CWJT and Secretary, Department of Education, Employment and Workplace Relations
[2012] AATA 910
[2012] AATA 910
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/4367
Re
CWJT
APPLICANT
And
Secretary, Department of Education, Employment and Workplace Relations
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 21 December 2012 Place Sydney The Tribunal sets aside the decision under review and instead decides that the Applicant and her former husband lived separately and apart from each other on a permanent or indefinite basis from 27 January 2004. As a consequence, they were not members of a couple from that time.
......[Sgd]..................................................................
Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – parenting payment single – whether member of a couple – whether living separately and apart from each other on a permanent or indefinite basis - whether marriage-like relationship – decision under review set aside
LEGISLATION
Social Security Act 1991 ss 4, 4(2), 4(3), 1223
CASES
Pelka v Secretary, Department of Family and Community Services (2006) 151 FCR 546
Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164
REASONS FOR DECISION
Ms N Bell, Senior Member
Given an order for confidentiality granted under section 35 of the Administrative Appeals Tribunal Act 1975, I will not refer to the Applicant or to any other witness or associated individual by name in these reasons.
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.
The Applicant and her former husband married in 2001 in Lebanon after first meeting there just a few weeks earlier. It was the Applicant’s second marriage. Their first child was stillborn in the following year. In February 2004 the Applicant lodged a claim for Parenting Payment Single, declaring she had separated from her husband. Her second surviving child was born in October 2004 and she claimed Family Tax Benefit (FTB) in respect of that child. In April 2007 another child was born and another claim for FTB was made by the Applicant.
In February 2010 the Secretary concluded an investigation into the Applicant’s circumstances and determined that she was a member of a couple with her husband from 27 January 2004. Her Parenting Payment Single was cancelled and debts of overpayment of Parenting Payment Single, Child Care Benefit, Family Tax Benefit and Child Care Rebate were raised against her, totalling more than $92,000.
The Applicant and her husband divorced in 2010.
ISSUES
The central issue in this application is whether the Applicant and her then husband were members of a couple from 27 January 2004 to 26 February 2010. In particular, section 4(2)(a) of the Social Security Act1991 poses the question whether they, being married, were during that time living separately and apart from each other on a permanent or indefinite basis.
Section 4(3) of the Act prescribes a number of secondary factors that must be considered in resolving the central issue. In broad terms, they require an inquiry into:
(i)the financial aspects of the relationship between the Applicant and her husband;
(ii)the nature of the household;
(iii)the social aspects of the relationship;
(iv)the sexual relationship; and
(v)the nature of their commitment to each other.
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 (2006) 151 FCR 546)
I am also mindful, in this exercise, of the comments made by the Federal Court in Staunton-Smith v Secretary, Department of Social Security (1991) 32 FCR 164 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.
In this application, historical and cultural factors are a highly relevant backdrop and shed light on some of the other evidence more directly related to the factors I must consider. For that reason I will commence with the evidence, much of it uncontested, in that regard.
HISTORICAL CONTEXT
The Applicant was born, raised and educated in Australia to parents who had migrated here from Lebanon. In 1995 when she was not quite 18 she travelled with her father to Lebanon. She said her father had told her it was “to see your uncle”. She said her parents had mentioned marriage to her before she left for Lebanon, but she did not “grasp it”. She was excited to be going overseas for the first time.
The Applicant said she met a man at the airport in Lebanon – ugly and in his mid-twenties. She said her father asked her when they would set the wedding date and she told him she didn’t want to and he shouted at her. She said her father and her male cousins beat her and “literally held a gun to (her) head”.
She was married to this man, her first husband, a month later.
After staying at her uncle’s house in Lebanon for a few months, except for one or two nights at her husband’s family’s home, and her husband remaining with his family, they returned to Australia. The Applicant lived with her family and her husband stayed with his aunt. The Applicant said she fought a great deal with her family over the marriage. She refused to speak to her husband when he visited her parents’ house and would not allow him to touch her. This continued until one day he hit her and pulled her hair. Her mother asked the man to leave.
Afterwards there was a family meeting – the wider family which included his and hers – about whether the two should divorce. It was agreed that they should.
The Applicant said she suffered her parents’ shame and rejection because of her attitude to her marriage. She said it was very uncomfortable.
