Bugtor and Secretary, Department of Employment, Education and Workplace Relations
[2008] AATA 241
•28 March 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 241
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1433
GENERAL ADMINISTRATIVE DIVISION ) Re ANNABELLA BUGTOR (MAREI) Applicant
And
SECRETARY, DEPARTMENT OF EMPLOYMENT, EDUCATION AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Ms N Bell, Senior Member Date28 March 2008
Place Sydney
Decision The decision under review is affirmed .................[sgd].............................
Ms N Bell
Senior Member
CATCHWORDS
SOCIAL SECURITY – parenting payment single payments – member of a couple – marriage-like relationship – decision under review is affirmed.
Social Security Act 1991(Cth) – sections. 4 (2)(a) and 4(3)
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
28 March 2008 Ms N Bell, Senior Member 1. Ms Bugtor, who recently changed her name from “Marei”, and Mr Azmi were married in Sudan in about 1992 or 1993. They came to Australia in 1994 and have two sons who were born here – Kerelos Azmi, born on 18 October 1995 and Michail Azmi born on 22 July 1999.
2. Ms Bugtor and Mr Azmi separated in November 2003 and Ms Bugtor commenced to be paid parenting payment at the single rate. This continued until Ms Bugtor moved back to live with Mr Azmi in May 2005 and on 16 June 2005 Centrelink decided she was a member of a couple and commenced to pay her parenting payment at the partnered rate.
3. After internal review by Centrelink, the Social Security Appeals Tribunal affirmed this decision, as did this Tribunal, differently constituted. The Tribunal’s decision was appealed to the Federal Magistrates’ Court and the Court remitted the matter to the Tribunal for reconsideration according to law.
4. Ms Bugtor maintains she is living separately and apart under the same roof with Mr Azmi, having moved back with him only for the sake of her children, and that she is entitled to be paid at the single rate. The Secretary maintains that Ms Bugtor is a member of a couple and the appropriate rate of payment is the partnered rate.
issues
5. The central issue in this application is whether Ms Bugtor and Mr Azmi were in a marriage-like relationship as at 16 June 2005. In particular, section 4(2)(a) of the Social Security Act 1991 poses the question whether Ms Bugtor and Mr Azmi, being legally married, were at that time living separately and apart from each other on a permanent or indefinite basis.
6. Section 4(3) of the Act prescribes a number of secondary issues or factors that must be considered in resolving the central issue. Broadly, they require an inquiry into:
· The financial aspects of the relationship between Ms Bugtor and Mr Azmi;
· The nature of the household;
· The social aspects of the relationship;
· The sexual relationship; and
· The nature of their commitment to each other.
7. Four of these five factors noted in the section, list further and more specific matters to which a decision maker must have regard. It is not an exhaustive list. A decision maker can go further and wider, and must consider the total picture of the relationship that emerges from these factors, and which of them weigh against a marriage like relationship and which weigh in favour of it. Financial cooperation, cohabitation, a sexual relationship, cooperative household arrangements or mutual commitment, occurring alone, do not disclose, solely, a marriage like relationship. (Pelka v Secretary, Department of Family and Community Services[1])
[1] [2006] FCA 735
8. I am also mindful, in this exercise, of the comments made by the Federal Court in Staunton-Smith v Secretary, Department of Social Security[2] in which the Court, after listing a number of matters relevant to the question of whether a married couple are living separately and apart, said the list is not exhaustive nor will each of the subjects fall to be considered in every case; a particular answer to a single subject will rarely, if ever, supply a final solution; and the Tribunal must make its determination only after assessing the totality of the evidence and other material that is before it.
[2] (1991) 32 FCR 164
financial aspects
9. Ms Bugtor and Mr Azmi have few assets, no joint bank accounts and no debts. This has been so for the duration of their marriage.
10. They live in Department of Housing accommodation, a townhouse of which Mr Azmi is lessee. Ms Bugtor’s evidence was that Mr Azmi pays the rent and she meets the other expenses. The evidence given by Mr Azmi in the previous proceedings was that they each pay 50% of the rent. Ms Bugtor said the children ask their father for money when they need it but they also ask her.
11. For a recent trip to the Sudan with her sons, Ms Bugtor said Mr Azmi gave her $1,000 for the boys. Ms Bugtor maintained that she had saved a sum in excess of $5,000 to fund the trip by putting spare cash in a money box. Her evidence on this was vague and did not inspire confidence. In June 2005 he also contributed $500 to the cost of a car for Ms Bugtor together with the $1800 proceeds of an insurance claim in respect of a car in both their names. The car purchased with this money was registered in her name only. She maintained she had received no other money from Mr Azmi.
