Hanna and Department of Family and Community Services - [2000] AATA 874

DECISION AND REASONS FOR DECISION [2000] AATA 874

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1977

GENERAL ADMINISTRATIVE DIVISION )

Re Magdy HANNA
Applicant

And SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date4 October 2000
PlaceSydney

Decision The Tribunal - 1. Sets aside the decision under review, being the decision of the Social Security Appeals Tribunal made on 8 December 1999 to affirm the decision of the delegate of the Secretary, Department of Family and Community Services ("the Respondent") to impose a compensation preclusion period from 20 August 1997 until 9 September 2003; and 2. In substitution for the decision so set aside, the Tribunal decides that special circumstances exist in respect of Magdy Hanna ("the Applicant") such that so much of the compensation payment made to the Applicant shall be treated as not having been made so that the preclusion period shall end on the date of this Tribunal's decision.
……………………… M T Lewis Senior Member

CATCHWORDS
SOCIAL SECURITY – workers compensation lump sum payment – preclusion period imposed – whether appropriate to treat whole or part of monies as not having been made - whether special circumstances – whether suffered financial hardship – cultural factors relevant – mental health relevant factor - whether viable option to sell family home

Social Security Act 1991- s1184(1)

Beadle v Director-General of Social Security (1985) 60 ALR 225
Secretary, Department of Social Security v (D A ) Smith (1991) 23 ALD 277
Commonwealth v Daniels (1992) 33 ALD 111
Re Ayad and Secretary, Department of Family and Community Services [2000] AATA 102
Re Nikolov and Secretary, Department of Social Security (AAT 7452, 7 November 1991)
Re Secretary, Department of Family and Community Services and Orlando [2000] AATA 632
Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75
Secretary, Department of Social Security v Thompson (1995) 36 ALD 563
Re Beadle and Director-General of Social Security (1984) 6 ALD 1
Groth v Secretary, Department of Social Security (1995) 40 ALD 541
Re Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690
Director-General of Social Services v Hales (1983) 47 ALR 281
Re Diaco and Secretary, Department of Family and Community Services [2000] AATA 570
Re Secretary, Department of Social Security and Winterbotham (AAT 6499, 11 December 1990)

REASONS FOR DECISION

4 October 2000 Mrs M T Lewis, Senior Member

This is a review of a decision of the Social Security Appeals Tribunal made on 8 December 1999 to affirm a decision of a delegate of the Secretary, Department of Family and Community Services ("the Respondent") dated 29 September 1997 to impose on Magdy Hanna ("the Applicant") a compensation preclusion period from 20 August 1997 until 9 September 2003. That decision was affirmed by an authorised review officer on 27 September 1999.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1). The Applicant gave oral evidence at the hearing. Oral evidence was also given by his wife, Ghada Hanna. The following documents were tendered as evidence on behalf of the Applicant -

Medical report of Dr M B Younan, consultant psychiatrist, dated 4 August 2000 (exhibit A);
Statement of the Applicant together with sundry documents, dated 7 August 2000 (exhibit B);
Medical report of Dr M Guirgis, consultant orthopaedic surgeon, dated 9 April 1997 (exhibit C);
Schedule of the Applicant's estimate of costs incurred if property sold (exhibit D);
Dividend statements of Applicant in respect of Qantas shares (exhibit E);
Twelve photographs of the interior of the Applicant's house (exhibit F);
Statement of Ghada Hanna dated 7 August 2000 (exhibit G);
Photocopy of a page of a passbook account in the name of M & G F Hanna and ITF Samuel Hanna (exhibit H);

The following documents were tendered as evidence on behalf of the Respondent –

Fifteen photos of various houses (exhibit 1);
Australian Valuation Office evaluation (exhibit 2);
Clarendon Homes options (exhibit 3);
Clarendon Homes Edgewater kit (exhibit 4);
Plain English Building Agreement (exhibit 5);
Payment summaries of Parenting and Family Allowance benefits received by Ghada Hanna (exhibit 6);
Applicant's claim for disability support pension, together with Statement of Interview (exhibit 7).

