Lambe v Director-General of Social Services

[1981] FCA 200

Re: KAREN LAMBE
And: DIRECTOR-GENERAL OF SOCIAL SERVICES (1981) 57 FLR 262
S.A. No. G27 of 1981
Social Services - Statutes

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Evatt(1), Fisher(1) and Ellicott(1) JJ.

CATCHWORDS

Social Services - appeal from a decision of Administrative Appeals Tribunal - cancellation of supporting parents benefit - interpretation of "supporting mother" and "living with a man as his wife on a bona fide domestic basis" - whether financial support is one of a series of factors or the crucial factor - qualification for acceptance a pre-requisite to determination of need - scheme and purpose of Social Services Act.

Social Services Act 1947 s.15, Part IV AAA, s.83 AAA Order 53 rule 4 of Rules of Federal Court.

Statutes - Interpretation - "Supporting parent" - "Living with . . . a man as his wife on a bona fide domestic basis although not legally married to him" - Whether financial support crucial factor - Whether all facets of relationship to be taken into account - Scheme and purpose of Act - Social Services Act 1947 (Cth), s. 83AAA - Federal Court Rules, O. 53, r. 4.

HEADNOTE

The appellant was a single mother of two children who were in her custody, care and control. A supporting parent's benefit was being paid to her until about 19th July, 1979, by the Commonwealth Department of Social Security. On that date an officer of the department decided to suspend the payment of the supporting parent's benefit because he believed that the appellant had been living with a Mr. F. and that Mr. F. had paid the appellant twenty dollars per fortnight for the support of one of the children.

The Administrative Appeals Tribunal having affirmed the decision of the officer, the appellant appealed to the Full Court of the Federal Court of Australia on the ground that the Tribunal had incorrectly interpreted the definition of "supporting mother" in s. 83AAA of the Social Services Act 1947 as requiring consideration to be given to the matter of financial support as merely one of a series of factors, whereas it should correctly have been regarded as the paramount or crucial factor.

Held, per curiam, that the appeal should be dismissed because, in order to determine whether the appellant is a "supporting mother" and is or "is not living with . . . a man as his wife on a bona fide domestic basis although not legally married to him" within the meaning of these words in s. 83AAA of the Social Services Act 1947, all facets of the interpersonal relationship of the two persons need to be taken into account. The amount of financial support provided by the man is not of crucial significance.

Re Proc and Minister of Community and Social Services (1974), 53 DLR (3d) 512, distinguished.

HEARING

Adelaide, 1981, September 29-30; November 3. #DATE 3:11:1981

APPEAL.

Appeal to the Full Court of the Federal Court of Australia from a decision by the Administrative Appeals Tribunal affirming a decision of the Department of Social Security of about 19th July, 1979, whereby payment to the appellant of the supporting parent's benefit was suspended.

G. M. Eames and I. G. Peera, for the appellant.

J. R. Mansfield, for the respondent. Cur. adv. vult.

Solicitor for the appellant: I. G. Peera.

Solicitor for the respondent: B. J. O'Donovan, Commonwealth Crown Solicitor.

E. F. FROHLICH

ORDER

The appeal be dismissed with costs.

JUDGE1

On or about the 19 July 1979 a decision was made by an officer of the Department of Social Security to cancel with effect from that date the supporting parent's benefit then being paid to the appellant. On 7 August 1979 the appellant appealed from that decision to the Director General of Social Services pursuant to the provisions of s.15 of the Social Services Act 1947 ("the Act"). The appeal was, in accordance with internal departmental practice, referred to and considered by the "Social Security Appeals Tribunal", an advisory body constituted by the Department but without statutory authority. This Tribunal on 11 September 1979 recommended that the appellant's appeal be upheld. On 9 July 1980 the Director General through his delegate dismissed the appellant's appeal and affirmed the earlier decision to suspend payment of her supporting parent's benefit.

Prior to the date of that decision, namely on 1 April 1980, regulations under the Administrative Appeals Tribunal Act 1975 being the Administrative Appeals Tribunal (Social Services Act) Regulations had commenced operation. They conferred on the appellant a right, in her particular circumstances, to apply to the Administrative Appeals Tribunal for a review of the decision of the delegate of the Director General made on 9 July 1980. On 7 August 1980 the appellant applied to the Tribunal for such a review and on 8 April 1981 the Tribunal after a hearing affirmed the decision of the delegate cancelling the payment to the appellant of a supporting parent's benefit.

