[36].
4(3)(d) Sexual aspects of the relationship
Applicant’s position: The Applicant notes that three of the couple’s children were conceived or born during the relevant period (November 2012, December 2015 and November 2018). It accepts that the child born in November 2012 may have been the result of an isolated – and possibly forced[85] – sexual encounter and notes that Mr Hassan initially disputed the paternity of this child, although it somewhat impugns his motives for so doing. The Applicant agrees with the general conclusions reached by the AAT1 in its examination of this matter[86], namely that the explanation of three children resulting from “isolated incidents of intimacy” is “inherently implausible.”[87] The AAT1 found that the Respondent and Mr Hassan “had resumed … a regular sexual relationship in 2015” and, noting Mr Hassan’s admitted adulterous behaviour, found their relationship to be “not inconsistent with a marriage-like relationship.”[88]
[85] 24 November 2020 transcript page 129 [16]-[45].
[86] Applicant’s SFIC at [139]-[141].
[87] Tribunal documents at [17]. AAT 1 decision paragraph [96].
[88] Tribunal documents at [17]. AAT 1 decision paragraphs [100]-[101].
Respondent’s position: The Respondent does not deny the existence of a continuing pattern of sexual contact between the parties, and while the Respondent has made claims about being “forced” to have sexual intercourse resulting in the birth of the child born in November 2012, no such claims have been made in relation to the two subsequent children, one of whom was conceived during a brief period of reconciliation in 2015. The Respondent asserts: “Although we are separated, I do not deny we had occasional sexual encounters however, our relationship remained separated and Omar would often leave our house after these encounters took place.”[89] Mr Hassan used much the same terminology – “so I left the house” – after various encounters.[90]
[89] Applicant’s Statement at Tribunal Documents [1148] paragraph [45].
[90] 24 November 2020 transcript page 154 [46].
Mr Hassan’s testimony was to the following effect:
SENIOR MEMBER: Mr Hassa[n], what Dr Thompson is saying to you is, in relation to those three children, you had sexual intercourse with your wife on at least three occasions. Did she agree to have sexual intercourse with you on each of those occasions?---She was refusing, to be honest, for a couple of them, but I’ve tried to reconcile. I was going good with her, and happened after that again, I was being like fighting again, so I left the house, and I did something (indistinct) after this, because it was big issues - and I don’t want to go through this one, please. I did the DNA test to check my kids, to be honest. I shouldn’t say that, but I’m going to say it. I did it with my son.[91]
[91] 24 November 2020 transcript page 154 [41] to page 155 [2].
Finding: In submissions to the Tribunal, the Respondent sought to distinguish a series of “encounters” from the existence of a “relationship”. The Tribunal faces almost insuperable difficulties in making a determination about such aspects of intimate personal behaviour. In Mehanna[92] the Tribunal stated:
30. There has clearly been sexual intimacy between Mr and Mrs Mehanna since their initial separation in 1995. Their evidence was that this occurred during the three periods of attempted reconciliation and during which their last three children were conceived. They each denied a sexual relationship beyond those times.
31. I have no option but to accept that evidence. Predictably, there is no other evidence available and, despite the remarkable reliability with which Mrs Mehanna conceived during each period of attempted reconciliation, there is no evidence before the Tribunal to support any other finding.[92] Mehanna; Secretary, Department of Family and Community Services [2005] AATA 575.
In Reid, the Tribunal found that even where a separated couple had regular sexual intercourse about once a fortnight, the relationship “could hardly be characterised as being of a loving or caring nature”[93] to the extent of being evidence of a marital-like relationship.
[93] William Reid and Secretary, Department of Social Security [1995] AATA 304, [43].
In Marshall, the Tribunal considered a “spasmodic” sexual relationship between the parties which was not “of a loving or permanent nature” and concluded that “[t]he whole of the surrounding circumstances must be looked at in depth in order that a judgment can be as to whether or not in fact there was existing at the relevant time a marriage like relationship”[94] of which sexual activity was a constituent part.
[94] Re Secretary, Department of Social Security and Judith Marshall [1991] AATA 91, [17]-[18].
In SRH, the Tribunal drew the sort of distinction the Respondent urges when it held that: “[t]he Tribunal makes a distinction between a sexual relationship and an emotional commitment, and finds that the birth of their son can be interpreted, without further evidence, as merely indicative of a sexual relationship, which the Applicant admitted.”[95]
[95] SRH and Secretary, Department of Social Security [1996] AATA 21, [103].
