Kozarova v DEEWR
[2009] FMCA 888
•10 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOZAROVA v DEEWR & ANOR | [2009] FMCA 888 |
| ADMINISTRATIVE LAW – AAT – Appeals – Question of law – failure to consider relevant factors. SOCIAL SECURITY – Definitions – couples – whether separated – relevance of family violence. |
| Social Security Act 1991, s.4 |
| Pelka v Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546; 43 AAR 220 Ruka v Department of Social Welfare [1997] 1 NZLR 145; (1996) 14 CRNZ 196 Staunton-Smith v The Secretary of Department of Social Security (1991) 25 ALD 27 Department of Education, Employment & Workplace Relations v Holmes [2008] FCA 105; (2008) 100 ALD 101 Osland v R [998] HCA 75; 197 CLR 316; 159 ALR 170; 73 ALJR 173 |
| Applicant: | ROZA KOZAROVA (FORMERLY KNOWN AS ROZA MLADENOV) |
| First Respondent: | SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS |
| Second Respondent: | SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
| File Number: | MLG 1037 of 2007 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 20 February 2009 |
| Date of Last Submission: | 20 February 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 10 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Champion |
| Counsel for the Respondents: | Mr P Ginnane |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the Notice of Appeal filed on 15 June 2007 be allowed.
That the matter be remitted to the Administrative Appeals Tribunal (differently constituted) to be heard and determined according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1037 of 2007
| ROZA KOZAROVA (FORMERLY KNOWN AS ROZA MLADENOV) |
Applicant
And
| SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS |
First Respondent
| SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS |
Second Respondent
REASONS FOR JUDGMENT
The appellant appeals from a decision of the Administrative Appeals Tribunal (“AAT”) made on 16 May 2007. The AAT decided that the appellant was a member of a couple, consisting of herself and her former husband within the meaning of ss.4(2)(a) and 4(3) of the Social Security Act 1991. As a result of this decision, the AAT concluded that the applicant had been over paid by a significant sum of social security pension entitlements, having received them at the single rate when she was, on the Tribunal’s finding, a member of a couple.
Statutory Framework
The relevant statutory provisions in this case are ss.4(2)(a) and 4(3) of the Social Security Act 1991(“the Act”) which provide as follows:
(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
…
(3) In forming an opinion about the relationship between 2 people for the purposes of paragraph (2)(a), subparagraph (2)(aa)(ii) 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, or in a de facto relationship with , 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 or a de facto relationship.
It appears that the appellant separated from her husband in 1994. This was evidenced by a letter from her solicitor dated and prepared on her behalf and sent to the husband with respect to matrimonial issues. The appellant and her husband were not, however, divorced until July 2006.
The Tribunal traversed a significant amount of evidence relating to the nature of the relationship and interactions between the appellant and her husband over the years, addressing the various factors identified in s.4(3).
Grounds for Appeal
In this case, the appellant argues that the Tribunal failed to have proper regard to the matters set out in s.4(3)(b), the nature of the household, and 4(3)(e)(ii), the nature of any companionship and emotional support that the parties provided to each other as an incident of the nature of their commitment to each other.
A significant facet of the appellant’s case was the extreme violence to which she was subjected during the course of the relationship and the relevant period covered by the decision. The Tribunal recounts:
[8] The applicant and her husband lived at the St Albans address prior to the commencement of the alleged separation in 1994 in a joint tenancy with the Victorian Ministry of Housing. Subsequently, she has continued to reside in the property and the tenancy has been transferred into her name alone. She said that she was subjected to episodes of violence and abuse both before and after the commencement of separation. She said that he did not undertake any maintenance of the house or garden subsequent to separation She admitted that he frequently attended the St Albans address to collect his mail which he used as a mailing address. She said that she was also powerless to stop him using that address for his mail and therefore was powerless to prevent him from attending the address to collect it. She denied that she was a member of a couple with him since the date of separation. [emphasis in original]
…
EPISODES OF VIOLENCE
[26] On 8 November 2002, an Intervention Order was issued by the Magistrates Court at Sunshine against the applicant’s husband (then described by his changed name) prohibiting him from assaulting, harassing or threatening or intimidating the applicant, damaging property owned by her and possessing or carrying or using any firearm. That Order was obtained at the initiation of the Victorian Police. On 7 November 2002, the applicant was admitted to the emergency department of the Sunshine Hospital presenting with a left arm and wrist injury following an alleged assault by her husband. In evidence, she said that the assault occurred in a few days after she returned from visiting a relative overseas. She said her husband returned to the home looking for money. She said he was then breaking things, he started belting me. In an attempt to avoid him, she ran from the house but he slammed a door injuring her arm. She could not explain why the Intervention Order did not exclude him from returning to the St Albans address. She said I took it that the police would make sure that he wouldn’t come back to the house. [original emphasis]
HOSPITAL RECORDS
[27] Extracts from the Sunshine Hospital were received into evidence. The extracts comprised letters from Doctors and nursing notes. The records indicate that the applicant has been admitted on a number of occasions either by reason of panic attacks at home or as a result of injuries sustained following an assault by her husband.