The appellant caused a Notice of Appeal against the decision of the Tribunal to be lodged in the South Australia District Registry of this Court on 5 May 1981. The grounds of appeal stated that the Tribunal

"(a) took into account factors which were unrelated to the question of financial dependence or otherwise of the Appellant and her children on the man Graham Foxwell and/or of the financial support being provided or otherwise by the said Graham Foxwell to the Appellant and her children;

(b) failed to properly assess whether there was evidence that showed that the Appellant and her children were financially dependant on the said Graham Foxwell and/ or were financially maintained by the said Graham Foxwell."

However the appellant in her Notice of Appeal did not, as required by Order 53 Rule 4 of the Rules of this Court state "the question or questions of law to be raised on the appeal". Compliance with the provisions of this Rule of Court is essential when, as here, the appeal from the decision of the Tribunal is limited to a question or questions of law. It was therefore necessary at the outset to attempt to identify the error of law which the Tribunal was alleged to have perpetrated, for the purpose of resolving the jurisdiction of this Court to deal with the appeal. Counsel for the appellant ultimately accepted that it was appropriate to state it as follows, namely that the Tribunal incorrectly interpreted the definition of "supporting mother" in the Act as requiring consideration to be given to the matter of financial support as merely one of a series of factors, whereas it should correctly have been regarded as the paramount or crucial factor.

Part IV AAA of the Act makes provision for the payment of benefits to supporting parents. A supporting mother is defined in S.83 AAA and at the relevant time, namely 19 July 1979 was as follows:

"Means a woman (whether married or unmarried) who -

(a) has the custody, care and control of a child who has attained the age of 6 months, being a child who -

(i) was born of that woman; or

(ii) in the case of a woman who is a married woman living apart from her husband or a woman who has ceased to live with a man as his wife on a bona fide domestic basis although not legally married to him - was an adopted child of, or in the custody, care and control of, that woman on the relevant date;

(b) is not living with, and for a period of at least six months has not been living with, a man as his wife on a bona fide domestic basis although not married to him; and

(c) in the case of a married woman - is living apart from her husband, and has been so living apart for a period of at least six months.

but does not include a woman who is qualified to receive a pension under Part III or IV or a benefit under Part VII of this Act, a service pension under the Repatriation Act 1920 or an allowance under the Tuberculosis Act 1948, or is in receipt of a benefit provided by a State that is an approved benefit within the meaning of the States Grants (Deserted Wives) Act 1968."

The definition of supporting father is in similar terms, with appropriate alterations. These definitions were amended on two occasions prior to the hearing before us, which amendments however have no significance to the opposing contentions.

The relevant facts can be briefly stated. The appellant is a single woman to whom was born a son Allan on 11 June 1976. Following the birth of this child the appellant was granted a supporting mother's benefit in accordance with the provisions of Part IV AAA of the Act. This benefit was increased from 4 August 1977 in consequence of the birth of a second son, Raymond, on 29 August 1977. At the time the appellant was still a single woman and was living with her mother. A Mr. Graham Foxwell was the father of Raymond, who was given his father's surname, but he was not the father of Allan. It was common ground that at all relevant times both children were in the custody care and control of the appellant. From time to time between December 1977 and July 1979 at which date the appellant's benefit was cancelled, the appellant and Mr. Foxwell shared accomodation and thus the question before the Tribunal was, stated shortly, whether the appellant was living with Mr. Foxwell as his wife on a bona fide domestic basis although not married to him. The Tribunal in its reasons abbreviated the expression "living with a man as his wife on a bona fide domestic basis although not legally married to him" to "living as his wife" and it is convenient for us, wherever appropriate, to use this abbreviation.

