Cadman, M.E. v Volker, D., Secretary to the Department of Social Security
[1993] FCA 881
•3 Dec 1993
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I U D G E S ' C H A M B E R S
C A ) ) AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G 17 of 1992 DISTRICT REGISTRY
) )
GENERAL DIVISION 1
ON APPEAL FROM THE GENERAL ADMINISTRATIVE
v
BETWEEN: MARGARET ELIZABETH CADMAN
Applicant
AND: DEREK VOLKER, Secretary to the
Department of Social Security
Respondent
MINUTE OF ORDER
JUDGE MAKING ORDER : Neaves J.
FEDERPL COURT OF
DATE OF ORDER 3 December 1993 AUSTRALIA PRINCIPAL REGISTRY WHERE MADE Canberra THE COURT ORDERS THAT:
1. The decision of the Adm~nistrative Appeals Tribunal given on 15 April 1992 be set aside.
2. The matter be remitted to the Administrative Appeals Tribunal for determination in accordance with law.
3. The respondent pay the applicant's costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) AUSTRALIAN CAPITAL TERRITORY )
NO. ACT G 17 of 1992
DISTRICT REGISTRY 1 GENERAL DIVISION
ON APPEAL FROM THE GENERAL ADMINISTRATIVE
DIVISION OF THE ADMINISTRATIVE APPEALS TRIBUNAL
BETWEEN: MARGARET ELIZABETH CADMAN
Applicant
AND: DEREK VOLKER, Secretary to the
Department of Social Security
Respondent
CORAM: Neaves J.
DATE: 3 December 1993
REASONS FOR JUDGMENT
Margaret Elizabeth Cadman ( "the applicant" ) has
applied to the Court by way of appeal pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) from the dec~sion of the Administratlve Appeals Trlbunal given in a
proceeding in which the Secretary to the Department of Social Security ("the respondent") was the applicant and the present applicant was the respondent. The proceeding before the Administrative Appeals Tribunal was by way of review of the decision of the Social Security Appeals Tribunal upon the review of the decision of a delegate of the respondent described by the Social Security Appeals Tribunal as a ,
decision "to raise and recover an overpayment of widow's pension and sole parent's pension for the period from 8 March 1984 to 27 April 1989" amounting to $42,604.40. The Administrative Appeals Tribunal set aside the decision of the
Social Security Appeals Tribunal and subst~tuted a decision -
"(a) that during the period from 8 March 1984 to 27 April
1989 inclusive, the respondent was not entitled to
widow's pension or sole parent's pension pursuant to
the 1947 Act;
(b) that pursuant to Section 1223 of the 1991 Act the respondent owes to the Commonwealth the sum of $42,604.40 being the amount of wldow's pension and
sole parent's pension paid to the respondent during
the period 8 March 1984 to 27 April 1989 inclusive;(c) that pursuant to Section 1237 of the 1991 Act the sum of $42,604.40 be recovered from the respondent; (d) that the matter be remitted to the applicant with the direction that recovery action be taken in accordance with the terms of this decision."
The references to "the respondent" are references to the applicant in the present proceeding. The reference to "the
1947 Act" is a reference to the Social Security Act 1947
(Cth). The reference to "the 1991 Act" is a reference to the Social Security Act 1991 (Cth). The decision that the
pension during the specified period was based on a finding by applicant was not entitled to widow's pension or sole parent's the Tribunal that, durlng that per~od, the applicant was
living in a de facto relationship with a Mr Mark Pearce.Pursuant to Part V of the Social Services Act 1947 (Cth), the applicant was granted a widow's pension as a class A widow from 10 April 1980. Payment of the pension continued until 1 March 1989 from wh~ch date the provisions of the Act providing for the payment of widows' penslons were repealed by s.11 of the Social Securlty Legislation Amendment Act 1988 (Cth) (Act No.133 of 1988). By that Act, a new Part V was ~nserted in the Principal Act (the short tltle of which had, by that time, become the Social Securlty Act 1947). The new Part V provided for the payment of sole parent's pension. Subsection 4(3) of the Social Security Legislation Amendment Act 1988 Act, which subsection also commenced on 1 March 1989, provided, inter alia, that a person who, immediately before 1 March 1989, was in receipt of a widow's penslon as a class A widow under Part V of the Soclal Security Act 1947 as then in force was to be taken to have been granted, with effect from 1 March 1989, a sole parent's pension under Part V of the Social Security Act 1947 as amended by the Soc~al Security Legislation Amendment Act 1988. The applicant was paid sole parent's pension from 1 March 1989 until 27 April 1989 when the pension was cancelled.