The Applicant said that at about the same time a cousin of her husband’s offered his help with the difficulties she was experiencing. She said he began to become affectionate with her and she thought nothing of it. One day, she said, he took her to a park and raped her. She said this continued for two years, with him taking her to hotel rooms and raping her on more than 150 occasions. She said he told her that no-one would have her now and threatened to tell her parents.
The Applicant said that after about two years she began a relationship with another man who asked her to marry him. She told this man about her husband’s cousin and he “accepted” her. However, when the husband’s cousin found out he told the man’s family. The family was very upset. Eventually, the man chose his family over the Applicant. The Applicant said she obtained an apprehended violence order against the cousin, but did not ask the Police to charge him with rape.
She said her family were disgusted by her and she was chaperoned everywhere. They said she had disgraced them. She stayed in her room whenever she was at home and the only other place she went to was her workplace.
In 1998 the Applicant’s mother told her that the mother’s brother’s son wished to marry her and she wanted the Applicant to go to Lebanon for that purpose.
The Applicant said the only escape she had was to marry someone. She said it was the only way she could leave her family’s home where she felt so unwelcome. She agreed to go to Lebanon in 2000.
She travelled to Lebanon with her mother and met her second, and now former, husband. She stayed with her mother’s parents. Two weeks after she had met her second husband the wedding had been planned. She said she had no feelings for him and did not think about the consequences. She fell pregnant in Lebanon and returned to Australia. Her second husband stayed in Lebanon, awaiting the resolution of an immigration issue. She lived with her parents, who, she said, were nicer to her. She said things had settled down.
Her son was stillborn.
When her husband arrived in Australia they lived at the Applicant’s parents’ house. The applicant said she felt uncomfortable and trapped there. She said she had to pretend in front of her family that she loved her husband so they would leave her alone. She said she copied her sister’s affectionate behaviour with her own husband, but she did not do it when she and her husband were alone.
They eventually bought a house and by then their first surviving child was born. The Applicant said she felt she could finally relax. She said she paid little attention to her husband and concerned herself only with her child. She gave her husband no affection, did not cook or launder for him and was not nice to him. She said she did not want her husband there and he was simply a “back-up plan” and a way of getting away from her past.
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.
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.
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.
The Applicant’s mother said she agreed with the Applicant having divorced her first husband because he hit the Applicant and shouted at the family. She said the Applicant had been forced by her husband (the Applicant’s father) to marry him. However, she said it was different with the Applicant’s second husband because he is close family, he is her brother’s son and he never hit her or screamed at the Applicant. She said she, the mother, had argued and screamed when she heard they had separated. She said her daughter was not welcome in her home and no-one there wanted to speak to her.
The Applicant’s sister in law, married to the Applicant’s brother, is also the sister of the Applicant’s second husband. She confirmed that in her culture the view is that women should stay in their marriages. She said the family now avoids people in their community because they will look down on them. She said they are stigmatised because they are the Applicant’s relatives. She confirmed that the Applicant’s mother, her mother in law, is very unhappy with the Applicant.
The Applicant’s friend, a married woman with children, also gave evidence that divorce is rare in her culture. She said it has only started happening recently and that people do not talk about it often. She said people put the blame on the woman if divorce happens, particularly if the woman was born and raised here in Australia. She also said that the Applicant had been raised more strictly than she had been and that the Applicant’s mother had been very unhappy with her, particularly since the Applicant’s husband was her brother’s son. She said the Applicant’s family had to side with the man.
The evidence of a social worker who knows and had supported the Applicant was particularly informative about the culture within which events took place. This social worker is a Child Protection Caseworker with the Department of Community Services and a member of the Applicant’s community. She said that intermarriage in families is the predominant culture. She said divorce is not acceptable in the village culture and that those attitudes persist here in Australia. She said that divorced women are shunned and regarded as a disgrace. She said that mothers tell their daughters “I had to do it. Why shouldn’t you?” and the cycle continues.
The social worker said that the community of which the Applicant’s family is a part is largely uneducated and highly dependent on Centrelink. She said they remain unintegrated with the wider Australian community. She said she knows many of the Applicant’s wider family and that the harsh views held by her immediate family are commonly held throughout the wider family. She confirmed that, for the Applicant, the most important thing was to be accepted by her family and to have the abuse they dealt her cease.