The issue to be determined in these proceedings is whether there are special circumstances to treat some or all of the lump sum compensation payment as not having been made pursuant to s 1184(1) of the Social Security Act 1991 ("the Act") which provides –
(1) For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as:
(a)not having been made; or
(b)not liable to be made;
if the Secretary thinks it is appropriate to do so in the special circumstances of the case.

background

The Applicant was born in Egypt on 1 January 1957 and migrated to Australia about 1987. He has a younger brother and sister, living in Sydney. His parents also lived in Sydney. His father died in February 1994. The Applicant returned to Egypt to enter into an arranged marriage early in 1993. His wife, who is ten years younger than the Applicant, then returned with him to Sydney. The Applicant and his wife were educated in Egypt. He holds a Bachelor of Agricultural Engineering degree and she holds a Bachelor of Social Work degree. His brother is a medical practitioner in Sydney.
Mrs Hanna has not undertaken remunerative employment since arriving in Australia and she has very limited English. Mr Hanna has a simple understanding of English, but demonstrated at the hearing that his comprehension of English is limited. Although the Applicant had worked as a salesman, a production manager and a public servant in Egypt it appears that at no time has he pursued a career as an agricultural engineer. After coming to Australia he has undertaken unskilled work, and he commenced working for Qantas in January 1989.
The Applicant sustained an injury to his back in November 1993 whilst working for Qantas. He then returned to work with Qantas on light duties and pursued a rehabilitation program. His rehabilitation was unsuccessful. He developed chronic pain syndrome, and his employment with Qantas was terminated when he received his lump sum compensation in August 1997.
The Applicant and his wife now have three children. The first was born on 16 November 1993, a few weeks after the Applicant's back injury occurred. The second was born on 21 February 1995, and the third was born on 7 October 1997. The first two children are now attending a local regional Catholic school. The youngest child remains at home in the care of his wife.
At the time of the Applicant's arranged marriage he advised his wife that he had a house, a car and a good job. It was her evidence that this was important to her in deciding to marry him, as they were benefits of which she would not be assured if she married and remained in Egypt. At the time of their marriage the Applicant owned a house at Dharruk for which he made mortgage repayments. It would appear that the Applicant had not disclosed the existence of the mortgage at the time of his marriage. He earned some $700 to $800 net per week in his job at Qantas and in addition he had access to overtime which assisted in his repayment on the mortgage. He also borrowed money from his brother to make some improvements to the property.
After his back injury his income decreased and he had difficulty in maintaining his mortgage repayments. In about 1995 he was so far behind with his payments that the mortgagee advised they intended to sell the property. Subsequently he was assisted by the Legal Aid Commission to negotiate an agreement that avoided the house being sold.
The Applicant said that until the time of his injury he and his wife led a happy life together. However, as soon as their first child was born (which was soon after his accident) he could not tolerate the child crying at night and so he and his wife moved to sleep in separate bedrooms. Additionally, to accommodate his back problem he required a special mattress.
The Applicant said that after his injury he became very depressed and unhappy and felt that his problems were too great. Soon after he came out of hospital, his father passed away, and he said this added to his depression. He was tense and irritable with his wife and problems developed in their relationship because his wife was unhappy about the existence of the mortgage and their emerging financial problems. At the suggestion of her father she returned to Egypt with their child for three months. When she returned to Australia their relationship had improved a little. Mrs Hanna became pregnant again. However, by January 1995 things deteriorated to a point where the Applicant consulted a psychiatrist (Dr Younan). Their second child was born on 21 February 1995.
In the meantime the Applicant was involved in a rehabilitation program at Qantas which required him to move from one position to another. He found this unsatisfactory and could not adjust to the program, nor did he benefit from it. By this time Mrs Hanna had found the house in which they lived to be unsatisfactory for the growing needs of the family. It was apparently in need of repair, it was located in a neighbourhood where delinquency was rife, and she did not want to rear her children in that environment. She continued to voice her discontent to the Applicant that she wanted to move to a better house and this added to the marital problems.
The Applicant's evidence was that, consistent with Egyptian culture, his family and in particular his mother acted as a mediator and conciliator between him and his wife to try to improve their relationship. His brother loaned him about $30,000. They were regular churchgoers, and their local clergyman also tried to assist them to improve their relationship. It would appear that much of the advice they received was focussed on the Applicant providing material benefits to appease his wife. The Applicant explained to the Tribunal that culturally it was not acceptable to seek professional marriage counselling.
The Applicant was awarded $255,000 lump sum compensation in August 1997 in respect of his back injury. He then received $12,286 termination pay from Qantas and had to pay off his personal loan of $7,969 with the Qantas Credit Union when his employment there was terminated. He repaid $30,000 to his brother and in November 1997 he paid off the mortgage on his house of $130,166.13. He had intended to use the remainder of the money to purchase and run a tobacconist business and sought advice from a friend in that sort of business. The friend's advice was delayed for some months and ultimately he told the Applicant that he did not have time to assist him and in any event the Applicant did not have enough capital in order to stock such a business.
During this period the Applicant had a major argument with his wife (in about September 1997), which caused them to decide to separate while living under the same roof. He said that he moved his mattress into the garage, he stopped eating at home, and all communication between them ceased. Their third child was born on 7 October 1997. It was around this time that marital tension was at its worst.
Hitherto the Applicant had resisted his wife's pressure to move house, and because of the deteriorating relationship he spent all of his time away from the house each day to remove himself from the conflict. At that stage he commenced a significant gambling habit. He said that he was not gambling to win, but merely to occupy and distract himself from his problems. He calculated that he lost about $18,000 through his gambling which lasted for about six months.
It was the Applicant's evidence that as a result of the separation he felt that the settlement money was in fact a "curse" and it had not assisted his marriage at all. He said he felt very responsible for his marriage breakdown. At this stage his mother continued to intervene to assist with the problems, and persuaded him to spend money on his wife and children, and to buy things for the house in order to please his wife. It was as a result of his mother's intervention that he paid off the mortgage.
In his statement (exhibit A) the Applicant said –
