Cocks v Centrelink

FEDERAL COURT OF AUSTRALIA

Cocks v Centrelink [2000] FCA 1248

Matter No. S 76 of 2000

JAMES COCKS v CENTRELINK

O’LOUGHLIN J
ADELAIDE
5 SEPTEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 76 OF 2000

BETWEEN:	JAMES COCKS APPLICANT
AND:	CENTRELINK RESPONDENT
JUDGE:	O'LOUGHLIN J
DATE OF ORDER:	5 SEPTEMBER 2000
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The application be allowed.

2.The matter be remitted to the Administrative Appeals Tribunal to determine the matter according to law.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 76 OF 2000

BETWEEN:	JAMES COCKS APPLICANT
AND:	CENTRELINK RESPONDENT

JUDGE:	O'LOUGHLIN J
DATE:	5 SEPTEMBER 2000
PLACE:	ADELAIDE

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant in these proceedings is Mr James Cocks.  He is aged 70 years and has been in receipt of an aged pension since 1992.  On 25 February 1997 he married for a second time.  The marriage took place in the Philippines.  His wife, Thelma, was and is a Filipino national.  She is some 36 years younger than Mr Cocks.  Mr and Mrs Cocks have a daughter, Christine, who had been earlier born on 4 July 1996.

2. The family circumstances pertaining to Mr and Mrs Cocks and Christine are most unfortunate.  Thelma and Christine continue to live in the Philippines and Mr Cocks visits them, staying up to six months at any one time.  He explains that to stay longer would incur substantial costs, which he cannot afford, in obtaining extensions to his visa.  He therefore returns to Australia, where he resides, free of board, with his sister, at her farm at Cummins on the West Coast of South Australia.

3. The Department of Family and Community services upon being informed by Mr Cocks of his marriage to Thelma decided to treat him as a member of a couple.  It reduced his entitlement from that applicable to a single person to an amount that represented the married rate.  I have been given the figures, which indicate that this means in effect about $33 per week diminution to Mr Cocks.  Mr Cocks challenged the stand that had been taken by the department and he took the matter to the Administrative Appeals Tribunal (“the Tribunal”).

4. The question that had to be answered by the Tribunal was whether Mr Cocks was entitled to the benefit of s 24 of Social Security Act 1991.  Subsection (1) of that section provides as follows:

   “Where:

   (a)     a person is legally married to another person; and

   (b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and

   (c)the secretary is satisfied that the person should for a special reason in the particular case not be treated as a member of a couple the secretary may determine in writing that the person is not to be treated as a member of a couple…