Fayad and Secretary, Department of Family and Community Services
[2004] AATA 1203
•16 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1203
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/413GENERAL ADMINISTRATIVE DIVISION )
ReRANIA FAYAD
Applicant
AndSECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent
DECISION
TribunalMs G Ettinger, Senior Member
Date16 November 2004
PlaceSydney
DecisionThe Tribunal affirms the decision under review of the Social Security Appeals Tribunal of 26 February 2004, which affirmed the decision of the Authorised Review Officer of the Secretary, Department of Family and Community Services dated 29 May 2003 to cancel Parenting Payment Single and Sole Parent Pension. The Tribunal finds that Rania Fayad was a “member of a couple” pursuant to section 4 of the Social Security Act 1991 on and from the date of cancellation of her benefits on 2 August 1997 and a “member of a couple” from 7 January 1998 onwards.
Ms G Ettinger
Senior Member
catchwords
SOCIAL SECURITY- sole parent pension/parenting payment single - legally married – alleging separated then living separated under the one roof - applicant is a “member of a couple” – decision under review affirmed.
legislation
Social Security Act 1991 s 4
case law
Re Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27
In the Marriage of Pavey (1976) 10 ALR 259
Re Bagy and Secretary, Department of Social Security (AAT 8994, 17 September 1993)
Lynam v Director-General of Social Security (1983) 52 ALR 128Francis v Department of Family and Community Services [1999] AATA 243
REASONS FOR DECISION
16 November 2004Ms G Ettinger, Senior Member
1. The decision under review before the Administrative Appeals Tribunal “the Tribunal”), was the decision of the Social Security Appeals Tribunal (“the SSAT”) of 26 February 2004, (T2), which affirmed the decision of the Authorised Review Officer (“the ARO”) of the Secretary, Department of Family and Community Services (“the Department”), (“the Respondent”), of 29 May 2003, (T81). The Department had cancelled Mrs Rania Fayad’s Parenting Payment Single and Sole Parent Pension from 21 August 1997, finding she was a “member of a couple” pursuant to section 4 of the Social Security Act 1991. It had raised debts with regard to the abovementioned benefits paid to her, as also a debt with regard to family tax benefit.
2. I was mindful that although the Respondent had raised debts against Mrs Fayad which arose as a result of its decisions to cancel her benefits, the SSAT had declined to deal with the debt, due, it said at paragraph 64 of its decision at T2, to uncertainty regarding recalculation of the debt, and a jurisdictional issue. Accordingly, because the SSAT had not reviewed the debt issue, this Tribunal has no jurisdiction to deal with it, and has not done so.
3. Mrs Fayad was represented at the hearing by Ms J Finlay, of the Welfare Rights Centre. The advocate for the respondent Department was Mr G Richardson. The Tribunal was assisted by interpreting services in the Arabic language provided by Mr Methqal.
ISSUE BEFORE THE TRIBUNAL
4. The only issue before this Tribunal was whether Mrs Rania Fayad was a “member of a couple” pursuant to section 4 of the Social Security Act1991 (“the Act”), for the period commencing either 21 August 1997 and/or 7 January 1998.
LEGISLATION
The relevant legislation in this matter is the Social Security Act1991, in particular sections 4 and 24. As applicable the sections follow.
5. Section 4 outlines the circumstances to be considered when determining whether a person is a “member of a couple”, and as relevant, follows:
“4 (1) In this Act, unless the contrary intention appears:
...
member of a couple has the meaning given by subsections (2), (3), (3A), (6) and (6A);
...
4 (2)Subject to subsection (3), a person is a member of a couple for the purposes of this Act if:
(a)the person is legally married to another person and is not, in the Secretary’s opinion (formed as mentioned in subsection (3)), living separately and apart from the other person on a permanent or indefinite basis; or
...
4 (3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2) (a) or subparagraph (2) (b) (iii), the Secretary is to have regard to all the circumstances of the relationship including, in particular, the following matters:
(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 the 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 consider that the relationship is likely to continue indefinitely; and
(iv)whether the people see their relationship as a marriage-like relationship.
...”
6. Section 24 of the Act provides a discretion under which a person may be treated as not being a “member of a couple”, and follows as relevant:
“24 (1) Where:
(a)a person is legally married to another person; and
(b)the person is not living separately and apart from the other person on a permanent or indefinite basis; and
(c)the Secretary is satisfied that the person should, for a special reason in the particular case, not be treated as a member of a couple;
the Secretary may determine, in writing, that the person is not to be treated as a member of a couple for the purposes of this Act.”
EVIDENCE BEFORE THE TRIBUNAL
7. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), and various other documents tendered by the parties which have been referred to in these Reasons for Decision.
8. Oral evidence was given by the Applicant, Mrs Fayad, her husband Mr Tony Fayad, Mr Fayad’s sister Mrs Jamila Patras, and a further witness, a friend of Mrs Fayad.
9. Ms Finlay made an application on behalf of Mrs Fayad that the name of the friend who was to be a witness, be suppressed. After hearing her argument, and being mindful that the Respondent made no objections, I agreed that the relevant witness be known as Mr G, and that pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 , his name and any identifying details be suppressed.
BACKGROUND
10. At my request, the parties produced an agreed chronology of events which I have reproduced here. I am indebted to them for their assistance in compiling it.