I recall that my wife and I finally reconciled our marriage in or about December 1997. I was desperate to reconcile my marriage because my wife is 10 years my junior and I feared that she would leave me and have little trouble re-establishing herself. She has always used the age difference against me, often saying to me when we had arguments … "You're an old man and a cripple. You're not good for me!".
The Applicant also said that he recalled in about January 1998 receiving a telephone call from an officer of the Department of Social Security informing him that he was still under a preclusion period and he was not entitled to any social security payments. The Applicant said he was not seeking to appeal the preclusion period at that time because he expected to obtain suitable light employment. He commenced a real estate course, but could not continue it because his English was too limited. He sought numerous other light unskilled positions but without success. After consulting a financial adviser he also decided to sell the house at Dharruk and buy elsewhere so as to comply with his wife's wishes as he was told that property was a good investment. Their house was duly sold and he cleared $111,153.30 after legal expenses and commission. He said that he had to drop the price because of the poor repair of the house.
The Applicant said that after searching unsuccessfully for another house that met his wife's expectations, they finally decided to buy land and build at Glenmore Park because his brother was living there. He arranged that they would stay with his brother while the house was being built, and said he had to sell their furniture and household items at a garage sale for $400 as he had nowhere to store them. They lived with his brother for about 12 months until the house was finished.
Ultimately the land was purchased for $108,000, and the Applicant had a four bedroom two storey Clarendon Home built at a total cost of $170,228. An amount of $45,903 was received by the Applicant from his superannuation entitlements and $1,217 in a tax refund, all of which was used for the house purchase. However, because the Applicant did not have sufficient funds for the house to be completed, a number of items were deleted especially relating to the internal finishing of the house. The timber floors have not been polished, skirting and architraves have not been provided, built in cupboards have been deleted and internal doors are missing. No external landscaping has been done. Photographs provided to the Tribunal at the hearing (exhibit F) verify this, and indicate the impoverished state of the interior of the house. This is accentuated by the lack of furniture in the house. All the family sleep on mattresses on the floor. As the Applicant had disposed of all his furniture when he sold his Dharruk house, any furniture in the Glenmore Park house has been provided by local philanthropic organisations. The Applicant has re-borrowed $30,000 from his brother and $15,000 from his mother to help with the house.
Photographs of the exterior of the house at Dharruk and at Glenmore Park were tendered as evidence by the Respondent (exhibit 1) to show that the former property was set in a pleasant environment and the house was not obviously dilapidated, and also that the latter property was a significant upgrading of the standard of their residence and was of executive standard within the locality.
contemporary emotional, social and cultural circumstances
The Applicant said that when he agreed to purchase the land and build a Clarendon Home he was expecting to be able to find work during the period the house was being built. However, he found that time quite depressing as he, his wife, and their three children were all living in the one bedroom, and the marital relationship again became very tense. It was only when they moved to the Glenmore Park house that he came to the realisation that he was not going to be able to work that he applied for Disability Support Pension which in turn caused him to seek review of the decision about the preclusion period.
The Applicant also said in his oral evidence that he decided to use all his money on the building of the house because if there had been any left over his wife would not have been content until all of it had been spent. He said that when he decided to buy the land and build the house he realised that was the only way in which he was going to be able to satisfy his wife and save his marriage. He said that he told his wife that the house was expensive but she persisted to buy it in any case. All the additional features were included at the instigation of his wife for the sake of his family.
The Applicant continues to be significantly depressed and said he was desperate to do whatever he could to maintain his relationship with his children, because they were all he had left. He was concerned that if his wife left him she would take the children. Ever since the accident, he believes that he has failed as an Egyptian father and husband because of his condition and his inability to provide financial security for his family. He continues to feel this way; he also believes that his wife's demands have been unreasonable. The Applicant admitted that he experienced death wishes "many times" in the past. However they ceased when he bought the Glenmore Park home.
The Applicant said "the house as a total means family to me" and that selling the home would be like losing his children. He said his health would prevent him from looking for another house, and in any case, although the house is in his name alone, his wife would oppose selling it. He admitted that he was not mentally or emotionally capable of moving house.
Mrs Hanna considered that the Applicant had an unusual relationship with his children. Because he could not tolerate noise, his interaction with them was separately rather than together, and this was mostly in the quietness of his own bedroom. He occupies the master bedroom and ensuite alone, and finds it essential to have his own quiet and peaceful space. He said that he was unable to look after the children except for very short periods, and indeed his mother came to the house to look after the children if his wife needed to go out without them. Mrs Hanna has another bedroom, and is sometimes joined at night by her youngest son. Her two sons have one bedroom and her daughter has one bedroom. The children stay downstairs during the day so as not to disturb the Applicant.
Mrs Hanna said in her oral evidence that it was her idea to build the house, and she chose the particular house they built. She considered it was necessary in order to provide sufficient space for their family and the Applicant's needs. She said that she has not considered selling the house and moving to a smaller and cheaper house, and she said that from the investigations they did prior to building this house she was sure that there was nothing available that was suitable for them and acceptable to her.
Mrs Hanna reiterated that when she married the Applicant she understood from him that he owned a house and a car, and had a good job. She said to the effect that for most of their marriage they have lived in hardship, and she did not anticipate that when she agreed to marry him. She said that she was unprepared to continue to live in hardship, and she was concerned that currently the family had to live on her Family Payment and Parenting Allowance of $759 per fortnight and regular assistance from charities. She did not consider it fair that she had to use all of the social security money paid to her for the support of the family, and felt that it should be available for the children's education. She said that if this continued or if they were forced to sell the Glenmore Park house she would leave the marriage. She expected that she would then be eligible for payment of Supporting Parent Payment and a Housing Commission house.

