El-Hourani and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1651

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1651

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/1334

GENERAL ADMINISTRATIVE DIVISION		)
Re		KHADIJE EL-HOURANI

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms N Isenberg, Senior Member

Date9 August 2007

PlaceSydney

Decision Decision under review is affirmed.  

..................[Sgd]....................

Ms N Isenberg
  Senior Member

CATCHWORDS

SOCIAL SECURITY – parenting payment single payments – member of a couple – marriage-like relationship.

Social Security Act 1991 – ss. 4, 55, 1064, 1064B1

Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495

Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7

Cullinane & Secretary, Department of Family and Community Services [2004] AATA 789

Pelka and Secretary, Department of Family and Community Services (2006) 151 FCR 546

Re Gill & SDFaCS [1999] AATA 452

REASONS FOR DECISION

9 August 2007 Ms N Isenberg, Senior Member   

DECISION UNDER REVIEW

1.      The reviewable decision in this matter is the decision of the Social Security Appeals Tribunal (SSAT) dated 6 October 2005, to cancel Mrs El-Hourani’s parenting payment single benefit on the basis that she is a member of a couple.

BACKGROUND

2.      Mrs El-Hourani was born on 1 October 1966 and married Mr Adnan El-Hourani in Lebanon on 5 February 1981.  They arrived in Australia on 1 June 1985 and became Australian citizens.  They have 4 children, now aged 23, 22 and twins now aged 15 years.

3.      Mr and Mrs El-Hourani separated in 1986, reconciled and separated again in 1992. They divorced in 1997 with decree nisi issued on 19 August 1997 and decree absolute dated 20 September 1997.

4.      On 2 April 1992, Mrs El-Hourani claimed Sole Parenting Pension (“SPP”) and also submitted a Child Support Agency form to ascertain how much child support should be paid by Mr El-Hourani.

5.      Mrs El-Hourani remained in receipt of either SPP or, as later classified, parenting payment single (“PPS”) payments until 1 July 2005 when a Centrelink delegate decided to suspend payments as it was considered that she and Mr El-Hourani were in a marriage like relationship.

LEGISLATION

6.      The Social Security Act 1991 (“the Act”) contains calculators to determine at what rate a person is to be paid certain benefits. Section 1068A of the Act is relevant if the person is not a member of a couple, or, section 1068B if the person is a member of a couple (s503). PPS is paid at a higher rate than parenting payment partnered (‘PPP’): (section 1068A and section 1068B). The rate of PPP is also affected by the recipient’s partner’s income.

7. Section 4(1) and 4(11) of the Act provide that someone is “partnered” if he or she is a “member of a couple”. The term “member of a couple” is further defined in subsection 4(2) of the Act as including someone who is in a “marriage like relationship” with a person of the opposite sex. In order to determine whether someone’s relationship is “marriage like” subsection 4(3) of the Act states that all of the circumstances of a relationship must be considered, including the following:

(a)       the financial aspects of the relationship, including:

(i)any joint ownership of real estate or other major assets and any joint liabilities; and

(ii)any significant pooling of financial resources especially in relation to major financial commitments; and

(iii)any legal obligations owed by one person in respect of the other person; and

(iv)the basis of any sharing of day-to-day household expenses;

(b)       the nature of the household, including:

(i)        any joint responsibility for providing care or support of children; and

(ii)       the living arrangements of the people; and

(iii)      the basis on which responsibility for housework is distributed;

(c)       the social aspects of the relationship, including:

(i)        whether the people hold themselves out as married to each other; and

(ii)the assessment of friends and regular associates of the people about the nature of their relationship; and

(iii)the basis on which people make plans for, or engage in, joint social activities;

(d)       any sexual relationship between the people;

(e)       the nature of the people’s commitment to each other, including:

(i)        the length of the relationship; and

(ii)the nature of any companionship and emotional support that the people provide to each other; and

(iii)whether the people see their relationship as a marriage-like relationship

ISSUE BEFORE THE TRIBUNAL

8. The issue before the Tribunal is whether Mrs El-Hourani was a “member of a couple” as defined in section 4 of the Act for the purpose of calculating her entitlement to parenting payment at the time of the decision to terminate PPS payments.