It is clear that in the 1990’s various steps were taken by the appellant to attempt to extricate herself and the relationship. For example, the Tribunal recounts:
[32] On 2 July 1998, the applicant was issued with a change of name certificate. It records that she registered the name [changed name] as her name. She said [surname] is her maiden name. The applicant said that she wanted to change her name to protect myself at or about the time that the police and VCAT proceedings were listed or were heard with respect to the assault. Those proceedings initially involved her being charged by police with making a false report on 24 July 1995 and being convicted in the Broadmeadows Magistrates’ Court. On appeal, the Crown did not lead evidence and the conviction was set aside by the Count Court on 13 May 1996. The proceedings which gave rise to a claim for criminal injuries compensation arising out of the assault were heard at VCAT in March 1999 and decided in May 1999. The applicant said that she was advised by her Barrister that it is better to finish everything and then after that, yes, probably if I want I can change my surname. She said that she started using her maiden name because she didn’t want to have anything with him (transcript at p124 – 125). Thereafter, she said that the name [changed name] is used by her except with Centrelink, her bank and with Medicare. She denied that she had told her husband of her change of name but was unable to explain how he apparently knew that name because he volunteered it to a motor car dealer when a car was purchased in 2002 (refer later) and where she is recorded as the other driver for insurance purposes. [original emphasis]
However, there were also a number of other events that took place between the parties that arguably weighed in favour of their relationship continuing.
On the hearing of the appeal, it was not in issue that the appellant had been the subject of extreme and ongoing family violence, having been hospitalised numerous times as a result of the violence of the husband and the victim of his violence on many other occasions. The nature of the violence was shocking. For the purpose of this appeal it is sufficient to record that it was agreed by counsel on the appeal that the appellant had been admitted to hospital on at least 13 separate occasions.
The Interpretation of s.4 of the Social Security Act
The section has been the subject of a number of critical articles in the academic journals as a result of its apparent uncertainty, for example, Tranter et al, The Cohabitation Rule: Indeterminacy and Oppression in Australian Social Security Law [2008] MULR 21 set out the history of the development of the rule. Significantly, in the last 20 years, the Federal Government had moved away from words such as ‘is living’ and ‘de facto’ towards phrases such as ‘has a relationship’ and ‘marriage-like relationship.’
The interpretation of the provisions was the subject of significant discussion by French J in Pelka v Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546; 43 AAR 220, a case about a non-married couple, where his Honour said:
[46] Having regard to the current provisions of s 4(3) and the approaches discussed in the earlier authorities mentioned, a decision-maker concerned with whether an unmarried person is in a marriage-like relationship with another person of the opposite sex:
1. Must have regard to their interpersonal relationship as a whole not limited by the factors listed in s 4(3).
2. Must have regard to each of:
(a) the financial aspects of the relationship;
(b) the nature of the household;
(c) the social aspects of the relationship;
(d) any sexual relationship between the people;
(e) the nature of the people’s commitment to each other.
3. In having regard to the preceding five matters, must have regard to all factors relevant to each and, in particular, must have regard to the factors listed under each heading in s 4(3).
4. Must specifically consider the total picture of the relationship created by all of these factors bearing in mind that consideration must be given to those which weigh against a marriage-like relationship and those which weigh in favour of it.