Mrs Hanna said that it was the Applicant's duty as a husband and father to provide income and financial support for his family. She said that her love for him has "faded away" and that they both argue because of the lack of money. She feels he has "disappointed" her. She said she would be prepared to leave the marriage, but noted that according to their religion divorce was only available on the grounds of adultery.
medical evidence
Dr Younan, consultant psychiatrist prepared a report dated 4 August 2000 (exhibit A). The Applicant consulted him between January 1995 and March 1997 at regular intervals, and then finally in September 1999. Dr Younan diagnosed the Applicant as having moderate to severe depressive disorder in 1995 which was compounded by severe anxiety attributable to his relationship at home and his financial insecurity. In 1999 he found that the Applicant was still suffering from depression and anxiety.
Dr Younan observed in 1997 that the Applicant was "depressed most of the time", and displayed irritability, markedly diminished interest and pleasure in general activities, crying spells, insomnia, restlessness, apprehensive expectations, fatigue, feelings of worthlessness and low self-esteem, diminished capacity to concentrate and think clearly, inhibited libido and boredom. He opined that impaired concentration "undoubtedly" impaired intellectual functioning.
submissions
Applicant
It was submitted that there were special circumstances which warranted the exercise of discretion pursuant to s1184 of the Act to treat whole or part of the compensation payment as not having been made. It was submitted that although the Full Federal Court in the decision of Beadle v Director-General of Social Security (1985) 60 ALR 225 agreed with the definition of "special circumstances" given by the Tribunal at first instance, it was also held that no judicial gloss should be placed on the definition of that phrase.
It was submitted that it would be harsh, unreasonable or otherwise inappropriate to maintain a preclusion period when considering all the circumstances in this case; Secretary, Department of Social Security v (D A) Smith (1991) 23 ALD 277, Commonwealth v Daniels (1992) 33 ALD 111.
It was submitted that the following factors constituted special circumstances in the Applicant's case-

Financial hardship
Psychological health
Cultural upbringing and marital breakdown
Professional advice relied upon
Deterioration in back condition
Age and limited employment prospects
Gambling problem