There was much evidence before the Tribunal as to the places and the circumstances in which the appellant and Mr. Foxwell shared accomodation, their financial and personal relationship and as to statements made by each from time to time, orally or in writing, to third parties. A number of witnesses were called and the appellant, but not Mr. Foxwell, gave evidence before the Tribunal. The Tribunal made findings on this evidence as to the places at which and the periods during which the appellant and Mr. Foxwell lived together, the nature of the appellant's relationship with him, the items of furniture acquired for their joint use, the domestic services which the appellant provided for Mr. Foxwell, the arrangements between them on financial matters and ultimately that the association between them was more than one of simple cost-sharing between friends. In particular the Tribunal found that Mr. Foxwell paid $20 per fortnight to the appellant for his child Raymond but was not prepared to find that he made any cash contribution towards the support of the appellant or the elder child Allan. All of these findings, together with others which it is unnecessary to relate, the Tribunal considered relevant to the questions before it and proper to be taken into account in determining whether in accordance with the definition of supporting mother the relationship of the appellant with Mr. Foxwell at 19 July 1979 was one in which she was "living with him as his wife".

Before us counsel for the appellant strongly contended that the Administrative Appeals Tribunal erred in law in the construction that it placed upon the definition of supporting mother. Such error lead it to take into account irrelevant matters in arriving at its decision that the appellant did not come within that definition. In particular counsel submitted that the Tribunal was wrong to take into account matters other than the financial support or lack of it which Mr. Foxwell was providing for the purpose of reaching its conclusion that the appellant was living with him as his wife. Financial support was not, as the Tribunal found, merely one of a number of factors which it was required to consider but was the determining factor. Thus the Tribunal had misdirected itself and had erred in law in taking into account irrelevant considerations. Such error was the consequence of the incorrect construction that the Tribunal placed on the definition clause and in particular the words which we compendiously state as "living as his wife".

Counsel contended that the Tribunal should have proceeded on the basis that the financial support or lack of it provided by Mr. Foxwell was the paramount or crucial factor in arriving at its conclusion, and that all other factors, and in particular those expressly taken into account by the Tribunal were irrelevant. This approach, he said, accorded with the scheme and purpose of the Act which was the provision of financial assistance to persons in need. Thus need was the crucial criterion. The Act, he said, was not concerned with "morality or moral exercises" and did not require examination for its own sake of relationships between people. It was only concerned with meeting their financial needs. Thus the only significant criterion in determining whether the appellant was living with Mr. Foxwell as his wife was the extent of the financial dependence of her and her children upon him.

Re Proc and Minister of Community and Social Services 53 D.L.R. (3d) 512, a decision of the Divisional Court of Ontario, was the authority upon which counsel for the appellant primarily relied to support his contention that need was the crucial criterion. In our opinion however this decision is clearly distinguishable in that the stated purpose of the legislation there under consideration was to provide allowances and benefits for persons in need. The following extracts from the reasons at page 513 of Henry J. who delivered the judgment of the Court makes this very apparent:

"We now consider the applicable provisions of the Family Benefits Act and Regulations. The Act presupposes that the Legislature will appropriate moneys required to provide benefits (s.18): it lays down the conditions under which the moneys so appropriated are to be paid. Section 7(1) (as am. by 1971 (Ont.), Vol.2, c.50, s.38(4)) provides in part

'7(1) An allowance shall and other benefits may be provided in accordance with the regulations to any person in need who is resident in Ontario and,'

Here follow a number of conditions. The Lieutenant-Governor in Council may make Regulations under s.15 of the Act:

'(a) defining person in need, blind person, disabled person and permanently unemployed person;

(p) prescribing classes of persons, in addition to those mentioned in this Act, to whom benefits may be provided;'

A person in need is defined by reference to s.1(3)(d) (rep. & sub. O. Reg. 187/73, s.1) and s.12(1) (rep. & sub. O. Reg. 715/73, s.9) of the Regulations, which provide:

'1(3) For the purposes of the Act and this Regulation,

(d) 'person in need' means a person,

(i) whose budgetary requirements determined under section 11 exceed his income determined under section 12, and

(ii) who is not otherwise made ineligible for a benefit under the Act or this Regulation'."

This authority does not assist us in construing our Act which is in very different terms and which adopts a contrasting approach in determining persons entitled to benefits.

Counsel for the respondent argued that the Tribunal correctly construed and applied the definition of supporting mother and properly took into account factors other than the financial relationship between the two parties in reaching its conclusion. Thus there was no error of law disclosed in the reasoning of the Tribunal and it was nothing to the point that we might not have made the same decision. The approach of the appellant he said was wrong because not only did it not accord with the express words of the definition but it was in fact contrary to the scheme and purpose of the Act. Such scheme and purpose was not to provide financial support generally for persons in need, but to define certain categories of persons who were likely to be in need, and then to ascertain whether need actually existed and if so provide for it appropriately. Thus the need of the appellant in consequence of lack of financial support was not the sole or paramount consideration in determining whether she came within the relevant category but only one, albeit important of a number of relevant factors which the Tribunal was entitled to take into account.