The social worker, who had met the Applicant in 2003, also gave evidence of the Applicant having told her, from that time, about her circumstances and events prior to her second marriage, including her first forced marriage and the protracted sexual abuse. This evidence was consistent with the evidence the Applicant gave to the Tribunal.
I heard no evidence to contradict the descriptions of the events, family perspectives and culture outlined above. I accept it as an accurate indication of the context within which I should consider the evidence relevant to the factors to which I must have regard.
FINANCIAL ASPECTS OF THE RELATIONSHIP
The Applicant and her former husband own a home together. The Applicant and their children continue to live there. In 2005 the mortgage on the home was refinanced.
The Applicant said the refinancing of the home was at the suggestion of her father who was pressuring her to reconcile with her former husband. She said he pressed her to tell him what she wanted in order to resume her marriage and in an effort to put him off she said she wanted to have the house renovated. She said she knew her former husband had no money and she thought she had set an impossible task. However, the Applicant’s husband agreed to this and so an attempt was made to reconcile in 2005 and refinance was obtained jointly. The Applicant said the reconciliation was short lived, lasting only a few weeks, and when she withdrew money from their joint account and gave it to her husband to arrange the renovations he simply spent it.
This evidence was corroborated by the Applicant’s former husband. The motivation behind the refinancing was corroborated by the Applicant’s mother who said that it had been her former husband’s idea.
The Applicant and her former husband said that the arrangement between them after separation, and continuing until today, is that he takes responsibility for the mortgage payments. They each said that this is so his children are housed and he is able to come to the house to see them. The Applicant said that she took responsibility for household bills including insurance.
The Applicant and her former husband said a joint mortgage related bank account was opened at the time of the refinancing. Prior to that they had separate accounts. Both the Applicant’s and her former husband’s income was paid into that account and the mortgage payments were deducted from it by the bank. The arrangement between the Applicant and her former husband was that he would request her to withdraw any funds of his that were left over after payment of the mortgage and to provide those to him. The Applicant said that her former husband was, as a recent immigrant to Australia, not comfortable in dealing with banks and could not operate an automatic teller machine and so he preferred to have her operate the account in this way.
The Applicant said that she attempted to obtain the refinancing in her name only but the bank told her that her income was insufficient. She said she imagined she could sell the house and move interstate with her sons. In the end she signed the documents with her former husband.
I note that until 2004 the Applicant named her former husband as beneficiary for her superannuation fund. After her return to work after the birth of her child in October 2004 no beneficiary is apparent on the new superannuation fund statement. She said she had named her sons as beneficiaries.
There was a Commonwealth Bank account held in the Applicant’s former husband’s name only with the Applicant as a signatory. The Applicant said she has not operated this account, but a number of deposits into this account were made by the Applicant. The largest is $4,000 which the Applicant explained was repayment to her former husband of the costs for her stillborn son’s funeral. She said, distressed, he had requested the repayment. She said she and her former husband lent each other money at times and that amounts appearing in his account are repayments made by her.
The Applicant acknowledged that the house and contents insurance and the gas bill were in joint names, but said she paid them and just never bothered to change them.
The Applicant and her former husband had and continue to have some continuing co-operative financial arrangements. The most significant of those is the mortgage on the house in which the Applicant and their children live. I accept the evidence of the intense pressure under which the Applicant entered into this refinancing arrangement and her efforts to avoid it.
They each have their wages paid into their mortgage related joint account, but their separate income contributions remain distinct with distinct payment functions. The Applicant’s former husband pays only the mortgage and the remainder of his funds are released to him by the Applicant. It strikes me as irrelevant that this release of funds is operated by the Applicant, rather than by her former husband. It is explained by his inexperience with Australian financial institutions. The Applicant has sole responsibility for day to day and household expenses and bills. I do not consider this arrangement amounts to a pooling of funds. Nor do the incidental loan and repayment arrangements between the Applicant and her former husband amount to anything more than sensible co-operation between two people who remain connected by their common children. In this I am mindful of the arrangements for the payment of the costs of the Applicant’s stillborn child’s funeral. Her former husband’s seemingly brutal request for repayment of this money suggests the absence of a marriage like relationship rather than its existence.