Some further reference to the statutory provisions in force at relevant times during the perlod from 10 April
1980 to 27 Apr~l 1989 should be made. At the time the widow's pension was granted, s.60 of the Social Services Act 1947 provided, inter alia, that, subject to the Act, a widow who had "the custody, care and control of one or more children" was qualified to receive a widow's penslon if she was residing in, and was physically present in, Austral~a on the date on
which she lodged her claim for the pension. Subsection 60(3) provided that, for the purposes of S. 60, the event by which a
a .
woman became a widow, in the case of a deserted wife, was to be taken to be her desertion by her husband. The expression "widow" was defined in subs .59(1) to lnclude a deserted wife but not to include a woman who was "living wlth a man as his wife on a bona fide domestic basls although not legally married to him" (see Social Services Act (No.3) 1975 (Cth) (Act No.110 of 1975), s.7). It appears that a widow's pension was granted to the applicant on the basls that she was a deserted wife who had the custody, care and control of a child.
Subsection 60(1) was amended, with effect from 5 September 1985, so that the subsection relevantly referred not to a widow who had "the custody, care and control of one or more children" but to a wldow who had "a dependent child or dependent children" (see the Social Security and Repatriation Legislation Amendment Act 1985 (Cth) (Act No.95 of 1985), s.120 and Sch.4).
As from 2 July 1987, ss.59 and 60 were renumbered as
ss.43 and 44 respectively (see the Social Security Amendment
Act 1987 (Cth) (Act No.77 of 1987), s.50).
After the relevant provisions came into force on 1 March 1989, one of the crlteria that had to be satisfied before a person became qualified to receive sole parent's pension was that the person was "a single person" (s.44). That expression was defined in subs.43(1) to Include a person
"who was not a married person". The expression "married person" was defined in subs.3(1) to include a de facto spouse, that expression being defined in the same subsection to mean a person who was living with another person of the opposite sex as the spouse of that other person on a bond fide domestic basis although not legally married to that other person. By virtue of the operation of subs.4(3) of the Social Security Legislation Amendment Act 1988, to whlch reference has already been made, it was not necessary, before payment was made to the applicant of sole parent's pension, for any decision to be made that she was qualified to receive that pension under the above provisions.
After the matter had been determined by the Social Security Appeals Tribunal and before it came before the Administrative Appeals Tribunal, the Social Security Act 1947 was repealed and the Social Security Act 1991 came into operation. However it is accepted by the parties - and in my opinion correctly - that the question whether the applicant
was entitled to receive the amounts totalling $42,604.40 is to be determined by reference to the provisions of the Social Security Act 1947 that were in force during the periods in respect of which the amounts were paid.
At the end of par.38 of the reasons for its decision, the Administrative Appeals Tribunal ("the Tribunal") expressed its conclusion in the following terms:
"In view of the foregoing we find that during the relevant period the [applicant] and Mr [Pearce] were living together in a marriage-like relationship."
Earlier in that paragraph, however, the Trlbunal had expressed itself somewhat differently. It said:
"While it is clear that Mr [Pearce] pursued his own interests during the relevant period we are, however, satisfied that the weight of evidence before us does not support the formation of an opinion that the [applicant] was not living in a marriage-like relationship with him (Sections 3A and 43A(6))."
It is clear that the reference to s.3A and subs.43A(6) is a reference to those provisions of the Social Security Act 1947.
It will be necessary to conslder further what the Tribunal there said but, before doing so, it is convenient to set out what appears in par.38 of the Tribunal's reasons immediately following the reference to s.3A and subs.43A(6) and before the statement of the Tribunal's conclusion and to refer to other parts of those reasons. Immediately after the
reference to S . 3A and subs .43A(6) and before the statement of the Tribunal's conclusion, the Trlbunal said:
"In arriving at this conclusion we are satisfied that, notwithstanding a considerable number of evasive answers given by Mr M.P. to critical questions posed during the course of his examination, the following situation applied:
The respondent dld not form any casual or ongoing relationships with other persons after she met M r M.P. While the position with Mr M.P. is less clear the balance of evidence indicates that the
relationship between the respondent and him was
exclusive.There is no dispute that there was an ongoing sexual relationship between the respondent and Mr M.P. from 1983 to 1989.