Date Event April - May 1993 Mrs Fayad met Tony Fayad in April 1993 in Lebanon. They married in Lebanon on 9 May 1993. 27 July 1993 Mrs Fayad and Tony Fayad arrived in Australia. They lived in rental accommodation. 20 September 1994 Vanessa was born. 1996/97 Mrs Fayad and Tony Fayad lived with Tony’s parents. 14 February 1997 Mrs Fayad and Tony Fayad purchased 3 McCubbin Place, Plumpton as joint tenants (T28 & T34). They received a joint credit card with their home loan. 13 August 1997 Mrs Fayad claimed Sole Parent Pension (SPP) on the basis of separated under the one roof (T4). She claimed the separation occurred on 17 July 1997. 15 August 1997 Centrelink rejected claim for SPP (T6 - T11) 18 August 1997 Child Support Assessment commences as at this date. 2 September 1997 Mrs Fayad appealed against rejection of SPP claim (T12) 12 September 1997 Centrelink affirmed decision to reject SPP claim (T14 - T15) 25 September 1997 Mrs Fayad appealed against rejection. Notified that Tony Fayad living with sister at 136 Oxford Street, Cambridge Park (T17 - T18) 3 October 1997 Centrelink notice to Mrs Fayad advising she was granted SPP from payday 21 August 1997 (T19). 7 January 1998 Peter was born. March1998 Joint credit application by Tony Fayad and Mrs Fayad to refinance loans (T72). Application denied on 19 June 1998 (T72) 22 March - 21 June 1999 Mrs Fayad, Vanessa and Peter traveled to Lebanon to visit Mrs Fayad's family. 28 June 1999 Mrs Fayad was interviewed in her home by the Centrelink Mobile Review Team about an allegation that she was in a marriage-like relationship. Centrelink concluded there was no evidence to substantiate the allegation (T20). 22 April 2000 A Blacktown Speech Pathology Services initial assessment report asserts Peter "lives with his mother, father and sister”. (T21) 11 July 2000 Jane Wearn Psychological Services report asserts that Peter "lives at home with his parents, Tony and Rania." (T22) July 2000 Peter was diagnosed as autistic. September 2000 Mrs Fayad traveled to the USA for 2 weeks holiday with friends. September 2000 Tony Fayad gave Mrs Fayad a car. 23 November 2000 Joint application by Tony Fayad and Mrs Fayad to refinance loans was approved (T76). Offer was not taken up. 7 December 2000 Joint application by Tony Fayad and Mrs Fayad to refinance loans was granted (T75). Loan contract signed 12 January 2001. 26 July - 8 October 2001 Mrs Fayad, Vanessa and Peter traveled to Lebanon to visit Mrs Fayad's family. 9 and 21 December 2001 Tony Fayad made credit applications with Esanda Finance for used motor vehicles (T52) with Mrs Fayad listed as a co-borrower. 15 October 2001 Mrs Fayad began casual work at Heart to Heart Patisserie (T60) 6 June 2002 Joint application by Tony Fayad and Mrs Fayad for a home loan for $277,000 to buy 8 McCubbin Place (T30). June 2002 Tony Fayad and a partner established a real estate business in Blacktown. Mr Fayad used 3 McCubbin Place as security for his share of the business. 5 July 2002 Property at 8 McCubbin Place, Plumpton, purchased in Mrs Fayad and Tony Fayads' names as joint tenants (T35 & T46). 14 August 2002 Tony Fayad registered his business Bright Properties P/L (T27) 4 April 2003 Mrs Fayad interviewed in her home by Centrelink officer (T32)
Centrelink cancelled Mrs Fayad's Parenting Payment Single (T32, p104)11 April 2003 Mrs Fayad and Tony Fayad attended Centrelink office for an interview (T32) 12 April 2003 Tony Fayad and Mrs Fayad entered into a contract to sell 8 McCubbin Place (T59) 7 April 2003 Mrs Fayad lodged appeal against cancellation of Parenting Payment Single (T36) 24 April 2003 Centrelink raised:
(1) $5,682.40 Sole Parent Pension debt for the period 21 August 1997 to 19 March 1998 (T47);
(2) $12,003.50 Parenting Payment Single debt for the period 2 April 1998 to 24 June 1999 (T48); and
(3) $39,649.46 Parenting Payment Single debt for the period 25 June 1999 to 25 March 2003 (T49).
The basis for the debts was Centrelink's determination that Mrs Fayad continued to reside with her husband and remained a member of a couple (T49).2 May 2003 Centrelink Mt Druitt received a handwritten note from Mrs Fayad advising she wishes to appeal against the decision that she is in a marriage-like relationship (T56); and
Centrelink received a "Becoming Partnered" form lodged by Mrs Fayad (T57)6 May 2003 Centrelink raised:
$11,271.74 Family Allowance debt for the period 28 August 1997 to 1 July 1999 (T65)
$6,408.22 Family Allowance debt for the period 15 July 1999 to 30 June 20006 May 2003 Centrelink original decision maker affirmed the decision to cancel Mrs Fayad's Parenting Payment Single (T68) 7 May 2003 Centrelink notice to Mrs Fayad advising that her Parenting Payment Single has been cancelled (T70). 29 May 2003 Centrelink Authorised Review Officer (ARO) affirmed decision to treat as a member of a couple, however amended debt start date to 7 January 1998 (T80 - T82) 3 June 2003 Centrelink file note noting that Parenting Payment Partnered claim was rejected. (T85) 4 July 2003 Mrs Fayad lodged appeal with Social Security Appeals Tribunal (T87) 7 July 2003 Centrelink reviewed the Sole Parent Pension debt in light of the AROs decision. Debt reduced from $5,682.40 to $2,134.80 (T88- T89) 21 July to 24 September 2003 Mrs Fayad, Vanessa and Peter traveled with Mr G to Lebanon. 26 February 2004 Social Security Appeals Tribunal affirmed the decision to cancel Parenting Payment Single (T2). 5 April 2004 Mrs Fayad lodged an appeal with the Administrative Appeals Tribunal against the decision to cancel her Parenting Payment Single on the basis that she is a member of a couple (T1) 23 June 2004 3 McCubbin Place sold for $380,000. mrs rania fayad
11. It was not in dispute and I accepted that Rania Fayad who was born in Lebanon on 5 September 1974, had known Tony Fayad only a short time before they married on 9 May 1993, and came to Australia. I accepted also that it was difficult for Rania Fayad, aged 19, to leave her family and come to Australia where she was totally dependent on her husband and his family. She however quickly learned English, they met all the relations, and stayed with them at various times. The couple purchased 3 McCubbin Place as joint tenants in February 1997 (T34).