I do not consider the continuation of a utility account or of house insurance in joint names as significant in the context of this matter.
NATURE OF THE HOUSEHOLD
The Applicant maintains that her former husband left the home in January 2004 and, apart from visits to see the children and two short periods of attempted reconciliation, did not return. The Respondent maintains that he never left the home on an extended or permanent basis. It relies solely on documentary evidence of the address used by the former husband, details given by the Applicant to the Registry of Births, Deaths and Marriages about the children, details given to the hospital on the occasions when she was admitted to give birth and the continuing jointly named accounts for gas and home and contents insurance.
Against this documentary evidence, the Applicant described a long period during which she successfully resisted co-habitation with her former husband but on two occasions succumbed to pressure from her family to attempt to reconcile with him.
Her evidence was that their life together was an unhappy one with no affection or care between them. She said her former husband started to sleep in their first child’s room instead of in the bedroom with her and she would avoid his attentions by locking the door or having her child sleep with her. She said that after a while her former husband began to ignore her too. She said they bickered about her not preparing meals for him or looking after him and they drifted further and further apart.
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.
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.
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.
This description of events was corroborated by the Applicant’s former husband.
The Applicant said that one day her brother told her that he was sick of having her former husband staying at his house. She said she was surprised to hear he had been living there. Soon after that her former husband announced that he wanted to take their two year old child to Lebanon. She said she was very anxious about this and thought he wanted to take her child away from her. He told her his father was dying. She said they argued about it for a few weeks until her mother intervened and convinced her to allow it. The Applicant’s mother was the sister of the dying father. The Applicant said she did not want her family to know that her former husband had left the house. In the end the Applicant agreed and father and child went to Lebanon for approximately eight weeks.
Their second child was born in October 2004. The Applicant’s former husband was not at the hospital when the child was born. He stayed with their first child at the Applicant’s mother’s house.
The Applicant returned to work about six months after the second child was born. She said she had quit her job and stayed at home with her children. She said her former husband seldom visited and did not want anything to do with the new baby and would say now and again that the child was not his.
This evidence of the Applicant’s living alone in the house with her children is supported by the social worker who said she first met the Applicant in 2003. She said she visited the Applicant three or four times beginning in about mid-2004. She said it appeared to her that no male was living in the house. She said she saw no razors or other male toiletries in the bathroom and saw only the Applicant’s shoes in the bedroom. She said she had the firm and clear impression that the Applicant was living alone in the house with her child or children.
The Applicant’s friend gave similar evidence.
The Applicant described a period after her second child was born when she became very depressed and said her doctor told her she had post-natal depression. She said she was unable to cope with the pressure of keeping everything from her family and having no support. Her family remained unaware of the situation until her sister in law told her mother that the Applicant’s former husband (the sister in law’s brother) was living with her (the sister in law). The sister in law confirmed this in her evidence. The Applicant said her family shouted and screamed at her about it.
The Applicant said her father came to her and pleaded with her to not shame him again. She said he cried and begged her. She said it was very upsetting. She said it was then, after asking what she wanted in exchange for reconciling with her former husband and the Applicant asked for renovations that she thought would be beyond her former husband’s capacity, that her father suggested refinancing the mortgage on the house. When this was arranged her former husband moved back into the house.
The Applicant said this was a bleak period in which she and her former husband barely talked. She said he slept in the children’s room and she would not let him in the bedroom. She said that if he got to the bedroom before she did she would turn her back on him. The Applicant’s former husband confirmed this evidence and added that the Applicant would not cook for him or care for him.
The Applicant said her former husband announced after two or three weeks that he “couldn’t live like this”. She said she “pushed things” and caused an argument and he left again. She said she was relieved. But she got more pressure from her family. Her former husband corroborated this. He also corroborated the Applicant’s evidence that she had given him the proceeds of the refinancing that were intended for the house renovations. He agreed that he spent the money ($11,000) and arranged no renovations.
The Applicant said that after a trip to Lebanon in July 2005 she began to think about divorce and went as far as obtaining the forms. She said she mentioned it to her former husband and found he was not shocked and did not seem to care except to make it clear that he considered it to be her fault. She said that when her brother heard that she was considering divorce he came to her house with her male cousin and beat her. She said she feared for her life. She was too frightened to run away because she thought they would come looking for her. She said they made her feel that the only way out was death.