CONSIDERATION OF THE EVIDENCE

9.      Mrs El-Hourani gave oral evidence, as did Mr El-Hourani and their daughter Fatima. Evidence was also given by friends Mr Hussein Ali Tannana and Ms Fatima Bazzi.  I also had before me affidavits prepared by each of the witnesses who gave oral evidence at the hearing.  An Arabic translator, Mr Omar Mussa, was also called to give evidence.

10.     The statutory criteria were considered as follows:

FINANCIAL ASPECTS OF THE RELATIONSHIP

11.     Mr and Mrs El-Hourani do not have any joint property or bank accounts, or any other joint assets.

12.     However, Mrs El-Hourani currently resides with Mr El-Hourani and their children, in a house owned by Mr El-Hourani at Arncliffe.

13.     By way of background, Mrs El-Hourani‘s evidence was that she had been living with the children in Housing Commission premises at Jannali from 1993.  She said they had moved there because the rent was cheap: $68 per week.  The evidence was somewhat equivocal about whether Mr El-Hourani ever stayed there.  Fatima said that he never stayed there, ‘and if he did’ it was because of violence in the area or because someone was sick.  In 1994 in a ‘Review of Separation Under One Roof’ form Mrs El-Hourani told Centrelink that they lived in Jannali but in separate rooms, sharing the kitchen, laundry and bathroom.  Elsewhere, in a Sole Parent Pension Review in 1994 she said he stayed one night every now and then.  In the same form she wrote that he visited 2-3 times a week and sometimes stay overnight (T17).  In 2001 Mrs El-Hourani told Centrelink he only stayed there if he was sick or if the children wanted him to stay (T32).  In 2005 she said she had asked Mr El-Hourani to come to help control the children because of problems at school (T63).

14.     Mr El-Hourani said that in March 2002 he asked his children to live in the Arncliffe house.  He said he did not discuss the move at all with Mrs El-Hourani. 

15.      Mrs El-Hourani gave evidence that she paid Mr El-Hourani $320 per week in rent while she was receiving Centrelink rental assistance. Mrs El-Hourani initially told Centrelink that she was paying rent to a Real Estate Agent at Hurstville. She subsequently claimed that she in fact paid rent directly to Mr El-Hourani, as this would save in property management fees charged by the Real Estate Agent. However there is no evidence presented on Mrs El-Hourani’s behalf to independently establish that rental payments were ever made to Mr El-Hourani, for example Mr El-Hourani’s tax returns were not produced.  Mr El-Hourani said that his son paid the rent.  On 21 April 2005, Mr El-Hourani told Centrelink that he received rent of only $250 per week (Exhibit R3).  The Respondent’s enquiries to the Office of Fair Trading also failed to identify any tenancy records for the property (T54).  Mrs El-Hourani did provide to Centrelink on 4 May 2005, a partial copy of a Residential Tenancy Agreement dated 24 February 2002 between herself and Mr El-Hourani for the property (T33).  Although there may have been a residential tenancy agreement between Mr and Mrs El-Hourani there is no evidence before me to suggest that Mrs El-Hourani made any rental payments.

16.     In her evidence, Mrs El-Hourani said that her daughter Fatima had on occasion, helped with payments of rent. However Fatima gave evidence that she had never done this and such matters were between her mother and father and were not discussed with her. The existence of the residential tenancy agreement also does not corroborate or explain Mrs El-Hourani’s inconsistency in explaining the rental arrangements.  Mrs El-Hourani also did not pay any bond for the lease of the property.

17.     In her affidavit, sworn on 11 April 2007, Mrs El-Hourani also stated that Mr El-Hourani moved into the residence on 6 April 2006 to help control the children. She had told the SSAT that Fatima had wanted her father to move back.  In June 2005 Fatima had described herself to Centrelink as being her father’s ‘carer’.

18.     Mrs El-Hourani confirmed that the electricity and other utilities for the property were connected in Mr El-Hourani’s name (T63).  This is inconsistent with a typical rental arrangement where the tenant would be the account holder.  Both Mrs and Mr El-Hourani gave evidence to suggest that Mrs El-Hourani was unable to have the electricity, gas or telephone connected in her name due to outstanding accounts when she left Jannali.  However, the Respondent’s enquiries to the Department of Housing indicated that the applicant vacated the property without notice and there was no indication of any debt (T55).  Mr El-Hourani said the children had told him of their mother’s adverse credit rating.