12. Mrs Fayad’s evidence was that her relationship with Tony Fayad was difficult, but said that in the first few years, she accepted him, and knew she must respect him. She said that when she was pregnant in 1997, her husband went out a lot with friends, and without her, while she stayed at home and looked after the domestic situation. Mrs Fayad said that she could not tolerate that, and that following her mother’s visit, she told her husband, one night when he had been out (in approximately July or August 1997), that he should leave. She said that the next day he took a few things, and left. Mrs Fayad said that he stayed with his sister Jamila Patras, and with his mother as well as with friends. She said that Tony Fayad would return to collect his mail, and they would have arguments.
13. Both Mr and Mrs Fayad told me that during 1997, Tony Fayad had a knee injury, was not working, and was receiving compensation payments. Mrs Fayad said that Tony studied for his real estate examinations before the separation, but commenced working in that field after the separation in July/August 1997. Mr Fayad said that some five months after moving to 3 McCubbin Place, the couple were fighting, but that he ignored that, and “did his own thing”. He said that both wanted to stay married at that time, but that having a child made a big change. He also said that there was so much tension in his family anyway, with illness and divorce, that he did not want to add to it by any separation. He said that accordingly, he stayed away, staying with his sister, parents, and in his car, and came home only to see the children or clear his mail.
14. Mrs Fayad said that she was pregnant in 1997, and it was very difficult on her own, so that when Peter’s birth was imminent, he was born on 7 January 1998, she asked Tony to be with her, hoping the situation between them would improve. She said that he took Vanessa to childcare over the period of a month after the birth of Peter, but that that was the only support from him which she received, although his parents assisted to an extent. She said that later on he would sometimes take the children to his parents’ or his sister’s once a week, or once every two to three weeks. Tony Fayad told me that his presence at the birth was his responsibility because Rania Fayad had noone there for her, and the doctor had signalled complications before Peter was born. He said however, that afterwards he had little contact with the family because he was very busy with work. Mr Fayad said that during 1998 he had contact with his children once every few weeks, and would take them to his parents.
15. Mrs Fayad said that Peter was diagnosed as autistic at aged two and a half in 2000, and said that she found it hard to accept, and did not tell anyone.
16. Mrs Fayad said that she allowed Tony to move back to the house in December 2002 because he had started a new business during that year, and was financially stretched. She felt sorry for him, and thought it would be better for Peter if his father lived at home, as they had a good relationship. She said that her experience when Tony moved back was that he wanted to control her, and she found it difficult to adjust to having him there. He stayed in the loungeroom at the house three or four nights a week, she said, but in fact arrived home very late and left early in the morning. Mrs Fayad said that she knew there was an upstairs room at Tony Fayad’s office where he might stay the other nights, but said that she did not actually know where he stayed. Mrs Fayad said that she accepted him staying at the house, but not as her husband, and submitted each was doing his or her own thing, She said that she would not consider returning to the relationship, because it was not good for her.
17. Mrs Fayad said that Tony was good for the children whom he took out once in a while, (the last time having been four weeks before the Hearing at the Tribunal). She said that on that occasion, she had done the driving, and waited for them while he took them fishing. She said that she has to drive, because he has lost his licence.
SUBMISSIONS AND CONCLUSIONS
18. I have considered all the evidence, written submissions made on behalf of the parties, case law and legislation in coming to a decision regarding the Applicant’s personal situation, and whether she was a “member of a couple” pursuant to section 4 of the Act. In doing so, I had to consider whether pursuant to section 4(2) of the Act, Mrs Fayad, being legally married to Tony Fayad, was living separately and apart from him, on a permanent and indefinite basis, and whether that commenced from 21 August 1997 or 7 January 1998 or some other date. In doing so, I have had regard also to the indicia in section 4(3) of the Act.
19. As stated above, I deal in these Reasons for Decision with the issue of whether Rania Fayad is a “member of a couple” but find that, because there is no reviewable decision with regard to any debt issues, I do not have jurisdiction to deal with such issues, and accordingly have not done so.
20. In making my decision, I was mindful of Ms Finlay’s submissions on behalf of the Mrs Rania Fayad that she and Mr Tony Fayad were married but separated, and had been living separately from July/August 1997 to December 2002, and that they had been living separated under one roof, from December 2002 to the present. She submitted further that the Tribunal should be mindful regarding factors pointing to the disintegration of the relationship and the degree of change in the relationship, rather than considering what forms a relationship. (Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27).