5. Must undertake the preceding consideration bearing in mind that a marriage-like relationship is not disclosed solely by any one of the following matters:
(a) financial cooperation;
(b) cohabitation;
(c) a sexual relationship;
(d) cooperative household arrangements;
(e) mutual commitment.
[47] The judgment to be made is difficult and, once out of the range of obvious cases falling within the core concept of ‘marriage-like’, will be attended by a degree of uncertainty. Indeed, it may be that different decision-makers on the same facts could quite reasonably come up with different answers.
Tranter et al describe the effect of the more recent:
The proper process for making a decision under section 4(3) ought to involve a structured investigation of each and every criterion in section 4(3). Whilst this process does not preclude consideration of other unlisted factors, the final determination must account for the factors both for and against a finding that a couple is cohabitating.
The authors conclude that the Australian social security law has been:
‘…consistently characterised by open-endedness and indeterminacy.’
Whilst some structure to the decision‑making process has been imposed by the recent amendments and Pelka, with respect to the social security law, the rule under that Act still remains “attended by a degree of uncertainty”.
In Sleep et al, Cohabitation Rule in Social Security Law: the more things change the more they stay the same (2006) 13 AJAdmin L 135 the authors note that the rule, at least in the social security framework, has been the subject of considerable feminist criticism concerning the way that it has oppressed women (page 135). The solution to the difficulty suggested by authors is the abolition of partnered payment in favour of each person received the single rate of payment (see Sleep et al at 145, Hopkins, Divorcing Marital Status from Social Security payments (2005) 30 Alt LJ 189; and the Report of Commonwealth Ombudsman, Marriage-like relationships: Policy guidelines for assessment under social security law (2007) Report number 14 at 1.26; and Australian Law Reform Commission, Equity before the law: Women’s Equality, Part 2, Report Number 69 (1994) at 12.17 and following (whilst the Commonwealth Ombudsman noted the difficulties with the application of the discretion no solutions for clarifying those issues were proposed).
The alternative reform proposal discussed in the literature is to place the financial nature of the relationship at the forefront as being the rational basis for determining partnership in the context of the social security scheme for providing financial support: see Sleep et al, Cohabitation Rule in Social Security Law: the more things change the more they stay the same (2006) 13 AJAdmin L 135 at 145 and the authorities cited there, in particular, Mossman, The Baxter case: De facto marriage and social welfare policy (1977) 2 NSWLJ 1 at 1617.
In a case of such extreme violence, one has to seriously question whether it could be said that the husband had any commitment to the wife in the sense required. The difficult issues presented by cases involving extreme violence can be seen in Ruka v Department of Social Welfare [1997] 1 NZLR 145; ; (1996) 14 CRNZ 196 where the New Zealand Court of Appeal in Wellington considered similar legislation in the context of a fraud trial. The appeal was put to the court of the basis that the wife in that case was suffering battered wife syndrome rendering her incapable of leaving her batterer. However, the appeal did not turn upon the question of the presence of such a syndrome (per Blanchard J at 156). Richardson P and Blanchard J said:
Where financial support is available nevertheless there will not be a relationship in the nature of marriage for this purpose unless that support is accompanied by sufficient features evidencing a continuing emotional commitment not arising just from a blood relationship.
Thomas J recounted some the expert evidence which today is no longer surprising information, but significant in the context of cases such as this. His Honour said:
Dr Ratcliffe explained the psychological effects of physical violence of this kind as being similar to the impact of rape on a victim. Victims experience intense fear during the events, are in a state of terror and may have an overwhelming fear of being killed. Their anxiety level robs them of their ability to make decisions. They suffer a numbing of their responsiveness and talk of being in shock and feeling unreal. They become “immobilised, defensive, rigid and isolated” and, as well as experiencing extreme fear, lose the basic sense of trust and safety that other people assume in everyday life. A loss of self occurs and they take on the role of the victim. Dr Ratcliffe stated that many women report an incapacity to act and describe their experience in terms of “being like a shell”, “like being a zombie”, “a mechanical robot”, “being numb”, and “like being dead”.
