Halawi; Secretary Department of Employment and Workplace Relations and
[2007] AATA 1207
•5 April 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1207
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/1136
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS Applicant
And
FATIMA HALAWI
Respondent
DECISION
Tribunal Ms Naida Isenberg, Senior Member Date5 April 2007
PlaceSydney
Decision The Administrative Appeals Tribunal affirms the decision of the Social Security Appeals Tribunal. ……………[sgd]……………….
Ms N Isenberg
Senior Member
CATCHWORDS
SOCIAL SECURITY – marriage like relationship – member of a couple – circumstances of the relationship – not a member of a couple – payment of social security benefits at single rate
LEGISLATION
Social Security Act 1991
CASE LAW
Pelka and Secretary, Department of Family and Community Services [2006] FCA 735
Re Secretary, Department of Family and Community Services and WAP [2000] AATA 7
Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789
Parsons v McBain (2001) 109 FCR 120
Equity of Exoneration – Case Note; Dinsdale bht Protective Commissioner v Arthur (2007) 81(1) ALJ 22
Bolton v Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 685
Re Rendell v Secretary, Department of Family and Community Services (2004) 83 ALD 381
Tobin and Secretary, Department of Employment and Workplace Relations [2005] AATA 1275
Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050
Finn, Re; Secretary, Department of Employment and Workplace Relations (2006) ALD 223
REASONS FOR DECISION
5 April 2007 Ms N Isenberg, Senior Member BACKGROUND
1. Mrs Halawi married her husband in Lebanon in 1973 and they emigrated to Australia the following year.
2. On 27 November 1992, Mrs Halawi informed the then Department of Social Security that she had separated from her husband on 16 October 1992 and she was granted a sole parent pension (later parenting payment single) in respect of their children.
3. On 16 September 2004, Mrs Halawi applied for a DSP on the basis that she was separated from Mr Halawi.
4. In September 2004, Centrelink conducted a data match between its records and persons leaving Australia. This match revealed that Mr and Mrs Halawi left Australia together on 28 November 1996 and returned on 28 December 1996.
5. On 13 July 2005, a decision was made to review the rate of Mrs Halawi’s DSP on the basis that she was living in a marriage like relationship with Mr Halawi. As a result, a debt totalling $63,222.48 was raised. That decision was affirmed on internal review. However, on 27 July 2006, the SSAT reviewed the decision and determined that Mrs Halawi was not in a marriage like relationship, and consequently there was no debt. On 1 September 2006, the applicant filed the present application for review.
LEGISLATION
6. The Social Security Act 1991 (‘the Act’) contains calculators to determine at what rate a person is to be paid certain benefits. Essentially, a higher pension is payable (pro rata) if a person is not a member of a couple.
7. Section 4(2)(a) of the Act provides that, in relation to married persons, a person is not a “member of a couple”, if they are living separately and apart from their spouse on a “permanent or indefinite basis”. In order to determine whether someone is a member of a couple section 4(3) of the Act states that all of the circumstances of a relationship must be considered, including the following:
·financial aspects of the relationship
·nature of the household
·social aspects of the relationship
·any sexual relationship between the people
·nature of the people’s commitment to each other
ISSUE BEFORE THE TRIBUNAL
8. The first issue is whether Mrs Halawi is a “member of a couple” as defined in section 4 of the Act, for the purpose of calculating her entitlement to social security benefits.
9. The second issue is, if Mrs Halawi is a member of a couple and there is a debt to Centrelink, are there reasons why it should not be repaid?
THE EVIDENCE
10. Mrs Halawi gave evidence, as did Mr Halawi and two of their children, Mariam and Hussein.
Financial aspects of the relationship
11. Mr and Mrs Halawi own, as joint tenants, the property at 35 Paul Street, Blacktown (‘Paul Street’). The property was purchased in about May 1992. Both Mr and Mrs Halawi gave evidence that they regarded it as ‘his’ house. During the relevant period Mr and Mrs Halawi held several joint bank accounts.
12. Mrs Halawi also has a National Australia Bank (‘NAB’) account in her own name from which repayments have been made intermittently, to the joint home loan account. Mr Halawi’s wages are paid into a joint account.