21. I have noted the letter of Mr Mattar, psychologist, dated 26 June 2003, (T86) in support of Mrs Fayad’s Centrelink appeal, noting that he found her upset.
22. In forming an opinion about the relationship between the two people for the purposes of determining whether they constituted a couple pursuant to section 4 of the Act, I considered the decisions in Re Staunton-Smith v Secretary, Department of Social Security (1991) 25 ALD 27, and In the Marriage of Pavey (1976) 10 ALR 259 which elucidated a common principle that the question of whether a couple were living separately and apart, was one of fact and degree, requiring all the circumstances of the particular case to be taken into account, including the financial aspects, the nature of the household, the social and sexual aspects of the relationship, and the nature of the commitment Mr and Mrs Fayad have to each other. These issues have, amongst others, each been considered.
financial aspects of the relationship
23. In considering the financial aspects of the relationship, I accepted that it was not in dispute Mr and Mrs Fayad purchased and owned 3 McCubbin Place, Plumpton as joint tenants in February 1997 (T34). They received a joint credit card with their home loan. The house was sold, still jointly owned, in mid-2004.
24. Mrs Fayad’s evidence was that before the claimed separation in July/August 1997, their funds and expenditure were shared. Mr Fayad paid for the mortgage and rates and has always done so, even after the separation, both said. Mrs Fayad told me that after 1997 when Tony Fayad left the home, and until he returned in December 2002, apart from paying the mortgage, he contributed money to the household only from time to time. Mrs Fayad explained that after the cancellation of her benefits, when she had trouble paying bills, and supplies of gas or electricity were cut off for non-payment of these, Mr Fayad would come to the rescue. He corroborated this evidence. I noted that the utilities were still connected in both names.
25. As to expenditure on meals; the Applicant’s evidence was that after December 2002, Mr Fayad would eat at home on the rare occasions when he was present during meals.
26. Mrs Fayad gave evidence that after 1997 she survived financially with the assistance of Centrelink, because she sold gold which had been given to her for her wedding, and was also assisted by her father. Mrs Fayad told the Tribunal that Tony Fayad gave her between $100 - $150 per week for child support between 1997 and 2003. At another point, and in reply to cross-examination, Mrs Fayad said that Tony Fayad was legally obliged to give her $269 per month for child support. She also said that Mr G gave her money for the beautician.
27. Mrs Fayad was critical of the visit of Centrelink to her in April 2003, and Ms Finlay submitted that the document at T32 should be given little weight as it was not a record of interview, but a file note written after benefits had already been cancelled.
28. I asked Mrs Fayad if she had considered seeking paid work which she said she had not done after the job she had in a shop in 2001. She gave many excuses for not seeking paid work, saying in particular that it was hard because Tony Fayad was not there for the children.
29. Notwithstanding Mr and Mrs Fayad’s evidence that Mr Fayad left the matrimonial home in July or August 1997, a joint credit application was made by the couple to refinance their loans in March 1998 (T72). This was refused on 19 June 1998.
30. There was a number of other joint credit applications:
· 23 November 2000 – joint credit application to refinance loans; Liberty Funding Pty Ltd (T76).
· 12 January 2001 – joint credit application to Western City Credit Union Ltd for consolidation of debts (T75);
· 9 and 21 December 2001 – credit applications with Esanda Finance for used motor vehicles (T52); Mrs Fayad listed as co-borrower.
· 6 June 2002 – joint application by Mr and Mrs Fayad for a home loan for $277,000 to jointly purchase 8 McCubbin Place (T30).
31. In reply to questions asked of her by Ms Finlay regarding the above listed loan applications which had been applied for by Mrs Fayad jointly with her husband, and which she had signed, Mrs Fayad replied in a vague and unconvincing manner, either saying she did not remember, or that she did not get involved with the financial affairs, which Tony Fayad handled. Mr Fayad explained that he had experienced problems with his business partner recently, and earlier had twice nearly lost the house to financial institutions; hence the reasons for the refinancing and eventual sale of the (two) houses.
32. As to the purchase of 8 McCubbin Place as joint tenants on 5 July 2002 (T46/132) (at a time when Mr Fayad claimed not to be living at 3 McCubbin Place); Mrs Fayad’s evidence was again that she just signed the documents as her husband had asked, and did not actually know when her husband had bought the house. She said it was an officer of Centrelink who told her she was a joint owner. She also said that she did not know when Tony started in his own real estate business, but knew that he had borrowed money from the person who later placed the caveat on 8 McCubbin Place because of that. Mrs Fayad said that 8 McCubbin Place was sold in October 2002, but that at the time of the purchase, she did not care about that purchase because she felt secure in 3 McCubbin Place, where she and the children were living. Mrs Fayad said she did not obtain legal or any other advice about the purchase, because notwithstanding that in 1997 she suspected Tony Fayad might be having an extra-marital affair, she was sure he would not do anything to harm the children. Mrs Fayad told the Tribunal that Tony Fayad told her he did not know about the caveat. Tony Fayad told the Tribunal that he bought 8 McCubbin Place intending to live there and be near the children, adding that Rania knew that. Notwithstanding the evidence of Mr Fayad to the Tribunal that he intended living at 8 McCubbin Place, and having told Centrelink similarly on 11 October 2002, (T31), (which was not denied), a contract for sale for the property was signed on 12 October 2003. Accordingly, I am unable to accept that Mr Fayad was truthful to the Tribunal or to Centrelink in that regard.