19.     Mrs El-Hourani said that she pays the bills by instalments but has no receipts to substantiate this.  Mr El-Hourani said that since he has been living at Arncliffe (since April 2006) he ‘helps out’ with the bills.  Fatima said that she and her brother have paid all the bills since she was 17 (which would be since about 2002). 

20.     Although Mrs & Mr El-Hourani claim that Mr El-Hourani did not live at Arncliffe until 6 April 2006, applications and declarations made by Mr El-Hourani to Trash and Treasure Australia Pty Limited between August 2004 and March 2005 gave his residential address as the Arncliffe property (T57, T59).  In the Australian Business Register his business’ location is Arncliffe.

21.     The Trash and Treasure declarations also provided a vehicle registration number, which was a vehicle registered in the name of Mrs El-Hourani (T59, T38).  Mrs El-Hourani, in an Assessment of Living Arrangement form to Centrelink dated 30 June 2005 answered that she was the owner of the vehicle and that she did not share the use of the car (T62).  Mrs El-Hourani, in her evidence, said she might share the use of the car with her son but could not remember sharing it with anyone else.  Mr El-Hourani and Fatima each gave evidence that although the car belonged to Mrs El-Hourani Fatima would often drive the car to the markets to work in her father’s stall.  Mrs El-Hourani said that Fatima would only drive the car in emergencies. In addition, Fatima also gave evidence that she would usually drive her father or be a passenger when he drove due to his medical condition of diabetes.  In any event, Mrs El-Hourani‘s car was used for the purpose of Mr El-Hourani’s business.

22.     During an interview with a Centrelink officer on 30 June 2005, Mrs El-Hourani was reported as having stated that she would work in her husband’s stall at the Flemington Markets when she would go there to buy her fruit and vegetables and in order to give her daughter a break for a few hours. She also indicated that by working at the markets, she hoped to gain some money for a ticket to Lebanon to visit her sick mother. She told the Centrelink officer that she was hoping this money would come from Adnan (T63).  The Respondent contends that this is further indicative of Mr and Mrs El-Hourani’s financial dependency. However during cross-examination, Mrs El-Hourani, Mr El-Hourani and Fatima each stated that Mrs El-Hourani was not paid for her work at the markets. There was evidence that Mrs El-Hourani would go to the markets to do her shopping and would simply give her daughter a break.  I also heard evidence that Mrs El-Hourani received the money for a ticket to Lebanon from Fatima.

23.     On 17 April 2001, Mr El-Hourani took out a family policy with MBF health insurance. There Mrs El-Hourani was nominated as the partner of Mr El-Hourani on an application form (T60) and he provided information to MBF that Mrs El-Hourani was his wife (T56).  Mrs El-Hourani’s explanation was that a family application was cheaper.  Records before me of an interview with a Centrelink officer on 1 July 2005 show that Mrs El-Hourani confirmed that claims were made for her upon the MBF policy (T63). A schedule of benefits provided by MBF lists Mrs El-Hourani as claiming benefits for optical and dental treatment between September 2001 and March 2005 (T56).  During cross-examination, however, Mrs El-Hourani denied that she had made the claims for herself, stating that her children had made claims in her name in addition to their own.  I find this unlikely.  If true, it is a matter, no doubt, in which MBF would be very interested.

24.     Mrs El-Hourani, during her interview with the Centrelink officer was also not able to provide a satisfactory explanation as to why Mr El-Hourani nominated Arncliffe as his address.  The Centrelink officer reported:

Client said it is not her problem if he has introduced her as his wife as she was not with him and not responsible for what he says. Client said that Adnan has not given them the right address…. The reason for this is because he uses my address to have his documents sent to. (T63)

25.     Mrs El-Hourani also gave evidence at the hearing confirming that Mr El-Hourani had never made any regular child support payments for his children.  She said that the arrangement was such that if the children needed money, they would approach their father directly.  When questioned regarding the nature of this arrangement, Mrs El-Hourani agreed that it was like giving the children pocket money. In a Centrelink Parenting Payment Service Update dated 4 May 2005, Mr El-Hourani indicated that Muhammad and Fatin received $50 per week child support that was privately collected (T43).