A household existed during the relevant period which included the respondent and Mr M.P. who shared a bedroom throughout. While the evidence was that Mr M.P. took little interest in the children, including his own daughter, there is nevertheless evidence that they were effectively a family unit with the respondent doing virtually all of the housework including cooking.
While there is little evidence of family outings there is, however, evldence that the respondent and Mr M.P. did on occasion hold themselves out as married to each other.
While the evidence was that Mr M.P. would occasionally leave the household for a period without warning, he nevertheless always returned. No doubt this created a degree of uncertainty in the mind of the respondent, however we are of the opinion that on balance the relationship should properly be regarded as permanent."
The references to "the respondent" are references to the present applicant. The references to Mr M.P. are references to Mr Mark Pearce.
Earlier in its reasons, the Tribunal referred to ss.3A and 43A of the Social Securlty Act 1947 and set out the text of s.3A and subs.43A(6). The Tribunal (pars.29-35) made certain findings of fact which it said were not in dispute. There followed par.36 in which the Tribunal discussed the material before it "in respect of the circumstances of the relationship" between the applicant and Mr Pearce. The Tribunal said that, in doing so, it would pay particular regard to the matters listed in s.3A of the Act. The material was then discussed under varlous headlngs and sub-headings which mirror the matters set out in that section. The general headings were -
(a) the financial aspects of the relat~onship;
(b) the nature of the household;
(c) the social aspects of the relationship;(d) any sexual relationship between the parties; and
(e) the nature of the people's commitment to each other.
The principal submission put on behalf of the applicant was that, in applying s.3A and subs.43A(6), the Tribunal erred in law.
It is common ground that ss.3A and 43A of the Social Security Act 1947 were not in force at the time the relevant payments of widow's pension and sole parent's pension were made to the applicant. Those sections were inserted into the Principal Act by ss.25 and 28 respectively of the Social
Security and Veterans' Affairs Legislation Amendment Act (No.3) 1989 (Cth) and came into operation on 1 January 1990. By that Act, the definition of "de facto spouse" in s.3(1) of the Principal Act was omitted and a new definition substituted, the new definition also comlng lnto operation on 1 January 1990. The new definition read as follows:
"'de facto spouse' means a person who is living with a person of the opposite sex, to whom he or she is not legally married, in a relationship that, in the opinion of the Secretary formed as mentioned in section 3A, is a marriage-like relationship".
Section 3A provided that, in forming an opinion about the relationship between two people for the purposes, inter alia, of the definition of "de facto spouse" in s.3(1), the Secretary was to have regard to all the circumstances of the relationship including, in particular, the matters set out in the section. I have already referred to the general nature of those matters.
Section 43A provided that, in certain circumstances, a person claiming or receiving sole parent's pension was obliged to provide information about her domestic circumstances. Subsections (1) and (2) set out the situations in which the section was to apply. Subsection 43A(6) provided:
" (6) Where this section applies, the Secretary must not form the opinion that the pensioner or claimant is not living with the other person in a marriage-like relationship unless, having regard to all of the matters specified in the paragraphs of section 3A, the weight of evidence supports the formation of an opinion that the pensioner or claimant is not living in a marriage-like relationship with the other
person. "
It may also be noted that the Tribunal expressed its reasoning and its conclusion in terms of a marriage-like relationship, that is to say, in the language of the more recent provisions rather than in the language of the
provisions in force at the time the amounts of widow's pension and sole parent's pension were paid. Under those provisions, the question was whether the applicant "was living with a man as his wife on a bona fide domestic basis although not legally married to him". In fairness to the Tribunal, however, it must be said that the primary decision-maker, the Department of Social Security and the Social Security Appeals Tribunal all expressed the question for determination in terms of a "marriage-like relationship". In this regard, reference might be made to Re Secretary, Department of Social Security and Villani (1990) 20 ALD 49.
So far as the Tribunal's references to s.3A are concerned, there can be no doubt that each of the matters to which that section refers was a matter relevant to be taken into consideration in determining whether the applicant was, during the relevant period, "living with a man as his wife on a bona fide domestic basis although not legally married to him". The circumstance that the Tribunal referred to s.3A,
rather than to the general law (see Lambe v Director-General of Social Services (1981) 38 ALR 405 at pp.412-3) as the source of the requirement that it take those matters into account does not, in my opinion, disclose an error of a kind warranting the intervention of thls Court.