The nature of the relationship between the Respondent and Mr Hassan in terms of their sexual encounters was just that – encounters. This characterisation was discussed by the Tribunal at some length in Thomson:[96]
56. The Respondent submits that there is contradictory evidence on this issue. Although both Ms Dolma and Mr Thomson admit to sharing the same bed during the debt period Ms Dolma denies a sexual relationship while Mr Thomson admitted to the AAT1 to having a sexual relationship every so often. Mr Thomson’s evidence at the hearing was that he and Ms Dolma had sexual encounters a few times but that it was not a sexual relationship.
57. I accept a distinction between what Mr Thomson described as sexual encounters and a sexual relationship. The Macquarie Dictionary relevantly defines relationship as “3. An emotional connection between people, sometimes involving sexual relations”. As part of the definition of relation the Macquarie Dictionary relevantly includes “have relations, to have sexual intercourse”.
58. The evidence of both Mr Thomson and Ms Dolma is that occasionally they have sexual intercourse when they feel a need to do so. However neither party gives evidence of an emotional connection in relation to their episodes of sexual intercourse. I am satisfied that the evidence of both Ms Dolma and Mr Thomson is of occasional sexual intercourse but not of a sexual relationship between them. I accept Mr Thomson’s description of sexual encounters best describes their situation.
[96] Thomson v Secretary, Department of Social Services (Social services second review) [2017] AATA 255.
The Tribunal finds that there clearly was some degree of a sexual relationship between the Respondent and Mr Hassan and that in relation to the basic nature of that relationship it was consensual, even within the confines of the culturally-laden aspects with which the Respondent seeks to burden it. That relationship was not one which could be properly described as “ongoing” in the sense that such a description implies a degree of continuity. It was rather, a series of opportunistic sexual encounters, none of which presupposed or were predicated on the basis that there would be further such encounters. However, that relationship (however characterised) is not, of itself, sufficient to establish anything more than what it was – opportunistic encounters - which were not indicative of, or establishing a marriage-like or coupledom relationship.
4(3)(e): Nature of commitment to each other
Applicant’s position: The Applicant maintains that the Respondent and Mr Hassan remained mutually committed to each other throughout the relevant period, citing such matters as the failure of the parties to seek a divorce; the concerns of the Respondent not to proceed with an AVO against Mr Hassan for fear he would lose his job[97]; the establishment of joint trustee bank accounts for some of the children; the listing of each other as next-of-kin on hospital admission forms; their attendance at functions together; Mr Hassan’s occasional staying-over at the Respondent’s home and other indications of mutual commitment.[98]
[97] The evidence re the AVO is limited and the Tribunal notes that the Applicant characterises it as “a bare allegation” 24 November 2020 transcript page 182 [45].
[98] Applicant’s SFIC at [142]-[152].
Respondent’s position: The Respondent prefers to characterise the relationship as existing primarily to “co-parent the children” and that their resumption of cohabitation was “due to the financial pressure on the respondent as a result of the decision of Centrelink.” The Respondent asserts that she does not actually wish to live in close proximity with Mr Hassan, that they provide no emotional support to each other and she does not regard herself as a member of a couple.[99]
[99] Respondent’s SFIC at [14]-[17]; Tribunal documents at [1148].
Finding: The first matter that may be disposed of is the suggestion that anything should be taken from the fact that the parties have not sought a divorce. The (cultural) reasons for that have already been discussed, accepted and need no further comment.[100] Similarly, the presentation together at events is equally to be understood.
[100] 23 November 2020 transcript page 85 [39]-[46].
The Respondent and Mr Hassan have been together in some form of relationship or other for approximately 20 years and have produced seven children between them. There is a great deal of history in this relationship.
Even prior to 2008, there is evidence that Mr Hassan was not a good provider for his family, leaving them without food or assistance,[101] and the AAT1 noted episodes of domestic violence in this period.[102] The Respondent gave evidence to this effect before this Tribunal.[103] Mr Hassan appears to have played a very limited role in the early life of any of his children.[104]
[101] 23 November 2020 transcript page 15 [8]-[9].
[102] Tribunal documents at [9], AAT decision paragraph [31]. 23 November 2020 transcript page 18 [30]-[45].
[103] 23 November 2020 transcript page 19 [11]-[13]; page 100 [1]-[3]. 24 November 2020 transcript page 128 [32]-[47].
[104] 23 November 2020 transcript page 24 [25]-[29].
What there appears to be little of is emotional commitment and mutual support of the concept of companionship. Mr Hassan has not been faithful to the marriage and the Respondent has been somewhat unforgiving in this regard. Mr Hassan has accused his wife of adultery and questioned his paternity of one of the children.[105] The Respondent’s daughter states that her “earliest memory of my Dad was him arguing and shouting abuse at my mother” and as a small child she remembers that “my Mum and Dad would shout and fight with each other on a regular basis.”[106]
[105] Tribunal documents at [1145} paragraph [20].
[106] Tribunal documents at [1149].