NATURE OF THE HOUSEHOLD

26.     Mrs El-Hourani claimed that it was not until 6 April 2006 that Mr El-Hourani lived at the Arncliffe property.  It was conceded that Mr El-Hourani did store goods at the property, primarily in the garage which Mr El-Hourani said, was not part of the property rented to Mrs El-Hourani.  Mr El-Hourani said that he told the children, and they told their mother that the garage was not included. The residential tenancy agreement is silent on the issue.

27.     Although Mr El-Hourani denies residing with the applicant or his children between 1992 and 6 April 2006, this is inconsistent with a Centrelink Living Arrangements form date stamped 10 April 2001 at Centrelink Sutherland which records Mr El-Hourani as sometimes Jannali.  In particular, Mrs El-Hourani stated on the form:

He’s only sleeping when he’s sick and needs our help or when the children want him to sleep over. My children are making too much trouble with the neighbours and in need of the father in the house

28.     Exhibit R1 is a Centrelink claim form for Payments for people with disabilities, illnesses or injuries. The form was completed by Mr El-Hourani and submitted to Centrelink Rockdale on 11 April 2007. Mr El-Hourani indicates on the form that he has been living at the Arncliffe property for 1 year and when giving details of his current marital status indicates that he is currently living with his de facto partner. When asked when he started living with his de facto partner, Mr El-Hourani has written February 2006 and states that his de facto partner is Mrs Khadije El-Hourani. When questioned at the hearing about his answers on this form, Mr El-Hourani said that he thought that de facto meant that everyone lived separately. This is so even though the marital status options on the form included: ‘single’, ‘married and currently living together’, ‘de facto and currently living together’, ‘have a partner, but unable to live together’, ‘divorced’, ‘widowed’ and ‘separated’.

29.     During her evidence, Fatima stated that her father had moved into their home shortly after she, Fatima divorced her husband.  She stated that her father moved in because she needed him.  She gave evidence that this was prior to the SSAT hearing, which was in September 2005.

30.     A statement given by Fatima  to the SSAT date stamped 29 September 2005 states that Mr El-Hourani used the Arncliffe property as his postal address as Mr El-Hourani could not speak or write English.  Fatima would then be able to pass the letters on to him.  Fatima’s evidence was that he never used the Jannali address as postal address which is curious given that, according to Mr El-Hourani’s evidence, during that period he had lived at multiple locations, which would tend to suggest an increased need for certainty as to where correspondence should be addressed. 

31.     Mr El-Hourani, in his affidavit, stated that between 1992 and June 2000 he lived at a number of places including Eden Street Arncliffe, Wollongong Road Arncliffe, Remly St Roselands, Princess Highway Arncliffe and Pearson Street Carlton. Exhibit R2, an extract of the 2006 UBD City Link Street Directory demonstrates that Pearson Street Carlton is a fictitious address. Mr El-Hourani then goes on to state that from June 2000 until July 2002 he resided with Mr Hussein Tannana at Prospect Street Carlton and from July 2002 to 6 April 2006 at Rawson Street Bexley with Mr Tannana and his family. However various documents contained in the section 37 T documents before me indicate that Mr El-Hourani stated to a number of authorities his address as the Arncliffe property that Mrs Hourani was residing in from a date earlier that 6 April 2006. These authorities included, Sydney Markets Limited, Baycorp Advantage Business Information Services Ltd, eBay Australia & New Zealand, Westpac Banking Corporation, MBF Health Fund, Trash & Treasure Australia Pty Ltd, Commonwealth Bank and Westpac Financial Services (see T37, T45, T50, T53, T56, T57, T58, T59, and T69). In an application to Delta Home Loans and to Austar Home Loans a different Arncliffe address altogether was provided.

32.     While there was evidence of separate sleeping arrangements at Arncliffe the evidence was sparse as to the arrangements in relation to household chores.  The only evidence was that of Fatima that Mr El-Hourani cooked for himself.  She said renovations had been done to the house so that now there was an extra room, toilet and kitchen as well as a back entrance that were utilised by Mr El-Hourani.