The Applicant said that towards the end of 2005 she heard that her former husband had moved into her mother’s house. She said this meant that she hardly ever went to her mother’s house. Her former husband, her mother and her sister in law corroborated this.
The Applicant said that in 2006 when her former husband had been at her mother’s house for about six months her family told her that they were concerned that such a long period would automatically constitute divorce. She said she told them she wanted a divorce and did not want to reconcile with her former husband, but she said she realised they and her wider family would never leave her alone and never cease to harass her. She agreed to give it one more try.
The Applicant said her former husband moved in straight away and wanted to resume a physical relationship immediately. She said she refused and told him to leave the room.
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.
The Applicant said her former husband has continued to visit his children and has stayed overnight just once or twice in the two months following their final break. She eventually told him she did not want him to sleep at the house.
The Applicant said that throughout the period her former husband continued to use the postal address of the house for work, bills and other matters. She said she objected to this and sometimes would just throw his mail away. She said he would collect whatever she had kept when he visited his children. The Applicant’s former husband confirmed this and said he works long hours, his English is poor and it was too much trouble to change his address, even though the Applicant had asked him to do that. In relation to the address on his payslip, he said he had asked his employer to change that and for some reason he did not know it had not been done. He also said that even when he and the Applicant divorced in 2010, he did not change his address for any remaining purposes.
This history of separation in January 2004 and brief attempts at reconciliation in 2005 and 2006 was consistently confirmed by the Applicant’s former husband, her mother, her sister in law, and, in less particularity by her friend and by the social worker.
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.
A colleague of the Applicant’s gave evidence that when the Applicant married her former husband she was upset and tearful. He said she later told him she and her former husband were separated. He said she never told him after that that she had reconciled with her former husband.
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.
SOCIAL ASPECTS OF THE RELATIONSHIP
The evidence is that neither the Applicant nor her former husband told their family about their separation for a considerable time. I accept their evidence of why they each, for their own reasons, wished to keep the separation a secret. I regard those reasons as largely cultural and based on concern about the wider family. Cultural determinants and family pressure permeate the entire history of this relationship. I accept as plausible their evidence of why they wished to present as not separated.
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.
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.
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.
I do not consider that this evidence supports the existence of a relationship whose social aspects could be characterised as marriage like.
SEXUAL RELATIONSHIP
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.
Theirs is, and can be, the only evidence available on this matter and their evidence is consistent.
It is made plausible by the history the Applicant recounted, supported by her mother in some respects and by the consistent prior statements made to the social worker, of a disastrous previous forced marriage and the deeply disturbing sexual encounters and cultural and social fallout following that.
It is possible that the date of initial separation given by the Applicant was an error, given the birth date of the Applicant’s second child, but I consider it an understandable one in the circumstances. In addition, I note her evidence that that was a date on which she and her former husband had fought, although it was not the fight about her pregnancy. It is likely that by that date most marriage like aspects of the relationship had all but disappeared.
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.
I consider that the sparse sexual relationship the Applicant and her former husband had during the relevant period of their separation and their attempted reconciliations was not consistent with a marriage like relationship.
COMMITMENT TO EACH OTHER
I have before me no evidence of commitment by the Applicant and her former husband to each other now or during the debt period. They are now divorced.
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.
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.
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.
APPLICANT’S CREDIBILITY
An important plank of the Respondent’s case against the Applicant was that her evidence cannot be believed. In challenging her credibility, the Respondent pointed to a number of occasions when, it argued, the Applicant had lied for gain.
Clearly, I have accepted the applicant as a credible witness. It is appropriate, however, for me to address the matters raised by the Respondent in this respect.
The Respondent submitted that the Applicant’s failure to advise Centrelink of the attempted reconciliation in 2005 cast doubt on her credibility. The Applicant said that she thought of advising Centrelink, but almost before it had begun the attempt at reconciliation had failed. I accept this evidence and do not, in any event, consider that a two or three week attempt at reconciliation under intense cultural and family pressure amounts to a marriage like relationship. Nor do I consider that her failure to tell Centrelink officers about the failed attempt in an interview in July 2005 impugns her credibility. The attempt failed to re-establish a marriage like relationship. It is understandable that the Applicant did not raise it with the interviewers.