The Tribunal's references to subs.43A(6), however, raise a more serious issue. Clearly, if the Tribunal approached the task before it on the basis that it was not to
form the opinion that the applicant was not, during the relevant period, living with Mr Pearce as hls wife on a bond
fide domestic basis although not legally marrred to him unless the weight of evidence before it supported the formation of that opinion, the Tribunal fell into error. The question is whether the Trlbunal did approach the matter in that way.
Although the Tribunal gave detailed consideration to the material before it, it is not entirely clear what approach it took in determining the question posed for its consideration. But for the words "[iln view of the foregoing" which introduce the finding set out in the last sentence of par. 38 of its reasons, the proper conclusion may well be that the Tribunal had reached a positlve finding on the material before it that the applicant was, at the relevant time, living with Mr Pearce on a bond fide domestic basis although not legally married to him. However, as the Tribunal prefaced its finding with those words and had lard considerable emphasis on the provisions of subs.43A(6) in that and earlier paragraphs
of its reasons, I have, albeit somewhat reluctantly, reached the conclusion that the Tribunal did not make its finding unassisted by the provisions of subs.43A(6). That being so, the applicant is entitled to have the decision set aside and the matter remitted to the Tribunal for determination according to law.
Other grounds were relred upon by the applicant in support of the contention that the decision of the Tribunal that the applicant was not, durlng the relevant period, entitled to receive widow's pension or sole parent's pension. It will suffice for present purposes to say that I am not persuaded that the Tribunal erred in any of the respects relied upon by the applicant.
Having determined that the amounts that were paid to the applicant during the relevant period by way of widow's pension or sole parent's pension should not have been paid, the Tribunal further determined that there was, in consequence, a debt due by the applicant to the Commonwealth pursuant to s.246 of the Social Security Act 1947 and that that debt was recoverable pursuant to ss.1222A and 1223 of the Social Security Act 1991. The Tribunal then turned its attention to the question whether the debt should be recovered or whether its recovery should be walved either in whole or in part.
The Tribunal proceeded on the basls that that issue was to be decided by the application of the provisions of the
Social Security Act 1991, an approach the correctness of which
was not challenged before the Court. The Trlbunal set out the text of s.1237. Relevantly for present purposes that section provides that the Secretary to the Department of Social Security may, on behalf of the Commonwealth, decide to waive the Commonwealth's right to recover from a person the whole or part of a debt (subs.(l)) but that, in exercising that power, the Secretary must act in accordance wlth directions from time
to time rn force under subs.(3) (subs.(2)). Subsection (3) empowers the Minister, by determination in writing, to give directions relating to the exercise of the Secretary's power under subs.(l) and to revoke or vary those directions.
The Tribunal referred to the determination made by the Minister of State for Social Security on 8 July 1991 and expressed to be a determination under subs.1237(3) of the Social Security Act 1991. The Tribunal concluded that its power to waive the right of the Commonwealth to recover the debt was restricted by the Minister's determination. In consequence, the Tribunal confined its consideration to the question whether the case fell wlthin any of the classes of cases in which, under the determination, the power of waiver might be exercised. In the result, the Tribunal concluded that recovery of the debt should not be waived in whole or in part.
After the decision of the Tribunal in this case and of this Court had reserved its decision upon the question
shortly before the matter was heard by the Court, a Full Court
whether the determination made by the Minister on 8 July 1991 was authorised by subs.1237(3) of the Soclal Security Act 199 1. Judgment in this matter was deferred pending the decision of the Full Court on that question.
On 3 June 1993, the Full Court delivered judgment (see Riddell v Secretary, Department of Social Security (1993)
114 ALR 340). The Court declared that the determination was not authorised by subs.1237(3) and concluded that, as the decision of the Tribunal then in question had proceeded on the basis that, in determining the issue before it, the determination was valid and blnding upon it, its decision involved an error of law and should be set aside.
It has not been suggested by either of the parties that the circumstances of the present case are distinguishable from those in the case cited. Accordingly, a further ground for setting aside the Tribunal's decision has been established.
In the result, the decision of the Tribunal is set aside and the matter remitted to the Tribunal for determination in accordance with law. The respondent must pay the applicant's costs of the application.
I certify that this and the preceding 13 pages are a true copy of the
Reasons for Judgment herein of the Honourable Mr Justice Neaves. Dated: 3 December 1993
Counsel for the applicant : Mr J.W. Bundock
Solicitors for the applicant : Stacy & Nyman
Counsel for the respondent : Mr C.M. Erskine
Solicitor for the respondent : Australian Government
Solicitor
Date of hearing : 25 November 1992
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