Department of Social Security, Secretary v Hilton, F.M

[1991] FCA 158

Re: SECRETARY, DEPARTMENT OF SOCIAL SECURITY
And: FAY MAREE HILTON
No. G668 of 1990
FED No. 158
Social Security - Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)

CATCHWORDS

Social Security - appeal from the Administrative Appeals Tribunal - supporting mother's benefit - whether beneficiary was in a de facto marriage - evidence given by beneficiary and her alleged spouse - weight of such evidence depending on credibility of the witnesses.

Administrative Law - whether a finding of fact may involve an error of law - whether a decision based on such finding was unreasonable and should be set aside as perverse.

Social Security Act 1947 (Cth) - s.3(1)

HEARING

SYDNEY

#DATE 18:4:1991

Counsel and solicitor for applicant: Miss R.M. Henderson instructed by

Australian Government Solicitor

The respondent in person

ORDER

The appeal be dismissed with costs.

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

JUDGE1

This is an appeal from a decision of the Administrative Appeals Tribunal (Senior Member R.N. Watterson and Mr C.J. Stevens, Mrs M.T. Lewis dissenting) in which the Tribunal dismissed an appeal from a decision of a Social Security Appeals Tribunal which had held that Ms Fay Maree Hilton was entitled to a supporting mother's benefit as she was not, as was alleged, the de facto spouse of a Mr Ian Bradford. The appeal is brought under s.44 of the Administrative Appeals Tribunal Act 1975 (Cth) and is thereby limited to a question of law.

1. Ms Hilton had received a supporting mother's benefit until it was cancelled by the Secretary, Department of Social Security as and from 8 September 1988. Ms Hilton was at the time living in a home at 13 First Street, Boolaroo, a property which, a few years before, had been devised to Mr Bradford under the will of his father. On 20 December 1989, Ms Hilton moved to other accommodation. The majority of the Tribunal found that, during the period from 1985 to 20 December 1989, Ms Hilton had been living with Mr Bradford at 13 First Street, Boolaroo, but she did not live with him as his de facto spouse. The majority held that, from 20 December 1989 to the date of the hearing by the Tribunal, Ms Hilton did not live with Mr Bradford and was not his de facto spouse. The minority member of the Tribunal considered that Ms Hilton and Mr Bradford had lived together as husband and wife from at least as far back as the early 1980's until 20 December 1989.

2. Whatever else may be said about this appeal, it is clear that there was evidence upon which the Tribunal was entitled to find that Ms Hilton and Mr Bradford lived separately and apart as from 20 December 1989. However, if the Tribunal's decision with respect to the period from 8 September 1988 to 20 December 1989 were to be set aside for error of law, it would be appropriate to remit the whole matter for reconsideration for questions of credit and credibility would arise on the rehearing as to the period as and from 20 December 1989.

3. Miss R. Henderson, counsel for the Secretary, Department of Social Security, has asked the Court to reverse all the findings of the Tribunal and to hold that Ms Hilton and Mr Bradbury were at all times living together as husband and wife. However, the appeal is limited to a question of law. The findings of the Tribunal were findings of fact. It is not an error of law to make a wrong finding of fact, that is to say a finding of fact with which a court may disagree. See Waterford v. The Commonwealth (1987) 163 CLR 54 at 77 and Australian Broadcasting Tribunal v. Bond (1990) 64 ALJR 462 at 477. It is, however, an error of law for a tribunal to make a finding of fact which was perverse, in the sense that no reasonable decision-maker should have come to that conclusion. As a decision as to the existence of a de facto relationship involves the making of a value judgment based upon a wide spectrum of considerations, the observations of Lord Brightman in R. v. Hillingden LBC Ex parte: Puhlhofer (1986) 1 AC 484 at 518 are particularly apposite. His Lordship said:-
   

"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

1. The ground of challenge that no reasonable decision-maker should have arrived at the decision was the principal ground on which Miss Henderson relied. As a decision as to a de facto relationship requires the finding of facts and the weighing up of competing considerations, the reasoning process adopted by the Tribunal may be examined in accordance with administrative law principles to see whether, by reason of some step taken in the decision-making process, the final decision should be set aside as unreasonable. In this respect, I refer to and repeat my comments in Federal Commissioner of Taxation v. McCabe (1990) 90 ATC 4968.