The Respondent submitted that the Applicant’s failure to advise Centrelink of the second attempted reconciliation until the following year also impugns her credibility. I do not agree. It was not clear to me what her reasons were for this delay, but again I do not consider that this second failed attempt, also made under intense pressure, served to re-establish a marriage like relationship for the few weeks of its duration.
The Respondent submitted that the history given by the Applicant of consistent rape on some 150 occasions over two years by a family friend is implausible and questioned why the Applicant did not go to the Police. I take notice that many, especially young, women do not report rape. I find this even less surprising in the Applicant’s case considering the culture in which this took place, her history of frowned upon divorce and the nature and intensity of the reaction of her family when they were informed of the sexual acts by the man who perpetrated them. Unfortunately, I do find this history plausible.
I have already dealt with the evidence of the Registry of Births, Deaths and Marriages and hospital forms completed by the Applicant and with her explanation. I accept her reasons as plausible.
It was submitted by the Respondent that by noting, on the bank’s application form for refinancing, that her then former husband’s address was the same as her own, that she showed herself as a person prepared to lie for gain. The Respondent cannot have it both ways. It cannot argue that the Applicant’s former husband was residing with her and then argue that she was lying by saying on a form that he was. In any event, the Applicant gave evidence of her unsuccessful attempt to obtain the loan on her own account, her reluctant agreement to embark on an attempt at reconciliation with her former husband, his imminent resumption of residence with her and of the pressure she was under from her family to make this attempt. The whole point of the exercise was to resume cohabitation. I do not think this form says anything about her credibility.
The Respondent submitted that the dates the Applicant entered on her Application for Divorce undermine her credibility. For “date of separation” the Applicant wrote “10/01/04”. For the date she regarded the marriage as “over” she wrote “30/11/07”. In answer to the question “At the date of separation, did you regard the marriage as over?” she ticked “No” for herself and “Yes” for her former husband. When asked about this, the Applicant said her friend had told her that if she made her former husband look as if he had been the one who wanted the marriage over it would strengthen her position in relation to custody of the children by making her look like the injured party. While this explanation betrays a lack of knowledge of family law and a certain amount of foolishness, I consider it a plausible explanation in the circumstances. It does not serve to undermine her credibility generally.
The Respondent also submitted that a “Separation details” form submitted by the Applicant to Centrelink on 1 June 2010 exhibits a lack of credibility on her part. The form shows that the Applicant first entered the date “10/01/04” as the date the relationship “ended”. That date is crossed out and the date “30/11/07” is written. The Applicant said that she did this under instruction from a Centrelink officer. I heard no evidence as to why such instruction was given, but I note that by June 2010 debts of overpayment had already been raised against the Applicant on the basis of conclusions that had been reached about her partnered status during the period following 10 January 2004. It is hardly surprising that a Centrelink officer would balk at an assertion by the Applicant that her relationship had ended in January 2010. I accept the Applicant’s explanation for the change made on the form.
I do not consider that these matters, alone or together, damage the Applicant’s credibility. I accept her as a credible witness. In addition, her credibility is bolstered by the considerable amount of witness evidence that corroborates her account.
CONCLUSION
I have found that the Applicant and her former husband ceased to reside together in January 2004 and that their two short attempts at reconciliation in 2005 and 2006 did not lead to or amount to a resumption of a marriage like relationship. The financial, social and sexual aspects of their relationship from January 2004 do not indicate a marriage like relationship and their actions and behaviour showed no commitment to each other of the kind usually featured in marriage like relationships.
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.
I consider that the balance of the evidence, including the evidence of the background to the events that are the subject of this application, is overwhelmingly in support of the conclusion that from January 2004 the Applicant and her former husband were not in a marriage like relationship.
DECISION
The Tribunal sets aside the decision under review and instead decides that the Applicant and her former husband lived separately and apart from each other on a permanent or indefinite basis from 27 January 2004. As a consequence, they were not members of a couple from that time.
I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bell. ....[Sgd]....................................................................
Associate
Dated 21 December 2012
Dates of hearing 14 to 16 November 2012 Solicitors for the Applicant M Butt, Welfare Rights Centre Solicitors for the Respondent B Anniwell, Centrelink Program Litigation Review Branch, DHS Legal
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