33.     There was no evidence as to how Mrs El-Hourani pays for food for herself and the children.  Further, there was no evidence at all as to the cleaning, washing and other domestic arrangements.  I regarded this as a significant omission from the evidence, in circumstances where the Applicant was represented.

SOCIAL ASPECTS OF THE RELATIONSHIP

34.     Mrs El-Hourani’s evidence was that she and her husband had a lot of marital problems.  In 1986 Mr El-Hourani left the family home.  He said it was ‘for a month or a year, maybe more’.  However he returned. In 1992 they ‘left each other’ according to Mrs El-Hourani, before the twins were born in April of that year.  Mr El-Hourani could not recall if he left before or after the twins were born but was prepared to recall, with precision, the date he went to live at Arncliffe.  In a Social Security Pension Claim form dated 2 April 1992, Mrs El-Hourani indicated the date of separation was 28 March 1992.  However in her affidavit sworn on 11 April 2007, she claims the first date of separation was July 1992.  In fact there was evidence that they had separated for up to a year in 1986.

35.     Mr and Mrs El-Hourani were divorced in 1997 when a decree nisi was issued on 19 August 1997 and a decree absolute was issued on 20 September 1997.  I also have before me a document in Arabic and a certified translation.  The document’s English translation states it is a ‘Repudiate of Divorce’ from the Islamic Spiritual Court of Lebanon and is dated 17 July 1997 (exhibit A3).  Mr Omar Moussa, the original translator of the document and Mr Omar Etman, interpreter, confirmed this translation.  The Islamic divorce released Mr El-Hourani from the payment of any further dowry. However he continued to pay significant sums – totalling about $30,000 to Mrs El-Hourani’s brother in Lebanon.  Mrs El-Hourani said the money was hers to use as she wished.  Mr El-Hourani said he regarded it as a religious and moral obligation, notwithstanding that the divorce document, as translated, released him from any obligation.

36.     The Applicant’s statement of facts and contentions as well as the affidavits of Mr Tannana, sworn on 27 July 2007 and Mrs Bazzi, sworn on 11 April 2007 state that Mr and Mrs El-Hourani are not known as a couple amongst their friends or the wider community. Mrs El-Hourani, in her affidavit stated that people who know her and Mr El-Hourani in the Lebanese Muslim community considered them to be separated since 1992 and her acquaintances know her as a single woman.

37.     Mr Tannana said he had observed fights about the children and money, and issues which were ‘normal between couples’.  He said he suggested Mr El-Hourani go home because Mrs El-Hourani could not control the children.  He also thought Fatima would be able to care for her father because of his diabetes, because he did not want that responsiblity. 

38.     Mrs El-Hourani told Centrelink that she had not been at Arncliffe long enough to tell people about her marital status (T63).  Mrs El-Hourani told the SSAT that only three or four of her close friends knew that she and Mr El-Hourani were separated.  She said that she has not told other people because no one has the right to know or ask questions about her private life.  She also stated that the twins’ school is not aware of the separation and that the school has the Arncliffe address for both Mr and Mrs El-Hourani.  They have only ever attended one school function together and mostly, Mrs El-Hourani attends the school with Fatima, who interprets for her.

39.     By contrast, Mrs El-Hourani’s evidence was that close friends ‘found out’ in about 1994 and she said some women at the mosque knew, but not all the details.

40.     Given this, it appears that to parts of the community, Mr and Mrs El-Hourani encouraged people to believe they were in a marriage like relationship.

ANY SEXUAL RELATIONSHIP BETWEEN THE PEOPLE

41.     In the Applicant’s statement of facts and contentions it was stated that Mrs El-Hourani had not had any sexual relations with Mr El-Hourani since ‘1992 or before’. She also stated in her affidavit that:

During the last 15 years Adnan and I have not been in a relationship as a couple. We have not had any sexual relations and we merely retain contact for the sake of the children.

42.     This is plainly incorrect if it is to infer the there was no sexual relationship, given that Mrs El-Hourani gave birth to twins Mohammad and Fatin on 12 April 1992.