13. Mr and Mrs Halawi applied for three successive loans, secured on Paul Street. Mr Halawi’s evidence was that he would not have been granted a loan secured over Paul Street without Mrs Halawi, the joint tenant. Both Mr and Mrs Halawi said that the children had convinced her to sign the mortgage. She said she signed the documents on the basis that Mr Halawi would be responsible for the repayment of the loan. Mr Halawi has gambled away the bulk of the monies. If Mr Halawi cannot make a mortgage payment, both Mr and Mrs Halawi said that Hussein sometimes makes the mortgage payments.
14. There are transfers between Mr and Mrs Halawi’s joint account and Mrs Halawi’s account. There are also payments from Mrs Halawi’s account to Mr Halawi’s credit cards. Insurance, internet, gas and electricity bills for Paul Street are in Mr Halawi’s name. The granny flat is not separately metered. Mrs Halawi does not know how to do internet banking and any transfers were made by her sons. She only learned how to use an automated teller machine recently. Mr Halawi said his son Hussein uses his credit card to purchase food and repays him. Hussein has never told him any of the food is for Mrs Halawi. Mariam also said that her brothers and sisters also pay the bills. Hussein gave evidence that he and his brother pay bills using their parents’ accounts. Hussein also said he borrowed from his parent’s accounts if he had pressing bills. Mr Halawi’s will leaves his estate to his children.
Nature of the household
15. Mrs Halawi had told Centrelink she and her husband separated on 16 October 1992. However, on 16 September 2004, she informed the Department that the separation occurred in 1998. Mariam said that it was she who had completed that form and had done so carelessly. Mr and Mrs Halawi gave evidence that he left in 1992. Hussein also thought it was in the early 1990’s.
16. Mr Halawi said that when he left Paul Street he did not discuss his possible return. Mrs Halawi said she did not know, nor did she care, where he had gone. Mr Halawi rented accommodation at Auburn, Greenacre and Dulwich Hill. He also lived with three different women, while maintaining a separate residence. There was evidence of rented accommodation; a residential tenancy lease, for a property in Dulwich Hill for six months between February and August 1996. There was evidence that during that time Mr Halawi used Paul Street as his address for the purpose of registering motor vehicles, driver’s licences, insurance, government departments, banks and in relation to his employment.
17. Mr Halawi said that he decided to return to Paul Street because his children needed him and also because he was running out of money. Mrs Halawi said that her husband returned to live in the granny flat in 1998, without consulting her. Both Hussein and Mariam said that the children wanted their father to return to Paul Street. Mrs Halawi’s solicitor provided a statement that said he has known the Halawi family for in excess of 15 years and said that in or about 1996, Mr Halawi informed him that he had separated from his wife and was living in a large garage at the family home. He said he had had a meal with Mr Halawi in the granny flat ‘in or about 1997’. There were, however, receipts for the rental property until October 1999 in the name of Mr Halawi and another person.
18. The photographs of the granny flat show that it is sparsely furnished. Mr Halawi said that he is tidy by nature, whereas Mariam said that her sister, who took the photographs, had tidied it up before doing so.
19. Mr and Mrs Halawi have both given the same telephone number as their home telephone contact. There is a phone extension in the granny flat.
20. There has always been joint responsibility for the children. Mariam said that the children celebrate birthdays with him, but their mother is never included. Mr Halawi said that if the children want something he gives it to them.
21. When Mr and Mrs Halawi travelled to Lebanon together in 2004 for the purpose of meeting a prospective husband for their daughter, they did not stay together or interview the prospective husband together. They purchased separate wedding gifts for the couple.
22. On moving into the granny flat Mr Halawi maintained an entirely separate household from that of his wife and children. He does his own shopping, cooks for himself and does his own laundry, although one daughter may sometimes do some. He does not share any meals with his wife.
Social aspects of the relationship
23. There was no evidence of any social activities together whatsoever. Mariam did not know her parents ever to have attended anything together. She said her mother’s English was poor so she had never attended any school functions.
24. Mr Halawi said that he has not disclosed the separation to anyone in Australia because he did not want people feeling sorry for him. He said that he had no friends in Australia but agreed that Mr Kolak was a friend. Mr and Mrs Kolak provided statements to the effect that Mr and Mrs Halawi have been separated since 1992.
25. Mr Halawi’s evidence was that the reason for his return to Paul Street was to keep up an appearance of being married because if he lived in the same place he would not have to explain the situation. Mariam thought her father was too proud to admit the marriage was over.