The feature which emerges from such random and unpredictable spousal violence is documented as the condition of “learned helplessness”. The woman falls into a state of “psychological paralysis”, what Dr Ratcliffe describes as a “paralysis of the will”. The phenomenon also has been labelled “traumatic bonding”. (Ewing, Battered Women Who Kill (1987) referred to by Wilson J in R v Lavallee (supra) at p 886.) Women then have little control over their lives, are unable to predict the outcome of their choices, and cannot identify or take advantage of opportunities to escape the relationship. (See Robertson and Busch, The Dynamics of Spousal Violence: Paradigms and Priorities (1996) at p.5). Dr Ratcliffe also explained that when a person’s efforts at control repeatedly come to nothing, they not only stop trying to control the situation but may also fail to exert control in some new situation where control would be possible. In other words, she stated, people can learn to be helpless by experiencing repeated instances of lack of control.
It is accepted that the pattern of womens’ reactions to sustained violence will not invariably be the same. One researcher, for example, has pointed out that far from being passive, battered women “frequently demonstrate considerable ingenuity in attempting to alleviate violence”. Another has suggested that instead of learned helplessness “the concept of learned hopefulness may be more applicable to the majority of battered women”. (Robertson and Busch (supra) a p 5.) What is a recurring feature in the behaviour of women in a battered relationship, however, is an inability to escape from the relationship.
Whilst the New Zealand Court of Appeal spoke strongly with respect to the impact of violence, in a case where there was significant expert evidence, the findings could not be said to be out of step with some of the more general propositions stated in Australian cases. For example, in Osland v R [1998] HCA 75; 197 CLR 316; 159 ALR 170; 73 ALJR 173 Gaudron and Gummow JJ said:
[54] The evidence of Dr Byrne was that there is a reliable body of knowledge and experience with respect to persons living in abusive relationships based on research initially undertaken in the United States of America by Dr Lenore Walker[See Walker, The Battered Woman, (1979); Walker, The Battered Woman Syndrome, (1984). The reasons for judgment of Wilson J in R v Lavallee [1990] 1 SCR 852 summarise the research collected by Dr Walker in those texts: at 878-880, 882, 887-888]. And it was Dr Byrne's evidence that that knowledge reveals a pattern of responses or reactions on the part of battered women, including those to which reference has already been made. Certain of those responses are contrary to what an ordinary person might expect. For example, an ordinary person would very likely reason that, if the woman concerned did not report the violent and abusive behaviour or stayed in the relationship, it was not one involving violence or abuse - or, at least, not violence or abuse of the severity claimed. And, in this case, the prosecution suggested exactly that of the later part of the relationship between Mrs Osland and her husband.
[55] Quite apart from reactions bearing on the truthfulness of an accused person's account of an abusive relationship, the ordinary person is not likely to be aware of the heightened arousal or awareness of danger which may be experienced by battered women. And that is a matter that may bear directly on the defence of provocation. An act "which might not be insulting or hurtful to one person might be extremely so to another because of that person's ... personal relationships or past history"[Masciantonio v The Queen (1995) 183 CLR 58 at 67 per Brennan, Deane, Dawson and Gaudron JJ.], including, of course, a history of abuse by the deceased. It does not require expert evidence for a jury to understand that some slight insult may, in context, constitute "the last straw", a consideration addressed in the summing up in this case. However, there may be cases in which a matter of apparently slight significance is properly to be regarded as evidence of provocation when considered in light of expert evidence as to the battered woman's heightened arousal or awareness of danger. And evidence of that may also be relevant to the gravity of the provocation, as may the history of the abusive relationship.
[56] So, too, expert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk [As to self-defence, see Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 at 661-662 per Wilson, Dawson and Toohey JJ (Mason CJ agreeing at 654), 683 per Gaudron J]. And, of course, the history of the particular relationship may bear on the reasonableness of that belief [As to reasonableness, see Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 at 661-662 per Wilson, Dawson and Toohey JJ (Mason CJ agreeing at 654), 683, 687, 688 per Gaudron J.].
[57] Given that the ordinary person is likely to approach the evidence of a battered woman without knowledge of her heightened perception of danger, the impact of fear on her thinking, her fear of telling others of her predicament and her belief that she can't escape from the relationship, it must now be accepted that the battered wife syndrome is a proper matter for expert evidence. Such evidence has been received in South Australia, New South Wales, Tasmania, the Northern Territory, as well as in New Zealand, England and the United States of America[footnote omitted]. And in R v Lavallee the Supreme Court of Canada accepted that the battered wife syndrome was a proper matter for expert evidence[[1990] 1 SCR 852. See also R v Malott (1998) 155 DLR (4th) 513 at 521 per Major J.].