33. Mrs Fayad said that after the sale of the houses, where she learned too late, and to her detriment, that due to the caveat on 3 McCubbin Place, which was sold in June 2004, she only received only $10,000, she no longer trusted Mr Fayad.
34. After consideration of the evidence regarding the Mr and Mrs Fayad’s financial arrangements, I was satisfied that their financial circumstances were indicative of a married couple living together, where expenses were shared. Tony Fayad continued throughout the period to make the mortgage payments, and take care of the rates, and paid bills such as the electricity and gas when it was necessary. I also accepted the evidence that he contributed money to the household from time to time, and that Mrs Fayad trusted he would not do anything to disadvantage them.
35. However, I was not satisfied that Rania Fayad, who is young, who is an intelligent woman, and learned English very quickly after arriving in Australia, would sign, not one, but a number of loan applications without reading them or seeking any advice. She permitted Tony Fayad to name her as a joint borrower, and to continue giving his address as 3 McCubbin Place after an alleged separation, when both their evidence at the Tribunal was that he had not been living at 3 McCubbin Place since July/August 1997 until he moved back in December 2002.
36. I was satisfied that the evidence indicated that Mr and Mrs Fayad may not have been happy together from time to time, but that it was a household where the female “member of a couple” (who did not work outside the home), maintained the home and cared for the children, and the male member (who also looked after the garden once in a while), was the financial provider.
37. I was mindful that other indicia were also relevant, and was mindful of the leading case of Staunton-Smith v Secretary, Department of Social Security (supra), which dealt with the issue of “living separately and apart”. His Honour O’Loughlin J opined there (page 35):
“I am of the opinion that it is not sufficient to merely note that a couple are sharing accommodation, nor is it sufficient to note that one is financially dependent on the other; it is necessary to delve deeper to find the reasons for those arrangements. Those reasons will be better indicators in determining the correct nature of their relationship.”
38. On the basis of the evidence regarding the financial arrangements between the parties, as discussed above, I was not satisfied that any separation was permanent, and I moved on to consider the other indicia.
nature of the household
39. With regard to the nature of the household, it was contended on behalf of the Applicant that she did not work outside the home most of the time, and accordingly took responsibility for all the traditional household chores such as looking after the children, cooking, washing and cleaning. Mrs Fayad said that since the separation in 1997, she has rarely performed chores for Mr Fayad, although he shares the food if he happens to come in on time (since returning to the house in December 2002), and at times, buys food.
40. Mrs Fayad said that she saw Tony Fayad’s role in the house as support for the children. In contradiction to evidence he first gave of seeing the children only from time to time, Mr Fayad said in reply to questions towards the end of his cross examination, that he currently took Sundays off to spend with his children, and that he takes them out. He also said that he currently took them to visit his parents once every three to four months.
41. Mrs Fayad said that in the first period of separation, (1997 to December 2002), Mr Fayad did not come to the house often at all, and she did not know where he stayed at any particular time, but could contact him on his mobile phone. She said that after Mr Fayad moved back to 3 McCubbin Place in December 2002, he would come home late at night and leave early in the morning, so that they would rarely see each other. This was corroborated by Mr Fayad who said that he often slept at his office and came home only 3 – 4 nights a week. They both said that since the separation Mr Fayad has not slept in the same bedroom as his wife, and that he sleeps on the sofa in the lounge room when he is at the house. Mr Fayad also said that he sometimes sleeps in Peter’s room.
42. I had before me Exhibit A4 which consisted of three letters, one from a newsagent, a business neighbour of Tony Fayad dated 23 September 2004 in which he said that when he come to work at 3 am to organise newspaper runs, he had seen Tony Fayad working in his office. The other two letters were dated 22 September 2004, one from the property manager employed by Mr Fayad over the past year and four months, and confirmed the early and late attendance of Mr Fayad at his office. She also said that she had noticed Mr Fayad sleeping in the upstairs office three to four times a week. The last letter was from a sales man employed by Mr Fayad who confirmed Mr Fayad’s early and late starts and said that he had noticed Tony sleeping on a mattress “on some occasions”. None of the abovementioned were called to give evidence. I have attributed some little weight to their evidence.
43. Mr Fayad said that he took the children to see his mother from time to time, and that he would stay at home with them occasionally while Rania went out for a few hours. Sometimes Rania would take the children to Mrs Patras’ house while she went out for a few hours for coffee with a friend, or with Mr G.
44. From the above evidence, I was satisfied that not much has changed in the household, with Mrs Fayad doing the traditional mothering, housework, and chores, with Mr Fayad coming and going as he pleases. I was satisfied that there was no joint responsibility for housework, a result of cultural factors rather than the purported separation. I was satisfied from the evidence that Mrs Fayad was a member of a couple, and the person who at all times had the responsibility for the home and children.
social aspects of the relationship
45. Ms Finlay submitted that Rania Fayad came to Australia aged 18 (19), had married Tony Fayad after having met him in Lebanon only a few weeks before, and that she had very few friends in Australia. She was embarrassed, Ms Finlay submitted, to admit the marriage had broken down, for both cultural and religious reasons, although I noted Mrs Fayad’s evidence that she did not go to church.