43.     During her oral evidence, Mrs El-Hourani stated that she did not engage in a sexual relationship with Mr El-Hourani because she had “women’s problems”.  Mr El-Hourani said that this was one of the main reasons for their separation.

44.     I also have before me a Pelvic Ultrasound report by Dr Bryan Fain dated 21 March 2007 and a medical report from Dr Karen Harris dated 8 April 2002 stating that Mrs El-Hourani had six weeks prior undergone a LLETZ biopsy at Bankstown Hospital.  I do not find these reports to be conclusive to substantiate whether or not the Applicant is prevented from engaging in sexual relations due to a medical condition. 

45.     Mrs El-Hourani, Mrs Bazzi, Fatima, Mr El-Hourani and Mr Tannana, in their affidavits that are before me, each state words to the effect that insofar as Islamic Law is concerned, it is illegal and socially taboo for Mr and Mrs El-Hourani to be a couple in a marriage-like relationship while they are divorced according to Islamic law.  Should they be in a marriage-like relationship while they are divorced according to Islamic law, they will be committing a very shameful act in the eyes of the community.

46.     In her affidavit Mrs El-Hourani said she had an Islamic divorce on 17 July 1997.  However, in June 2005 (T63) she told Centrelink that she had written to Lebanon for a divorce but she was not yet divorced.

47.     Mr El-Hourani stated in his affidavit, sworn on 11 April 2007, that he had been re-married in Lebanon to So’ad aka Ibtissam Dirani between 1997 and 1998.  I have before me an Arabic document and English Translation which is ‘Divorce in return for a monetary compensation to be paid by the wife to the husband’ from the Honorable Islamic Religious Court: in Lebanon.  This divorce document is dated 21 May 2001. Mr El-Hourani gave oral evidence that he did not attend Lebanon for his marriage to So’ad aka Ibtissam Dirani but instead sent a power of attorney.   Mr El-Hourani also gave evidence that he had a girlfriend named Carla between 1999 and 2001. However no other witnesses could attest to meeting Carla.  Mr Tananna, when giving evidence at the hearing stated that he had never met Carla even though Mr El-Hourani was apparently living with Mr Tananna at the time. Mr Tananna also gave evidence that it was not considered unusual by their local community that Mr El-Hourani may have more than one wife. Fatima El-Hourani also gave evidence that she had never met her father’s second wife or his girlfriend as her father’s personal life was none of her business.

48.     Mrs El-Hourani was invited by her counsel to indicate her understanding of the term ‘marriage-like relationship’. Her evidence was to the effect that it necessarily entailed ‘sleeping together’, which I took to euphemistically mean having a sexual relationship.  When Mrs El-Hourani was asked in cross-examination if she and her husband had reconciled she again referred to medical problems which prevented her from being ‘with him or any other man’.

NATURE OF THE PEOPLE’S COMMITMENT TO EACH OTHER

49.     Mrs and Mr El-Hourani appear to have a demonstrated level of commitment to each other.  The provision of housing by Mr El-Hourani to Mrs El-Hourani demonstrates such a level of commitment especially given that Mrs El-Hourani, in her affidavit states that she no longer paid rent to Mr El-Hourani once he moved into the property.  Similarly, all household utilities are in Mr El-Hourani’s name. 

50.     The Respondent referred me to Re Gill and SDFaCS [1999] AATA 452 where the Tribunal was satisfied of a marriage like relationship in a situation where a man offered housing to the mother of his two children at a time of crisis in her life. The commitment extended to the children (as in the present case) and there was no strong desire to end the current situation. In this matter there is also no desire to end the current living arrangement between Mrs and Mr El-Hourani. All witnesses gave evidence that the El-Hourani’s have renovated their house so as to provide additional room for Mr El-Hourani and this appears to make the arrangement more permanent.

51.     I have already noted Mr El-Hourani’s affidavit where he specifically denied being in a marriage-like relationship with Mrs El-Hourani.  On the same day he lodged a claim for disability support pension (Exhibit R1) in which he described her as his partner.

CONCLUSION

52.     In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.

53.     In Re Secretary, Department of Community Services and WAP [2000] AATA 7, the Tribunal said that the provisions of section 4(3) of the Act provide objective criteria for determining if a person is a member of a couple. However, as there is no guidance as to how much weight is to be attributed to each criterion, it falls to the Tribunal to consider all of the circumstances of the relationship and what weight is to be accorded to those circumstances.