Financial Circumstances

It was submitted that the Applicant's financial circumstances were more than just "straitened" in that he and and his family were living in poverty.
Psychological Health
It was submitted that the Applicant has suffered from depression and anxiety for at least five years and that he continues to do so. Although his depresion improved after he was able to find his family a new home, it was submitted that he has started to feel deeply depressed again because of the current financial situation. On the evidence of Dr Younan, the Applicant's depression and anxiety has affected his intellectual functioning and resulted in irrational decision-making.
Cultural Upbringing
It was submitted that the Applicant's cultural upbringing and conditioning places a strong onus on the man of the household to support and provide for the family. In this case, his failure to provide for his wife and family for so many years has brought feelings of shame and disgrace and has caused the marital problems that exist. In particular it was highlighted that the Applicant's actions could be explained by his desperate need to satisfy his wife and hence save his marriage. It was submitted that social or cultural considerations were relevant; Re Ayad and Secretary, Department of Family and Community Services [2000] AATA 102.
Professional Advice
It was submitted that the Applicant relied heavily upon and acted in accordance with the professional advice he was given on 3 occasions. It was argued that the principle in cases such as Re Nikolov and Secretary, Department of Social Security (1991) AAT 7452, namely that a person when acting in accordance with legal advice constituted "special circumstances", be extended to include advice given by other professionals including financial advisors and real estate agents, as occurred in this case.
Marital Relationship and the Family Home
It was submitted that purchasing the house was critical to save the Applicant's marriage, and that he expended all the money he could to maintain his family unit. Furthermore, Mrs Hanna threatened that she would leave when her expectations of lifestyle were not fulfilled. All in all, there was justification for the Applicant's decision to purchase the house. It was submitted that the Applicant's home was required to maintain his emotional stability; Re Secretary, Department of Family and Community Services and Orlando [2000] AATA 632.
Relying on Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75, it was submitted that to then sell the home would cause the marriage to breakdown irretrievably, and cause greater expense to the public purse, and accordingly the family should not be subject to a forced sale to provide income for the Applicant; Re Nikolov and Secretary, Department of Social Security (AAT 7452, 7 November 1991).
Deterioration of Back Condition
It was contended that in 1993 the Applicant had hoped through rehabilitation that he would find employment again, and that when his employment with Qantas ceased in August 1997, he had hoped to establish a business or find other employment. It was not until May 1999 that the Applicant realised that his chances of re-entering the workforce were diminished. It was submitted that it was only out of absolute necessity that he applied for Disability Support Pension. It was also submitted that the Applicant was compensated only for the injuries that existed at that time and that he has not been compensated for the deterioration in his total physical and psychological condition.
Employment Prospects
It was submitted that it was unlikely that the Applicant would ever work again because of his age, health, language difficulties and the high unemployment rate in his locality.
Gambling
It was submitted that the Applicant's gambling problem was "real" and there was a possibility of it re-emerging.
It was submitted that opening the house to boarders was not a viable option for cultural reasons, for the well-being of the children and the Applicant's stability and isolation. With respect to the Qantas shares, it was argued that rather than utilising them for renovations, it should be spent on the outstanding bills.
Obtaining further financial assistance from the Applicant's brother was also not feasible, as he had already given the Applicant $30, 000. It was submitted that the Tribunal should not put a reliance on family members to support the Applicant financially, as that was not the intent of the legislation.
It was submitted that it was fanciful to suggest the Applicant or his wife re-enter the workforce. The decision Re Secretary, Department of Social Security and Winterbotham (AAT 6499, 11 December 1990) can be distinguished from the circumstances in this case.
It was submitted that the case law required the Tribunal to take into consideration all the circumstances of the case. In the Applicant's circumstances, it was argued that a combination of factors was responsible for the Applicant's decision to sell and purchase a new home. Consequently it was submitted that the Applicant was not double-dipping.
It was stressed that the Applicant always wanted to work in some capacity and that it was unforseen that he would be unemployed. Although he was aware of the preclusion period, the regard he was able to give to that fact was uncertain because of his intellectual dysfunction.
It was submitted that "intuitive justice" required that the whole of the preclusion period be waived, of which over three years have already been served; Secretary, Department of Social Security v Thompson (1995) 36 ALD 563, Re Secretary, Department of Social Security and Hickman (1996) 43 ALD 75.
Respondent