Counsel both agreed that if we accepted the construction propounded by the appellant we should remit the matter to the Tribunal to reconsider the evidence in the light of what we found to be the correct interpretation of the definition. If we accepted the construction contended for by the respondent, we should dismiss the appeal without further considering the reasoning of the Tribunal. In the circumstances of the matter and the fact that our jurisdiction is limited to determining whether or not the Tribunal erred in law in respect of the question of law raised on the appeal this seems the appropriate procedure.

It is our opinion that the construction contended for by the respondent and as applied by the Tribunal is correct. It is appropriate to consider it first in the context of the scheme and purpose of the Act and then in the light of the words expressly used by the legislature both in the definition clause in question and elsewhere in the Act.

We cannot agree with the submission of counsel for the appellant that his approach, attaching as it does crucial significance to the need or financial support of the applicant, coincides with the scheme and purpose of the Act. In our view it coincides with neither the scheme nor the purpose. The long title of an Act is usually a safe guide to the purpose of the enactment, particularly if it is not expressly referred to elsewhere. In the present case, it is significant that it makes no reference to the provision generally of support for persons in need. The long title of the Act is that it is "An Act to amend and consolidate the law relating to the payment of Age Pensions, Invalid Pensions, Widows' Pensions, Maternity Allowances, Child Endowment, Unemployment Benefits and Sickness Benefits and for other purposes". Although obviously the Act is clearly designed to alleviate need, the legislature has not chosen to achieve this object by making pension or benefits generally available to persons who can demonstrate that for any reason they are in need. On the contrary, the Act contemplates pensions or benefits being available to persons in particular categories, namely those who are aged, or invalids or widows etc.

Likewise the long title of each of the earlier Acts consolidated in 1947 by the Social Services Consolidation Act of that year refers to specific categories or situations and not to need generally. The first piece of legislation was the Invalid and Old-Age Pensions Act 1908 which was specifically "An Act to provide for the payment of Invalid and Old Age Pensions and other purposes". Act No. 8 of 1912 was "An Act to provide for the payment of Maternity Allowances". The first Act providing for child endowment was No. 8 of 1941, and its long title was "An Act to provide for the payment of Endowments in respect of certain children, at the rate of five shillings per week for each child". In 1942 Widow's Pensions were provided by an Act the long title of which was "An Act to provide for the payment of Widow's Pensions and for other purposes". The legislature enacted in 1942 an Act the long title of which was "An Act to provide for the payment of Unemployment, Sickness and Special Benefits". Thus the legislature has in mind specified categories of persons who might require assistance rather than those members of the community who for any reason might be in need.

The approach of the appellant is also not supported by the scheme of the present Act, which in no instance regards need as the paramount or crucial factor for determining eligibility. Rather it prescribes the categories of persons some of whom may be entitled to receive a benefit in the nature of pension or allowance and the necessary qualifications for each category. Reference need only be made to Divisions 2 and 3 of Part III (which Part deals with Age and Invalid Pensions) which Divisions prescribe the qualifications for Aged Pensions and Invalid Pensions respectively. Section 31 sets out conditions of eligibility for a Wife's Pension and Division 2 of Part IV those for a Widow's Pension. In each instance the legislature, having provided the qualification or conditions of eligibility for the particular Pension, proceeds to deal quite separately with the rate or amount (if any) of pension payable with regard to the particular circumstances of the qualified person. It is here that the need of the individual is of crucial significance in determining whether any and if so how much support is considered necessary. Need by itself is neither a qualifying nor a disqualifying factor when eligibility is in question.

We therefore do not accept the contention of the appellant that the purpose and the scheme of the legislation supports his approach on the question of eligibility. In this matter the eligibility of the appellant is to be determined by reference to the definition of "supporting mother" in Part IV AAA of the Act and in our opinion neither the scheme nor the stated purpose of the Act requires the need of the appellant for a pension to be given critical importance in determining whether she falls within that definition.