The Respondent gave numerous examples of signing forms or documents, either prepared by or arranged by Mr Hassan, where she had no idea what she was signing and had never had the contents explained to her.[107] Nor did she think it was her position to ask.[108]
[107] 24 November 2020 transcript page 159 [29]-[31].
[108] 23 November 2020 transcript page 57 [25]-[41]; page 58 [18]-[39]; page 61 [21]-[23]; page 65 [41]-[47]; page 67 [46] to page 68 [2]; page 69 [43].
Although the parties are currently cohabiting, the Respondent presses the point that this is the result of current financial necessity and she has attempted to find alternative public housing accommodation, without immediate success. She states: “I have no intention on returning to a relationship with Omar.” The Tribunal accepts that this is not indicative of a relationship likely to continue indefinitely. In this respect, the Tribunal notes that the Federal Court has enjoined decision-makers when considering this very question to take into account the “mental element supporting the existence of a marriage-like relationship”[109] which in this case, from the Respondent’s point of view, denies any such relationship existing.
[109] Melvin v Secretary, Department of Social Security [2016] FCA 375, [84].
The relationship is marriage-like only to the extent that it is like a large number of other unhappy marriages.
CONCLUSIONS
The relevant period, for the purposes of this case is, as noted, from 19 January 2010 to 10 September 2018. The critical dates in this narrative are:
·2001 – arrival of the Respondent in Australia after marriage in Egypt in 1999.
·December 2006 – Respondent, Mr Hassan and children move into 17 Yagoona.
·26 September 2008 – Respondent notification to Centrelink that she and Mr Hassan had separated.
·19 January 2010 – date of first payment of PPS to the Respondent.
·May 2011 – Mr Hassan purchases 19 Yagoona.
·26 May 2011 – date Respondent states the relationship of the parties recommenced (see paragraph 21 supra)
·28 January 2015 – date it is alleged Mr Hassan returned to living at 17 Yagoona.
·10 September 2018 – last payment to Respondent followed by notifications to her that the Department considered her a member of a couple resulting in the suspension of her PPS on 28 September 2018.
The Tribunal has found (above) that during the relevant period, with the exception of a three-week reconciliation period in 2015 and time spent overseas in 2010 and 2016/2017, the Respondent resided permanently at 17 Yagoona.
The Tribunal has also found that, during the relevant period, Mr Hassan did not live on a permanent basis at 17 Yagoona, although he may have spent the occasional night sleeping there.
The evidence before the Tribunal satisfies it that during the relevant period the Respondent and Mr Hassan were not cohabiting (other than for the three-week period). They did not provide mutual support to each other and the extent to which they were involved in any joint activities it was for the sake of appearance and to protect their children. They maintained the pretence of a relationship for primarily cultural reasons. They did not pool their funds although they shared some expenses, again, primarily related to the welfare of the children. They had a number of sexual encounters but not an on-going sexual relationship. They did not regard each other as their partners and there is no evidence of any demonstrations of affectionate behaviour between them.
The Respondent and Mr Hassan were, at all relevant times, living separately and apart on a permanent or indefinite basis. They lived physically separately and apart and during the relevant period this was a permanent arrangement, despite one brief period of attempted reconciliation, some formal appearances at community events, one overseas trip (partly together) and a limited number of acts of sexual intercourse. These occasional interactions do not establish coupledom or detract from the permanent quality of their separation during that period. As the Tribunal observed in SRJ, taking into account “the overall context of the circumstances of the particular couple”, even saying that reconciliation was possible, “is not consistent with the concept of their living separate and apart on a permanent basis”.[110]
[110] Secretary, Department of Social Security v SRJ [1996] AATA 188, [76].
The Tribunal is satisfied that, taking into consideration the totality of the Respondent’s situation, in relation to the criteria which are set out in subsection 4(3) of the Act, it cannot be safely concluded that the Respondent was a member of a couple (as defined in the Act) for any part of the relevant period.
It follows that the decision of the Delegate to cancel the Respondent’s payments on 29 September 2018 was wrong and should not have been made.
It also follows that the Respondent does not have a debt to the Commonwealth and hence there is no need for the Tribunal to consider any matters arising under sections 1236 or 1237AAD of the Act.
DECISION
The decision under review is set aside and substituted with a finding that the Respondent was not a member of a couple for the period from 19 January 2010 to 10 September 2018 and hence owes no debt to the Commonwealth.
I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............................[sgd].........................................
Associate
Dated: 18 December 2020
Dates of hearing: 23 and 24 November 2020 Counsel for the Applicant: Mr A Rizk Solicitors for the Applicant: Mr W Sadek, Darby Jones Lawyers Solicitors for the Respondent: Dr S Thompson, Services Australia
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