The issue of how two cohabitating persons view their relationship, based on their mutual or individual perceptions of what constitutes a ‘marriage like relationship’, is not determinative.  The test is an objective one, having regard to the statutory criteria and the facts of the particular case.

54. The concept of a “marriage-like relationship” under the Act was discussed in Re SRWW and Secretary, Department of Family and Community Services [2001] AATA 495, where the Tribunal noted that each matter is to be considered on its merits and that the Tribunal should remain flexible in its approach.

55.     Recently, in Pelka and Secretary, Department of Family and Community Services (2006) 151 FCR 546, French J, referring to section 4(3) of the Act said that the decision-maker:

Must undertake the preceding consideration [i.e. in relation to section 4(3)] bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:

i)financial cooperation;

ii)cohabitation;

iii)a sexual relationship;

iv)cooperative household arrangements;

v)mutual commitment.

56.     I discussed the evidence in respect of the statutory criteria above.  While there may be no sexual relationship or apparent mutual commitment between Mr and Mrs El-Hourani, there is cohabitation and a degree of financial cooperation and cooperative household arrangements.  Much was made in the Applicant’s case and the submissions on her behalf of the absence of a sexual relationship.  I accept that since the birth of the twins in 1992 this may be the case, but that by no means is the end of the matter.  

57.     No one feature in Mr and Mrs El-Hourani’s relationship stands out as dictating a conclusion and I have reached my conclusion the totality of the evidence.

58.     Determining whether a relationship is ‘marriage-like’ is a difficult task.  The assessment is made somewhat easier by the commonsense criteria identified in the legislation, as addressed above.  All the criteria need not be satisfied.  In fact, one may satisfy few of them but still be considered to be a member of a couple.  All of the circumstances need to be considered and each matter is different.  I accept that their relationship is not a happy one and that it may not conform to the stereotypes of family life (per Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789), but that does not mean it is not a marriage-like relationship.

59. Upon objectively reviewing the totality of the evidence, and particularly in light of the significant inconsistencies in the evidence, I have come to the view that Mrs and Mr El-Hourani were in a ‘marriage-like relationship’ at the relevant period and as such, Mrs El-Hourani was therefore not entitled to parenting payment single payments under section 1068A of the Act.

60.     The decision under review is affirmed.

I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member

Signed:         Talaishia Collis
  Associate

Date/s of Hearing  26 – 27 July 2007
Date of Decision  9 August 2007
Counsel for the Applicant         Mr Pierre de Dassel
Solicitor for the Applicant          Mr Mahmoud Mandoh – Ross Hill & Associates Solicitors
Counsel for the Respondent     Ms Kate Eastman
Solicitor for the Respondent     Mr Anthony Carter – Sparke Helmore Lawyers

LIST OF EXHIBITS

A1Islamic divorce document and English translation of divorce between Mr Adnan El-Hourani and Mrs Ibtisam Mohamed Al Dirani dated 21 May 2002

A2Document bundle – 3 pages from Raine & Horne Hurstville comprising: Letter to Mr Hourani dated 4 April 2001; Tax Invoice to Mr Adnan Hourani issued on 2 April 2001; Tax Invoice to Mr Adnan Hourani issued on 30 April 2001

A3Islamic divorce document and English translation of divorce between Mr Adnan Hamid Hourani and Khadije Hussein Dib dated 17 July 1997

R1Centrelink Claim for Payments for people with disabilities, illnesses or injuries form datestamped Centrelink Rockdale 11 April 2007

R22006 UBD City Link Street Directory extract – 2 pages

R3Centrelink Real Estate Details form date stamped Centrelink Hurstville 21 April 2005

R4Copy of Medicare Card of Adnan Hourani date stamped 25 January 2007

R5Centrelink Customer Declaration Form Newstart Allowance dated 25 January 2007

Documents tendered but not marked:

·Medical Report of Dr Karen Harris dated 8 April 2002

·Pelvic Ultrasound report of Dr Bryan Fain sated 21 March 2007

·Affidavit of Hussien Ali Tannana sworn on 27 July 2007