26. There was evidence that in 1996, 1998 and 2004 Mr and Mrs Halawi travelled together to Lebanon. Mr Halawi appears to have paid for the family to travel overseas on each occasion and the purpose of these overseas journeys has been concerned with family matters. In a statutory declaration he said that he paid for the travel for his wife and children. He gave evidence that he had never paid for his wife to go to Lebanon and that his son had paid for her.
27. Mr Halawi did not disclose the separation to family overseas until 2004. Mrs Halawi said that on earlier visits her relatives were aware that something was wrong because she and her husband were staying apart but made no comment. They made excuses as to why they were apart.
Sexual relationship
28. There is no evidence of an ongoing sexual relationship. Mrs Halawi said she had not had sexual intercourse with her husband since about 1991 following her back operation. Both Mr and Mrs Halawi gave evidence inferring that this was a major source of discord. Mariam described her mother as not being a ‘companion’ to Mr Halawi. At first Mr Halawi suspected another man, but satisfied himself that this was not the case.
Nature of Commitment
29. Mr Halawi said that his wife ‘hated’ him. All the witnesses said Mr and Mrs Halawi do not speak to each other and communicate only through the children. In a statement dated 20 July 2005, Mrs Halawi said that they have no contact “except passing contact when we happen to see each other when leaving or arriving…”. However, she told the Authorised Review Officer that she and Mr Halawi were “still good friends”. In her evidence she said that she was ‘sick of him’ and was glad when he left Paul Street, and that his advances with a view to reconciliation were rejected for this reason. Mariam described fighting and arguing before her father left home.
30. Mr Halawi continues to nominate his wife as his next of kin in relation to his employment and he has also informed his employer that he has a spouse.
31. Mr Halawi was aware of important events in his wife’s life, such as her mother’s death. He supported her travel to Lebanon for the anniversary of his mother-in-law’s death and to resolve the issues concerning her estate.
CONSIDERATION OF THE EVIDENCE
32. In coming to the correct and preferable decision, I took into account all of the evidence, submissions, case law and relevant legislation.
33. Mr and Mrs Halawi’s remain married to each other, and for other purposes this may suffice to define their relationship. However I must determine if Mrs Halawi is a member of a couple. As to the indicia set out in section 4(3) of the Act, there is no one feature in Mr and Mrs Halawi’s relationship that stands out as dictating a conclusion. I have reached my conclusion after weighing up each factor from the totality of the evidence in accordance with Pelka and Secretary, Department of Family and Community Services [2006] FCA 735.
34. 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. How other people view them is relevant though: section 4(3)(e)(iv).
35. In Re Secretary, Department of Family and 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.
36. The test is an objective one, having regard to the legislation and facts of the particular case. In this context the Tribunal said in WAP (at paragraph 12):
The Tribunal is sympathetic with WAP when she takes the view that one cannot be in a marriage-like relationship (and therefore not a member of a couple) unless the couple provide each other with emotional support and share everything including financial obligations. However, whilst that no doubt is an acceptable description of the phrase as it is commonly understood, although not exhaustive, it is not the relevant statutory test. Therefore, in getting to its decision the Tribunal finds it necessary to work through the statutory criteria in section 4(3) of the Act and consider all the relevant circumstances of this case.
37. It was submitted by the Applicant that with the exception of the absence of a sexual relationship and the lack of commitment there is every other indicia that Mr and Mrs Halawi are a couple.
38. In Cullinane and Secretary, Department of Family and Community Services [2004] AATA 789 (at paragraph 16) Senior Member McCabe observed that:
Application of the criteria [in section 4(3) of the Act] will often be difficult because relationships come in many forms. Not all relationships are happy, and they do not always conform to the stereotypes of family life. And why should they? People must be free to structure their domestic arrangements as they please. But it is still necessary to attempt to characterise the relationship where the decision whether or not to take into account the other person’s income depends on whether they are members of a couple, or merely share a common address. The criteria offer common-sense indicators. One need not satisfy them all; indeed, one may satisfy few of them but still be considered to be a member of a couple if the decision-maker forms the view the applicant is in fact a member of a couple. The matters referred to in section 4(3) inform the exercise of the discretion, but they are not the end of the story. The decision-maker must consider all of the circumstances.
39. There are aspects of this relationship that are certainly unusual if one thinks of marriage in a narrow way. The legislation does not do that: it is important not to approach the definition with a fixed view of what constitutes a marriage.