12. Ms Bugtor and Mr Azmi have no particular legal obligations to each other.
13. There is not much in the way of financial resources between Ms Bugtor and Mr Azmi. While there is some flow of money from Mr Azmi to Ms Bugtor, it is generally directed to the welfare of the children. Even his contribution to the cost of her car, Ms Bugtor said, was for the benefit of the children and to allow her to drive them to school.
nature of the household
14. Ms Bugtor said she and Mr Azmi both care for the children. He helps them with homework on school nights and takes them out on weekends and to Church on Sundays; she takes them to school and cooks, washes and cleans for them. They are both close to the children.
15. Their house has three bedrooms, with Ms Bugtor occupying one, Mr Azmi using another and the children sleeping in the third bedroom. There are two living areas. Ms Bugtor said the boys and their father generally go to bed at about 8.00p.m and she stays up later, alone. She said she spends most of her time with the boys in the kitchen or alone in her room.
16. Mr Azmi eats out and never shares a meal with Ms Bugtor and the boys. Ms Bugtor conceded that this has always been the case. Ms Bugtor does the housework but Mr Azmi said he looks after his own room and does his own washing.
17. I accept that Ms Bugtor and Mr Azmi live distantly and do not share activities or responsibilities in the home. However, I note that Ms Bugtor cleans the house, apart from Mr Azmi’s room, and he has the benefit of this. They both care for the children, but at different times and in different respects.
social aspects
18. Ms Bugtor and Mr Azmi hold themselves out as married to each other. Ms Bugtor said this is because of their religious beliefs and the teachings of the Coptic Church. She said she had confided in two friends about her marriage but fell out with one and the other moved away. When Mr Azmi left the home in 2003, he lived with family members. It follows that they were aware of that separation. However, Ms Bugtor’s evidence was that most people consider them to be married.
19. Ms Bugtor and Mr Azmi do not socialise together but nor do they socialise separately. Ms Bugtor said she goes to her Church a few times per week and that is the extent of her social contact. Her evidence was that they did not socialise together early in their marriage either, but would sometimes go walking together.
20. The evidence of both Ms Bugtor and Mr Azmi was that they do not share space or spend time together at home and rarely speak to each other.
21. I accept that they do not socialise together, but note that they never did, apart from walks together early in their marriage. They now have very little to do with each other but present themselves to the world as married.
sexual relationship
22. I accept there is no sexual relationship between Ms Bugtor and Mr Azmi.
commitment to each other
23. Ms Bugtor and Mr Azmi have been married for some 16 years. Their physical separation lasted from November 2003 to May 2005. Ms Bugtor said, and Mr Azmi corroborated, that when they separated he moved in with his family and she remained with the children in their house. In the course of their separation Mr Azmi obtained another dwelling and when they began to live under the same roof again, Ms Bugtor moved with the children to Mr Azmi’s new address.
24. Ms Bugtor said they separated mainly because of conflict over Mr Azmi’s family in Australia and in particular, his mother. She described her mother in law’s lack of regard for her and her coldness to her children. She said Mr Azmi was too readily influenced by his family, and particularly his mother.
25. Ms Bugtor and Mr Azmi said they commenced to live together again because their youngest son had been very distressed by the absence of his father. He was waking in the night and asking for his father. I note the report of Dr Swid, Ms Bugtor’s General Practitioner, in support of this. I accept this evidence and also the evidence of Ms Bugtor and Mr Azmi that their son’s distress disappeared when Ms Bugtor moved back in with Mr Azmi.
26. Ms Bugtor said she and Mr Azmi do not speak and spend no time together. They do not provide companionship to each other and offer no emotional support to each other. Mr Azmi confirmed this evidence. Their evidence suggests a very distant and cold cohabitation.
27. They both consider that the current arrangement will continue indefinitely. Ms Bugtor confirmed that she understands that she will not be free to pursue any other relationship.
28. Ms Bugtor and Mr Azmi said they attend and see the priest at the Coptic Church, to which they both belong, for private meetings which they characterised as confession. In a letter dated 16 August 2005, Father Hanna of St Antonious and St Paul’s Coptic Orthodox Church said that both Ms Bugtor and Mr Azmi attend marriage counselling with him. Ms Bugtor and Mr Azmi confirmed that they attend meetings with Father Hanna separately and that the meetings are confidential and in the nature of a confession. Ms Bugtor said her meetings with Father Hanna help her to “tolerate the difficulties of life together and also the kids, to care for the kids and the marriage life never free of problems”. (transcript, p.58) She said she continues to go to her meetings with Father Hanna because she is a member of the Church and cannot break her marriage promise. She also confirmed, as did Father Hanna in his letter, that in the Coptic Orthodox Church there is no divorce except on the ground of adultery.