2. The relevant definition, which appeared in s.3(1) of the Social Security Act 1947 (Cth), read:-
   

"`de facto spouse' means a person who is living with another person of the opposite sex as the spouse of that other person on a bona fide domestic basis although not legally married to that other person;".

The Social Security and Veterans' Affairs Legislation Amendment Act (No. 3) 1989 (Cth) introduced different terminology as from 1 January 1990. The amendments do not seem to affect the present case and I doubt that, in any event, any significant change has been effected.

1. On 21 January 1980, a child, Lauren Lee Bradford, born 29 November 1979, was registered as the child of Ms Hilton and Mr Bradford, their address being given as 13 First Street, Boolaroo. After Lauren's birth, Mr Bradford was introduced to Ms Hilton's parents as her husband and as Lauren's father. A statement signed by Mrs Hilton Sr. dated 26 August 1988 stated:-
   

"I wish to advise that Fay has been residing with Ian Bradford now of 13 First Street Boolaroo in a relationship similar to that of a married couple for at least the past 8 years. They've always been together in a situation like a married couple over the past 8 years or so ...".

Whether Ms Hilton and Mr Bradford actually lived together in the early 1980's may be a difficult matter to determine. However, Mr Bradford was imprisoned for a period in 1984 and 1985 as the result of a drug conviction. In 1985, he was released on parole to live with Ms Hilton who was stated to the prison authorities to be his de facto spouse. Thereafter, Ms Hilton and Mr Bradford lived at 13 First Street, Boolaroo. On 8 September 1987, another child, Erin Jane Bradford was registered as their child and the address of the parents was stated as 13 First Street, Boolaroo. Ms Hilton adopted the surname Bradford, at least when dealing with teachers and parents at the school which Lauren was then attending. Moreover, on 22 January 1988, Mr Bradford signed a transfer of the property at 13 First Street, Boolaroo to himself and Fay Bradford, both of that address, the consideration being stated to be a mutual property oral agreement. That transfer to Ian Bradford and Fay Bradford as joint tenants was ultimately registered on 29 November 1989.

1. So whatever else may be the facts of the case, Ms Hilton and Mr Bradford lived together in a house in which they had a joint interest as a result of a mutual agreement, both used the surname Bradford, at least on many occasions, they were registered as and held themselves out to be the parents of the children Lauren and Erin and they represented themselves to be husband and wife and the parents of the two children even in their dealings with Ms Hilton's parents. There was the family unit, the adoption of the Bradford name, communality of ownership of the home and possession of items such as a car, registered in Ms Hilton's name, and, at one time, of a boat registered in Mr Bradford's name.

2. The case reminds me very much of the facts in Re RC and Director-General of Social Services (1981) 3 ALD 334 in which a tribunal of which I was a member held that two persons were in a de facto relationship. That tribunal said of a marriage-like relationship, "It is a relationship which is recognisable but which is so varied that it is not susceptible of definition by criteria." The tribunal referred at 349 to the comments of Evatt C.J., Demack and Watson JJ. in In the Marriage of Pavey (1967) 10 ALR 259 where their Honours said at 263:-
   

"The constituent elements of the marital relationship were referred to in Todd's case in these words (9 ALR at 403): `Marriage involves many elements some or all of which may be present in a particular marriage - elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.' To this general statement we wish to add but one phrase, `the nurture and support of the children of the marriage'. This is probably implicit in the various cases to which Todd's Case referred, but in view of the provisions of ss 43, 61 and 73 of the Family Law Act, it is important that it be made explicit."