40. The statutory criteria are considered below, having regard to the evidence before me.
Financial aspects of the relationship
41. Mr and Mrs Halawi’s financial circumstances are necessarily linked by the joint ownership of their only major asset: Paul Street. Mr Halawi’s evidence was that he considered the property to be his, although as joint tenants of their only asset, the provisions of Mr Halawi‘s will become irrelevant. At this stage, nearly all the children, including the adult children, live at Paul Street and it remains the family home. The granny flat though is Mr Halawi’s exclusive domain.
42. Mrs Halawi is jointly liable, with Mr Halawi, to pay the mortgage. It was submitted on her behalf that in equity she would be regarded as only a surety for Mr Halawi’s debts and I was referred to Parsons v McBain (2001) 109 FCR 120 and Equity of Exoneration – Case Note; Dinsdale bht Protective Commissioner v Arthur (2007) 81(1) ALJ 22. It is not necessary, for the present purposes to come to a final view about the nature of the respective liability in relation to the mortgage – suffice to say, prima facie, Mrs Halawi has a legal obligation to pay the mortgage with Mr Halawi, and she has the benefit of living in the house. On the other hand, there was evidence that Mr Halawi had gambled away the bulk of the money, and Mrs Halawi did not receive direct financial benefit from the loan.
43. There is some evidence of sharing outgoings. There are no separate bills for telephone, gas, electricity, rates, but it appears that the granny flat is not separately metered. At times Mr Halawi has paid council rates, telephone, electricity and water bills. At other times, these types of bills have been paid from Mrs Halawi’s account. From the evidence there appears to have been a loose arrangement that whoever – Mr Halawi or Mrs Halawi or one of the children – could pay a bill, did so.
44. There is no real sharing of day-to-day household expenses. I accept that Mr Halawi does his own shopping and that his children also sometimes do some shopping for him. Relevantly, Mrs Halawi does not shop for him, nor he for her. Mr Halawi may purchase items for his children. A comparison of Mr Halawi’s credit card statements and Mrs Halawi’s NAB passbook account reveals that Mr Halawi spends significant amounts at supermarket and department stores. The average weekly supermarket spending exceeds what one may expect of a single man who may eat at home two or three nights per week or who often eats his meals at work. However, I accept that his purchases are in support of his children.
45. I was referred to Bolton v Secretary, Department of Families, Community Services and Indigenous Affairs [2006] AATA 685 where the sharing of household expenses was recently considered. There was found to be ‘a relationship of generosity and cooperation’. However, in Bolton there were also other factors considered in finding that the Applicant was not a member of a couple.
Nature of the household
46. Mr and Mrs Halawi’s children, with one exception, are all adults. (The youngest is nearly 18). The evidence though suggested that all the children are close to both their parents. Most live at home, that is, at Paul Street, where they have contact with both parents; an arrangement preferable to that when their father lived away. Mr Halawi appears to have the major role in respect of schooling because Mrs Halawi speaks little English. The parents do not communicate, other than through the children. While at law they may have ‘joint’ responsibility for their youngest child, this entails little communication. Mrs Halawi’s back condition has resulted in her daughters, in particular, taking a larger role in the day-to-day family requirements. Her sons appear to essentially manage her finances.
47. Since about 1998 Mr Halawi has resided in the self contained granny flat at the rear of the property. It was submitted that such an arrangement was simply based upon the mutual affordability of housing: see Re Rendell v Secretary, Department of Family and Community Services (2004) 83 ALD 381 at 388 and the financial inability of Mr and Mrs Halawi to realize the property with enough funds to purchase two properties, particularly one large enough to have accommodated all of the children that were residing at Paul Street: see Tobin and Secretary, Department of Employment and Workplace Relations [2005] AATA 1275.
48. Counsel for the Applicant was critical of this submission, on the basis that there was no evidence of mutual affordability. I do not agree. The property is their only asset. The evidence was that Mr Halawi had returned to the granny flat because he could not afford to continue renting. It is, in my view, a commonsense arrangement: the house and granny flat can accommodate all members of the Halawi family who wish to live there.
49. In any event, I accept for the purpose of my enquiry under section 4(3)(b)(ii) of the Act that the living arrangements are such that Mrs Halawi and the children live in the house, and Mr Halawi lives in the granny flat, and that I do not need to explore why this may be the case; it is a question of fact.