46. Ms Finlay referred to the evidence of the Fayads, indicating they had said they attended family functions when they first came back to Australia, and that since the separation, the situation had changed, and they did not attend such functions together. Mrs Fayad said that if she and her husband did attend functions such as christenings or weddings, they would go separately. She said that Tony Fayad always left before her, and she would sit with his parents.
47. As to festivities; I noted from the evidence of Mrs Fayad that between 1997 and 2002, her husband was not always present for the children’s birthdays. She said that at Christmas time, Tony Fayad’s parents were involved with the children, and last year at Christmas, she stayed at their house with the children. Mr Fayad on the other hand, gave evidence that he picked up the children for birthdays and Christmas.
48. Both gave evidence that when Tony Fayad’s parents took care of the children from time to time, either parent, separately, (but not both together), dropped the children off and picked them up.
49. Mr Fayad said that there were differences in culture in that Rania was born in Lebanon, and he in Australia; also that he was stubborn. He said that things had changed over time, and they could not even talk to each other unless it was about school fees or other arrangements.
50. Mr Fayad said that he was worried about Peter and his disability, and had attended some counselling sessions with him. He said that the speech pathologist told him Peter needed a father, which Mr Fayad took to heart, engaging in various activities with Peter, which of course caused tensions with Vanessa and Rania. In that regard I noted the reports of a speech pathologist and a psychologist in 2000 (T21 & T22), who had reported, presumably what they had been told about Peter, namely that he lives at home with his parents Tony and Rania, and his sister.
51. Mr Fayad said that for the last two years (before the Hearing), he had been living partly in his office, and partly back home (sleeping on the sofa or in Peter’s room), because he could not afford to pay rent elsewhere. He explained that he had not changed his address (Medicare, the RTA etc) because he had had no fixed address over the years (since 1997), and would come to 3 McCubbin Place to see the children, and collect his mail. Mr Fayad said that he moved back in December 2002 because of Peter, but said that he was working three or four nights a week, and slept on the couch or in Peter’s room. Thus he said he and Rania were “not in each other’s face.”
52. Mr Fayad’s evidence regarding his home life was that not much had changed. He said that when they first married, for many years, he was working as a mechanic, and in security, and was hardly ever home. He said that he did not want to make it known in the ethnic community that he and Rania had split up because people would try and interfere and get them together again, and he has no time for that. He said that his family knew about the break-up, and very few friends did. He thought his image as a married man was better for the real estate business too. Mrs Fayad told me that they only continued to hold themselves out as a couple because of the shame and embarrassment associated with separation and divorce in the Lebanese community. She did not seek a divorce she said.
53. Mrs Fayad told me that she had travelled overseas in 1999, 2000, 2001 and 2003. She said that her parents had paid for her to travel to Lebanon with the children in 1999. In 2000 Tony Fayad had paid for her to travel to the USA. She said that she needed to go because she was stressed, particularly with regard to Peter’s diagnosis of autism; further, she had met someone on the internet whom she wanted to meet in person. Mrs Fayad told me she had paid her husband back the money for the trip when she was working. Mrs Fayad said that she had paid for herself and the children for the 2001 trip by selling her gold. In 2003 Mr G had paid for them to go to Lebanon for two months.
54. Mr Fayad told me that he travelled overseas regularly on trips to Asia with male friends, where I understood sexual activity is involved. He said that he and Rania and the children did not go on holidays together, but had in 1999, in an effort to restore the relationship.
55. Having heard the evidence, I considered the extent to which Mr and Mrs Fayad made plans for, or engaged in joint social activities. I was satisfied that the couple have few joint social activities, and hold themselves out to the community as a married couple. They have certainly done that in relation to a psychologist, a speech pathologist, a number of financial institutions from whom they sought joint loans over the years, the RTA, Medicare and other institutions.
56. I accepted Tony’s evidence that little has changed in their lives, and I noted that instead of working long hours at being a mechanic and in the security industry as when the couple first married, he now works long hours in his real estate business. I accepted also that Mrs Fayad drives Tony and the children on outings because he has lost his driving licence, but consider that were they actually separated other arrangements might be made.
57. In coming to a decision, I have been mindful of Ms Finlay’s submissions at paragraph 38 of the Applicant’s Statement of Facts and Contentions with regard to Lynam v Director-General of Social Security (1983) 52 ALR 128, where the Federal Court commented on decisionmakers taking into account the norm for a peer group, in this case the Lebanese community.
58. I was mindful also of Mrs Fayad’s lodging and both Tony and Rania Fayad signing a “Becoming Partnered” form with Centrelink dated 17 April 2003, (T57) in which she replied that she and her partner did not live apart.
59. From the above, I was satisfied that the social aspects of the relationship do not signal a particularly happy marriage, but that the indicia for separation pursuant to the Act are not met.
sexual relationship
60. Both Mr and Mrs Fayad told me that they had not had a sexual relationship with each other, or slept in the same room since 1997. Each said that they had a sexual partner, Mr Fayad said he had had several over the years, and the present one for the last two years. He told me that she came to his office to visit him approximately weekly. He said that the woman was divorced with three boys, and they were compatible. He said that his partner knew about his situation.
61. Mr Fayad also told me that he travelled overseas regularly on trips to Asia with male friends, where I understood sexual activity was involved. He said that he and Rania and the children did not go on holidays together, but had in 1999, in an unsuccessful effort to restore the relationship.