In Re RC, the tribunal went on to emphasise that the adoption of the same name "ordinarily is a statement to the world and a recognition by the parties of the existence of a marriage-like relationship" and that "in marriage and marriage-like relationships, economic support or economic cooperation is a usual and in most cases a necessary part of the relationship." That tribunal pointed to the difficulty in determining the precise household and economic arrangements between a couple when by their evidence they sought to deny the existence of any close relationship and indeed denied that they were the parents of a child registered as their daughter. The tribunal concluded at 352:-

"On the whole of the evidence, we think that the applicant lived with KC as his wife on a bona fide domestic basis (having) a caring relationship, a common household and, with the children, a family unit. They gave the appearance of being a married couple."

1. Much the same could be said of the facts of the present case in which the majority of the Tribunal gave substantial weight to matters of which the only evidence was that given by Ms Hilton and Mr Bradford. They gave evidence that they maintained largely separate households, occupied separate rooms, largely looked after their own domestic affairs, led largely separate social lives and had had sexual intercourse only once or twice. But, the difficulty with such evidence is that its weight depends on the credibility of the witnesses. There is no doubt that a couple are in the best position to give evidence as to their mutual relationship and, if they desire to tell the truth, their evidence as to the relationship is the best that can be obtained. But if the witnesses do not wish to tell the truth, or are incapable of remembering it, the value of the evidence is much diminished.

2. The credibility of Ms Hilton and Mr Bradford could not have been strong. The minority member of the Administrative Appeals Tribunal said:-
   

"I do not accept Miss Hilton as a credible witness ... Mr Bradford had some apparent memory impairment, which did not appear to be contrived, but which affected the reliability of his evidence. ... Overall, the reliance I am prepared to place on Mr Bradford's evidence is limited."

The majority of the Administrative Appeals Tribunal said:-

"The evidence in this case is inconsistent and in conflict in many respects as outlined above. The difficulty has been compounded by Miss Hilton's vagueness on many critical matters and by Mr Bradford's chronic memory problems. In Mr Bradford's case we are satisfied that the difficulties he had in giving evidence were not contrived."

In this light, it is surprising that the facts as to which Ms Hilton's and Mr Bradford's evidence was critical should have been found to outweigh the strength of the facts which were not in dispute.

1. The crucial findings of fact reached by the majority of the Tribunal were:-
   45. Mutual assistance and support was provided as part of a
   

relationship which in some respects may have been "family-like" but which was essentially a relationship of friendship not that of husband and wife. Ms Hilton needed a father figure for her children, she also benefited from having cheap accommodation with Mr Bradford. Mr Bradford was provided with some aspects of a family like environment by Ms Hilton's children and the friendship and support of Ms Hilton.

1. Although Ms Hilton and Mr Bradford's dwelling together and mutual

support has a long history, their relationship has not been an exclusive relationship. Although Ms Hilton and Mr Bradford had a sexual encounter on at least one occasion after the birth of her children and while they both resided at Boolaroo, we are persuaded that Ms Hilton had sexual relationships with other men and that such relationships were regarded by Ms Hilton and Mr Bradford as consistent with their own relationship: one of mutual friendship and support rather than one of marriage.

1. We are also satisfied that during the period of residence at

Boolaroo Ms Hilton and Mr Bradford did not share the same friends and did not share social activities although they co-operated from time to time in such activities when it suited each of them. We consider that they led largely separate social lives during this period.

1. We are also satisfied that during the period of residence at

Boolaroo although some domestic tasks were carried out together, they each kept a separate household. On their evidence they occupied separate rooms and largely looked after their own domestic affairs. They did not eat meals together as a family unit. We are also satisfied that their financial affairs were conducted separately although, again, they provided each other with the sort of financial help that might be expected of close friends."

1. I doubt that, even on those findings, I would find that Ms Hilton and Mr Bradford did not live in a marriage-like relationship. I take the effect of the finding that the couple were living together to be that they lived together on a bona fide domestic basis. Ms Hilton also used the name Bradford, at least for some purposes, the couple both cared for and held themselves out to be the parents of the two children in the household and there was some sexual intercourse, some sharing of household tasks and some economic co-operation. This seems to be a relationship of man and wife.