The provisions which lay down the qualifications or eligibility for supporting parents' benefits appear in s.83 AAA(1) where "supporting parent", "supporting father" and "supporting mother" are defined explicitly and with some care. It is significant that no direct mention is anywhere made to the extent, if any, and the nature of the financial support which the supporting parent may be receiving. Rather reference is made to a series of circumstances, some positive and some negative, compliance with which circumstances can be said to be conditions precedent to eligibility. A woman is required to establish,

(a) that she has the custody, care and control of a child over the age of 6 months and under the age of 16 years, and

(b) that the child is either her child, or

(c) if not her child, that the child is at the relevant date either her adopted child or is in her custody care and control and that she is either,

(i) a married woman living apart from her husband, or

(ii) a woman who has ceased to live with a man as his wife (in the sense in which we are using those words)

(d) if she is married that she is living apart from her husband and has been so living for at least six months, and

(e) whether or not she is married, that she is not, and has not for 6 months been, "living as his wife" with a man.

These are the conditions precedent for eligibility, but, notwithstanding compliance with the conditions, the class of supporting mothers is expressly stated as excluding those qualified to receive pensions under Part III of the Act and the other provisions set out at the end of the definition clause. It is of some significance on this question of construction that the excluded persons are those "qualified" to receive rather than those actually in receipt of the specified pensions or allowances. This tends to confirm the dichotomy between eligibility to receive and entitlement to a benefit, as do other provisions of Part IV AAA.

Even though there may be uncertainty as to how compliance with certain of these conditions in the definition is established, there can be no doubt that there is a complete lack of any express or direct reference in the definition to the need of the supporting mother or the amount of financial support she receives either from her husband or the person with whom she may be living. Thus in the present matter in determining whether the appellant is living with Mr. Foxwell as his wife "on a bona fide domestic basis although not legally married to him" there is nothing in the definition of "supporting mother" to indicate that the amount of financial support he provides is of crucial significance. True it is, as the Tribunal found, if a woman lives with a man as his wife, the traditional view is that he has an obligation to support her, which support is very frequently an incident of the state of "living together on a bona fide domestic basis". However it is far from being the only incident, and it would be impossible these days to see it as a sine qua non of such a relationship or such a domestic circumstance. We agree with the Tribunal that in order to determine whether the appellant was living with Mr. Foxwell as his wife "all facets of the interpersonal relationship" of the two persons need to be taken into account. We also agree that the question of the financial support which Mr. Foxwell provides is an important although not necessarily crucial consideration, but is only one of a number of relevant matters which the Tribunal should take into account in characterising, as required by the definition, the nature of the relationship between the appellant and Mr. Foxwell.

A consideration of other sections of the Act confirms this as the correct interpretation and counsel for the respondent referred to many such provisions. We need only refer to those which we believe are clearly significant, namely s.83 AAH which imposes an obligation to advise the Department if a qualifying circumstance ceases to apply, s.74 which differentiates, in the context of an obligation to notify, between financial support and qualifying circumstances, s.59 in the definition of dependant female which refers specifically to two different qualifications, namely financial support and living with a man as his wife.

In the result we see nothing in the purpose or scheme of the legislation or in those provisions of the Act which provide benefits for supporting parents to justify the emphasis placed by the appellant on financial support. There is no support to be found in the legislation for the contention that it is the only or the paramount or the crucial consideration in determining whether a woman is living with a man as his wife on a bona fide domestic basis, although not legally married to him. It is without doubt an important factor, the significance and weight of which will doubtless vary from case to case. It is not correct to say that this view imposes a requirement to pass moral judgment or to examine the moralities of the relationship between the parties. The legislature has established by definition certain categories of people who by virtue of falling within such categories may well be in need of supplementary financial support. The first question for determination of entitlement to such support is whether the applicant complies with the conditions precedent or the qualifications for acceptance as a member of a particular category. If he or she does, then the question of his or her need is thereafter to be determined.

As previously mentioned, the appellant identified the alleged error of law on the part of the Tribunal as an incorrect interpretation of the definition of "supporting mother" in that it required consideration to be given to the matter of financial support as merely one of a series of factors, whereas it should correctly have been regarded as the paramount or crucial factor. In our opinion the Tribunal did not err in law in its interpretation of the definition of "supporting mother" and thus the appeal must be dismissed with costs.