For example in Staunton-Smith v The Secretary of Department of Social Security (1991) 25 ALD 27 at 32 to 33 Lachlan J stressed the importance of considering the totality of the case, saying:
… It must … be emphasised that a particular answer to a single subject will rarely, if ever, supply a final solution. The responsibility of the fact-finding Tribunal is to have regard to all the material facts of each case … The Tribunal will make its determination whether a particular man and woman are or are not living separately and apart only after assessing the totality of the evidence and other material that is before it.
The difficulties of preconceptions as to the nature of a marriage are referred to by Logan J and Department of Education, Employment & Workplace Relations v Holmes [2008] FCA 105; (2008) 100 ALD 101. Indeed in that case Logan J noted that the purpose of senior member highlighting and culminating upon incidents of violence was to demonstrate how antithetical they were to a notion of a marriage like relationship. Logan J said:
[37] Reading the published reasons as a whole, it seems to me that the Tribunal was astute to approach the assessment of the relationship between Mrs Holmes and her husband in this way and without such assumptions. In deciding, as he thought was his task, whether the parties were in a marriage-like relationship or conversely were living separately and apart on a permanent or indefinite basis the learned senior member cautioned that a relationship "is not assessed against some hypothetical standard which assumes that a marriage or marriage-like relationship is mostly full of positive aspects and goodwill. Families and those within them, the adult members and children, are all capable of the range of human emotions including the negative traits such as violence, hatred, selfishness and mental health disorders. The complexity of human behaviour and the capacity for some to withstand the stressors of life to a greater or lesser degree makes it complex and often unpredictable" (Reasons, par 18).
[38] It is true that, later in his reasons, the learned senior member stated:
"There are some indicia of a normal marital household (including difficulties with children and disputation between parents), and there seems to be a common commitment to supporting the children of the marriage. However, the ambience of the household can also be seen by the psychological impact made by the arguments and emotional distance between the parents. The fear and intimidation, as well as the absence, of Mr Holmes has had various impacts on the children, as well as Mrs Holmes . In particular, the significant incidents of Mr Holmes threatening to kill himself with a knife in front of his children, an incident requiring the attendance of the police, together with Mr Holmes attempting to run down Mrs Holmes in the presence of their youngest child (their son) also places the nature of the household in a perspective which would not be regarded as being ‘normal’ in a marriage where there is a degree of intimacy and/or commitment." (Reasons, paragraph 32, my underlining. The underlined word "normal" was italicised and placed in inverted commas by the Tribunal.)
[39] When one reads the Tribunal’s reasons as a whole it is, in my opinion, tolerably clear that the learned senior member was not in any way seeking to limit the formation of his opinion by reference to what was a "normal marital household". Witness the excerpt from par 18 of his reasons, quoted above. That earlier context shows that the learned senior member is to be understood as using the word "normal" in par 32 in terms of a normal meaning of the word "marriage", i.e. a relationship where there is a sense of union between two people and a common purpose. The purpose of the learned senior member’s highlighting and commenting upon the incidents mentioned in par 32 of his reasons was to demonstrate how antithetical to any notion of union they were. There was no error in this approach.
Family violence must be a significant consideration when determining whether parties are members of a couple: it strikes at the very heart of the concept of ‘companionship and emotional support’ to each other. It is difficult to conceive of a case involving significant family violence, that would not require such violence to be carefully considered in the context of determining the nature of the parties’ commitments to each other, and in particular the nature of their emotional support.
In dealing with the impact of the violence upon the relevant considerations under s.4 the Tribunal said:
[52] I would readily acknowledge from the evidence heard and from the documents read that the relationship between both applicants has been less than harmonious. Indeed there is much evidence of the husband having assaulted his former wife and having been abusive. The records of the Western General Hospital and of Victoria Police bear testament to his behaviour. The assaults and intimidation have occurred by his initiation at the St Albans address, it being the address that he admitted that he frequented on a regular basis to collect his mail and to visit his children.