62. I also heard evidence from both Mrs Fayad and her friend Mr G, about their relationship and activities. Mr G described himself as a businessman. Mrs Fayad’s evidence was that she went on outings and drives with him virtually daily, or at least every second day, and that she has a sexual relationship with him. Mrs Fayad said that she could not progress the relationship with Mr G because she had to think of her children, he has three children of his own, and is of a different religion.
63. Mr G’s evidence was in stark contrast to Mrs Fayad’s. He gave evidence that he saw her “sometimes, not all the time”. When asked in cross-examination how often he saw Rania Fayad, Mr G said that it was perhaps once a month, or three monthly. He said that he travelled frequently, and had visited Lebanon ten times this year. Mr G also said that he had lost his licence because of dangerous driving. However he said that when they meet they go driving, eating, fishing, and to bed. He said that he had had a sexual relationship with Rania Fayad for three years. He said that he gave her money for her hair, and for beauty treatments. Mr G said that he did not care about religion, and that he could have four wives if he wished. He said that he was not separated from his wife, although he also maintained a second residence.
64. Mr G said that Rania Fayad had told him that she and her husband had been together again for the last one and a half years, but that the relationship was “not that good” and that they were “fighting”. He said however that he did not like discussing Tony Fayad, and that Rania Fayad had promised him she did not have sexual relations with her husband.
65. Mr G said that if Rania Fayad would not leave her children, then he would soon terminate the relationship (which she did not know), because he was waiting for his father to sell an orange farm so that he could travel to the USA where he had met someone he wanted to marry.
66. I found substantial inconsistencies in the evidence of Rania and Tony Fayad with regard to their relationship with each other, and with third parties. I was not satisfied that Mrs Fayad was indeed seeing Mr G as often as she said, indeed it would have been physically impossible if Mr G has been to Lebanon ten times this year, even if the trips were short.
67. I accept that Rania and Tony Fayad may not be entirely happy with each other, but what occurs in the bedroom is known only to them, and given that there are issues of credit, I cannot be convinced whether there is a sexual relationship between them, or whether one ceased and recommenced. I accepted that Tony Fayad moved back to 3 McCubbin Place more fulltime after December 2002, but am not satisfied that he actually ever left on a permanent basis or separated within the terms of the legislation. Accordingly Mrs Fayad continues to be a member of a couple.
the nature of the people’s commitment to each other
68. I was mindful that under the heading “Nature of the People’s Commitment to Each Other”, pursuant to section 4(3) of the Act, consideration has to be given to the length of the relationship, whether the people considered that the relationship was likely to continue indefinitely; and whether the people saw their relationship as a marriage-like relationship.
69. When asked about a reconciliation with her husband, Mrs Fayad said she would not reconcile with Tony, but did not seek a divorce for cultural and religious reasons. In her oral evidence Mrs Fayad said that she found it difficult to manage since December 2002 when her husband returned to live at 3 McCubbin Place, because he wanted to be in control.
70. Mr Fayad, on the other hand, said that he did not anticipate a reconciliation in the future because Rania was too different from him, and stated that he wanted to divorce her, acknowledging that she was a very good mother to the children. I noted that at the time of the Hearing no action had been taken in regard to divorce proceedings.
71. In coming to a decision, I had regard to the decision of In the Marriage of Todd (No 2) (1976) 9 ALR 401, in which his Honour Watson J said at 403:
“In my view ‘separation’ means more than physical separation - it involves the destruction of the marital relationship (the consortium vitae). Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention; or, alternatively, act as if the marital relationship has been severed. What comprises the marital relationship for each couple will vary. 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.
72. I have considered the evidence and find that although the relationship may not be entirely happy, it is ongoing. I accepted Mr Fayad’s evidence that he attempted a reconciliation in 1999, and that little has changed as to the time he spends with the family except that he currently spends Sundays with them. I was mindful of Mrs Fayad’s evidence that she permitted her husband to return to live at 3 McCubbin Place in December 2002 because she felt that it would be good for Peter, and that Tony was in need of financial assistance. I was not satisfied that this indicated a permanent separation had taken place or was continuing, because to all intents and purposes, Tony Fayad had not established another abode since allegedly leaving in 1997. More than ever, he currently has a separate place to go, his evidence being that he was in his own real estate business and had accommodation above the shop.
73. I was satisfied that Rania and Tony Fayad have always held themselves out as a couple to their family, and the Lebanese community, and whilst they may not be entirely happy, tolerate each other. I was satisfied that the nature of the commitment between Mr and Mrs Fayad (provision of money for her and the children, assistance with the garden from time to time, attendance at the birth of Peter, attendance with Peter at speech therapy, outings with the children where Mrs Fayad drives, amongst others), indicate that she is a “member of a couple” pursuant to section 4 of the Act.
accommodation
74. Before finally making a decision, I have again reviewed the family’s living arrangements. I have reviewed the evidence of Rania Fayad and Tony Fayad which is that Tony Fayad left the home at 3 McCubbin Place in July or August 1997, and that, except for a short time from 7 January 1998 when Peter was born, he did not return to live there until December 2002 (separated under one roof).
75. I took into account the findings of the Tribunal in Re Bagy and Secretary, Department of Social Security (AAT 8994, 17 September 1993) where Senior Member Dwyer noted that:
… in such matters corroboration though not essential, is an aid to proof and also influences the weight to be given to particular findings.”