It was submitted that it was not the Respondent's contention that the Applicant should not have upgraded from his Dharruk property, or that he should sell his current home. Rather, it was contended that the Applicant upgraded rather excessively. In considering what was objective and reasonable, the Applicant had not exhausted the options available to him before resorting to the public purse.
It was submitted that since the Applicant did not want to sell his home or rent it out, he could open a room to boarders in order to generate an income of approximately $90-120 per week. This would necessitate finishing the room that could be achieved by selling his 500 Qantas shares that would generate approximately $1500.
Additionally it was argued that the Applicant could rely on his brother and other family members for financial assistance until the end of the preclusion period. The other option was for the Applicant or his wife to seek employment with a migrant service.
It was argued that the Applicant was in a better position than most because he had acquired a home worth in excess of $300, 000 that was mortgage free and he had achieved that on a single income.
It was submitted that it was unreasonable, unjust or inappropriate not to have regard to the preclusion period, and that if all or part of the preclusion period was disregarded, the intention of the legislation would be frustrated which in effect was to prevent double-dipping. It was also argued that the purpose of s1184 of the Act was not to allow a person to improve on his circumstances that existed prior to the compensable injury, but rather to give some discretion where unusual circumstances were present. Even where the effect of the legislation was harsh or unjust, it was submitted that the Tribunal was bound by the clear intention of Parliament; Re Krzywak and Secretary, Department of Social Security (1988) 15 ALD 690.
It was argued that financial hardship must extend beyond "straitened" circumstances and must be truly exceptional. It was also stressed that it was not a prerequisite to qualify for special circumstances; Director-General of Social Services v Hales (1983) 47 ALR 281. It was contended that the Applicant was aware of the preclusion period but yet he did not make provision for his future preclusion period and instead decided to spend all his money. Such conduct did not amount to special circumstances; Re Diaco and Secretary, Department of Family and Community Services [2000] AATA 570.
The Respondent submitted that the Applicant ought to have tested his ability to be employed before disposing of the entirety of his lump sum compensation payment. It was submitted that the Applicant knew prior to his expenditure that his future working life was over. Agreeing with the decision Re Secretary, Department of Social Security and Winterbotham (AAT 6499, 11 December 1990), it was argued that the Applicant might have to consider selling his home as a last resort.
With respect to the Applicant's psychological condition, it was submitted that he did not demonstrate a diminished capacity to concentrate and make decisions in the period in question and that his ability to remember conversations dating as far back as 1997 was in fact demonstrative of good concentration. Furthermore, it was stressed that the Applicant had in fact made well-thought decisions with regard to purchasing his home and making renovations during the relevant period.
It was also contended that the Applicant's gambling problem was not a special circumstance.
consideration of evidence and findings of fact
The Tribunal notes that the Applicant appeared fragile, highly vulnerable and emotionally disturbed at the hearing. He appeared distressed when he gave his evidence. The Tribunal finds that he was a witness of truth and that his demeanour was not contrived but was in fact a true reflection of his current situation.
The Family House
The Tribunal notes that it is only since the Applicant has received his lump sum compensation payment, and while knowing that he would be subjected to a preclusion period until September 2003, that he has lived at Dharrak and then at Glenmore Park in properties which he owned outright, and that the Glenmore Park property was considerably upmarket from that which he owned in Dharrak.
The Tribunal considers that from an objective viewpoint and on the limited evidence available, the house at Dharrak could have been repaired so that it was suitable to continue to house the Hanna family. That property was 20 years old and, on the basis of the photographs of it tendered as evidence (exhibit F), it could have provided pleasant accommodation of a reasonable standard. It is extremely common in Australian society for people, including professional people of the Applicant's age, to live in a house with a mortgage and to occupy the sort of house the Applicant owned at Dharrak.
The Tribunal has given much consideration to the option that the Applicant should be required to sell the Glenmore Park house and move to a rented property at least for the remainder of the preclusion period, so that he could use the proceeds to maintain himself and his family until the end of the preclusion period in September 2003. Taking into account the decreased value of the house because it is not finished, the proceeds of such a sale, if used wisely, would maintain the family without enduring poverty.
Having considered all that however, the Tribunal finds that it is significant that the Hanna family has been prepared to live in the Glenmore Park house, in their uncomfortable and impoverished circumstances. This demonstrates that the cultural and social factors in this case are of such significance that they (amongst others) have prevented the family from considering the abovementioned option as feasible.