…
[54] The husband said that he used the St Albans address for the purposes of having his mail delivered. He was therefore required to attend those premises on a regular basis to collect it. He did have a post office box which he disclosed on some application forms found within the T-documents but said that he preferred to have mail delivered to the St Albans address because he could not always attend the post office during business hours. On the occasions that he attended the St Albans address to collect his mail he also visited his children. Those occasions occurred – he said – in the afternoon on working days. The frequency of the hospital admissions by the wife as a consequence of assault by her husband, the times of her admissions and the frequency of attendances by police all point to him being at those premises on many occasions other than at the end of a working day. (emphasis added)
The Tribunal then summarised its findings at [68] to [69] as follows:
[68] In summary, I am satisfied that at all relevant times the wife and the husband lived at the St Albans address because:
(i) the wife admitted she lived there and;
(ii) the frequency of the husband’s attendance evident by:
·his use of that address as a mailing address;
·his admissions of attending to collect his mail;
·his being observed on surveillance films entering and leaving the premises
do not point to them living separately and apart on a permanent or indefinite basis.
[69] Additionally:
· access by both to a joint bank account
· the evidence of the wife driving the husband to work and returning home, in his car
· her visiting him in gaol and them both jointly visiting Elvis in gaol
· both using the same telephone numbers of the St Albans address
· the admission by the wife to Police after the date of alleged separation of being in partnership with her husband
· the failure to call any persons to give evidence in support
· buying and selling motor cars.
· use by each applicant of each others change names
· the frequency of him being inside the premises as evidenced by the wife’s admissions to hospital by reason of his assaulting or intimidating her
· the husband being recorded as next of kin
point to them being members of a couple.
The question that arises on this appeal is whether the Tribunal failed to have regard to the extensive violence in the context of the case as weighing in favour of the appellant and her husband ‘living separately and apart’ as described in s.4(3). On this aspect of the case the Tribunal simply commented that the violence (which appeared sustained and extreme) resulted in the Tribunal being prepared to ‘readily acknowledge … that the relationship between both applicants has been less than harmonious’.
The appellant argues that, in substance, the Tribunal had regard to the violence only as circumstantial evidence to prove the frequency with which the appellant’s husband had been at the house. That is, that the violence and admissions to hospital were utilised as evidence to show that her husband must have been in the home on regular occasions, but that the Tribunal did not go further to consider the impact of the extreme violence upon ‘the nature of the household’ (s.4(3)(b)) and ‘the nature of the [parties’] commitment to each other’ (s.4(3)(e)).
Like many cases of family violence, there was not independent evidence of an assessment of the full extent of the violence and the impact of it upon the appellant. However, the appellant’s evidence before the Tribunal was that she wasn’t able to stop her husband attending at the house and attending upon her, and it was generally accepted that she had tried to end the relationship and obtain a divorce many years ago. This is not a case where it is said, as was initially argued in Ruka, that the appellant had not been able to do anything to attempt to terminate the relationship. Indeed, it was accepted that in the 1990’s she had taken significant steps to bring the relationship to an end. Whether she was unable to succeed in doing so and felt or remained helpless to extricate herself from the husband needed careful exploration in the context of the violence and its impact upon her. This was a significant and serious issue in the context of this case which could not be addressed adequately by simply describing the relationship as being ‘less than harmonious’.
Just as the violence to the appellant was circumstantial evidence of the presence of her former husband in the house, it was equally evidence of the absence of any reconciliation in the sense required by the Act. Whilst the findings set out in paragraphs [68] and [69] of the Tribunal’s findings would be strong evidence of a joint endeavour or relationship with two independent actors, this was not such a case. Rather, it was a case of extreme and prolonged family violence. The impacts of such violence must be considered in such a case. The relevance of s.4(3)(b) and (e) become significant.
Cases such as the present highlight the benefits of addressing each of the factors listed in s.4(3). Whilst it is not strictly necessary to do so in every case, it will usually safeguard against failing to consider an important factor in a case. If each of these two factors were specifically addressed in the reasons, then the relevance of the family violence, other than to simply prove the husband’s presence, would have been apparent, and properly considered in making the decision.
In these circumstances, I find that the Tribunal have erred in failing to properly consider the relevant matters required by s.4(3) and as a result the appeal must be allowed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Aisling Clifford
Date: 10 September 2009
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