2. If a couple are living separately and apart in the one house that is one thing. But once it has been held that they are living together in a bona fide domestic situation, that is another. Once this is held, the extent of the sexual intercourse, of the sharing of domestic tasks and of the economic co-operation may not be of great importance. In marriage and marriage like relationships, there is great diversity in those matters.

3. That brings me to the question whether the decision was unreasonable and should be set aside as perverse. I have considered the evidence before the Tribunal and the Tribunal's reasons for decision with a good deal of care and anxious consideration. I am left with the view that the decision is one to which I would not have come, and the decision in Re RC is illustrative of that. But I have concluded that there was evidence before the Tribunal on which it was entitled to make the findings of fact which it did and that the decision was one of fact open to the Tribunal on the evidence before it.

4. Ms Hilton and Mr Bradford gave evidence as to the matters which the majority of the Tribunal found to be the fact. Neither the findings of primary fact made by the majority of the tribunal, which heard the oral evidence and saw and weighed up the witnesses, nor the conclusions which the majority drew therefrom were so fanciful and perverse that no reasonable tribunal could have come to them. In the weighing up of the factors, the Tribunal, as the decision-maker of fact, was entitled to give substantial weight to what the majority held to be the separate social lives of Ms Hilton and Mr Bradford and the separate manner in which they conducted themselves within the household. The ultimate decision was one of fact to which the Tribunal was entitled to come, having regard to the inexactitude of the concept of a de facto relationship. The question was one on which different opinions could be held.

5. In Federal Commissioner of Taxation v. McCabe, cited above, I held a decision to be unreasonable. But the facts so far as they were known had been clearly set out in the evidence of the taxpayer and the only issue was the conclusion to be drawn therefrom. The present is quite a different case for questions of credibility loom large. In McCabe's case, I discussed the observation of Brennan J. in Waterford v. The Commonwealth (1987) 61 ALJR 350 at 359 that "there is no error of law simply in making a wrong finding of fact" and the observations on the review of facts made by Mason C.J., with whom Brennan J. agreed, in Australian Broadcasting Tribunal v. Bond, at 488-9. I observed at 4977:-
   

"I read Mason C.J.'s comments as a warning not to blur the distinction between unreasonableness or perverseness on the one hand and want of logic on the other and that a strong case is necessary to upset a factual finding. Similarly, in Nuchapohn Detsongiarus v. Minister for Immigration, Local Government and Ethnic Affairs(unreported, 19 September 1990), Pincus J., having expressed the view that factual inferences may be challenged on the ground of unreasonableness, went on to say that, `Bond's case and others show that a strong case indeed is necessary to upset factual views on such a ground.'"

1. In the present case, it seems to me that the decision of the majority, though surprising, was open on the evidence given to the Tribunal. I am particularly reluctant to hold the decision to be unreasonable in the light of the fact that three members of a Social Security Appeals Tribunal and two members of the Administrative Appeals Tribunal all found in favour of Ms Hilton's claim. The Social Security Appeals Tribunal and the Administrative Appeals Tribunal both saw and heard Ms Hilton and Mr Bradford and had a good opportunity to assess their personalities. Indeed, I suspect that the personalities of Ms Hilton and Mr Bradford and how the majority of the Tribunal assessed them as people played a significant part in the decision, though this was not discussed by the majority.

2. There is one particular finding, however, which troubles me and that is the finding that "Mr Bradford is not the biological father of Ms Hilton's children although he is registered as their father." The question of parenthood was not irrelevant. But, it is one thing for a tribunal to hold that a couple are the parents of a child as the registration of birth states them to be and another to hold, in the absence of appearance on the child's behalf, that the certificate of registration was wrong. The Bradford children were registered as the children of Mr Ian Bradford. Mr Bradford presented himself to the world as their father and undertook the task of caring for them in the common household. Unless a decision on the point was necessary, and in this case it was not, it was desirable that the benefit of the presumption raised by the certificate of birth should not be set at nought by an express finding to the contrary. Nevertheless, as the parentage of the children was not a critical point, this aspect of the matter does not affect the validity of the Tribunal's decision.

1. For these reasons, the appeal should in my opinion be dismissed with costs, if any have been incurred.