The Tribunal finds that the Applicant's decision to sell the Dharrak house and purchase the house at Glenmore Park was triggered by his wife who forced the idea that the family live in a larger and more comfortable home in accordance with her expectations. In the Tribunal's view that decision must be considered in the cultural and social context, including the marital relationship, in which it occurred; Re Ayad and Secretary, Department of Family and Community Services [2000] AATA 102. The Tribunal also finds that the Applicant's financial circumstances, psychological state (and resulting diminished ability to manage his own affairs) and the professional advice relied upon, must also be taken into account when considering the rationale behind the Applicant's decision to purchase the Glenmore Park property. The Tribunal considers when taken together, those factors allow for special circumstances to apply in this case.
Cultural and Social Factors
The Tribunal finds that the social circumstances of the Applicant at the time of his arranged marriage provided the basis for this marriage. There was but a short period of harmony and contentment, until the Applicant sustained his back injury at work. Up to that time the Applicant was committed to and was actually supporting his dependent wife in a tradition consistent with the Egyptian culture. From that time he has had a reduced capacity and then no capacity to provide financial support and a lifestyle which she anticipated when she married him. The Applicant, again in the tradition of his culture, retained control over his finances. For a time after he received the lump sum payment he refused to spend much of it on his wife and family because he planned to start a business. Although he was using the money for gambling, the Tribunal accepts the Applicant's evidence that it was a way of distracting himself from his depressed emotional state arising both from his chronic back pain and his marital problems attributable to his failure to act as "husband" in accordance with what was culturally expected of him.
The only assistance the Applicant had with his marital problems was from his mother and his local clergyman, both of whom emphasised to him the importance of buying material things for his wife and family as the way of improving the relationship and providing for the family. Although they were obviously in need of professional counselling they were not amenable to this for cultural reasons. The problems in their relationship have remained and continue to be major, and the Applicant has now spent all his money trying to appease his wife in order to maintain the marriage and his relationship with his children.
The Tribunal accepts the evidence of the Applicant and Mrs Hanna's that culturally the male partner is dominant in financially supporting his wife and family. The Tribunal finds that now that the Applicant has demonstrated he cannot do this he has gone to extreme lengths to submit to her demands in order to fulfil that role so that he can maintain the marriage. The Applicant's only control over the spending of his compensation money in reality has been to decide to spend it all on the house so that his wife would not demand other things and spend any surplus.
The Tribunal finds on the Applicant's evidence that he purchased the new home because, as a husband he believed (as did his wife) that was part of his duty and that if he did not he would have lost his children.
The Tribunal is reasonably satisfied that Mrs Hanna would carry out her threat to separate from the Applicant given her unpreparedness to continue living in her current extreme financial deprivation or if the house was sold. Furthermore, the Tribunal finds that the Applicant's home is essential to his emotional stability. The Tribunal is also aware that the Applicant has experienced death wishes in the past which ceased once he bought the Glenmore Park house. This in itself indicates the significance of that house to the Applicant. If he was forced to sell his house, there is the real possibility of a resurgence of suicidal ideation. For those reasons, the Tribunal does not consider selling the house to be a feasible option.
In the event of a marriage breakdown the Tribunal also notes that Mrs Hanna and her children are likely to be a significant liability on the public purse, probably for many years to come. On the other hand, if the preclusion period is shortened so as to end now, payment of Disability Support Pension to the Applicant would be at the rate of $310 per fortnight currently, for the next three years.
If this were a marriage that had little chance of survival under any circumstances the Tribunal would not have placed much weight on the consequences of the marriage breakdown. However given the cultural attitude to divorce, together with the Applicant's emotional needs and persistent motivation to continue the marriage for the sake of his "family" with assistance from his extended family, are all factors which contribute to making his circumstances "special".
Financial Circumstances
The Tribunal is aware that the Applicant owns his Glenmore Park home unencumbered. However ownership of the home does not hinder a finding of special circumstances; Re Nikolov and Secretary, Department of Social Security (AAT 7452, 7 November 1991). The Tribunal also notes that the Applicant owns some Qantas shares which provide him with a six monthly dividend in the amount of $34.42.
Notwithstanding that, the Tribunal finds that the Applicant is in extreme financial hardship. The total weekly income is $379.76 for a family of five, which is the Family Payment and Family Allowance paid to Mrs Hanna and the children. Their disposable income however has been reduced due to an advance sought on Mrs Hanna's Family payment that is being repaid at $9 per week. Their current expenses are in excess of $419 per week.