76. There is no further corroborative evidence of the Fayads’ living arrangements in terms of objective documentation. Tony Fayad did not change his address details, and held himself and his wife out to live at the same address and be joint borrowers in several applications to financial institutions. Indeed during that period, the couple sought joint financial assistance in terms of borrowing and debt consolidation from various lenders, with both Rania and Tony Fayad signing the relevant documents (as detailed in the paragraphs above), giving 3 McCubbin Place as the home address of both in all cases. He did not inform the RTA, Medicare and other organisations of any other address.
77. There was the evidence of Mrs Patras, Tony Fayad’s sister who told me Tony had stayed with her for a month or a month and a half in 1997, but said that he had to move because her children did not get on with him. For the rest, she was quite equivocal, saying that she occasionally minded the children over the years, but did not know much else, and did not ask. I was not able to assign much weight to her evidence as to the couple’s alleged separation, but accepted that Tony stayed with her in late 1997. There was also the evidence of Tony Fayad’s mother, Nola Fayad, (Exhibit A2). Her written evidence corroborated that the couple had problems, but stated that she did not know about them and did not want to due to her state of health, but that she enjoyed seeing the grandchildren.
78. There was the evidence of Tony Fayad that between 1997 and 2002 he had no fixed address and spent nights with his mother, sister, friends, and in his car. The weight of evidence is against my accepting that evidence, and I do not accept that Tony Fayad was living away from 3 McCubbin Place on a permanent basis after 1997 or even January 1998. The couple may not have a happy marriage, but given the objective indicia, and little corroborative evidence of Tony spending four years living with his mother, sister, friends, and in his car, I cannot be satisfied that the situation was as given in evidence by Tony Fayad. The further evidence was that since moving back to the house in December 2002, Tony spends 3 – 4 nights at home, and other nights in his office; that may be so. However I was not satisfied that this satisfied the criteria for a permanent separation, and accordingly I find that Rania Fayad is a “member of a couple” in terms of the Act.
credit of the witnesses
79. Before making a final decision, I need to state that there were problems with the credit of the witnesses in this case. In particular I noted that:
· Mrs Fayad told Centrelink in a statement dated 19 August 1997, (T8), that she would be moving from the matrimonial home once her mother’s visit to Australia was over. That did not occur.
· There were inconsistencies (as detailed in the paragraphs above), between the evidence of Mrs Fayad and Mr G in regard to their relationship, and how often they saw each other. There was no suggestion by Mr G that he could not disclose the full extent of his relationship with Mrs Fayad in case his identity would be disclosed. In any case, I had agreed upon the application of Ms Finlay, that he not be identified in these proceedings. I noted that Mrs Fayad described meeting with Mr G far more often than he said. It would not have been possible for the pair to meet either daily or even every second day as Mrs Fayad suggested, in particular as Mr G told me he travelled extensively.
· Mr Fayad agreed he had put his address as 3 McCubbin Place on the various joint loan applications he had made to financial institutions on behalf of himself and Rania, and which have been mentioned elsewhere in these Reasons for Decision. He said that he did not change his address because he did not have a fixed place of abode, and did not intend to deceive anyone by giving 3 McCubbin Place as his address, which he in fact used as his mailing address. I have already stated above that I was not satisfied that for four years between 1997 and 2002, Tony Fayad had no fixed abode and was living with his sister, mother, friends and in his car.
· Mr Richardson drew to my attention that Mr Fayad told Centrelink in an interview on 11 April 2003 (T32), that he had bought 8 McCubbin Place so that he could move there, one day before a contract for sale was signed on 12 April 2003.
· Mr Fayad also told me that he did not know about the caveat on the house, and found out after contracts had been exchanged. He said he did not take action against his solicitor because the solicitor was a friend. He agreed that he and Rania split the $25,000 remaining out of the sale of 3 McCubbin Place, and that Rania received $10,000.
· Mrs Fayad lodged a “Becoming Partnered” form with Centrelink on 17 April 2003 which both she and Tony Fayad signed, and in which she indicated that she and her partner did not live apart (T57).
80. In conclusion, I was satisfied that Mr and Mrs Fayad may not have had a happy relationship over the years, but that pursuant to the legislation, I find she is a member of a couple. In coming to that decision, I have explored the indicia in section 4(3) of the Act, as discussed in the paragraphs above, and all the circumstances surrounding the Fayads’ relationship. I have also taken into account the principles enunciated in Pavey (supra), Todd (supra) and Staunton-Smith (supra) regarding the disintegration of a relationship. From what I had before me, I was satisfied that that simply had not occurred. The main difference between these people and the couple in Francis v Department of Family and Community Services [1999] AATA 243 is the issue of credit.
DECISION
81. The Tribunal affirms the decision under review of the Social Security Appeals Tribunal of 26 February 2004, which affirmed the decision of the Authorised Review Officer of the Secretary, Department of Family and Community Services dated 29 May 2003 to cancel Parenting Payment Single and Sole Parent Pension. The Tribunal finds that Rania Fayad was a “member of a couple” pursuant to section 4 of the Social Security Act 1991 on and from the date of cancellation of her benefits on 2 August 1997, and a “member of a couple” from 7 January 1998 onwards.
I certify that this and the 80 preceding paragraphs are a true copy of the decision and reasons for decision herein of Ms G Ettinger, Senior Member
Signed: .....................................................................................
AssociateDates of Hearing 27 & 28 September 2004
Date of Decision 16 November 2004
Solicitor for the Applicant Ms J Finlay, Welfare Rights Centre
Advocate for the Respondent Mr G Richardson
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