29. Ms Bugtor said she expects her current situation will continue indefinitely even though she has made an application for divorce. She initially applied in 2006 but took no action on it because, she said, she did not understand what she had to do. Recently she has applied again with the help of her solicitor. I note that at the last hearing before the Tribunal she said she will go to the Court and get a divorce if she is unsuccessful before the Tribunal on that occasion. I also note that it was after the Tribunal’s decision was handed down that she applied to the Family Court on the first occasion.
30. When I questioned Ms Bugtor as to why she wanted a divorce she said it was because she wanted to have her freedom even though the Church will not allow her to divorce as a Coptic woman. When I asked her what she will do with her freedom, she said:
“I get really tired and sick and the problems from Centrelink neverending story and he does work and they count that on my behalf even though I do not take money from him. I don’t receive any money from him, but Centrelink, they tell me that, well, you are couples, and I don’t know what do they mean by that.”
31. Later she said:
“Myself, I know, I consider myself a divorced woman.”
32. At one stage in her evidence, Ms Bugtor said, in answer to the question of whether her promise is to stay in the relationship and make it work:
“It may – to make it work, even the husband doesn’t have a sort of schizophrenia – when he have sort of fairness between me and his family.” (Transcript, p. 59)
33. Ms Bugtor confirmed her evidence to the previous Tribunal that in the meetings with Father Hanna “he tries to resolve our problems”.
34. The most troubling issue in this case arises out of the tension between Ms Bugtor’s view of herself as a “divorced woman” on the one hand, and her commitment to the laws of her Church on the other. The first appears to drive the very distant circumstances in which she shares a house with Mr Azmi, and the second has her attending her Priest regularly to maintain the marriage. Mr Azmi is a party to this tension. They both consider that their differences stand in the way of regarding themselves as a married couple but they are both committed to remaining together, married in accordance with the laws and expectations of their Church. These attitudes appear irreconcilable.
35. Ms Bugtor referred to herself as a Coptic woman and was firm in her commitment to her religious beliefs. She said she feels neither married nor single (“like in limbo, not married, not divorced”. Transcript, p. 24), despite her statement above. She appears to be torn between her desire to be independent from a man who has disappointed her and her commitment to her Church’s laws.
36. On the face of it, her application for a divorce shows an intention to remove herself from the marriage, but her evidence before this Tribunal and the earlier Tribunal indicate that she was prompted by her desire to convince Centrelink to regard her as a single woman and pay her accordingly. I consider Ms Bugtor has significantly more regard for the laws of her Church than she does for Australian family law. She appears to be willing to change her legal marital status to obtain the payment she wants so that she can be financially independent of Mr Azmi but she is unwilling to disobey the laws of her Church by denying or ending her marriage to him. Incongruously, she attends what Father Hanna calls “marriage counselling” in order to maintain her marriage, while at the same time she is making application to the Family Court for its dissolution.
37. There is expediency in Ms Bugtor’s domestic arrangements and financial dealings with Mr Azmi, and a cold distance from him personally, but her desire to remain married in the eyes of her Church seems heartfelt. I accept that she is also driven by her desire to provide her children with a home that includes their father. More than once she exclaimed that the fate of her children, if they were deprived of a home with their father, would be disastrous. Mr Azmi appeared to share this view.
conclusion
38. Despite the distant way in which Ms Bugtor and Mr Azmi cohabit, the limited pooling of their meagre financial resources, their lack of physical and other affection and support and their previous physical separation, I am left with the fact of their continued commitment to maintaining their marriage – even though that commitment may be less to each other than it is to their Church and their children. They do not merely live under the same roof. They actively work, through their sessions with Father Hanna, to keep the marriage going. They present themselves to others as married. Indeed, it seems that little has changed, apart from a dwindling of affection and intimacy between them, in the way they live. They never socialised together and Mr Azmi never shared a meal with Ms Bugtor and the children. Ms Bugtor still does the housework in the house they share. She does not care for Mr Azmi, but she looks after their home. They each have a small income. Mr Azmi uses his to pay the rent on the house they share and Ms Bugtor applies hers to the payment of utilities in that house.
39. I have no doubt they have an unhappy existence together and I am sure the commitment they have made to the laws of their Church sometimes causes them great hardship. But that commitment fuels their continued commitment to remaining married.
40. In these circumstances, and after taking into account the evidence of all aspects of their life under the same roof, I must conclude that Ms Bugtor and Mr Azmi are in a marriage-like relationship, albeit a very unhappy and difficult one.
41. It follows that Ms Bugtor is a member of a couple.
decision
42. The decision under review is affirmed.
I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member
Signed: ..............Felicia Daniele........................
AssociateDate/s of Hearing 25/26 & 27 February 2008
Date of Decision 28 March 2008
Counsel for the Applicant Ms Kathy Sant
Solicitor for the Applicant Mr Matthew Hazard
Counsel for the Respondent Mr Geoffrey Johnson
Solicitor for the Respondent Ms Angela Nanson
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