The Tribunal accepts the Applicant's evidence that the family has had to rely on charities for food, clothing and basic furniture. Indeed the photographs of the interior of their home highlight the impoverished and uncomfortable conditions in which the family lives. The Applicant has already borrowed $30,000 from his brother, and his mother, who is a pensioner, is unable to provide further financial assistance. As at the date of the hearing Mrs Hanna's evidence was that various bills in the amount of $2000 were outstanding and in addition she was unable to pay school fees.
When all these factors are taken together, the Tribunal considers the Applicant's financial hardship extends beyond "straitened" circumstances and are truly exceptional given that the option to sell the home is not feasible.
Psychological State and Advice Relied Upon
The Tribunal finds on the evidence of the Applicant, his wife and Dr Younan, that the Applicant has suffered depression since the time of his back injury. On the evidence of Dr Younan, that condition has impaired his concentration. The Tribunal considers that fact, when coupled with the pressure imposed by his marriage and family, has adversely affected his capacity to make rational decisions. The Tribunal is aware that the Applicant was involved in a gambling habit. However, the Tribunal accepts the Applicant's evidence that his habit commenced as a way of distracting himself from his depressed emotional state arising both from his chronic pain, and financial and marital problems.
The Tribunal also finds that the Applicant naively accepted what he understood to be the advice of the financial adviser that real estate was a good way to invest his money, in the same way as he had naively accepted the advice of his mother and clergyman about the provision of material goods to repair his marriage.
Options Raised by the Respondent
The Tribunal has considered the options raised on behalf of the Respondent. The Tribunal does not consider any of those options to be workable. The Tribunal finds that on the evidence the option to take in a boarder is not feasible for a three year period and would merely add to the Applicant's marital problems. The Tribunal notes that the Respondent does not contend that the Applicant should sell his house but that it could be a last resort. The Tribunal has already dealt with that option and excluded it for reasons different from any put forward by the Respondent. The Tribunal also distinguishes Re Winterbotham (supra) from the facts of this case. In the former case, Mr Winterbotham had not experienced the marital problems that the Applicant has had, nor did their marital relationship hinge on the retainment of the family home as it does in this case.
The Tribunal does not consider it an option that Mrs Hanna obtains employment. She has to care for a dependent pre-school child currently and the Applicant is unable to provide the care for that child so that Mrs Hanna could work. Mrs Hanna has little or no English language ability and there is no evidence before the Tribunal that her social work qualifications from Egypt would be recognised in Australia, with or without a making up requirement. It is likely that casual unskilled work is all that would be available to her at present.
It is also highly unlikely that the Applicant will be able to work during the next three years considering his current highly vulnerable, depressive and emotional state, coupled with his back condition. He has already demonstrated motivation to work during the first three years of the preclusion period and until the time he lodged a claim for disability support pension he had been registered for work and was actively seeking work. Indeed, he sought disability support pension on the advice of an employment officer who apparently was concerned about the Applicant's inability to obtain work because of his disabilities. Although initially the Applicant had intended to set up a small business, the Tribunal considers that this was not feasible because of the Applicant's lack of suitable experience and his demonstrated naiveness in financial matters.
The Tribunal considers that the Applicant cannot continue to receive financial assistance from his family for another three years until the end of the preclusion period. To do so would place an inappropriate burden on his mother who is a pensioner. His brother has already loaned him $30,000, and there is no evidence before the Tribunal to indicate that he is in a position to extend his financial support further; Re Secretary, Department of Social Security and Hickman (supra).
The Tribunal accepts the Applicant's evidence that at the time he agreed to build the house at Glenmore Park he genuinely believed that he could get employment in order to maintain his family. The Tribunal is also mindful of the Respondent's submission that the Applicant was aware of the preclusion period. The Tribunal accepts that submission, but finds that the Applicant's use of the lump sum compensation to purchase the house was not a conscious and blatant disregard of the preclusion period, nor was it a reckless disregard of his responsibility to maintain his family financially until September 2003. It was in fact the opposite.
There is no doubt that it was naive of the Applicant to assume that he would obtain work given the history of his back problem, his difficulty with rehabilitation employment following his accident and the fact that he had made a compensation claim. However, there are many aspects of this case where the Applicant has demonstrated naiveness.
In coming to the decision that there are special circumstances existing to treat part of the Applicant's compensation payment as not having been made, the Tribunal notes that already he has served three years of the six year preclusion period. He has demonstrated hitherto a commitment to the concept of the preclusion period, and he has not consciously and deliberately rearranged his financial position in order to create or exacerbate his present circumstances, which the Tribunal finds, in all the circumstances, to constitute special circumstances. For the reasons already given the Tribunal does not accept the Respondent's submission that to reduce the preclusion period in this case would be to frustrate the intent of the legislation. The Tribunal will decide, therefore, that the preclusion period shall cease on 4 October 2000, that being the date of this decision.
The Tribunal notes that the Applicant's eligibility to receive Disability Support Pension for which he has claimed has not been considered by the Respondent beyond the consideration of the preclusion period. In particular the Tribunal notes that no determination has been made in respect of the level of medical impairment and associated factors pursuant to s94 of the Act. The Tribunal was advised at the hearing that if the Applicant is found on the provision of further evidence not to meet the requirements of s94, then his claim for Disability Support Pension may be deemed to be a claim for Newstart Allowance. The Tribunal notes that it does not have sufficient medical evidence before it to be confident that the Applicant is permanently unfit for employment despite that being the Applicant's current understanding. Nothing in these reasons should be seen to infer that he is permanently unfit for any type of work, nor does the Tribunal have jurisdiction to consider that issue under the head of this application.

I certify that this and the 87 preceding paragraphs are a true copy of the decision and reasons for decision herein of Mrs M T Lewis, Senior Member
Signed:         ...........................................
  Associate
Date/s of Hearing  8 September 2000
Date of Decision  4 October 2000
Advocate for the Applicant     A. Zraika, Mount Druitt Community Legal Centre
Advocate for the Respondent A. Alex, Dept. of Family and Community Services