50. Mr Halawi attends to his own housework, with occasional assistance from one daughter who might do some washing. Mrs Halawi is largely assisted by her children. Significantly, Mr Halawi does not do Mrs Halawi’s housework, nor she, his.
51. Both parents have a shared interest through their children, but the evidence was that they use the children for essential communication, but not otherwise. They each manifest their support for the children quite independently, such as through the purchase of separate gifts and separate celebrations.
Social aspects of the relationship
52. There was said to be clear evidence that Mr and Mrs Halawi hold themselves out as married to each other - from documents such as loan documentation provided to the bank. In fact, the relevant relationship as far as the bank was concerned in securing its loan, was that they were joint tenants. I accept though that Mr and Mrs Halawi kept up the appearance of being married for the purpose of dealings with the bank and employers.
53. Mr and Mrs Kolak provided statutory declarations that they each knew the Halawi’s to have been separated since 1992. Mr and Mrs Halawi’s solicitor provided evidence of meeting Mr Halawi in his flat in about 1997, which I accept having regard to the other available evidence, may have been 1998. There was an initial reluctance to tell close relatives in Lebanon of the separation one reason being that Mr Halawi did not want people feeling sorry for him.
54. There was no evidence of any social activities together whatsoever. Each of the trips to Lebanon by Mr and Mrs Halawi related to their family obligations and were not holidays.
Sexual relationship between the people
55. There is no evidence of an ongoing sexual relationship.
Nature of the people’s commitment to each other
56. Mr and Mrs Halawi have been married for over 30 years. The evidence in my view is that this is a marriage in name only.
57. I was asked to reject Mariam’s evidence on the basis that she was seeking to assist her mother: she admitted that she was careless when completing forms for her mother; she was vague in her recollection of dates or events; and she has not resided at Paul Street for at least 18 months. Even if this were the case, there is consistency in her evidence with other witnesses, notably to the effect that Mr Halawi has not lived with his wife for years and that there is minimal communication between them.
58. Similarly, the Applicant submitted that Mr Halawi’s evidence was wholly unreliable: he admitted that he falsely told the bank that the $120,000 was for home repairs and that he was evasive about where and with whom he had lived with after he left Paul Street. Again I note the consistency in his evidence and with the evidence of the other witnesses that he has not lived with his wife for years and that there is minimal communication between them.
59. Mr and Mrs Halawi do not speak to each other and communicate through the children. It could not be said that they provide any companionship or emotional support to each other.
60. No witness held out any realistic expectation of reconciliation so it seems the relationship, in its present form, is likely to continue indefinitely.
CONCLUSION
61. Determining whether two people are members of a couple is a difficult task. The assessment is made somewhat easier by the commonsense criteria identified in the legislation, as addressed above. As I wrote in Re Secretary, Department of Employment and Workplace Relations and Sperring [2007] AATA 1050, to which I was referred:
As observed in Cullinane (where there was found to be a marriage-like relationship) being a member of a couple involves a lot more than sharing a common address. However, 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. Each matter is different.
62. Even without looking at the relationship in a ‘narrow way’ and without having a ‘fixed view’ of what constitutes a marriage (per Cullinane), I do not consider Mr and Mrs Halawi to be members of a couple. It is true that they are bound together by the fact that that they own property together and have a mortgage together. Against that, they live separately, and have done so for about 15 years; they have no sexual relationship; they do not speak; they communicate only through their children and they do not go out together. Their extended family now know them to be separated, as do their limited circle of friends. They could not even be described as friends unlike in Finn, Re; Secretary, Department of Employment and Workplace Relations (2006) 92 ALD 223, to which I was referred.
63. So, upon reviewing the totality of the evidence, and particularly in light of the relative consistency of the evidence from all witnesses, I have come to the view that Mrs Halawi was not a member of a couple during the relevant period.
64. Having come to this view it was not necessary to consider the remaining issues.
DECISION
65. The Administrative Appeals Tribunal affirms the decision of the Social Security Appeals Tribunal.
I certify that the preceding 65 paragraphs are a true copy of the decision and reasons for decision of Ms N Isenberg, Senior Member:
Signed:
...........[sgd] Mwela Kapapa......................................Associate
Dates of Hearing 12 -13 March 2007
Date of Decision 5 April 2007
Counsel for the Applicant Kate Eastman
Solicitor for the Applicant Sharon Hanstein
Counsel for the Respondent Benjamin Kasep
Solicitor for the Respondent Otto Stichter
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